When Tou Thao walked out of a federal prison today, it no doubt marked the end of a nightmare that fell over him five years ago. Thao was one of four Minneapolis police officers convicted for their involvement in the death of George Floyd on May 25th, 2000. He was sentenced in federal court to 42 months in prison for violating Floyd’s civil rights and in state court to 57 months in prison for aiding and abetting 2nd degree manslaughter.
News of his release brought back the feelings of frustration I have felt for Thao and his fellow officers over the years. I spelled out some of that frustration in a 2022 article lamenting the leadership vacuum that seemed to exist when the decisions to prosecute Thao and the other officers were being made. In it I stated:
In the frenetic atmosphere that existed in the weeks and months following Floyd’s death, there were virtually no public safety, justice system, or political leaders who dared stepping out of line to slow the snowball that was beginning to roll.
Leadership sat paralyzed at the very time a calm, measured, and resolute response was needed the most. The vacuum created by this lack of leadership allowed for the over prosecution of involved officers. It also emboldened activists to demonize policing and launch the defund/reform law enforcement campaign that has been devastating to our collective public safety.
A look back at Tou Thao’s case
Officer Thao was partnered with Officer Derek Chauvin the evening of May 25th, 2020. As I recall, the evidence showed Thao and Chauvin were about to take their lunch break at the Minneapolis Police 3rd Precinct when they overheard rookie officers Kueng and Lane airing that they were making an arrest at 38th and Chicago. Thao and Chauvin delayed their lunch and headed that way to assist, given the corner was known for trouble. It was a fateful decision.
When they arrived on scene, Kueng and Lane were attempting to get Floyd, who was handcuffed, into the rear of a squad car. Floyd was resisting and pushing back against officers, while a citizen who knew Floyd was on the sidewalk urging Floyd to cooperate with the officers and get in the squad.
Chauvin assisted Kueng and Lane getting Floyd to lie on the ground outside the squad car while they called for an ambulance, due to Floyd’s odd behavior including froth on his lips. Chauvin maintained a control position with his knee on Floyd’s shoulder and neck for the next 9 minutes, while Thao spent most of his time and attention with a growing number of people who had gathering on the sidewalk yelling at Chauvin.
I wont relitigate the details of Floyd’s death while on the ground outside the squad – they are a matter of record in thousands of pages of court documents. Perhaps the most complete and concise compilation of the facts can be found in the verdict and findings of fact in the Tou Thao case found here.
An inordinate price paid
What is worth noting is that Thao paid an inordinate price for his involvement in the case. You can watch his actions from his body camera here. Take the time to watch it – then objectively answer this question: did his actions really justify being sentenced to 57 months in state prison concurrent with 42 months in federal prison?
To help with the answer, it’s important to compare Thao’s charges, bail, and eventual sentences to other cases.
Thao was originally charged with two counts of Aiding and Abetting Second Degree Murder, and Aiding and Abetting Second Degree Manslaughter. He was an on-duty police officer at the time of the alleged offenses. He did not represent a threat to the public or a threat to flee, yet he received a $1 million dollar bail. I recently wrote about a Minneapolis gang member who has now been charged with his involvement in three murders before his 20th birthday. He is currently held in the Hennepin County jail on six counts of murder and two counts of using a dangerous weapon in a drive by shooting. His bail? You guessed it – $1 million.
Thao was charged in both federal and state court (as were each of the officers) – a rare application of the dual sovereignty doctrine. I can tell you that in my 33 years in Hennepin County law enforcement, including many years bringing gang, firearm, and drug cases to federal court, I’m not aware of a single case where state charges were maintained after federal charges were issued. They were routinely dismissed “in the interest of justice.” The system didn’t show that same “interest” when it came to Thao or his fellow officers.
At sentencing in his state case, Thao read a statement to the judge in which he said he could not plead guilty to something he did not do. That obviously angered the judge who said he had expected to see more remorse from Thao. As a result, despite the average “aggravated durational departure” rate in Minnesota courts being just 3%, Thao’s prison sentence was “aggravated” or increased above the presumptive sentence of 48 months. In fact, the judge sentenced Thao to 6 months more than the prosecutor, Keith Ellison’s Attorney General’s Office, had requested.
To put Thao’s 57-month state sentence in better perspective, it’s worth looking at a sentence I recently wrote about involving defendant Husayn Braveheart. During a violent crime spree as a juvenile, Braveheart had murdered a man during a carjacking, and committed two other armed carjackings, felony possession of a handgun by a minor, an assault, two occupied home burglaries, theft of a motor vehicle, and fleeing police in a motor vehicle. For those horrific and violent crimes, Braveheart plead guilty to a single count of attempted first degree assault. He received a 54-month prison sentence, which amounted to “time already served,” so he never actually went to prison. Braveheart served just 8 additional months in the county workhouse before being released to the street.
Justice is supposed to be blind – administering equal justice for equal crimes. Lady justice peered out from under her blindfold, and justice failed Tou Thao.
In a broader sense, the fallout over Floyd’s death has failed us all. Since Floyd’s death, public safety in Minneapolis has been destroyed. Despite all of the demands for change it seems difficult to believe anyone could really be pleased with the results of that activism.
Imran Ali, General Counsel for the Minnesota Police and Peace Officers Association issued a statement in late 2022 commenting about the fallout from the activism following Floyd’s death. It speaks to the concerns I have referenced – and offers an admonition that we all must do better at recognizing and preventing overreaction and injustice in the future.
We must also carefully reflect on the last several years. During this time, we have seen an increase in violent crime, political leaders interfering in investigations and prosecutions, and due process not being applied equally in court to our men and women in law enforcement. Our state leaders allowed activists with personal agendas to influence decisions in the courtroom and the alarming escalation through intimidation went unchecked. We need leaders with the temerity to stand up and speak up when something is wrong, and the integrity to do what is right.
Imran Ali, MPPOA General Counsel, 2022