One verdict in George Floyd killing may be on path to Supreme Court

A request for acquittal from one of the former Minneapolis police officers convicted of federal civil rights violations in George Floyd's death could be just the beginning of a path that ends at the U.S. Supreme Court.

Thomas Lane, the former Minneapolis police officer who was convicted in federal court of failing to provide medical care to Mr. Floyd while Floyd was being restrained by Derek Chauvin, recently asked Judge Paul Magnuson, the trial court judge, to set aside the jury's verdict and enter a judgment of acquittal or not guilty on the charge.

Lane's case is quite different from those of his two co-defendants, Tou Thao and J. Alexander Kueng, because he was charged only with failing to provide medical care to Floyd, whereas the others were also charged with failure to intervene in Chauvin's use of force.

In Lane's motion, he argues there was insufficient proof that he was "deliberately indifferent" to Floyd's medical needs. The argument is entirely based on the facts presented at trial, but the more interesting issue is whether the law underlying Lane's indictment and conviction is constitutional.

While this motion for acquittal is a standard move for the defense after a conviction, its potential appellate path is very significant. Lane's case could prove to be more legally consequential than the Derek Chauvin case. Why? Because the judge's decision could create a federal precedent on the legal liability for officers who fail to provide medical care to suspects.

Lane's charge is unique because never has a police officer in this type of situation been indicted under this law for failing to provide medical aid to a suspect. Police officers can be sued, disciplined and fired for all sorts of failures in their job performance, but this would be the first failure to provide medical care to a suspect resulting in criminal charges, conviction and possible prison time for a former officer.

Many federal appellate courts have recognized that officers have a legal duty to intervene to prevent a fellow officer's use of excessive force on a suspect, but there is a dearth of law as to whether officers can be held criminally liable for failing to provide medical aid to the suspect.

Lane was specifically indicted and convicted under the federal "Deprivation of Rights" law (statute 18 U.S.C. Sec. 242), which makes it a crime for any police officer to willfully deprive another person of constitutional rights. Criminal laws must be clear and definite, and this law clearly prohibits a police officer from physically using excessive or unreasonable force against a person, but it is silent on the issue of a police officer's inaction or failure to act. In fact, the words "indifference" or "failure" are not found anywhere in the law.

In Lane's case, the government obtained an indictment based on Lane's inaction — that he willfully failed to provide medical aid to Floyd. The indictment does not allege that Lane physically aided and abetted Chauvin in unreasonably restraining Floyd. Rather, it charges Lane with an act of omission — that he willfully deprived Floyd of his constitutional rights by being "deliberately indifferent" to his medical needs. The indictment, however, fails to point to any law stating that it is illegal for a police officer to be deliberately indifferent to a person's medical needs.

The issue of the underlying law was never raised by the parties before or during the trial, and judges will usually rule only on matters that are raised before them. But the issue of whether Lane's charge and conviction pass constitutional muster is of such paramount importance that the judge may consider it regardless of its not having been raised.

The request for acquittal will be the first test of this precedent-setting conviction, and either side — the defense or prosecution — could appeal the judge's ruling. Whatever the next decision is, this case is in uncharted territory. It is likely to wend its way through appellate courts, and eventually to the U.S. Supreme Court to deliver the final word on whether a police officer can be held criminally liable for failing to provide medical aid to a suspect. This is a decision every community, every police department and every sworn officer should be watching closely.

Joe Tamburino is an attorney in Minneapolis.