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Responding to police use of force: What the law says — and what are the alternatives?

Hennepin County Attorney Mike Freeman was correct in not indicting the officers who killed Thurman Blevins. The reason is simple — he could never have secured a conviction because the law is on the side of the police. This point has largely been missed in the debates regarding policy use of force. But having said that, also largely missing from the debate is a discussion on police alternatives to violence, how to de-escalate conflict, and where race fits into how law enforcement officials approach tense situations where personal or public-safety issues are present. If Freeman and others want to take a leadership position on this issue, they should explore these questions.

Let’s start with the law. Police are legally empowered to use force, including deadly force, if they believe their own safety or the public’s safety is immediately and seriously threatened. Historically, police who use excessive force could be charged criminally or sued under state tort law. Neither option works well. Sovereign immunity bars many suits, prosecutors rarely charge officers, and juries are seldom sympathetic to victims, especially if they are criminals.

The basic legal framework for holding police responsible for excessive use of force was established in 1978 with Monell v. Department of Social Services. In Monell, the Supreme Court ruled that municipalities can be held responsible for police actions when and if plaintiffs (like victims of police brutality, for example) can show that those actions were the product of official police policy or part of a police department’s culture, customs and practices.

Three elements must be proved

schultz portrait
David Schultz

The problem is, this is very hard to do – and therefore it’s tough to hold police accountable for misconduct. To hold police civilly responsible for civil rights abuses three elements must be proved. First, the person filing a complaint must be a person protected under the statute. Second, the defendant (police officer) must be acting under the color of the law. Third, the alleged violation must seriously infringe on a constitutional right. Victims also have to show that police acted with deliberate indifference, which is a higher legal standard of proof than negligence. This is a very high bar.

And it gets worse. When it comes to use of force, police have significant latitude. Not all uses of force are illegal, nor are all injuries actionable (of course, this make sense; police sometimes do need to use force for good reasons).

The Supreme Court has issued two major decisions that explain when police use of force is excessive. In Tennessee v. Garner the Supreme Court ruled that the use of excessive deadly force is a Fourth Amendment violation, that is, a kind of illegal search and seizure. To determine police liability, one must balance the citizen’s interest versus the government’s. The citizen’s interest is substantial, of course: not to die. To overcome that interest, police must show that the officer believed that the suspect poses an immediate threat of serious physical harm to the officer or others.

In Graham v. Connor the Supreme Court created an even softer standard for the excessive use of non-deadly force, based on whether the use of force would be justified from the perspective of a reasonable officer with 20/20 hindsight.

Constitutional cover

Garner and Connor provide constitutional cover or an affirmative defense for police officers to use force. Charge law enforcement officials with use of force – criminally or civilly – and these cases along with state law provide protection to use such tactics to enforce the law.

Excessive use of force cases are hard to win for all the reasons criminal and state tort liability cases are. Moreover, public fears of crime complicate matters. So does racism, especially in situations with mostly white officers – and often mostly white prosecutors, judges and juries – and people of color as victims. But another reason these cases are hard to win is that the law determines excessive force from the perspective of the police officer, not the victim. Few juries are willing or able to second-guess a cop. Given the law, there was little chance Freeman could have secured a conviction. 

Think about it – if the officer who killed Philando Castile could not be convicted by a racially diverse jury, what chance was there to secure a conviction here in a trial involving police use of force against Blevins? Like it or not, this is the law. Perhaps it should be changed, regardless of the race of the victim, and that is a reasonable debate that should occur.

More debates should be taking place

But there is also another couple of debates that should take place. Policing is not simply anymore about the direct use of brute force. It is about conflict management and how to de-escalate tense situations. Policing now is supposed to be more about interpersonal relations than it is about ordering people about. This is was community-orientated policy and problem-orientated policing is about. Watching the Blevins video, one should be struck by how bad the police managed the situation. Yelling, swearing, and threatening someone is not the smartest route to de-escalating a tense situation and getting someone to surrender, especially at a time when people of color have a heightened fear in terms of their interaction with police.

Regardless of what the law empowers law enforcement officials to do, what training do they have in Minneapolis to encourage them to seek and pursue alternative de-escalation strategies? Moreover, and this is one place where race comes it, do the police use one set of strategies with Caucasians and another with people of color, or is one technique used in a racially arbitrary way? These are important questions that need to be studied and examined in Minneapolis.

In the end, protests are fine and politicians’ speeches make good headlines. But a more constructive role or step for Mike Freeman, elected officials, community activists, and even the police if they really want to address law enforcement use of force involves understanding the current law and asking whether it should be changed and what are the alternatives to current policing practices that are not racially arbitrary.

