Tag: chokeholds

Minnesota Legislature Adopts Significant Police Reform

Early this morning, July 21, the Minnesota Legislature in Special Session adopted a significant police reform bill, the Minnesota Police Accountability Act. Just before midnight, the House did so, 102-29, and the Senate did the same a few hours later, 60-7 and sent the bill to Governor Tim Walz for his promised signature.[1]

Summary of the Act[2]

The House’s Research Memo about the Act listed the following provisions:

  • “Critical incident stress management teams and public safety peer counseling.
  • Investigatory reform.
  • Police residency reform.
  • Banning chokeholds and certain neck restraints.
  • Use of force reform.
  • Use of force reporting.
  • POST Board reform and citizen engagement.
  • Prohibiting warrior-style training.
  • POST Board model policies.
  • Mental health and crisis intervention training.
  • Mandatory autism training.
  • Requiring the duty to intervene and report.
  • Arbitration reform.
  • Peace officer training assistance funding extension.”

Here are that Research Memo’s summaries of some of these provisions in light of issues raised by the police killing of George Floyd on February 25th.

Prohibiting Chokeholds and Certain Neck Restraints (sections 7 and 8). “Prohibits a peace officer from using [chokeholds and] certain neck restraints, unless section 609.066 authorizes the use of deadly force to protect the peace officer or another from death or great bodily harm. With the exception described above, officers will no longer be able to use chokeholds, they will not be able to tie all of the person’s limbs together behind the person’s back to render the person immobile, and they cannot secure a person in any way that results in transporting the person face down in a vehicle. The only time a peace officer can restrict free movement of a person’s neck or head is to protect the peace officer or another from imminent harm. For the purposes of this section, chokeholds are defined as “a method by which a person applies sufficient pressure to a person to make breathing difficult or impossible, and includes but is not limited to any pressure to the neck, throat, or windpipe that may prevent or hinder breathing, or reduce the intake of air.” It also means, “applying pressure to a person’s neck on either side of the windpipe, but not to the windpipe itself, to stop the flow of blood to the brain via the carotid arteries.”

Prohibiting Warrior-Style Training (Section 12). “Prohibits the use of warrior-style training by law enforcement. It also states that the POST [Board of Police Officer Standards and Training] may not certify a continuing education course that includes warrior-style training; the Board may not grant continuing education credit to a peace officer for a course that includes warrior-style training; and the Board may not reimburse a law enforcement agency or a peace officer for a course that includes warrior-style training. Warrior-style training is defined in . . . this section as training for peace officers that dehumanizes people or encourages aggressive conduct by peace officers during encounters with others in a manner that deemphasizes the value of human life or constitutional rights, the result of which increases a peace officer’s likelihood or willingness to use deadly force.”

Requiring the Duty To Intervene and Report (Section 21). “This section lays out that peace officers, regardless of tenure or rank, must intercede when (1) present and observing another peace officer using force, in violation of MS, Section 609.066, Subd. 2, or otherwise beyond that which is objectively reasonable under the circumstance to prevent the use of unreasonable force; and (2) is physically and verbally in a position to do so. Lastly, this section establishes a duty to report excessive use of force incidents in writing to the chief law enforcement officer of the agency that employs the reporting officer and provides that failure to comply with either duty is grounds for POST Board discipline under the Board’s rules.”

Police Residency Reform (Section 6). “This section allows cities or counties to offer incentives to encourage a person hired as an officer to be a resident of that city or county. . . .”

Arbitration reform (Sections 22 and 24). “This section modifies how, and which arbitrators are used in peace officer grievance arbitration by establishing an arbitrator selection procedure. These changes apply to all peace officer grievance arbitrations for written disciplinary action, discharge, or termination, and must be included in the grievance procedure for all collective bargaining agreements covering peace officers negotiated on or after the enactment date.”

‘Once a peace officer grievance is filed, the Bureau of Mediation Services assigns or appoints an arbitrator from the roster, on a rotation through the roster alphabetically ordered by last name. All parties involved cannot be involved in selecting the arbitrator. The arbitrator or panel will decide the grievance, and the decision is binding subject to provisions of the Uniform Arbitration Act (Ch. 572B). The changes made to the arbitration process in this section only applies to peace officer grievances and do not apply to other public employees. Peace officers cannot agree to a collective bargaining agreement or grievance arbitration selection procedure that is not consistent with the changes in this section.”

