Charges against the former Minneapolis officer who stood guard while three former colleagues fatally restrained George Floyd should not be dismissed because he ignored Floyd's pleas that he couldn't breathe and concerns raised by bystanders, prosecutors say.
In a memorandum filed Monday, prosecutors for the Minnesota Attorney General's Office argue that Tou Thao should stand trial in the case because he witnessed his colleagues' actions, kept concerned bystanders at bay and minimized the seriousness of the situation.
" … Thao — who saw what the other officers were doing and heard Floyd's cries for help — encouraged the others to continue pinning Floyd down, pushed back a group of concerned bystanders, and prevented them from intervening," wrote Assistant Attorney General Matthew Frank and Neal Katyal, a special attorney for the state.
Thao's attorney, Robert Paule, filed a motion in July to dismiss the case against his client, arguing that Thao was focused on crowd control and didn't have a full view of the arresting officers, that he never physically laid hands on Floyd, and that he offered a hobble restraint, which wasn't used.
Thao and former officers J. Alexander Kueng and Thomas Lane are charged with aiding and abetting murder and manslaughter. Kueng knelt on Floyd's back and Lane controlled his legs.
Former officer Derek Chauvin, who knelt on Floyd's neck for nearly nine minutes, is charged with one count each of second-degree unintentional murder, third-degree murder and second-degree manslaughter in Floyd's death on May 25.
Lane and Kueng arrested Floyd after they responded to a call that he allegedly used a fake $20 bill at Cup Foods to buy cigarettes. Chauvin and Thao arrived as Lane and Kueng struggled to force Floyd into a police car. When Floyd flailed his way out of the car, the officers pinned him facedown on the pavement.
Prosecutors argued that Thao ignored bystanders as they begged him more than 30 times to check Floyd's pulse after he became unresponsive. According to their memo, Thao recommended that the officers "hogtie" Floyd with a leg hobble.
While Thao retrieved a tether to tie Floyd's legs together, he also suggested that his colleagues instead continue to restrain Floyd. "If we [use] a Hobble [sic] a Sergeant's going to have to come over," Thao said, according to the prosecutors' motion.
Thao told Floyd to "relax" when he complained that he couldn't breathe and told angry bystanders, "He's talking, so he's breathing," prosecutors said.
A copy of Thao's body-worn camera video, made public earlier this month, showed him shouting at bystanders to stay back, and at one point he pushed two men in the chest after they stepped off into the street for a better view.
In a video recording of Thao's voluntary interview with investigators, he said he trusted the other officers to deal with Floyd while he dealt with the crowd.
Prosecutors wrote that Thao ignored bystanders' pleas to check Floyd's pulse. When a bystander asked Thao if Floyd was breathing, Thao replied, "How long are we gonna have this conversation?"
"But he never checked for a pulse or asked the other officers to look for one," prosecutors argued. "Not even once. Instead, he merely repeated what he had told the crowd of concerned citizens almost three minutes earlier: 'Don't do drugs, guys.' "
Hennepin County District Judge Peter Cahill will hear arguments on the matter at a Sept. 11 hearing, along with a motion to dismiss the case against Lane and a motion by the prosecution to try all four defendants at one trial.