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, at least during a brief window of time, confront its past on issues of racism and police abuse. The video showing Mr. Floyd pleading for his life while a Minneapolis police officer knelt on his neck became an unprecedented catalyst for outrage. Even in the midst of the COVID-19 pandemic, massive protests and civil unrest spread from Minneapolis to all over the world.
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. Likewise, a majority of the Minneapolis City Council vowed to “begin the process of ending the Minneapolis Police Department.” By summer’s end, Iowa, Delaware, Utah, and Nevada passed legislation banning choke holds, and Colorado enacted broad changes that could serve as a model for Minnesota and other states. Meanwhile, the United States House of Representatives passed a bipartisan bill that “mark[ed] one of the most comprehensive efforts in modern times to re-imagine law enforcement departments across the country.”
In Minnesota, Governor Tim Walz called a special session of the Minnesota Legislature less than two weeks after Mr. Floyd’s killing to address “the need for systemic police accountability and reform in Minnesota.” However, despite promises for “sweeping changes,” the legislature failed to reach an agreement during the first special session. During the second special session, however, approximately one month later, legislators found more success. After weeks of negotiations, the legislature overwhelmingly passed perhaps the most expansive police reforms in the state’s history and substantially more than any other state had accomplished up to that point, other than Colorado. The new legislation included: a statewide ban on choke holds; including the kind of neck restraint used on Mr. Floyd; a prohibition on warrior-style training for officers; enhanced data collection around deadly force encounters; a requirement that officers intervene when witnessing excessive force by other officers; and the creation of a new state unit to investigate police killings, among other changes.
The final reform bill, however, left considerable work to be done, particularly given the depth of policing problems in Minnesota. Governor Walz acknowledged that the law was “only the beginning” and that “[t]he work does not end today.” Many legislators considered the bill only a first step. Indeed, the final bill represented significant compromises from the initial proposals considered by the House of Representatives. Several lawmakers publicly declared that the bill was “insufficient” but voted for it anyway. Others raised concern about the lack of public input and the nature of the final negotiations. Many community leaders criticized the legislation and spoke out for further action.
The legislation passed last summer reflects both the speed with which legislators acted and the substantial amount of work still left to be done. In the past, Minnesota has shown its capacity to respond to shocking acts of violence with strong legislation. Almost exactly one hundred years before Mr. Floyd’s killing, three African American men, Elias Clayton, Elmer Jackson, and Isaac McGhie, were lynched by a mob of thousands of White people in Duluth while police stood by and failed to do anything to stop them, having ignored clear warnings of the planned lynchings from earlier in the day. Within one year, the Minnesota Legislature responded with arguably the strongest anti-lynching legislation in the United States at the time, becoming one of the first states to ban lynching altogether. Now, the State of Minnesota must answer the call again to confront what has happened in the hundred years since then.
The century between the anti-lynching bill and last summer’s legislation was largely marked by decades of inaction, while police violence and abuse of power went largely unabated. In fact, over the past several years, being killed by the police has become a leading cause of death amongst young men of color. Nearly 200 people in Minnesota were killed by the police between 2000 and 2020. And yet, “the cycle of police brutality and racism has been met with cosmetic tinkering instead of substantive structural change.” The public protests in Minnesota and nationwide were a response not only to unjust policing of marginalized communities in particular, they “are a cry for action to public officials for real change, writ large.”
While there are many tools available for police reform, this article focuses on options available to the Minnesota State Legislature. The legal system, in general, has fallen short of its obligations to curb police violence in three ways. First, federal civil rights laws designed to incentivize better police behavior and provide remedies to victims of police abuse have been deeply undermined by the United States Supreme Court. In particular, 42 U.S.C. § 1983 (hereinafter “§ 1983”), “the primary weapon used by civil rights lawyers to remedy police abuse,” has been the subject of incremental attacks from the Court for sixty years. Specifically, the judicially-constructed doctrine of “qualified immunity”—a concept not specifically mentioned in the text of § 1983—has expanded to the point of nearly swallowing whole any chances plaintiffs once had of vindicating rights under § 1983.
Second, in those cases that actually impose civil liability on officers who abuse their power, the deterrent effects of § 1983 have been undercut by a second development: the near-universal indemnification of police officers by taxpayers. Even if officers are found guilty of § 1983 violations in civil court and ordered to pay damages, the officers often pay nothing at all. Regardless of how egregious their violations of constitutional law, officers face little or no financial consequence whatsoever.
Third, hardly any officers are ever charged, much less convicted, in cases of police-involved killings. State criminal laws still lag behind what many police departments already require. Statutes defining deadly use of force focus exclusively on the officer’s state of mind and neglect the officer’s conduct during the situation that led to the use of deadly force. While Minnesota actually included some improvements to its deadly use-of-force statute last summer, the law in Minnesota still focuses entirely on the moment that deadly force was used rather than what officers could have done to prevent the situation from arising at all.
This article responds to each of these problems with three specific legislative proposals based on similar ideas from community activists, academics, legislators, and other states. For example, in response to the limited effectiveness of § 1983, Colorado recently enacted a state-based equivalent. Its new law explicitly denies accused officers the protection of qualified immunity while providing the benefits afforded plaintiffs under the federal act, including attorney’s fees. In response to the near-universal indemnification of officers, community activists have been pushing the idea of professional liability insurance for officers for years. Last summer, several state representatives drafted actual legislation. While that bill did not pass, it is at least a template for future legislation. Lastly, Professor Cynthia Lee drafted a model use of force statute with provisions that address many gaps that persist within Minnesota’s deadly use of force statute after the police reform bill passed last summer, namely covering pre-seizure conduct and whether officers attempted to de-escalate the situation before using deadly force.
Minnesota can build on each of these three ideas to create legislative reforms targeting current weaknesses in the law around police accountability. Minnesota’s past provides important context for the urgency of additional reform in this area. Part II of this article provides background on the racist and problematic history of policing in Minnesota and the many reports and studies that have both condemned the State’s lack of action and proposed specific steps that could have helped, but were never taken.
Part III of this article details the three specific legislative proposals recommended to address the problems discussed above. First, Minnesota should enact a state-based civil rights statute modeled on federal § 1983, but with explicit restrictions on qualified immunity. Second, Minnesota should enact a complete change to the current model of officer indemnification and require that officers carry their own professional liability insurance, just like lawyers and doctors do, to leverage market-based accountability forces. Third, Minnesota should amend its current statute on police use of deadly force to include consideration of what an officer does or does not do that contributes to the circumstances leading to the deadly use of force.