“The Bureau of Mediation Services, . . .in consultation with community and law enforcement stakeholders, is required to appoint a roster of at least 6 qualified arbitrators. Any arbitrator seeking appointment to this roster must complete six hours of training in culture competency, racism, implicit bias, and recognize the value in community diversity and cultural differences. They will also be required complete six hours of training related to daily experiences of police officers The Bureau of Mediation Services may adopt rules establishing training requirements for the pool of arbitrators.”

Other Provisions. The Act also improves data collection around deadly force encounters, creates a new state unit to investigate those cases, and boosts funding for crisis intervention training for police.

Reactions to the New Act[3]

Representative Carlos Mariani (DFL-St. Paul), the author of the bill and chair of the House Public Safety and Criminal Justice Reform Division, after the House passage, said, ““Today, we’re beginning to make the overdue changes Minnesotans have been demanding to help ensure no more lives are lost due to police violence. By passing this bill into law, we’re taking the first steps toward major changes to hold police officers accountable for harmful acts, and we are committed to continuing our work for safer communities. It wasn’t safe for George Floyd or for Philando Castile, and they deserved a better way to police that builds community.”

Minnesota Senate Majority Leader Paul Gazelka (Rep.) said, ““We’ve never stopped working on this, whether we were in session or out of session. That’s something we all felt was important.”

Senator Jeff Hayden (DFL), who represents the district where police killed Floyd, said the Act fails to provide “robust police accountability measures and transformative criminal justice” while Senator Patricia Torres Ray (DFL-Minneapolis) voted against the bill because, she said, it “is not actually the bill that communities of color want.”

Upon passage, Minnesota Governor Tim Walz tweeted the following:

  • ‪”George Floyd’s death brought the urgent need for meaningful police reform into sharp focus.”
  • “Last night, the Legislature passed bipartisan police accountability and reform measures. This is a critical step toward justice.”
  • “But this is only the beginning. The work does not end today.”
  • “Everyone deserves to feel safe and protected by police. I look forward to signing these long-overdue reforms to strengthen transparency and community oversight, ban chokeholds and warrior training, expand de-escalation training for officers, and reduce the use of deadly force.”
  • “Thank you to the communities of color and the People of Color and Indigenous Caucus, who have led this conversation and fought tirelessly for change.”

Conclusion

 Congratulations to Representative Mariani for being the lead author of this bill and to all the State Senators and Representatives for persistently negotiating and compromising to produce this important reform of policing in Minnesota.

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[1] Bierschbach, Minnesota lawmakers pass sweeping package of police accountability measures, StarTribune (July 21, 2020); Mearhoff, Minnesota lawmakers advance police accountability measures 8 weeks after Floyd’s death, Twin Cities Pioneer Press (July 21, 2020); MPR, Legislature passes policing bill, ends special session, MPR News (July 21, 2020); Assoc. Press, Minnesota Lawmakers Ban Neck Restraints After Floyd’s Death, N.Y. Times (July 21, 2020); Bella, Minnesota passes police accountability measures, including banning chokeholds, two months after George Floyd’s death, Wash. Post (July 21, 2020); Orenstein & Callaghan, The Legislature just passed a police reform bill. What it does—and doesn’t do—to reshape law enforcement in Minnesota, MINNPOST (July 21, 2020); Cook, House, Senate agree to compromise
police reform. Minn. H. Rep.(July 21, 2020).

[2] Minnesota Legislature, Research Memo: HF 1 (Marlani), The Minnesota Police Accountability Act [July 2020); HF1 Minnesota Police Accountability Act (1st Engrossment)(July 21, 2020).

[3] Mariani, RELEASE: Minnesota House Passes Police Accountability Act (July 20, 2020); Governor Tim Walz, Tweet on Passage of Minnesota Police Accountability Act, facebook.com/GovTimWalz/ (July 21, 2020).

 

 

Congress Fails To Pass Federal Police Reform Bills   

On June 24 and 25, the divisions between the Republican-controlled U.S. Senate and the Democrat-controlled U.S. House again emerged, this time to prevent, in all likelihood, the adoption of any federal police reform bills this year.

U.S. Senate[1]

On June 24 the Senate was prepared to debate The Justice Act, a bill authored by Senator Tim Scott (Rep., SC), that would encourage state and local police departments to change their practices, by limiting the use of chokeholds, requiring new de-escalation training for officers and better systems for tracking misconduct  and penalizing departments that did not require the use of body cameras. It, however,  would not alter the qualified immunity doctrine that shields officers from lawsuits or place new federal restrictions on the use of lethal force.

