After Daunte Wright was killed by a former Brooklyn Center officer last week, Minnesota lawmakers have once again debated changing the state’s current policing standards, even as they have highlighted new accountability measures they passed in 2020.
House Speaker Melissa Hortman, DFL-Brooklyn Park, mentioned one of those reform measures last week in a statement responding to Wright’s killing: An update to the statute regulating when police can use deadly force.
The law, which went into effect March 1, was an attempt to create a stricter standard, one that is now based on preserving “the sanctity of every human life,” as the regulation says. For instance, the new statute restricts when police can kill a fleeing suspect.
Hortman said enacting a “tougher” standard was part of the “important” work the Legislature did last summer.
Important as it may be now, it mostly flew under the radar at the time. Added to a large omnibus bill after hurried and secret negotiations, the new deadly force law passed the Legislature around 2 a.m. at the end of a July special session.
It also faces an uncertain future. Criticized by both police groups and reform advocates, implementation of the law will likely be delayed by months and, according to the Minnesota Attorney General’s office, may even be unconstitutional.
How a major change to deadly force laws passed quietly
In the months after police killed George Floyd in Minneapolis, lawmakers negotiated on a wide range of police reforms. Talks fell apart at the end of the Legislature’s first special session, when Republicans who control the state Senate and Democrats who hold a majority in the state House could not find an agreement.
In the waning hours of a second special session, however, the two sides struck a deal. In a memo sent to reporters around 10:15 p.m. on July 20, House officials outlined what lawmakers had agreed to pass. It included more than a dozen measures, such as new restrictions on chokeholds and neck restraints; a requirement that officers intervene if they witness a colleague using excessive force; a ban on departments providing “warrior”-style training; and changes to the arbitration system used by police to contest discipline and firings.
That memo, however, and the initial legislation, did not include changes to the deadly force standard. That’s because lawmakers were still privately negotiating the bill behind the scenes.
After they finalized an agreement on the deadly force statute, state Rep. Rena Moran, DFL-St. Paul, amended the massive policing bill on the House floor when lawmakers convened for a vote around 11 p.m. While Moran mentioned the addition briefly and noted it had the support of police organizations, no other legislators commented on the change to the deadly force standards during the House debate. The Senate passed the entire package of legislation around 2 a.m., only briefly discussing the deadly force statute as well.
House Democrats had been calling for an update to the deadly force standards for months. Part of the final law, which was the first change to the statute since 2001, was similar to previous DFL proposals. But the bill also included elements likely never seen by the public. MinnPost could not find any proposal made by DFLers in 2020 with the exact same language that ended up in the bill.
The last-minute release of the bill appeared to frustrate some lawmakers at the time. On the Senate floor, Sen. Kari Dziedzic, DFL-Minneapolis, asked how the deadly force language was different from other proposals since she had received the final bill shortly before the scheduled vote. Dziedzic said the Legislature should have held hearings on the final accountability measures “to give the public the idea to absorb it, to see what’s in it, and to have a discussion on it.”
Sen. Warren Limmer, a Maple Grove Republican who chairs the Senate’s Judiciary and Public Safety Finance and Policy Committee, told Dziedzic the deadly force statute “went round and round” in negotiations behind the scenes with law enforcement before Moran suggested a bill that everyone supported. “Maybe it was a point of exhaustion,” that led to the compromise, Limmer said, “but nevertheless this is the language that we all agreed on.”
MinnPost asked Limmer and key House legislative leaders involved in crafting deadly force law, including Moran, about the statute. None commented.
What’s in Minnesota’s new deadly force statute
The final product went into effect on March 1, 2021. It includes a new section in law outlining how the Legislature wants the statute to be interpreted. That portion says deadly force “shall be exercised judiciously and with respect for human rights and dignity and for the sanctity of every human life.”
“The legislature further finds and declares that every person has a right to be free from excessive use of force by officers acting under color of law,” the statute says.
Moran said during a House Ways and Means Committee hearing on Thursday that lawmakers wanted to make the new deadly force regulations less subjective, meaning based on what an officer perceives, and instead be more objective, meaning they are based on what a reasonable officer would do under similar circumstances.
“The previous language was really so subjective,” Moran said. “As we walked through this and talked to those who were experts and professionals in this arena, the conclusion was that the change in language to the current language that is there really will save lives on both sides.”
To that end, the new law sets up a three-part test to determine if deadly force is justified. An officer can use deadly force to protect themselves or others from death or great harm if the threat can be “articulated with specificity” by the officer, is “reasonably likely to occur” without action by police, and must be “addressed through the use of deadly force without unreasonable delay.”
