Would proposed changes to Minnesota law bring more charges against officers? Probably not, attorneys say - Duluth News Tribune

That’s why Rep. Rena Moran, DFL, is sponsoring a bill that would make changes to Minnesota law about when officers are allowed to use deadly force.

“We’ve heard … before from law enforcement officers that said, ‘Well, I feared for my life or I was scared,'” Moran said during a House of Representatives hearing Saturday, referring to the defense that critics say officers can use to explain their actions. “This makes prosecuting and gaining a conviction extremely difficult.”

While some civil rights groups on Saturday, June 13, praised the proposed changes to the law, they also urged legislators to go farther. Meanwhile, some legal experts doubt whether the shifts that are on the table would lead to more offices being charged.

The Minnesota House Public Safety and Criminal Justice Reform Division held a day-long virtual hearing Saturday, during which legislators heard from a range of community members and leaders about a package of Democratic bills — including reforms to prosecutions and investigations, banning chokeholds, and training related to mental health and autism — during the special session of the legislature that began Friday.

Though legislators have been spurred to action by the May 25 death of George Floyd in Minneapolis police custody, the People of Color and Indigenous (POCI) Caucus says they’ve long been trying to bring about changes. A state working group recommended in February a review of existing use-of-force standards and statutes and recommended any necessary revisions to focus on the sanctity of life and standards that require force to be reasonable, necessary and proportionate.

The changes to the law proposed by Moran, who co-chairs the POCI caucus, adds language that says it’s their legislative intent to ensure officers who use deadly force only do so “judiciously and with respect for human rights and dignity and for the sanctity of every human life.”

Seth Stoughton, a University of South Carolina associate professor of law and author of “Evaluating Police Uses of Force,” said the words are useful, but it’s “aspirational language” and not something attorneys would hang their hats on.

The meat of the proposal would add language to the law that says deadly force is justified only when “the officer reasonably believes, based on the totality of the circumstances, that such force is necessary.”

The current law says an officer can use deadly force to protect an officer or another person from apparent death or great bodily harm. The bill deletes “apparent” and changes it to “imminent.” That move would tighten up appropriate use of deadly force, according to Ted Sampsell-Jones, a Mitchell Hamline School of Law professor.

The change seems to be consistent with Minnesota’s self-defense laws, which St. Paul-based criminal defense attorney John Arechigo said is better than the current language, but he doesn’t know if that means it’s good policy.

“More should be expected of our police officers,” he said. “Minnesota’s self-defense laws are designed to apply to ‘regular people’ who haven’t had the kind of thorough training officers are supposed to undergo. I recognize officers need to protect themselves and others in certain situations, but the proposed language seems to still give officers the right to use deadly force simply because the officer thought there was an imminent threat to life.”

Some states refer to U.S. Supreme Court decisions when interpreting their own state use-of-force laws.

“What I read this proposed statute to do is basically bring Minnesota up to the constitutional floor and perhaps deal with the most problematic aspects of permissiveness in its current law, but it doesn’t do much more than get the state to where it should have been before,” Stoughton said.

Susan Gaertner, who was Ramsey County Attorney from 1995 to 2010, also views the proposals as lining up with Supreme Court rulings.

That doesn’t mean officers shouldn’t be trained to a higher standard, said Gaertner, who is now in private practice focusing on business litigation and white-collar criminal defense.

“Criminal charges, I think, are a blunt instrument and what training should be is, ‘Let’s do everything we can to preserve human life, both yours and the civilian, and if you end up using deadly force, there’s a high standard for whether you can be criminally charged for that choice that you made,’” Gaertner said.

Overall, Stoughton, Gaertner and attorney Robert Bennett said they think the changes would be unlikely to result in officers being charged more often in Minnesota. But community sentiment and increased sensitivity to holding officers accountable might make a difference, Gaertner said.

Jim Hilbert, ad hoc counsel to the MN/Dakotas Area Conference NAACP, said he thinks changes to the deadly force law could not only provide more justice in prosecuting police, but could “have major impacts on police behavior.”

He said a Supreme Court decision from the 1980s that changed the legal standard for lethal force resulted in a substantial reduction in the number of police shootings.

Hilbert urged legislators on Saturday to consider adding factors that consider whether an officer tried de-escalation and whether an officer’s conduct increased the risk of a deadly confrontation.

Under the proposed changes to the law, officers could still use deadly force to take someone into custody if they committed a felony, but it adds language saying that the officer has to “reasonably” believe “the person will cause death or great bodily harm to another person unless immediately apprehended.”

The change would mean officers would have to consider “only future/ongoing threats rather than past crimes,” Sampsell-Jones said.

Arechigo pointed out the proposed changes may still give too much leeway for officers as there are many non-violent felony offenses, such as credit card fraud and theft, and officers would still be allowed to use deadly force against them in some circumstances.

The proposal also specifies an officer cannot not use deadly force against someone who is a danger to him or herself, but doesn’t “pose an imminent threat of death or great bodily harm to the peace officer or to another person.”

Bennett said he doesn’t think that change “would stop a bunch of the cases that I’ve seen that have been suicides by cop. It would stop a few, which is better than nothing.”

Jim Michels, a labor attorney who represents public employee unions, including the Minneapolis police union, supports some of the legislative proposals, but also has questions about aspects of changing the deadly force law.

“Right now, the question in the law is whether the option they chose was reasonable,” Michels said. “I’m a little bit concerned about the type of nuances that could come up. …It’s hard to take a blanket approach because the reality in every case is different.”

The Senate, which is Republican controlled, has a smaller number of police accountability bills that Sen. Warren Limmer, who chairs the judiciary and public safety committee, said they plan to pass.

Limmer, R-Maple Grove, expressed openness to reviewing the current police use of force statute and consider a “sanctity of life” standard before deadly force is deployed.

Stoughton, a former police officer who provided advice to California when the state was drafting its new deadly force law that went into effect last year, said he understands such legislation can be politically controversial. He said California reached compromises, but what he thinks worked overall was developing a law that protected officers and citizens.

“Safety is not a zero-sum game,” he said. “We do not make community members safer by endangering officers, but changes to these laws can improve the safety of officers and community members alike.”

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