The Senate Democrats criticized this bill as insufficient to respond to the problem of systemic racism in law enforcement as the basis for an objection to consideration of the bill. This forced a motion for consideration that, under Senate rules, needs at least 60 votes to pass, but only had 55 votes with Democrats Doug Jones of Alabama and Joe Manchin III of West Virginia and Independent Angus King of Maine joining 52 Republicans. Majority Leader Mitch McConnell (Rep., Tenn.) voted against that motion so that subsequently he could make a motion for reconsideration by announcing his intent to switch his vote.

After this defeat, Senator Scott stated on the floor that he had had offered to give Democrats as many as 20 votes on proposed modifications to his bill that they were demanding, but that they had refused to accept. Privately, Democrats noted that revising the bill would have also required the approval of 60 senators, a threshold they feared they would not be able to meet.

It is still possible that the Scott bill could be brought up again this year in the Senate by the Majority Leader, Senator Mitch McConnell switching his vote from “Yes” to “No” on a motion for reconsideration.

In the meantime, on June 25 the Senate by unanimous consent separately passed a provision of Mr. Scott’s bill to establish a commission on the social status of black men and boys, tasked with recommending policies to improve government programs.

U.S. House[2]

 On June 25, the U.S. House passed, 236-181, the George Floyd Justice in Policing Act.

Representative Karen Bass (Dem., CA), the lead sponsor of the bill, said, “The legislation is the first-ever bold, comprehensive approach to hold police accountable, change the culture of law enforcement, empower our communities, and build trust between law enforcement and our communities by addressing systemic racism and bias to help save lives. Congressional Black Caucus Chair Karen Bass (D-CA), Senators Cory Booker (D-NJ) and Kamala Harris (D-CA), and House Judiciary Committee Chair Jerrold Nadler (D-NY) introduced the George Floyd Justice in Policing Act of 2020 on June 8, 2020. The legislation has 231 cosponsors in the House and 36 cosponsors in the Senate.”

“Under the George Floyd Justice in Policing Act, for the first time ever federal law would: 1) ban chokeholds; 2) end racial and religious profiling; 3) eliminate qualified immunity for law enforcement;[3] 4) establish national standard for the operation of police departments; 5) mandate data collection on police encounters; 6) reprogram existing funds to invest in transformative community-based policing programs; and 7) streamline federal law to prosecute excessive force and establish independent prosecutors for police investigations.”  In greater detail, the Act:

  • “Prohibits federal, state, and local law enforcement from racial, religious and discriminatory profiling, and mandates training on racial, religious, and discriminatory profiling for all law enforcement.
  • Bans chokeholds, carotid holds and no-knock warrants at the federal level and limits the transfer of military-grade equipment to state and local law enforcement.
  • Mandates the use of dashboard cameras and body cameras for federal offices and requires state and local law enforcement to use existing federal funds to ensure the use of police body cameras.
  • Establishes a National Police Misconduct Registry to prevent problematic officers who are fired or leave on agency from moving to another jurisdiction without any accountability.
  • Amends federal criminal statute from “willfulness” to a “recklessness” standard to successfully identify and prosecute police misconduct.
  • Reforms qualified immunity so that individuals are not barred from recovering damages when police violate their constitutional rights.
  • Establishes public safety innovation grants for community-based organizations to create local commissions and task forces to help communities to re-imagine and develop concrete, just and equitable public safety approaches.
  • Creates law enforcement development and training programs to develop best practices and requires the creation of law enforcement accreditation standard recommendations based on President Obama’s Taskforce on 21st Century policing.
  • Requires state and local law enforcement agencies to report use of force data, disaggregated by race, sex, disability, religion, age.
  • Improves the use of pattern and practice investigations at the federal level by granting the Department of Justice Civil Rights Division subpoena power and creates a grant program for state attorneys general to develop authority to conduct independent investigations into problematic police departments.
  • Establishes a Department of Justice task force to coordinate the investigation, prosecution and enforcement efforts of federal, state and local governments in cases related to law enforcement misconduct.”

