Improving Police Officer Accountability in Minnesota: Three Proposed Legislative Reforms
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Mitchell Hamline Law Review Volume 47 Issue 1 Article 8 2021 Improving Police Officer Accountability in Minnesota: Three Proposed Legislative Reforms Jim Hilbert Mitchell Hamline School of Law, [email protected] Follow this and additional works at: https://open.mitchellhamline.edu/mhlr Part of the Law and Race Commons, and the Legislation Commons Recommended Citation Hilbert, Jim (2021) "Improving Police Officer Accountability in Minnesota: Three Proposed Legislative Reforms," Mitchell Hamline Law Review: Vol. 47 : Iss. 1 , Article 8. Available at: https://open.mitchellhamline.edu/mhlr/vol47/iss1/8 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in Mitchell Hamline Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Hilbert: Improving Police Officer Accountability in Minnesota: Three Propo IMPROVING POLICE OFFICER ACCOUNTABILITY IN MINNESOTA: THREE PROPOSED LEGISLATIVE REFORMS Jim Hilbert ǂ I. INTRODUCTION ........................................................................... 223 II. MINNESOTA’S PAST AND PRESENT: RACISM AND POLICE ABUSE FOLLOWED BY STUDIES AND INACTION .............................................. 233 A. Minnesota History .................................................................... 233 1. The Largest Mass Execution in the Country ............................ 233 2. The Northernmost Lynching on Record.................................. 235 B. Decades of Studies and Reports with the Same Conclusions (and the Same Inaction) ............................................................................... 236 C. Past Signs of Progress ............................................................... 240 III. THREE LEGISLATIVE PROPOSALS TO IMPROVE ACCOUNTABILITY FOR MINNESOTA POLICE ........................................ 241 A Proposal No. 1: Enact a State-based Equivalent to § 1983 .......... 241 1. The Unfulfilled Promise of § 1983 .......................................... 242 a. The Complicated History of § 1983 ..................................... 242 b. The Renewal of § 1983 – Monroe v. Pape ........................... 246 c. Congress Strengthens § 1983 – Attorney’s Fees ................... 248 2. How the Supreme Court Has Undermined § 1983 ................. 251 a. The Malignant Growth of Qualified Immunity .................... 252 b. Qualified Immunity – The Current State ............................. 255 3. The New Federalism – States Take Over As Federal Courts Have Failed ...................................................................................... 257 a. Examples from Other States ................................................. 258 b. The Present State of Minnesota Civil Law and Police Abuse 262 B. Proposal No. 2: Require that Police Officers Carry Individual Professional Liability Insurance ........................................................... 267 1. Arbitration Protections and the Inability to Fire Problem Officers ............................................................................................. 268 2. The History of Personal Liability Insurance for Officers as an Idea .............................................................................................. 273 3. Indemnification – Taxpayers, Not Police Officers, Pay for Police Misconduct ....................................................................................... 276 4. Specific Legislation for Professional Liability Insurance .......... 278 5. Why Insurance Could Work ................................................... 279 C. Proposal No. 3: Expand Minnesota’s Deadly-Use-of-Force Statute to Include What Officers Did (or Did Not Do) Before They Used Deadly Force .............................................................................. 283 1. Current Standards Are Inadequate ........................................... 283 2. Minnesota’s Most Recent Reforms ........................................... 285 Published by Mitchell Hamline Open Access, 2021 1 Mitchell Hamline Law Review, Vol. 47, Iss. 1 [2021], Art. 8 2020] IMPROVING POLICE OFFICER ACCOUNTABILITY 223 3. Problems with Minnesota’s New Deadly Use of Force Standard ........................................................................................... 287 a. Reasonableness is Not a Reasonable Way to Hold Police Accountable .................................................................................. 287 b. Minnesota Law Lags Behind Current Policies of Local Police Departments ................................................................................. 