Following Derek Chauvin’s callous murder of George Floyd, Minneapolis and the world erupted in a civil rights reckoning. Government agencies responded in various ways. Both the Minnesota Department of Human Rights (MDHR) and the U. S. Department of Justice (DOJ) opened investigations into the practices of the Minneapolis Police Department (MPD).
By: Abigail Cerra and Paul Ostrow
The MDHR has completed its investigation, issued findings, and negotiated a proposed settlement agreement with the City. The DOJ also completed its investigation and issued findings; it is now engaged with the City to negotiate—or litigate—a federal consent decree. Both agencies, separately and independently, found that MPD and City administrators engage in discriminatory policing. Here are five takeaways from these critical investigations.
1. Federal Versus State
With two separate investigations and sets of findings, there is the potential for overlap, conflict, and confusion. All of the parties—the MDHR, DOJ, and City—have agreed to work collaboratively moving forward. There will be one set of remedies and, importantly, one independent evaluator to oversee the two consent decrees. (The DOJ has not issued a formal consent decree yet, but it is virtually certain to issue one in the coming months.) MDHR’s proposed settlement with the City states that they have invited the DOJ to review applications for the independent evaluator and provide feedback, as one example of the shared intent to cooperate. The independent evaluator, and no one else, has the authority to go to court and request the presiding judge to enforce the settlement agreement(s).
If there is any conflict or disagreement, then the DOJ and the forthcoming federal consent decree would control. In a community meeting following the release of their findings, one DOJ attorney explained that there will be only one independent evaluator to oversee both the state and federal consent decrees. Since the MDHR and City have reached a proposed settlement, they will likely select the independent evaluator. Nevertheless, if that person or agency does not suit the DOJ, then the DOJ will select another.
2. Transforming the Culture of MPD
The tenor of the state settlement agreement seems to be transforming the culture of the MPD. Throughout that the document, the parties describe a “shared commitment” to create a department that focuses on “humanity, dignity, and civil rights”, that builds trust with the community, and that operates as one part of a “strong public safety system.” The DOJ findings use similar terminology, and the federal consent decree will likely track closely to the states. The specific remedies and requirements emanate from these guiding principles of culture change. The DOJ’s prospective remedies will likely build on those of the MDHR.
3. Transparency & Accountability
Throughout the MDHR investigation, DOJ investigation, and various political campaigns, the buzzwords for reform have been “transparency” and “accountability.” Leaders often repeat those words like an incantation, as though simply saying them will make them true.
There is a peculiarity in Minnesota law that creates an ostensible roadblock to transparency and accountability for police officers. The Minnesota Data Practices Act (MGDPA) provides that information about misconduct is only public data if there is discipline, and the discipline is final. Accordingly, the only way for the City to achieve transparency into police misconduct would be to discipline officers for confirmed acts of misconduct and then disclose that data to the public. This would achieve the dual aim of accountability, too.
Despite numerous references to transparency and accountability, the state’s proposed settlement does not have any provisions to ensure either transparency or accountability.
Despite numerous references to transparency and accountability, the state’s proposed settlement does not have any provisions to ensure either transparency or accountability. Instead, the parties agreed that discipline—and thus public data disclosure—is always optional. The agreement also describes “non-disciplinary corrective action” and “coaching” for confirmed acts of misconduct, which is the very same tactic the City has been using to cover up misconduct. The only nod the state gives to transparency and accountability is to prohibit certain kinds of complaints from bypassing investigation and going straight to non-disciplinary “coaching”. However, those complaints could still result in non-public “coaching” after an investigation.
Another provision of the state’s settlement agreement may seem innocuous at first but has the effect of impairing transparency and accountability. The Independent Evaluator will have access to misconduct investigations, documents, and data “to the extent permitted by law”. That means that no one outside of the City, not even the Independent Evaluator, will have access to misconduct data for matters that do not result in discipline.
Taking the state’s settlement to an extreme degree, this means that an officer could engage in egregious excessive force, an investigation substantiates the improper use of force, and then the officer is “coached”, and all related data is withheld from the public, the Independent Evaluator, and the court. This maintains the status quo of existing City policies designed to coverup serious acts of police misconduct.
The DOJ’s findings were more critical of coaching. They note, for example, that “[o]fficers who commit serious misconduct are diverted to coaching [instead of discipline] …” Since they made specific findings regarding the fallacy of “coaching”, it is possible the federal consent decree will have stronger provisions to ensure actual transparency and accountability. To the extent the federal consent decree conflicts with the state’s—on coaching or anything else—the federal one would govern.