It would make lynchings a federal hate crime, ban federal officials from using chokeholds, ban federal funds to state and local law enforcement agencies that do not bar chokeholds, bar law enforcement from racial and religious profiling, make it easier to prosecute police officers for misconduct and allow civilians to recover some damages if their constitutional rights are found to have been violated by police, a change to the judicial doctrine known as qualified immunity.

It should be noted that three Republican representatives voted for this bill: Brian Fitzpatrick (PA), Will Hurd (TX) and Fred Upton (MI).

 Conclusion

As a Democrat you supports various means of reforming policing in the U.S., I am disappointed that the Congress was unable to agree on such measures.

However, I think it was a political mistake for the Senate Democrats to block consideration of the Senator Tim Scott reform bill. As I understand what happened in the Senate, the Democrats had no objections to the bill’s provisions. Instead, they objected that the bill did not go far enough. Their objections could have been made during the debate on the Scott bill, with or without proposed amendments that probably would be defeated by the Republican majority. Moreover, by allowing the Republicans to approve the bill would allow the Democrats to provide political support to Republican Senator Tim Scott.

This assessment was shared by Marc A. Thiessen, a fellow of the conservative American Enterprise Institute, a former speechwriter for President George W. Bush, a Fox News contributor and a Washington Post columnist,  He emphasized that stopping such a debate in the Senate eliminated the possibility of having such a discussion in that body for the foreseeable future and even the possibility of having some Democratic amendments adopted. Thiessen claims that the bill already included some Democratic proposed additions: making lynching a federal hate crime, creating a national policing commission to review the U.S. criminal justice system, barring chokeholds by federal officers, withholding federal funds from state and local law enforcement agencies that do not bar chokeholds and that do not report use of non-knock warrants to the U.S. Justice Department. Indeed, according to Thiessen, Senator Scott had said he would vote to support  some of the proposed amendments.[4]

Such a Democratic strategy also would have avoided the embarrassing comment by Senator Richard Durbin (Dem., IL) that the Scott bill was “a token, half-hearted approach,” by an African-American man who personally had experienced police discrimination that compelled the subsequent apology from Senator Durbin.

Moreover, the Democrat-controlled House the next day adopted the more comprehensive reform bill which they wanted and which the Republican-controlled Senate undoubtedly will reject when it goes there.

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[1] U.S. Senate, Justice Act, 116th Congress, 2d Sess. (full text); U.S. Senate, JUSTICE Act (Just and Unifying Solutions to Invigorate Communities Everywhere): Section-by-Section Analysis,  116th Congress, 2d Sess.; Senator Scott, Press Release: Senator Tim Scott Delivers Fiery Speech on Senate floor After Senate Democrats Stonewall Legislation on Police Reform Across America (June 24, 2020); Senator Scott, Press Release: Senate Democrats Block Police Reform from Coming to Communities Across America (June 24, 2020); Edmondson & Fandos, Senate G.O.P. Unveils Narrow Policing Bill, Setting Up a Clash with Democrats, N.Y. Times (June 17 & 24, 2020); Edmondson, Senate Democrats Block G.O.P. Police bill, calling It Inadequate, N.Y.Times (June 24, 2020); Kim, Senate Democrats block GOP policing bill, stalling efforts to change law enforcement practices, Wash. Post (June 24, 2020); Balko, Both parties’ police reform bills ae underwhelming. Here’s why, Wash. Post (June 24, 2020); Peterson & Zitner, Senate Democrats Block GOP Policing Bill, W.S.J. (June 24, 2020); Editorial, The No Debate Democrats, W.S.J. (June 24, 2020); Bobi, Police Reform Stalls Out in The Senate, HuffPost (June 24, 2020).

[2] Representative Bass, Press Release: House Passes George Floyd Justice in Policing Act (June 25, 2020); George Floyd Justice in Policing Act (full text);  Congressional Black Caucus, Fact Sheet: George Floyd Justice in Policing Act ; House Passes George Floyd Justice in Policing Act, N.Y. Times (June 25, 2020); Andrews, House Passes Democrats’ Policing Bill, but No Path Seen for Deal, W.S.J. (June 25, 2020); Carney, Gridlock mires chances of police reform bill, The Hill (June 25, 2020); Brufke, Three GOP lawmakers vote for Democrat-led police reform bill, The Hill (June 25, 2020).