David Schultz is a Hamline University professor of political science. He blogs at Schultz’s Take, where this commentary first appeared. For nearly seven years Schultz taught criminal justice courses, including a course on civil and criminal liability. He also edited the Encyclopedia of American Law and Criminal Justice.


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Comments (5)

  1. Submitted by chuck turchick on 08/04/2018 - 10:48 am.

    Language issues

    For several years now, I’ve been raising with the PCOC the issue of officers’ language, which appears in lots of the complaints they’ve seen. The chair of the PCOC, Andrea Brown, has minimized the use of such language, saying that sometimes it’s needed in order to get the person to comply. Of course, in saying that, she’s ignoring the clearly stated rules of the MPD Policy and Procedure Manual, which don’t make such exceptions.

    And it didn’t really occur to me before, when I was thinking in terms of the negative effect such language might have on the citizen, but now I’m beginning to wonder what the effect of the use of such language is on the officer. I’m sure it could be studied, by looking at images of the brain, what difference it makes if the officer shouts, “Raise your hands,” versus “Raise your fucking hands,” or “Raise your motherfucking hands.”

    Interestingly, Federation President Bob Kroll and Vice-President Sherral Schmidt held a press conference after the videos of the Thurman Blevins shooting were released. The video of that press conference is available here: Both Kroll and Schmidt appear in MPD uniforms, and Kroll introduced themselves with “I’m Lieutenant Bob Kroll, President of the Police Officers Federation of Minneapolis. With me is Sergeant Sherral Schmidt, Vice-President of the Federation.” Since he gave both titles for each of them — Lieutenant and President; Sergeant and Vice-President — I’m assuming he was speaking both as an MPD police officer and a union official. Kroll did all of the speaking.

    In the Q and A following his statement, Kroll was asked this:

    Q: “Bob, I know it’s a really raw video, but it seems a lot of community activists are upset about the language that the officers used chasing him. There’s a lot of f-bombs; it’s like a police chase on TV or in movies.”

    And his answer was:

    A: “Correct. And that’s two-fold. One, when you’re dealing with the criminal element, they don’t respond well to, ‘Sir, would you please drop that firearm that you’re having.’ Okay, this is street talk.This is — you don’t want to see how hamburger is made; sometimes that’s how police work does it. One is you get your point across better. I would rather have someone use foul language if it persuaded me to drop the firearm, and place myself in fear to drop and surrender and obey their commands than to actually have to do it. So it’s a continuum of force — using that type of language — for one, and for two, think of the stress of these officers. These are people. They have families; they’re dispatched to a person firing a gun off; they see that person with the gun. Do you think that your stress level is going to be — you’re going to be able to maintain your composure? And if you do, hey, join us ’cause we need you. If you’ve got ice running through your veins, join us.”

    While wearing an MPD uniform and having identified himself in part as “Lieutenant,” he seemed to be justifying, if not encouraging, the use of language that clearly violates MPD policy. (See MPD P & P Manual, Sections 5-105(A)(5) and 5-105(C)(1),

    • Submitted by Cynthia Gomez on 08/06/2018 - 05:30 pm.

      Nothing surprising about Kroll

      He is an unapologetic white supremacist who was explicitly named in a successful MPD racism suit by black officers on the force, including the current Chief. Kroll has received numerous formal complaints for excessive force and racist language. What I find perhaps most troubling is when he talks about police “stress levels” making them unable to “maintain [their] composure.”
      These remarks tell me that Kroll knows nothing whatsoever about deescalation or the stress response. When someone is in outburst-mode like the officers who came roaring out of the cruiser in that horrific video, they are literally “out of their mind”: unable to access the neo-cortex higher reasoning center, and in a primitive fight-or-flight reaction.
      What is heartbreaking to me in the next 60 seconds of the video, the last moments of Thurman Blevins’ life, is that we see HIM desperately trying to reason with a man beyond reason.He repeatedly slows, begs the officer, “Come on man…I didn’t do nothing wrong, bro…don’t shoot me…please!”
      14 shots. We have the right to demand that police understand the stress response and use de-escalation methods to defuse situations. Look up the recent Trader Joe’s stand-off, where a store employee used compassion and calm to talk down an hysterical, wounded gunman and save many lives. That screaming “put your fucking hands in the air” tells anyone who knows about the stress-response and the brain that Thurman Blevins was a dead man the second that cruiser pulled up.
      And what disgusting remarks by Kroll about how the “criminal element” responds to brute language. But guess what. He is the president of the MPD union because the rank and file elects him again and again. That should frighten us.

