Just before the first major change in decades to Minnesota's use-of-deadly-force law took effect this March, hundreds of police officials gathered online to discuss its implementation.
The department chiefs and sheriffs vented in the February meeting that officers would be put in greater danger, be second-guessed more frequently and lack sufficient training on the new, stringent standard.
Use-of-force policy expert William Everett, a former police officer who helped lead the session, warned there are plenty of gray areas.
“I wish I had a more definitive analysis to give you on all this, but if I did that at this point I’d basically be making stuff up,” Everett said. “We have sort of a homebrew statute, a homebrew formula. We’re in the same position as judges and prosecutors are going to be in terms of not knowing what it means.”
Department of Public Safety Assistant Commissioner Booker Hodges commiserated with the group.
"I'm not going to lie,” Hodges said, “this law is about as clear as mud.”
That was how Hodges opened his presentation, according to a video MPR News obtained of the meeting that had been shared with law enforcement agencies around Minnesota and some neighboring states.
He went over agency guidance on the law passed with bipartisan backing — 102-29 in the House and 60-7 in the Senate — within two months of the police killing of George Floyd. It was a centerpiece of a sweeping plan that also altered training standards and restricted chokehold tactics.
At the time, DFL House Majority Leader Ryan Winkler hailed the plan as a major step forward.
“It’s too late to save George and those who died before him,” said Winkler, DFL-Golden Valley. “But it may save lives in the future.”
Now as lawmakers discuss additional proposals to reduce lethal law enforcement encounters and make policing more accountable, there’s also a push to redo last year’s agreement. That’s amid concern that the deadly force standard could come under constitutional challenge — possibly even affecting the prosecution of former Brooklyn Center officer Kim Potter in the fatal shooting of Daunte Wright during an April traffic stop.
“It’s really a time bomb,” said Stephen Foertsch, an attorney with the Minnesota Police and Peace Officers Association Legal Defense Fund. “It’s a matter of time before something happens where the statute is challenged and even more prudent than waiting would be to fix it.”
Foertsch manages legal defense cases of Minnesota peace officers whose conduct on duty lands them under investigation or charged with a crime. He was involved in the 2020 rewrite.
“Unfortunately it was kind of a rushed process and everybody involved missed a very important flaw in the statute,” he said.
The apparent flaw has to do with narrower conditions for when deadly force is deemed justified. It must be only when necessary to prevent great harm or death to an officer or bystander and can’t be unreasonably delayed from the actual threat. And based on all of the circumstances known at the time, the action “can be articulated with specificity by the peace officer” that force was proper.
For instance, Everett said it could be read to mean the facts must support a reasonable belief a suspect had a gun, not just something that resembled a gun.
It’s not entirely clear whether the articulation clause is viewed through the lens of “an objectively reasonable officer” standard or applies directly to the one employing force.
Those who want to make changes say only the latter makes sense, but it’s also where the problem would lie.
“To allow an officer to articulate with specificity the reason why he used deadly force creates confusion in law, which could run afoul of a law enforcement officer’s own constitutional right not to incriminate one’s self,” said Sen. Warren Limmer, R-Maple Grove. “That’s the concern. “
Limmer, the chair of the Senate Judiciary and Public Safety Committee, steered the new law through and now supports revisions to avoid conflict with the Fifth Amendment right to remain silent.
“Quite honestly we relied on experts in the field to give us definition,” he said. “We thought we got it right. But now in hindsight we look back on it and think, ‘You know the attorney general may be right in raising constitutional issues.’”
In late January, Attorney General Keith Ellison’s office wrote a memo on the law. The seven-page document broke down each part and detailed how it might be applied.
A footnote attracted the most attention. “The first threat criteria may be unconstitutional,” it began, referring to the clause about articulating with specificity.
The attorney general’s office declined to elaborate on what it put in writing and deferred to the Department of Public Safety, which also turned down an interview request.
In the February forum with law enforcement leaders, Bureau of Criminal Apprehension Superintendent Drew Evans said a unit within his agency that investigates deadly incidents involving police will have to delve deeper into why force was used.
“Often times, the officer or deputy involved is the only one who is going to be able to articulate some of the facts and circumstances they were encountering at that time to provide context to the evidence at the scene,” Evans said, noting that some officers have been reluctant to offer more than a written statement.
Hodges said in that same meeting that he hoped the Legislature “will see some ambiguity in the law that they had written and maybe be amenable to some changes.”
House Public Safety Chair Carlos Mariani, DFL-St. Paul, said too much has been made of the Ellison memo, which he regards as speculative.
“When it was shared pretty assertively on the part of some voices of law enforcement, it was shared with the impression this was a pretty strong opinion that brings the whole law in jeopardy,” Mariani said.
He and other lawmakers received a followup letter sent by Ellison’s office, in which the attorney general also said his prior memo was being improperly characterized.
Mariani said he’s hesitant to reopen the deadly force law, especially with other proposals to change policing still in flux.
“At the very least the optics are not good here,” he said. “Oh by the way public, we’re going to essentially take a step backward from this carefully hammered out use of deadly force agreement. I’m pretty loathe to do that.”
Mariani said if people are concerned, they should sue.
The law could be tested during the Potter prosecution because her case is the first charged since the new standard took hold. If she’s convicted, the wording could be raised on appeal.
Limmer said a retroactive fix is possible. A bill introduced late in the regular session is a working template, he said. It replaces the clauses about specific demonstration of a threat with a “perceived risk” criteria.
A compromise public safety budget bill is due out as soon as this week. It will determine if lawmakers stand pat or update the deadly force law for the second time in two years.
Limmer said it’s not worth taking a gamble that a conviction could get tossed out.
“We run the risk of losing the trust of the public if police officers who are using their authority excessively if that law was relied on to create a mistrial,” he said, “that would damage public trust immensely.”
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