[3] The qualified immunity defense was established by the U.S. Supreme Court in Monell v. Department of Social Services (1978) that victims can’t recover damages from the city under the Civil Rights Act of 1871 unless the police misconduct was a breach of an “official policy or custom.” Subsequent Supreme Court cases have reaffirmed that standard to limit liability to “the plainly incompetent” and “those who knowingly violate the law.” (Malley v. Briggs (1986); Mccleary v. Navarro (1982), and just this month the Court refused to hear current cases challenging that standard. (Reuters, Supreme Court Rejects Cases Over ‘Qualified Immunity’ for Police, N.Y. times (June 15, 2020).)  As Peter Schuck, a professor emeritus at Yale Law School, pointed out, a simple amendment of that 1871 statute would eliminate this defense. (Schuck, The Other Police Immunity Problem, W.S.J. (June 24, 2020).) 

[4] Theissen, Democrats’ shameful vote against Tim Scott’s police reform bill, Wash. Post (June 25, 2020).

 

Use of Chokeholds and Neck Restraints by Other Minnesota Police Departments   

MINNPOST (a nonprofit, nonpartisan online news service) recently contacted 21 Minnesota police departments, most outside the Twin Cities metro area, to find out whether they allowed chokeholds and neck restraints.[1]

Of these departments, 18 said their officers are not allowed to use neck restraints or chokeholds of any kind — except as deadly force if the officer fears for his own life. They included Anoka County, Austin, Brainerd, Brooklyn Park, Duluth, Fergus Falls, Mankato, Moorhead, Rochester, Sartell, Sherburne County, St. Louis County, St. Paul, Stearns County and the Minnesota State Patrol.

The bans in Rochester and Brooklyn Park were only imposed last week even though vascular neck restraints could help shorter officers, especially women, take someone bigger into custody.

Many said “the practices had been out of use for as long as they could remember, largely because they can be dangerous.” The New Ulm police chief Dave Borchert, said, “I was actually surprised when I learned that Minneapolis still had it to be honest with you. I would have thought that would have been gone for decades.”

Three (Winona, Willmar and Bloomington) said their officers currently are allowed to use the non-lethal form of neck restraint:

  • According to Winona’s Deputy Chief Tom Williams, its “police are trained to use a vascular restraint that cuts off blood flow to knock someone unconscious.’ For example, “it can be used when you’re ‘grappling with someone’ in close contact and can’t reach other weapons like a taser. Police are supposed to incapacitate a person, then give them aid and make sure blood is returning to their head. Winona police can also use a respiratory chokehold to cut off air flow, but it can only be used as deadly force.”
  • In Willmar, “police captain Mike Anderson said his department teaches a ‘shoulder pin restraint,’ where an officer applies pressure to one side of a person’s neck but doesn’t cut off air supply. They do not teach chokeholds.”
  • The deputy chief of the Bloomington Police Department, Mike Hartley, said his department authorizes a vascular neck hold, which can be used to knock someone temporarily unconscious. While he said the department is always evaluating the effectiveness and safety of its techniques, they’re not considering eliminating the hold right now.

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[1] Orenstein, How common is it for Minneapolis police departments to authorize chokeholds, ‘neck restraints,’ MINNPOST (June 15, 2020). /

 

 

 

 

 

 

 

Court Approves Agreement for Police Conduct Between City of Minneapolis and Minnesota Human Rights Department     

On June 5 The City of Minneapolis and the Minnesota Department of Human Rights signed a Stipulation and Order mandating certain changes for conduct of the City’s police. Most prominent were a ban on the use of choke holds and neck restraints and requiring officers to intervene when inappropriate force is used. The agreement was in the form of a Stipulation and Order for approval of the Hennepin County District Court.[1]

On June 8 that approval was granted by Hennepin County District Judge Karen Janisch.[2] That approval was in the form of a court order for the Minneapolis Police Department immediately to implement  the following measures[3]

  • Ban the use of all neck restraints and chokeholds.
  • Any police officer, regardless of tenure or rank, must report while still on scene if they observe another police officer use any unauthorized use of force, including any chokehold or neck restraint.
  • Any police officer, regardless of tenure or rank, must intervene by verbal and physical means if they observe another police officer use any unauthorized use of force, including any choke hold or neck restraint.
  • Only the Police Chief or the Chief’s designee at the rank of Deputy Chief may approve the use of crowd control weapons, including chemical agents, rubber bullets, flash-bangs, batons, and marking rounds, during protests and demonstrations.
  • The Police Chief must make timely and transparent discipline decisions for police officers as outlined in the order.
  • Civilian body worn camera footage analysts and investigators in the City’s Office of Police Conduct Review have the authority to proactively audit body worn camera footage and file or amend complaints on behalf of the Minneapolis Civil Rights Department.