  2. Submitted by joseph olson on 08/04/2018 - 01:19 pm.

    The State can act

    Both the Garner case and the Graham case were civil suits under a specific FEDERAL statute to recover money damages resulting from a violation of the 4th Amendment.

    Thus neither case says anything about the reach of STATE statutes and since Eire v. Thompkins (1938) the U.S. Supreme Court has denied that it has general power to create common law that preempts state law.

    The Minnesota legislature MAY write whatever law it desires regarding police use of force. It has enacted a statute governing self-defense by peace officers in section 609.066. A Minnesota minicipality MAY also set whatever use of force policies it believes appropriate to govern its employee’s actions.

    IF there is a problem with the rules or policies, both CAN be refined.

    • Submitted by James Hamilton on 08/04/2018 - 04:33 pm.

      I agree with Mr. Olson.

      Monell and Garner addressed the limits of the constitutional rights of a person injured by government actions. Graham addressed the right to sue under Section 1983 for an alleged violation of a person’s civil rights. None of the cases addressed the question of whether an officer may be charged with a crime based on conduct which causes the injury or death of another. Our courts and legislatures have imported the Monell, Garner, and Graham standards into criminal law unnecessarily and without due consideration. Simply put, the Constitution does not require that its protections be violated before an officer may be charged with a crime.

      The limits on use of force in Minnesota are found in our statutes:


      Subdivision 1.Deadly force defined. For the purposes of this section, “deadly force” means force which the actor uses with the purpose of causing, or which the actor should reasonably know creates a substantial risk of causing, death or great bodily harm. The intentional discharge of a firearm, other than a firearm loaded with less lethal munitions and used by a peace officer within the scope of official duties, in the direction of another person, or at a vehicle in which another person is believed to be, constitutes deadly force. “Less lethal munitions” means projectiles which are designed to stun, temporarily incapacitate, or cause temporary discomfort to a person. “Peace officer” has the meaning given in section 626.84, subdivision 1.

      §Subd. 2.Use of deadly force. Notwithstanding the provisions of section 609.06 or 609.065, the use of deadly force by a peace officer in the line of duty is justified only when necessary:

      (1) to protect the peace officer or another from apparent death or great bodily harm;

      (2) to effect the arrest or capture, or prevent the escape, of a person whom the peace officer knows or has reasonable grounds to believe has committed or attempted to commit a felony involving the use or threatened use of deadly force; or

      (3) to effect the arrest or capture, or prevent the escape, of a person whom the officer knows or has reasonable grounds to believe has committed or attempted to commit a felony if the officer reasonably believes that the person will cause death or great bodily harm if the person’s apprehension is delayed.

      Subd. 3.No defense. This section and sections 609.06, 609.065 and 629.33 may not be used as a defense in a civil action brought by an innocent third party.

      These standards can be changed.

      More important, in my view, is that our assault and homicide laws do not contemplate the types of situations in which an officer uses force inappropriately. But for the political challenge, we could easily enact assault and homicide provisions which criminalized violations of departmental policies resulting in injury or death. Such laws could easily reflect varying levels of culpability, just as our assault and homicide statutes do. They might, for example, make an intentional violation of departmental policy resulting in death a felony in the first degree, punishable exactly as we punish first degree murder. Too, we might make an reckless violation of departmental policy resulting in injury or death the equivalent of a lesser degree of assault or homicide.

      As I wrote above, the challenge is not legal but political. Until our legislators and governor accept that action is required and are prepared to face the political consequences of addressing the problem, we will continue to see officers injure or kill citizens without criminal consequences.

  3. Submitted by Ray Schoch on 08/06/2018 - 08:27 am.

    My 2¢

    I’m not a lawyer, or a police officer, and those points will disqualify me in the minds of some, but my initial response is that James Hamilton has come pretty close to nailing the issue here.

    As an ordinary citizen, what I find most disturbing about the multiple cases of civilians being shot and killed by police in recent years is the alacrity with which those officers draw and use their service weapons. Instead of it being a **last** resort, shooting and killing someone is, in too many instances, a **first response.** It seems – especially in the case of victims who are not especially cooperative – very much a case of “shoot first, ask questions later.” Responses like Mr. Kroll’s would not be tolerated if practiced by other occupational groups or individuals who occasionally find themselves in conflict, and I’d argue that I’ve seen no evidence that, as a group, the police are markedly superior to the general public in terms of their demeanor or behavior.

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