Highest number of officers killed in line of duty since 9/11: Does new MN deadly force statute keep communities safe?

Last week, FBI Director Christopher Wray penned an op-ed piece in the Wall Street Journal titled, “The Cops Who Didn’t Come Home.” In a shocking revelation, Director Wray noted that

[T]he total number of officers feloniously killed in the line of duty in 2021 [was] 73, the highest annual number since the 9/11 attacks. That’s the equivalent of one officer murdered every five days. In a year when homicides and violent crime reached distressing levels, this 20-year high hasn’t received the attention it deserves.

As if this was not disturbing enough, Director Wray continued, “Especially troubling is that a record number of officers killed—nearly half—had no engagement with their assailant before the attack.” (Emphasis added). The facts underlying each officer killing are distinctly different, yet we can learn what went wrong to be better prepared next time. Take, for example, two FBI Agents murdered this past year.

Special Agents Daniel Alfin and Laura Schwartzenberger were both killed in a Miami suburb while executing a federal search warrant at a suspect’s apartment in a “crime against children” investigation. As seasoned agents, they had likely conducted literally hundreds of this type of law enforcement operation, with each ending peacefully for all involved parties, including FBI agents, suspects, and any innocent bystanders. This is a testament to the fact that FBI agents scrupulously study their subjects even before deciding to search a house or perform an arrest. But even careful preparation cannot eliminate risk, and before they even had the opportunity to engage their assailant, both Dan and Laura were shot to death. Their murders underscore how a seemingly typical morning can turn deadly in an instant.

State and local officers face exponentially more threatening scenarios each day than your typical FBI Special Agent. This is because, in part, the nature of their work requires police to perform a wide range of dynamic enforcement actions against emerging threats posed by individuals who have not been fully identified. In other words, police do not know who they are dealing with during a traffic stop, interviewing witnesses, or performing a welfare check. Law enforcement officers have the difficult task of performing their duties in a friendly and engaging manner while also identifying and neutralizing deadly threats in mere seconds — just ask your local cop or sheriff’s deputy.

Most people do not understand the factors influencing the decision by an officer to use deadly force. This is why courtroom trials often rely on expert witnesses who are usually current or former police officers to explain the decision-making process to a jury. The jury is then asked whether the officer’s use of deadly force was reasonable or unreasonable based on a particular set of facts. Life-altering consequences await an officer accused of improperly using deadly force depending on the jury’s decision.

To protect both police officers and the public, the state of Minnesota requires intensive scenario-based training and firearms instruction for all licensed peace officers and the use of deadly force is governed by Minnesota Statute 609.066. Reinforcing these fundamental training concepts gives officers, deputies, and special agents necessary tools when they are confronted with stressful and often quickly evolving situations which keeps everyone safe. Any change to the deadly force statute by lawmakers needs to be carefully considered with plenty of input from the Minnesota law enforcement community who have first-hand knowledge of these scenarios. Sadly, that is not what is happening.

Instead, Minnesota lawmakers joined other states around the country, most notably California, to revise the deadly force statute designed to place a limit on a police officer’s discretion. The nature and extent of the Minnesota law enforcement community’s input into the new statute is altogether unclear. One provision of the new Minnesota statute[1] reads, in part:

A peace officer shall not use deadly force against a person based on the danger the person poses to self if an objectively reasonable officer would believe, based on the totality of the circumstances known to the officer at the time and without the benefit of hindsight, that the person does not pose a threat of death or great bodily harm to the peace officer or to another under the threat criteria in paragraph (a), clause (1), items (i) to (iii) [which provides]

1) to protect the peace officer or another from death or great bodily harm, provided that the threat:

(i) can be articulated with specificity by the law enforcement officer;

(ii) is reasonably likely to occur absent action by the law enforcement officer; and

(iii) must be addressed through the use of deadly force without unreasonable delay;

Confused? You are not alone. Misinformed lawmakers may believe that someone who is threatening suicide by holding a gun pointed upwards poses no imminent danger to a police officer or bystanders. They may have intended their statutory revision to require the officer to somehow de-escalate a situation involving an armed person whose intention is not clear. That said, a person holding a gun pointed in the air can fire on a police officer before the officer can respond and eliminate the threat. Action will beat reaction almost every time.

Let’s hope the law enforcement professionals killed in the line of duty who never engaged their assailant did not hesitate to fire their service weapon because of confusing new deadly force statutes. Before any such changes are made, lawmakers need to fully understand the life-threatening situations and risks to the community that can occur, often requiring split-second decisions by law enforcement officers. Lawmakers need to receive a positive endorsement from the law enforcement community who routinely step into harm’s way on our behalf. Anything impeding an officer from eliminating a deadly threat imperils the officer’s safety and the safety of us all.

[1] Portions of the new Minnesota deadly force statute were stricken by a Ramsey County District Court for reasons not relevant here.