As a result, the court has the power to enforce compliance with these measures and failure to do so could lead to court-imposed sanctions.

According to Minnesota Commissioner of Human Rights Rebecca Lucero, “Today’s court order will create immediate change for communities of color and Indigenous communities who have suffered generational pain and trauma as a result of systemic and institutional racism and long-standing problems in policing.”

Judge Janisch was appointed to the bench in 2009 by Governor Tim Pawlenty (Rep). and was elected to that position in 2010 and 2016. She obtained her J.D. magna cum laude from the University of Minnesota Law School in 1992 and was a Minnesota Supreme Court law clerk, 1992-93, an associate and partner in a Minneapolis law firm, 1993-2003 and General Counsel to Governor Pawlenty, 2003-2009.

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[1]  Ban on Police Choke Holds and Neck Restraints in Agreement Between City of Minneapolis and Minnesota Human Rights Department, dwkcomentaries.com (June 6, 2020.)

[2] Press release, Court Orders Minneapolis Police Department to Make Immediate Changes, Minn. Dep’t Human Rts. (June 8, 2020); Griswold, Court orders Minneapolis Police Department to implement immediate changes,  KARE11 News (June 8, 2020).

[3] Stipulation and Order, State of Minnesota v. City of Minneapolis Police Department, City of Minneapolis, Ct. file # 27-CV-20-8182 (Henn. Cty. Dist. Ct. June 8, 2020).

 

Ban on  Police Choke Holds and Neck Restraints in Agreement Between City of Minneapolis and Minnesota Human Rights Department

On June 5, the City of Minneapolis and the Minnesota Department of Human Rights announced an agreement to ban Minneapolis police from using choke holds and neck restraints and to require officers to intervene when inappropriate force is used. The agreement was approved that same day by the Minneapolis City Council and signed by Mayor Jacob Frey, who said, “George Floyd’s service yesterday underscored that justice for George requires more than accountability for the man who killed him – it requires accountability from elected leadership to deep, structural reforms. Today’s agreement with the state will help bring those layers of accountability. This unprecedented energy and momentum for police reform has left Minneapolis poised not just to address our shortcomings, but to become a model for shifting police culture and uprooting systemic racism.” [1]

The agreement is in the form of a Stipulation and Order to be signed by a Hennepin County District Judge after the Department files a lawsuit against the City, which a StarTribune article says happened in the afternoon of June 5, but which was not yet publicly available..[2] This is a result of the Department’s  June 2nd filing a civil rights charge against the City related to the George Floyd death and launching a general investigation of whether and how the Minneapolis Police Department has for the past 10 years engaged in discretionary practices toward people of color.[3]

This Stipulation, if and when it is approved by a district judge, would order the City of Minneapolis as follows:

