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Legislators’ rush to revise deadly force law backfires
DFL lawmakers seized on George Floyd’s death in police custody and the ensuing anarchy by rushing sweeping police reforms through the 2020 legislative session.
“It creates a modern accountability framework of laws that will help to end the type of police brutality that killed George Floyd in May of this year,” said House Public Safety and Criminal Justice Reform Committee Chair Rep. Carlos Mariani (DFL-St. Paul).
But in their haste to fast-track their signature reform, lawmakers behind the last-minute overhaul of the use of deadly force standards for cops were as trigger-happy as they often accuse police of being. Revamping the use of deadly force language governing more than 10,500 Minnesota law enforcement officers was a last-minute provision crammed into a drive-by omnibus bill passed with bipartisan support after midnight in the waning hours of a second special legislative session.
“It would have been nice to have a hearing to actually learn more about this, to give the public the idea to absorb it, to see what is in it and to have a discussion on it,” said Sen. Kari Dziedzic (DFL-Minneapolis) at the time.
The legislators’ “fire, ready, aim” approach resulted in potentially fatal flaws in the deadly force provision that led to a constitutional challenge, confusion on when deadly force should be deployed, and concern that its ambiguous language puts officers at greater risk, both physically and legally.
“I’m not going to lie. This law is about as clear as mud,” Minnesota Department of Public Safety Assistant Commissioner Booker Hodges told hundreds of police personnel in a recorded online meeting obtained by MPR before the law took effect on March 1.
“We have sort of a homebrew statute, a homebrew formula,” said William Everett, an expert on use of force, in the same meeting. “We’re in the same position as judges and prosecutors are going to be in terms of not knowing what it means.”
Critics say the new standard requires officers to forgo their Fifth Amendment right not to testify against themselves in a criminal proceeding by compelling them to explain why their use of deadly force rose to the legal threat level stipulated in the law.
“An easy way to summarize these requirements is that no officer may use deadly force unless the threat faced is reasonably articulable, reasonably certain to occur, and reasonably immediate,” Minnesota Attorney General Keith Ellison, a strong supporter of the new standard, explained in a memo.
In the same memo, however, Ellison admitted the law may be unconstitutional. “The first threat criteria may be unconstitutional,” the memo states. “It is unclear how ‘the law enforcement officer’ suspected of a crime can be compelled to articulate anything without violating her right against self-incrimination.”
Not only did legislators get it wrong, they failed to fix it in the 2021 legislative session. At the same time, the Walz administration compounded the problem by bungling the implementation of the new standard. Minnesota Department of Public Safety Commissioner John Harrington failed to release guidelines for the far-reaching changes until days before the law’s implementation in the midst of the pandemic. Law enforcement agencies never got a chance to brief and train officers on the new law before they were legally held to the new standard.
With so much uncertainty surrounding when officers could legally use their weapons, some departments reportedly stopped sending police on mental health crisis calls involving suicidal individuals that could result in a so-called “suicide by cop” scenario.
“We have had now police and sheriffs refuse to respond to suicide calls,” National Alliance on Mental Illness Minnesota executive director Sue Abderholden told Forum News. “And it’s hugely problematic.”
The unintended consequences of the controversial new law also extended to law enforcement in bordering states. Several North Dakota agencies no longer participate in cross-border mutual aid agreements with Minnesota law enforcement in order to avoid exposing officers to liability in Minnesota cases potentially involving deadly force, including members of the SWAT team, bomb squad and Metro Street Crimes Unit.
“Because of this change, North Dakota Law Enforcement in Cass County has suspended all law enforcement assistance into Minnesota,” Cass County Sheriff Jess Jahner said in a letter to Minnesota Governor Tim Walz. “This has caused a huge public safety concern for both counties and has put the citizens of Clay County [Minnesota] in a situation where they are unable to draw resources from Cass County to help them in critical situations.”
The legislature’s rush to judgement guaranteed the controversial standards would wind up in the courts, resulting in a legal challenge filed in July by the Minnesota Police and Peace Officers Association, Minnesota Sheriffs’ Association, Minnesota Chiefs of Police Association and Law Enforcement Labor Services.
“This law is not only unconstitutional, but impractical in terms of training resources and a rushed timeline,” said Law Enforcement Labor Services Executive Director Jim Mortenson. “When it comes to laws regarding the use of deadly force, it is imperative that we get it right.”
In September, Ramsey County Court Chief Judge Leonardo Castro agreed, temporarily suspending implementation of the new law. “Plaintiffs need not wait for one of its members to be charged with a homicide crime before the question of the constitutionality of the provision Plaintiffs challenged is answered. The uncertainty and insecurity would be unconscionable.”
As a result, Minnesota peace officers will continue serving under the previous standard for use of force, pending the outcome of the constitutional challenge to the new provision.
“Reason and common sense dictate that we do not allow chiefs of police and sheriffs to prepare and implement training programs that may be based on an unconstitutional premise,” Judge Castro ruled. “If the revised statute provision is unconstitutional, it is best we know that now before it is too late.”
But the verdict is already in on the secretive, sloppy, insider process that led to the courts and has become standard operating procedure for the end of Minnesota legislative sessions.