The new law also limits when officers can use deadly force to stop someone who is fleeing police. For instance, officers can’t use deadly force on someone who had committed a felony that involved deadly force, only to arrest someone an officer believes is still a threat to kill or hurt others. (Though U.S. Supreme Court precedent also says law enforcement can only kill someone to prevent their escape if they pose a deadly threat.) Minnesota’s new law also says officers can’t use deadly force against someone who is not a threat to others — even if they are a threat to themselves.
Albert Goins, a Minnesota attorney who has practiced in criminal law and civil rights, said the new law could lead to more civil suits against officers, including, perhaps, against former Brooklyn Center officer Kim Potter, who is accused of killing Daunte Wright during a traffic stop last week. An attorney could bring a case based on the idea that residents should be “free from excessive use of force by officers,” even if that force didn’t result in criminal charges or a conviction. Goins said the new law “may give one of the strongest available state law bases for a civil remedy to redress this senseless killing” of Wright.
Officers say they need time for training
In a written analysis for the Department of Public Safety, the Attorney General’s office said in January the Minnesota law is now more closely aligned with a U.S. Supreme Court case Graham v. Connor, a benchmark ruling that also outlines justified use of force by police based on what a reasonable officer would do in the same position.
Since the new law came into effect, law enforcement in Minnesota and beyond have said they haven’t had adequate time to adjust to the updated standard.
The Forum in Fargo-Moorhead reported in early March that North Dakota officers won’t cross into Minnesota to help with policing until they are trained on the new standards. That’s an issue in the Moorhead area, where regional coordination is common.
In an interview Friday, Jeff Potts, executive director of the Minnesota Chiefs of Police Association, said some police departments on the Wisconsin border have also directed staff not to cross the border. In Minnesota, law enforcement organizations are asking for a delay in the law because they say they haven’t had enough time to be trained either, since in-person training is made more difficult during the COVID-19 pandemic.
In particular, the limit on using deadly force against someone who is a threat to themselves has given police pause, Potts said. In a scenario where someone is inside their home with a gun and believed to be suicidal, officers might be reluctant to enter the house only to be confronted by that person, Potts said. “I think the question is how far do police departments push that to get inside and see this person,” he said. Departments will need to decide how, or if, to respond in such a situation, Potts said.
State Rep. Paul Marquart, a Democrat from Dilworth, which is near Moorhead, said during a House Ways and Means hearing Thursday that the AG’s analysis was crucial for officers to train, and that it was released too close to when the statute took effect to allow time for that training.
The analysis by the AG’s office also says the requirement that officers be able to articulate a threat when using deadly force could violate the constitutional right that protects people from incriminating themselves. The clause in Minnesota’s new law that may be unconstitutional was not made public until it was passed by lawmakers during the special session.
“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,” says the memo, a partially redacted version of which was given to MinnPost by Attorney General Keith Ellison’s office.
Potts said police groups and lawmakers didn’t raise any concerns about self-incrimination during negotiations because they were more focused on other elements of the statute in the hurried backroom talks. But Potts said his organizations would like a definitive answer to the constitutional question.
Some are skeptical that there are any issues with the law. Goins said another Supreme Court case, Garrity v. New Jersey, shields officers from being forced to incriminate themselves. Goins said police wouldn’t have to articulate in court a threat they saw while using deadly force. Courts would instead consider whether a reasonable officer would be able to articulate a threat. The AG’s memo said courts might view the language that way, too.
Delay in implementing law likely
Some Democrats and groups pushing police reform say Minnesota’s law does not go far enough to limit the use of deadly force by police. State Rep. Cedrick Frazier, a DFLer from New Hope who is the vice chair of the House’s Public Safety and Criminal Justice Reform Finance and Policy Committee, told reporters last week that the deadly force law “was not as strong as it could have been, and that is something that could have helped in a situation with the most recent case with Daunte (Wright) losing his life.”
Julia Decker, policy director for the ACLU of Minnesota, said her organization believes lawmakers should have done more to overhaul the deadly force statutes and will continue to push for “far more stringent restrictions on when deadly force can be used” by police.
Marquart, the Dilworth lawmaker, proposed the Legislature delay the use of deadly force standards until September to give law enforcement more time to train. Moran and other House Democrats agreed, though state Rep. Carlos Mariani, a St. Paul DFLer who chairs the public safety committee, said the “standard itself is not in question” and was agreed to by law enforcement.
Senate Republicans already passed a bill delaying the implementation of the new deadly force standards, meaning the pause is likely to happen. In a committee hearing in early April, St. Louis Park Sen. Ron Latz, the top Democrat on Limmer’s judiciary committee, said his support for a delay in the use of force law was based on both the constitutional questions and the training concerns. The pause on the statute would incentivize lawmakers to “find the repair language,” Latz said.
Latz said he wants a deadly force law that is “circumscribing the use of force by police officers so that they aren’t using it where it’s inappropriate.”
“I want it to be constitutional, and I want there to be time for appropriate training and I don’t want to have (police) trained in an unconstitutional method,” Latz said.