Spurred by intense public scrutiny and political pressure, federal authorities are moving faster in their investigation of possible criminal civil rights crimes in the May 25 death of George Floyd in Minneapolis police custody than what has been customary in recent decades.
Less than three months after the Justice Department opened its own investigation into the four officers involved in Floyd's killing, a charging decision is likely to be handed up soon by a federal grand jury in Minnesota, according to sources with knowledge of the case.
Should charges result, the timing would be highly unusual in that such cases — which are exceedingly rare — are not typically filed until a state case concludes.
Current and former law enforcement officials say the pace of federal civil rights investigations accelerated after the fatal police shooting of Michael Brown in Ferguson, Mo., which sparked nationwide protests in 2014.
The FBI and U.S. Attorney's Office in Minnesota began investigating Floyd's killing in police custody almost as soon as state criminal investigators did. The four former officers are being investigated under a federal criminal statute reserved for those who deprive others of their civil rights while acting in a law enforcement capacity. Dubbed "deprivation of rights under color of law" cases, the charges carry a maximum sentence of life in prison in cases that result in a death.
At the state level, Derek Chauvin is already facing charges of second- and third-degree murder and manslaughter. He was arrested after bystander videos showed him kneeling on Floyd's neck for nearly nine minutes. Former officers J. Alexander Kueng, Thomas Lane and Tou Thao are each charged as accomplices. Minnesota Attorney General Keith Ellison's office is leading the state's prosecution of the four former officers, scheduled to stand trial in March.
Chauvin remains in custody at the state prison in Oak Park Heights while the other three former officers are free on bond.
The grand jury investigating civil rights violations in Floyd's case could finish its work by the end of August, according to sources familiar with the federal investigation. They spoke anonymously because they were not authorized to talk openly about the case.
Meantime, defense attorneys have moved to dismiss the state charges against the officers. If the state's case does proceed to trial, it is expected to proceed before any possible federal trial.
The federal civil rights statute for abuse of authority is sometimes used in cases of excessive use of force by police. Such charges can also be brought against prison guards or when medical officials working for law enforcement refuse to administer aid.
The statute has traditionally been used as a backstop in cases where state prosecutions result in acquittal — such as in the 1991 beating of Rodney King in Los Angeles and the 2015 police shooting death of Walter Scott in South Carolina.
According to Syracuse University's Transactional Records Access Clearinghouse, federal prosecutors brought just 49 "color of law" cases last year out of a total of more than 184,000 prosecutions nationwide. The Syracuse researchers found that such cases have been charged just 41 times a year on average in the past 20 years.
The FBI and U.S. Attorney's Office in Minnesota declined to comment on the Floyd investigation. In a recent interview about color of law cases in general, FBI Supervisory Special Agent Mike Melcher, who oversees the unit that investigates civil rights cases, said such cases have a higher bar to clear because investigators must prove that those charged knew what they were doing was wrong yet did it anyway.
"The differences in what might be chargeable depend on a second-by-second analysis of those involved," Melcher said. "Our job is not to accept the narrative defined by a particular cut of video. We are neutral collectors of facts."
The process was highlighted last year during a meeting of a task force on deadly police encounters led by Public Safety Commissioner John Harrington and Ellison, months before the attorney general would be tapped to lead the state's prosecution of the officers charged in Floyd's killing.
First Assistant U.S. Attorney Anders Folk, in prepared remarks delivered during a panel discussion, explained that prosecutors could not win a conviction solely by showing that an officer made a mistake, "acted negligently, acted by accident or used bad judgment."
"Further, the law requires that the law enforcement officer's use of force be analyzed by a fact finder not with the benefit of hindsight, but rather from the perspective of a reasonable law enforcement officer on the scene," Folk said. He noted that investigators may consider the fact that officers "are often forced to make split-second judgments in circumstances that are tense and often involve life and death. … Indeed, it is a high standard of proof."
Even so, calls for the feds to step in after police killings of civilians have heightened since Brown's 2014 death in Ferguson, seen as a turning point in the traditional order of state-federal investigations and prosecutions.
