Leading up to Derek Chauvin's murder trial, Justice Department officials had spent months gathering evidence to indict the ex-Minneapolis police officer on federal police brutality charges, but they feared the publicity frenzy could disrupt the state's case.
So they came up with a contingency plan: If Chauvin were found not guilty on all counts or the case ended in a mistrial, they would arrest him at the courthouse, according to sources familiar with the planning discussions.
The backup plan would not be necessary. On April 20, the jury found Chauvin guilty on all three murder and manslaughter counts, sending him to the state's most secure lockdown facility to await sentencing, and avoiding the riots many feared could engulf the city once again.
Now, with Chauvin's state trial out of the way, federal prosecutors are moving forward with their case. They plan to ask a grand jury to indict Chauvin and the other three ex-officers involved in George Floyd's killing — J. Alexander Kueng, Thomas Lane and Tou Thao — on charges of civil rights violations, a source said.
If the grand jury votes to indict, the former officers will face the new civil rights charges on top of the state's cases, meaning all four could be headed toward yet another criminal trial in federal court.
The backup arrest strategy and meticulous planning over the timing of charges illustrates the complicated synchronicity of two parallel investigations into the most high-profile case of police brutality in decades. Over the better part of the last year, as special prosecutor Keith Ellison's team pursued murder and manslaughter charges, federal authorities have been mounting their own case in private before a grand jury — a group of 23 citizens who meet in secret to hear evidence and ultimately decide if there is probable cause to charge.
Proving how delicate outside publicity was, Judge Peter Cahill repeatedly expressed frustration during jury selection in Chauvin's murder trial about the announcement of a $27 million payout from the city of Minneapolis to Floyd's family. As a result, two seated jurors had to be dismissed because they said it affected their ability to be impartial.
Under the contingency arrest plan, the Minnesota U.S. Attorney's Office would have charged Chauvin by criminal complaint — a quicker alternative for a federal charge that doesn't require a grand jury — so they could arrest him immediately, and then asked a grand jury for an indictment, according to sources, who were not authorized to speak publicly.
Prosecutors want to indict Chauvin in connection to two cases: For pinning Floyd down by his neck for more than nine and a half minutes in May 2020, and for the violent arrest of a 14-year-old boy in 2017. In the latter case, Chauvin struck the teen on the head with his flashlight, then grabbed him by the throat and hit him again, according to court documents.
The other three ex-officers would be charged only in connection to Floyd's death.
The federal case will be prosecuted by Justice Department attorneys in Minnesota and Washington, D.C.
The charges would run in addition to the Justice Department's investigation into whether Minneapolis police engage in a pattern and practice of unlawful behavior. Justice officials announced this investigation the day after Chauvin's guilty verdict, another calculated move designed to avoid interfering with the state's trial.
A spokeswoman for the Minnesota U.S. Attorney's Office declined to comment on the potential charges or contingency arrest plan.
Over the past decade, federal prosecutors have brought civil rights charges against officers in the United States 41 times per year on average, according to a report from Transactional Records Access Clearinghouse at Syracuse University.
The most recent federal civil rights trial against a Minnesota officer occurred in 2019, for St. Paul officer Brett Palkowitsch. Palkowitsch kicked an unarmed 52-year-old Black man who was handcuffed and being attacked by a police K-9, leaving him with seven broken ribs and two collapsed lungs. Throughout the trial, Justice Department prosecutors from Washington D.C. painted Palkowitsch as a bully who willfully defied training and seemed to revel in the brutality. The jury found the officer guilty, by standard of using "more force than a reasonable officer would use under the circumstances."
Last summer, as anti-police brutality riots ripped through the Twin Cities, Justice Department officials vowed to pursue a robust investigation into Chauvin and three other officers implicated in Floyd's death. On May 28, in a news conference outside the FBI field office in Brooklyn Center, then-Minnesota U.S. Attorney Erica MacDonald said the federal investigation would focus on whether the officers used their authority as law enforcement agents to deprive Floyd of his constitutional rights. MacDonald stepped down earlier this year, heeding the request of the incoming presidential administration for U.S. Attorneys in most states to resign. Her permanent replacement has not been named.
Video of Chauvin's arrest of Floyd, on May 25, 2020, was the subject of the most high-profile criminal trial in recent memory. Images of the white officer kneeling on the Black man's neck in Floyd's final moments, while Floyd begged for his mother and bystanders pleaded for mercy, inspired protests and riots the world over. In Minneapolis, in the days following Floyd's death, the unrest culminated in the burning of the Third Precinct police station, where Chauvin worked.
The second arrest that has been the subject of the federal investigation is lesser known. It was captured on body-camera footage, which prosecutors for the state's case described in court documents, citing it as evidence of Chauvin's brand of violent policing when dealing with suspects refuse to bend to his will. The video has not been publicly released, but it is described in court records.
On Sept. 4, 2017, Chauvin and another officer responded to a domestic assault, in which a mother said her juvenile son and daughter assaulted her. The officers arrived to find the 14-year-old son lying on the floor in the back of the house, on his phone, and ordered him to get up because he was under arrest.
When the boy refused to comply, Chauvin grabbed him and wordlessly struck the teen in the head with his flashlight multiple times. The video shows Chauvin using a neck restraint, choking the boy unconscious, then placing him in a prone position with a knee in his back for about 17 minutes until paramedics arrived, according to court documents.
In a scene reminiscent of the Floyd rest, Chauvin held the position even after the child told him that he was in pain and couldn't breathe, and after the mother tried to intervene, prosecutors said. At one point, the boy started bleeding from his ear — from getting hit with the flashlight, he later told paramedics — and he asked to be flipped on his back. He then began crying and again asked to be flipped over, prompting Chauvin to ask if the boy would be "flopping around at all."
"No," the boy responded.
"Better not," Chauvin said. He kept his knee on the child's back. According to prosecutors, Chauvin's report from the incident suggested that the boy "then displayed active resistance to efforts to take him into custody" by "flailing his arms around." He went on to write that the boy, whom he described as "approximately 6'2" and at least 240 pounds," would "escalate his efforts to not be arrested," and because of the boy's large size, Chauvin "deliver[ed] a few strikes to [the juvenile male] to impact his shoulders and hopefully allow control to be obtained."
The fluidity of the grand jury process makes it difficult to predict timing, but a source said they believe the indictments will come down soon. The state trial for Kueng, Lane and Thao, for aiding and abetting Floyd's murder, is scheduled to begin in August.
Staff reporter Libor Jany contributed to this report.
Andy Mannix • 612-673-4036