Deadly force law a key issue in Capitol policing debate

By Brian Bakst

Minnesota’s law defining acceptable use of deadly force by law enforcement is a key point of contention as the Legislature debates changes to policing after a Minneapolis officer killed George Floyd.

There are three circumstances in current law when police deadly force is explicitly allowed:

• To protect officers or other people from apparent death or serious harm.

• To capture a fleeing person who used deadly force or threatened it.

• To apprehend someone who is reasonably believed to pose a continuing fatal threat if left on the loose.

Those definitions leave too much room for interpretation, said Rep. Rena Moran, DFL-St. Paul.

“Unfortunately, the current law falls short because it relies too heavily on subjective judgement of what might be a threat,” she said. “We’ve heard that before from law enforcement officers that ‘well, I feared for my life’ or simply ‘I was scared.’”

Moran is pushing to tighten the law by considering the totality of the circumstances.

“This might be inconvenient but we must recognize the implicit biases at play that we all have.”

Moran’s bill would also require that the threat of death or harm be “imminent.” That’s beyond the current standard of an “apparent” threat.

Last year, California became the first state to change its law in that fashion.

“Most self-defense statutes for civilians require imminency,” said Cynthia Lee, a law professor at George Washington University who has studied and written extensively on the force issue, adding that the requirement reduces subjectivity.

“It was indeed a life-or-death situation,” she said of imminent standard. “That if you didn’t use the force at that moment, you would have been killed.”

Lee acknowledged officers make difficult decisions on the spot. But she argues that deferential laws in most places have gotten in the way of accountability.

“The balance of scales right now at least or up until recently have been tipped in favor of the officer,” Lee said. “Because juries tend to believe the officer when the officer claims he or she was in fear for his or her life.”

How state use of force laws read technically doesn’t come into play until after an incident has occurred, charges are lodged and a case is in court, but they can influence how officers are trained.

“Why are we there? Why are we at that moment? Were there decisions that could have been made beforehand to deescalate the situation to not provoke the person involved to the brink of violence, whatever it happens to be?” said David Harris, of the University of Pittsburgh School of Law.

Harris specializes in police behavior and said it’s important that use of force laws dovetail closely with or even include detailed expectations of police conduct.

If a law, for instance, listed the less-lethal tactics that must be considered before deadly force is resorted to, Harris said he has little doubt officers would be more judicious.

“And if they weren’t done, the jury would be told that,” he said. “That would cycle back into the training.”

Julia Decker, the American Civil Liberties Union of Minnesota policy director, told a Senate committee Tuesday that the Minnesota law should be narrowed as much as possible.

“Deadly force should be an absolute last resort. It should not be a preemptive action against a potential future threat,” Decker said.

Rep. Brian Johnson, R-Cambridge, is a former police chief who said most officers are reluctant to use force unless absolutely necessary.

“I have a bad feeling, call it a gut feeling that the change in the definitions might cost officers their lives because of hesitation or not knowing,” Johnson said.

That’s also a concern of Senate Public Safety Committee Chair Warren Limmer.

“There’s a balance because we do not want to prevent a peace officer from saving a human life when a violent person is intent on killing someone.”

Limmer, R-Maple Grove, is sponsoring a proposal that leaves it to the Peace Officers Standards and Training Board to draw up a model policy by September. Local departments would have two months to rewrite their own policies to meet the board’s standard.

The policies must “recognize and respect the sanctity and value of all human life and the need to treat everyone with dignity and without prejudice.”

Sen. Ron Latz, DFL-St. Louis Park, said the GOP’s policing proposals don’t go far enough to tackle deep-rooted problems.

Latz called them “bills that mostly nibble around the edge of the problem” and “what I expect will be a vote for show.”

Limmer’s use-of-force proposal also creates a duty for other officers to step in if a fellow cop is going beyond an objectively reasonable standard for deploying force. Other measures require more reporting to the state when force is used. And the policies must make clear that neck restraints and chokeholds that restrict airways are barred.

“At a minimum,” Limmer said, “we as a state must step in and ban what happened in George Floyd’s case.”