4. Brady
In its findings, pages 64-67, the MDHR described a sweeping failure to gather, review, and produce Brady material in criminal cases. Brady material includes many types of evidence, including information about police misconduct on the streets and in the courtroom. Despite the staggering admission that the City and County know that the City has not disclosed MPD Brady data “from the beginning of 2020 through at least the fall of 2021”, there is no mention of Brady in the state’s proposed settlement agreement. The DOJ did not make findings that specifically implicate Brady violations, so it is not clear whether that office will propose remedies for the systemic constitutional failings either.
As we have written previously, the requirements of Brady v. Maryland are clear. A sustained violation relating to discriminatory policing, excessive use of force, or dishonesty, regardless of discipline, is Brady material which must be provided to criminal defendants. The Minneapolis City Council has not funded a Brady database and no action has been taken to ensure that sustained misconduct data is provided to defense counsel. The new Hennepin County Attorney has not fixed the glaring holes in her office’s Brady policy, despite her campaign promises to do so. The Minneapolis City Attorney and the Hennepin County Attorney are required by the Constitution to disclose all Brady material to defense counsel, even if neither the MDHR nor the DOJ agreements proposed specific remedies on that point.
5. Hennepin Practitioners Can Have an Impact
Legal practitioners in Hennepin County can have a big impact on policing, separate and apart from the two consent decrees. Here are some examples:
- Prosecutors must conduct a thorough search for Brady data, since neither prosecutorial offices nor the police are gathering or disclosing essential information. Each individual prosecutor has an ethical duty to disclose Brady material to the defense—see, e.g., Minnesota Rule of Professional Conduct 3.8(d).
- Judges must engage in a rigorous inquiry to ensure that prosecutors have gathered and disclosed all Brady data including any sustained violations when discipline was not imposed. The DOJ’S specific findings that “coaching” was overused by the City for significant violations should be a clarion call to the Hennepin County bench to prevent bamboozlement of the court and juries.
- Civil and criminal lawyers must refuse to protect and promote police misconduct. When an officer engages in excessive force, discriminatory policing, or outright falsehood, the prosecutors must critically review their cases and decline charges when necessary. Defense attorneys must use the state and federal findings to protect their clients’ rights. Judges must dismiss criminal charges and requests for qualified immunity when they encounter acts of police misconduct.
- Demand that the Minneapolis City Council and Mayor discuss and debate police reform in public. This is not a time for closed door meetings with attorneys or behind-the-scenes communications strategy sessions.
- Legal practitioners are also voters. Don’t judge success on high-minded speeches and sound bites. Judge success—or failure—on actual results that you can see with your own eyes.
Conclusion
Both the state and federal government, in two independent investigations, concluded that the MPD discriminates in policing. The state has reached a settlement agreement with the City, and the DOJ will likely reach its own soon. All parties have agreed to work together, collaboratively, to transform the culture of policing in Minneapolis. These agreements are not a panacea for police reform, though, and it remains incumbent on us, the general public, to hold our leaders and officers accountable. With the government’s findings in hand, there is a clear path forward for Hennepin County practitioners to transform our systems of public safety and institutions of justice.
By Abigail Cerra and Paul Ostrow
Abigail Cerra was awarded 2021 Minnesota Attorney of the Year, Outstanding Service to the Profession, for her work on the Minneapolis Police Conduct Oversight Commission. She has been quoted in media outlets ranging from the BBC and TIME Magazine to the Minnesota Reformer and neighborhood newspapers. She has served as a Hennepin County Public Defender and Chair of the Police Conduct Oversight Commission. Abigail is currently senior counsel and enterprise pro bono coordinator for Wells Fargo. She also writes articles, participates on panels, and presents CLEs regarding criminal law and public safety.
Paul Ostrow has over 25 years of experience as a criminal prosecutor and currently serves as an Assistant Anoka County Attorney. Paul works closely with the Anoka Hennepin Violent Crime Enforcement Task Force. Paul served three terms on the Minneapolis City Council representing northeast Minneapolis. During his service on the Council he served as City Council President and Ways and Means/Budget Chair. Paul has also served as chair and board member of the Civic Caucus, Minnesota Committee on Government Information and No Labels Minnesota.