  1. BAN CHOKEHOLDS: “Within 10 days of the Effective Date, the City will amend Police Department Policy and Procedure Manual §§ 5-100 (Code of Conduct), 5-300 (Use of Force), and 5-311 (Use of Neck Restraints and Choke Holds) to prohibit the use of all neck restraints or choke holds for any reason.”
  2. “DUTY TO REPORT: Regardless of tenure or rank, any member of the City’s Police Department who observes another member of the City’s Police Department use any unauthorized use of force, including any choke hold or neck restraint, in violation of this Stipulation and Order, has an affirmative duty to immediately report the incident while still on scene by phone or radio to their Commander or their Commander’s superiors.”
  3. “DUTY TO INTERVENE: Regardless of tenure or rank, any member of the City’s Police Department who observes another member of the City’s Police Department use any unauthorized use of force, including any choke hold or neck restraint in violation of this Stipulation and Order, must attempt to safely intervene by verbal and physical means, and if they do not do so shall be subject to discipline to the same severity as if they themselves engaged in the prohibited use of force.”
  4. “CROWD CONTROL AUTHORIZATION: During protests and demonstrations, use of all crowd control weapons must be authorized only by the Chief of Police, or if the Chief is unavailable, the Chief’s designee at the rank of Deputy Chief or above. Crowd control weapons include, but are not limited to, chemical agents, rubber bullets, flash-bangs, batons, and marking rounds. The Police Department shall contemporaneously document the person who authorized the use of crowd control weapons and retain such documentation for a period of not less than seven years. Accordingly, within 10 days of the Effective Date, the City will amend Police Department Policy and Procedure Manual § 5-313 to reflect that chemical agents, regardless of canister size, may be used during crowd control situations if authorized only by the Chief of Police, or if the Chief is unavailable, the Chief’s designee at the rank of Deputy Chief or above. Any other provisions of the Police Department Policy and Procedure Manual that identify the authorized use of other crowd control weapons must also be amended within 10 days of the Effective Date to reflect that use of such weapons must be authorized only by the Chief of Police.”
  5. “TIMELY DISCIPLINE DECISIONS: For all recommendations that are pending as of the Effective Date of this Stipulation and Order, the Police Chief must issue a decision on any recommendation from the City’s Office of Police Conduct Review (OPCR) within 45 calendar days of the Effective Date. For all recommendations of merit provided by the OPCR after the Effective Date of this Stipulation and Order, and for the duration of this Stipulation and Order, the Police Chief must issue a written memorandum explaining the basis their decision, including the relevant facts, policies and law supporting the decision, within 30 calendar days. If and when permitted by Minn. Stat. § 13.43, the decision and written memorandum will be immediately made available to the public via the City’s website and must also be available for physical inspection. Within 90 calendar days of the Effective Date of this Stipulation and Order, the City shall amend any city ordinances to conform to the requirements of this paragraph. The City shall also amend any city ordinances to fashion an appropriate remedy for the person filing the complaint if a determination on the OPCR’s recommendation of merit is not made within the 30 calendar day time period.”
  6. “BODY WORN CAMERA FOOTAGE REVIEW: Civilian body worn camera footage analysts and investigators in the OPCR will have the authority to proactively and strategically audit body worn camera (BWC) footage and file or amend complaints on behalf of the Minneapolis Civil Rights Department. Within 90 calendar days of the Effective Date, the City of Minneapolis will submit to the Department of Human Rights a plan for detailing how it intends to strategically utilize this audit function to identify discriminatory practices in policing, including officer misconduct.”

In addition, the Stipulation, if and when it is approved by a district judge, would order the City of Minneapolis to do certain things to aid the Department’s current investigation as well as the following for “Building Toward Systemic Change:”

  1. “On or before July 30, 2020, the City Attorney shall prepare a report listing the State of Minnesota Laws that impede public transparency of police data and/or prevent the Mayor and Chief of Police and/or impede civilian oversight from disciplining and terminating police officers who do not adhere to Minneapolis Police Department policies and standards. “
  2. “The City shall prohibit all forms of retaliation, intimidation, coercion, or adverse action against any person, including any City employee, who reports misconduct or cooperates with MDHR’s Commissioner’s charge investigation. Any violation of this provision shall be considered a material breach of the Order and may result in further enforcement action by MDHR.“

12.“All forms of retaliation, interference, intimidation, and coercion against a City employee or any member of the public who reports misconduct or cooperates with MDHR’s Commissioner’s charge investigation, are strictly prohibited. This prohibited conduct includes anyone employed by the City’s Police Department, or a representative of such employee, who intentionally aids, abets, incites, compels, or coerces a person to engage in any of the practices forbidden by this Stipulation and Order.”

  1. “The City shall notify all employees that it is unlawful to intentionally obstruct or prevent any person from complying with the MHRA, MDHR’s Commissioner’s Charge investigation, or any order issued thereunder, or to resist, prevent, impede, or interfere with the Commissioner or any of the Commissioner’s employees or representatives in the performance of their duties.”

Minneapolis Mayor Jacob Frey said, ““George Floyd’s service yesterday underscored that justice for George requires more than accountability for the man who killed him — it requires accountability from elected leadership to deep, structural reforms.”

Presumably the Minneapolis Police Union has a right to intervene in this lawsuit and to oppose the proposed Stipulation and Order that would have to be ruled on by the district court.

We will wait to see whether they do so and what happens.

Reactions

These proposed revisions of the MPD Manual, in this blogger’s opinion, should be approved by the court after a hearing.

If and when approved by the court, however, they would only go into effect for subsequent actions by the police. Therefore, they are not relevant to the pending criminal cases about the killing of George Floyd. However, provisions of the existing MPD Manual will be relevant to these cases as discussed below.

