Criminal liability: Are police obligated to intervene or not?

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U.S. Attorney General Merrick Garland has named a nine-person team representing the U.S. Department of Justice (DOJ) to investigate the school shooting tragedy in Uvalde, Texas. There is no question that a catastrophe of this magnitude requires an investigation. What is highly questionable is why Garland immediately limited the scope of the investigation to exclude whether any crimes took place.

Instead, it will be a civil investigation to determine what went wrong from a police training perspective and to prevent repetitions.

With the information already publicly available, there is credible evidence that police officers involved in the incident, with full knowledge that numerous children and teachers had been shot by a heavily armed intruder, did nothing. They did not break down the door, did not engage the shooter, and made no attempts to render aid to the 19 children and two teachers who died, nor to any of the survivors, for more than one excruciating hour.

In fact, recently released surveillance videos support the contention that the police decided not to enter the classroom and engage the shooter even though they were fully armed, had shields and had access to materials to break the door open.

Additionally, by sealing off the scene and controlling who could or could not go in, they prevented other first responders and members of the public, including victims' family members, from trying to help the children and staff inside the school.

Based on both their actions and inactions, these officers appeared deliberately indifferent to the serious medical needs of those they knew were being massacred on the other side of that door.

How can anyone, especially the attorney general and the DOJ, have already concluded that there was no violation of federal criminal law?

Consider the recent federal convictions of three former Minneapolis police officers J. Alexander Kueng, Thomas Lane and Tou Thao, for the crimes of failing to intervene and provide medical aid to George Floyd in May 2020. In that case, the DOJ prevailed on the legal theory that police officers, in a situation where they controlled the movements and actions of people in and around an incident scene, had a duty under federal law to assist a person in obvious medical need.

Look at the former officers' situations.

Thao never touched Floyd, but he was convicted for being deliberately indifferent to Floyd's medical needs by keeping onlookers from helping him.

Lane told Derek Chauvin, convicted of murdering Floyd, that they should turn Floyd over because of problems with his breathing, yet he too was convicted.

Kueng was convicted even though he told Chauvin that Floyd did not have a pulse.

How are the failures of those officers any different than what the Uvalde officers failed, en masse, to do?

Recently released Uvalde police recordings confirm that at least one officer at the scene said to his fellow officers, "if there's kids in there, we need to get in there," yet the police refused to storm the classroom for more than an hour. Is not that evidence of Uvalde police being deliberately indifferent to the children being slaughtered inside the classroom?

If the DOJ does not follow its own precedent from the Floyd case, then what was that trial for? Was it just to convict the former officers, or was the DOJ also sincerely trying to reform policing in our country? What has changed?

Of course, it is too soon to conclude whether any Uvalde officers are in fact guilty of any crimes. The problem is that Garland has decided he is not even willing to ask the question. If he were to conduct a full criminal investigation, he would have at his disposal the most powerful investigative tool in a prosecutor's toolbox — the grand jury.

He could subpoena every witness and police officer, including the Uvalde chief of police, to testify and could compel the production of physical evidence like 911 recordings and video from body-worn cameras. He could methodically comb through the evidence, see where it leads, then decide what remedies and consequences are appropriate.

The devastated family members, the Uvalde community and all Americans deserve to have a thorough investigation, and should demand one.

Joseph Tamburino is a Minneapolis attorney.