"From my experience, since Ferguson, the call for federal investigations has increased as perceived trust in local authorities on a national level has decreased," said former U.S. Attorney Andrew Luger, whose office investigated the 2015 police shooting death of Jamar Clark in Minneapolis. "Whether that's warranted or not is a different story. And so you sort of hear people, as we did in Jamar Clark, you heard this outcry for a federal investigation, and almost immediately."
In the Clark case, the Justice Department, like the Hennepin County Attorney's Office, declined to bring charges, citing conflicting witness statements and evidence pointing to Clark not being handcuffed at the time of the shooting.
Richard Thornton, who was the special agent in charge of the FBI's Minneapolis office at the time, said federal investigations probe deeper than state cases involving murder or assault charges. Thornton said agents are looking at how officers are trained, whether they were involved in similar incidents or used similar techniques before. Oftentimes these cases entail the review of compelling and emotional video evidence, like in Floyd's death.
"The video evidence is highly compelling; it's a huge part of the case," Thornton said. "But from a proving-willfulness standard it is certainly not the only thing that is important. You're trying to, in effect, get into the officer's mind. You're really dissecting them as a person and professionally throughout their career to look at all of those things that caused them to make the decision that they made."
In a video of Thao's voluntary interview with the Minnesota Bureau of Criminal Apprehension (BCA) eight days after Floyd died, an FBI agent can be seen in the room. Robert Paule, Thao's attorney, told the agent that he had previously told Assistant U.S. Attorney Jeffrey Paulsen that he would not consent to questioning from the FBI during the BCA interview.
Paulsen, a veteran federal prosecutor, helped Ramsey County prosecutors try the murder case against former St. Anthony police officer Jeronimo Yanez, whom a jury acquitted in 2017 on murder charges. Yanez shot and killed Philando Castile during a traffic stop in Falcon Heights a year earlier. Paulsen has also helped prosecute and investigate cold-case killings, including the 1970 ambush killing of St. Paul police officer James Sackett, and he has handled a variety of major gang prosecutions.
Like the Clark probe, the federal investigation of Floyd's death is also relying on resources that include a separate autopsy performed by the Armed Forces Medical Examiner at the Department of Defense. According to court filings this month by state prosecutors in Hennepin County, the federal autopsy concluded that Floyd's death was caused by police actions and that the restraint used "had elements of positional and mechanical asphyxiation."
While federal civil rights prosecutions against law enforcement have been relatively rare, convictions in Minnesota on such charges are rarer still. Two of the three cases filed in the past decade resulted in acquittals.
In 2016, a federal jury acquitted Minneapolis police officer Michael Griffin of most of the charges against him, including violating the civil rights of four men in a pair of brawls in 2010 and 2011, respectively, outside nightclubs in Minneapolis. Jason Anderson, a member of the shuttered Metro Gang Strike Force, was also acquitted in 2010 of violating a Black teenager's civil rights by allegedly kicking him in the head.
However, St. Paul police officer Brett Palkowitsch is awaiting sentencing in October after being found guilty last year of deprivation of rights in connection with a 2016 incident in which he repeatedly kicked an innocent bystander in the chest, causing serious injuries, while a police K-9 mauled the man's leg. Frank Baker, an unarmed Black man, was left with seven broken ribs and collapsed lungs.
Robert Richman, a St. Louis Park defense attorney who represented Griffin in his trial, said the amount of video evidence — between bystander cellphone videos and body-camera footage — might also make the Floyd case different.
"Watching that George Floyd video, which is more than eight minutes long, as that guy pleads for his life, it's very difficult not to have a changed perspective about the police and at least be willing to accept the possibility that there can be bad eggs in the police force," Richman said.
The timing of an indictment in the Floyd case could also mark a new paradigm shift.
"They would be forfeiting, to some degree, the advantage of patience," said Thomas Heffelfinger, a Minneapolis lawyer who twice previously served as U.S. attorney in Minnesota. "It is not like there is a statute of limitations here, and it's not like they can't follow up. Even if Chauvin is convicted at the state level, nothing says they can't come along at the federal level."
Color of law cases — much like terrorism or tax-related prosecutions — require approval from the Justice Department. Heffelfinger allowed that there may be pressure from Attorney General William Barr, who described the Floyd investigation as a top national priority at the outset. He said federal authorities may also have enough evidence to warrant action now rather than to wait to prosecute.