Case Against Derek Chauvin[4]

That  Manual states that a “Choke Hold’s is a “deadly force option” by “applying direct pressure on a person’s trachea or airway (front of the neck), blocking or obstructing the airway.” (Manual sec. 5-311(I).)

“Deadly force” is defined in the Manual, quoting Minn. Stat. sec. 609.066, subd. 2 as ““Force which the actor uses with the purpose of causing, or which the actor should reasonably know creates a substantial risk of causing death or great bodily harm.”(Manual sec. 5-302.).

“Neck restraint,” on the other hand, is stated in the Manual as a “non-deadly force option” and is defined as “compressing one or both sides of a person’s neck with an arm or leg, without applying direct pressure to the trachea or airway (front of the neck). Only sworn employees who have received training from the MPD Training Unit are authorized to use neck restraints.” In addition, the Manual  “authorizes two types of neck restraints: Conscious Neck Restraint and Unconscious Neck Restraint.” (Manual sec. 5-311.)

  • “Conscious Neck Restraint:The subject is placed in a neck restraint with intent to control, and not to render the subject unconscious, by only applying light to moderate pressure.” It “may be used against a subject who is actively resisting.”
  • “Unconscious Neck Restraint:The subject is placed in a neck restraint with the intention of rendering the person unconscious by applying adequate pressure.” It “shall only be applied in the following circumstances:
  1. On a subject who is exhibiting active aggression, or;
  2. For life saving purposes, or;
  3. On a subject who is exhibiting active resistance in order to gain control of the subject; and if lesser attempts at control have been or would likely be ineffective.”

Criminologists who have seen the videotape of Chauvin’s treatment of Floyd say that Chauvin’s  “knee restraint not only puts dangerous pressure on the back of the neck, but that Mr. Floyd was kept lying on his stomach for too long. Both positions. . .run the risk of cutting off someone’s oxygen supply.”

These criminologist also said that the fact that Mr. Chauvin kept applying pressure when Mr. Floyd was no longer struggling made it appear to be a case of an officer trying to punish a suspect for doing something the police did not like. Philip M. Stinson, a former police officer and now a criminal justice professor at Bowling State University, said it was “a form of ‘street justice,’ . . . bullying [to teach] someone a lesson—next time you will think twice about what you do.”

Case Against Other Officers

The existing MPD Manual, under the heading “Duty To Intervene” states: “ Sworn employees have an obligation to protect the public and other employees.” (Manual sec. 5-303.01(A).) And “It shall be the duty of every sworn employee present at any scene where physical force is being applied to either stop or attempt to stop another sworn employee when force is being inappropriately applied or is no longer required.” (Manual sec. 5-303.01(B).)

Conclusion

 Subsequent posts will cover the future court hearing and decision on the proposed changes to the MPD Manual while other posts will analyze the pending criminal cases and developments.

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[1] Navratil,Tentative agreement would ban chokeholds, neck restraints by Minneapolis police, StarTribune (June 5, 2020); Minneapolis to ban the use of chokeholds in response to George Floyd’s death, N.Y. Times (June 5, 2020); Governor Walz, Walz-Flanagan Administration, City of Minneapolis Agree on Immediate Changes to Minneapolis Police Department Policies (June 5, 2020); Chavez, Sanchez & Alonso, Minneapolis City council votes to ban chokeholds one day after George Floyd memorial, cnn.com (June 5, 2020); Collins, Chapman, Martinez & Li, Weekend George Floyd Protests Planned, Seeking Reforms, W.S.J. (June 5, 2020); ‘Layers of accountability’: Mayor Jacob Frey Signs Restraining Order Forcing Immediate Reforms in Mpls. Police Dept., CBS Minnesota (June 5, 2020).

[2] Stipulation and Order [unsigned], State of Minnesota v. City of Minneapolis Police Department, City of Minneapolis (undated2020) (unsigned).

[3] Berkl & Navratil, Minnesota Human Rights Department launches probe into Minneapolis police, StarTribune (June 3, 2020);

Minn. Dep’t Human Rts., Civil Rights Investigation into Minneapolis Police Department (June 3, 3030); Governor Walz, Walz Administration’s Department of Human Rights Files Civil Rights Charge Against Minneapolis Police Department (June 2, 2020).

[4] MacFarquar, In George Floyd’s Death, a Police Technique Results in a Too-Familiar Tragedy, N.Y.Times (May 29, 2020).