ST. PAUL, Minn. (CN) — Minnesota officials argued Wednesday for the reinstatement of police use-of-force standards adopted in the wake of George Floyd’s murder, pushing back against policing groups’ contention that a new rule violates officers’ Fifth Amendment rights.
At issue is a requirement that police be able to articulate “with specificity” a threat of bodily harm before using deadly force. Ramsey County District Judge Leonardo Castro temporarily suspended the standards in September after the Minnesota Chiefs of Police Association, Minnesota Sheriffs’ Association and other industry groups sued the state and Democratic Governor Tim Walz to overturn the language enacting them.
On Wednesday, attorneys for the police groups pushed for Castro to make that decision permanent.
“It will always operate unconstitutionally,” Mark Schneider of police union backer Law Enforcement Labor Services said. “There is no set of facts that can be presented where the application of this set of sections would be constitutional.”
Schneider, joined by Gary Luloff of Twin Cities firm Chestnut & Cambronne, argued that the rule would require officers to make statements that “can be used as a sword – not only a shield but a sword, by the prosecution.”
The parties disagreed on whether the statute would necessarily require officers to actually take the stand in their own defense. Assistant Attorney General Anna Veit-Carter, arguing for the state and governor, said it wouldn’t.
“The first requirement of the statute is that the officer is using deadly force in response to a threat that can be articulated by the law enforcement officer. It doesn’t say must be articulated by the law enforcement officer, it doesn’t say can be articulated by the law enforcement officer on the stand at trial,” Veit-Carter said.
“The threat has to be specific," she added. "It has to be based on observable facts, it can’t be based on a general feeling of danger, it can’t be based on the officer having a bad feeling about a subject….It doesn’t require that the officer provide that articulation.”
Castro peppered each side with questions throughout the hearing, posing hypotheticals and examples from out of state like the city of Seattle’s use-of-force policy.
“They define objectively reasonable, of course, as known by the officer at the time,” the judge said to Schneider. “So are you saying that would be an inappropriate definition of ‘objectively reasonable?’”
He and Veit-Carter came to an agreement that the statute’s language “causes a level of confusion” but that unclear language wasn’t the standard of review. He also asked each attorney about what a jury instruction might look like under the statute.
Castro also mulled over the offending sections’ severability from the statute should they be found unconstitutional.
“Severing that portion that reads ‘by the law enforcement officer,’ why would that continue to make the statute unconstitutional?” he asked Schneider.
“That would be contrary and conflict with the legislative intent,” Scheider responded, adding that “you’re still left with the question of ‘can be articulated with specificity’ by whom?”
Mitchell Hamline School of Law professor Rick Petry said in an interview that the law enforcement groups had brought up a strong point.
“As much as I personally say that if you’re going to kill somebody, you should be able to articulate why, legally, you run up against the Fifth Amendment,” he said, which protects against self-incrimination.
He pointed out, however, that standards requiring police to cite reasons for their decisions were not unheard of. Probable cause, Petry said, is one such example, as is qualified immunity.
“If I’m a police officer, I know that in order for me to benefit from qualified immunity, I have to say, well, it’s a split-second decision,” he said.
Petry agreed with Castro that the statute could have been written more clearly and deliberately.
“These things have happened so many times, and people become very reactionary, and then they create laws reacting to something without slowing down and looking at it in a big-picture way,” he said.
He added, "After Mr. Floyd was murdered, the place was on fire, so they were trying to figure out, ‘how do we get people to calm down?’... I think, a lot of times, in those kinds of situations… people are thinking about what they’ve got to do in the moment. Sometime that works well, sometimes not so much.”
Attorneys for the police groups and representatives of Walz's office did not respond to requests for comment. The Minnesota Attorney General's Office declined to comment.
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