290 4. Deadly Use of Force Restrictions Need to Include the Actions or Inactions of the Officers that Take Place Before the Use of Deadly Force, not Just Their Beliefs ............................................................ 291 a. Pre-seizure Conduct .............................................................. 293 b. De-escalation ......................................................................... 295 IV. CONCLUSION ............................................................................... 297 I. INTRODUCTION The killing of George Floyd by Minneapolis police officers in May 2020 put the issue of police reform back into the national discussion and made Minnesota,1 at least during a brief window of time, confront its past on issues of racism and police abuse.2 The video showing Mr. Floyd Professor of Law at Mitchell Hamline School of Law and Ad Hoc Counsel to the ǂMinnesota-Dakota State Conference of the NAACP. The contents of this article represent my own personal views and not the views of either institution. This article builds from the testimony I presented in June 2020 at the Minnesota Legislature during a special legislative session to consider police reform legislation. I would like to thank Yusef Mgeni and Professors Mike Steenson and Angelique EagleWoman for their helpful comments and encouragement. I would also like to thank Emily Gullickson and Elizabeth Plaine for their excellent research assistance. 1 National discussions on racism and police reform go back at least a century. As Dr. Kenneth Clark observed more than fifty years ago while testifying to the Kerner Commission: I read that report . of the 1919 riot in Chicago, and it is as if I were reading the report of the investigating committee on the Harlem riot of 1935, the report of the investigating committee on the Harlem riot of 1943, the report of the McCone Commission on the Watts riot. I must again in candor say to you members of this Commission—it is a kind of Alice in Wonderland with the same moving picture reshown over and over again, the same analysis, the same recommendations, and the same inaction. U.S. NAT’L ADVISORY COMM’N ON CIV. DISORDERS, REPORT OF THE NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS 265 (1968), https://babel.hathitrust.org/cgi/pt?id=mdp.39015000225410&view=1up&seq=287 [https://perma.cc/JKY3-8ELM]. 2 As the national press recognized, “The Twin Cities area has been an outsized part of the dialogue about the police use of force.” Jelani Cobb, The Death of George Floyd, in Context, NEW YORKER (May 28, 2020), https://www.newyorker.com/news/daily-comment/the-death- of-george-floyd-in-context [https://perma.cc/KZW7-RBLJ] (recounting past police killings in https://open.mitchellhamline.edu/mhlr/vol47/iss1/8 2 Hilbert: Improving Police Officer Accountability in Minnesota: Three Propo 224 MITCHELL HAMLINE LAW REVIEW [Vol. 47 pleading for his life while a Minneapolis police officer knelt on his neck became an unprecedented catalyst for outrage.3 Even in the midst of the COVID-19 pandemic, massive protests and civil unrest spread from Minneapolis to all over the world.4 Nationwide demonstrations and media attention put pressure on policymakers and police departments to make substantial changes. Police reform efforts appeared at every level of government. For instance, the New York Police Department announced that it would disband its notorious plainclothes anti-crime unit.5 Likewise, a majority of the Minneapolis City Council vowed to “begin the process of ending the Minneapolis Police Department.” 6 By summer’s end, Iowa, Delaware, Utah, and Nevada passed Minnesota); see also infra notes 51–64 and accompanying text (discussing two of the most significant events in Minnesota history). 3 Within six weeks of the killing, nearly ten percent of Americans reported participating in demonstrations over the death of Mr. Floyd and others. Jugal K. Patel, Quoctrung Bui, & Larry Buchanan, Black Lives Matter May Be the Largest Movement in U.S. History, N.Y. TIMES (July 3, 2020), https://www.nytimes.com/interactive/2020/07/03/us/george-floyd- protests-crowd-size.html [https://perma.cc/EG7B-3E7J]. By early July 2020, more than 40% of all counties in the United States had at least one protest related to the killing. Id. 4 See generally Borzou Daragahi, Why the George Floyd Protests Went Global, ATL. COUNCIL (June 10, 2020), https://www.atlanticcouncil.org/blogs/new-atlanticist/george-floyd- protests-world-racism/ [https://perma.cc/C74Y-FZRF] (“Solidarity marches and gatherings took place from Sydney to Beirut to Istanbul to London to Berlin. [R]arely if ever has one incident inspired such a broad global movement. Attention has focused not just on the United States and its abuses but also on entire systems of power, racism, and oppression,