Judge scrutinizes force law passed after Floyd's killing

The Minnesota Capitol
A change to the law on police use of deadly force passed after George Floyd was killed remained in legal limbo Wednesday as a judge weighed whether it violates constitutional protections against self-incrimination.
Andrew Krueger | MPR News file

A signature law change made after George Floyd’s killing by Minneapolis police remained in legal limbo Wednesday as a judge weighed the new deadly force standards for police.

Ramsey County District Court Judge Leonardo Castro, who in September suspended the law, heard arguments over whether to reinstate the law, modify it or throw it out. 

The law that narrowed the situations under which deadly force is considered justified went into effect in March. But this summer, a group of police associations sued. Castro granted a temporary injunction so he could more carefully study the case without putting officers at risk of being charged until the matter is resolved.

Castro’s ruling was a win for police groups, who sued on grounds the law violated constitutional rights of officers by requiring them to give details of a specific threat that led them to use force. Prior to the change, pointing to an apparent threat was enough.

Attorney Mark Schneider, who represents several law enforcement associations, said the new law effectively forces officers to the witness stand to defend themselves.

“Not only are they compelled to do so, but they would be incriminated by doing so because any statement they provide could be used as a sword, not necessarily only as a shield, but as a sword by the prosecution,” Schneider said.

In questioning Schneider, Castro noted that other areas of law seek to elicit proof without compelling on-the-stand testimony.

“As it relates to entrapment, as it relates to alibi, the rules specifically read that the defendant must inform the prosecutor of specific places where the defendant was,” Castro said. “Isn't that the same as an officer having to articulate what the specific threat they faced?”

Schneider argued that confusion over the law has paved the way for hesitation in tense incidents, which he contends puts officers and the public at greater risk.

Assistant Attorney General Anna Veit-Carter said the Legislature might have been ambiguous in the way it worded the law. But, she said, the intent of lawmakers was clear.

“The threat has to be specific. The threat has to be based on observable facts,” she said. “It can't be based on a general feeling of danger. It can’t be based on the officer having a bad feeling about a suspect. It has to be based on observable facts. The officer has to be confronting a threat that's capable of articulation based on what the officer knew.”

She said that standard can be met short of sworn testimony.

“It doesn't say ‘must be articulated’ by the law enforcement officer on the stand at trial,” she said. “It says ‘can be articulated.’”

Castro’s prior ruling didn’t leave a complete void. The prior law was restored for the time being. 

If the judge determines the new law doesn’t pass muster, then what? 

He pressed the attorneys for possible solutions.

Veit-Carter said the least disruptive fix would be to slice the words “by the law enforcement officer” out of the law. She said that would remove any expectation of compelled testimony and still leave it up to the defense to provide some evidence force was necessary.

“Courts are required to sever as little as possible while maintaining the statute,” she told Castro.

Schneider said that solution isn’t workable and would only lead to more problems.

“The court cannot shave a little here or add a little there while trying to save or sever an unconstitutional law,” he said.

Schneider said any fixes should be done by lawmakers.

Castro said he’ll issue a timely ruling in the case. But that’s not clear if it means a ruling will come in weeks or months.

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