State board plan would broaden its powers over police misconduct

By: - December 1, 2021 3:11 pm

A screenshot from body camera video shot the night Jaleel Stallings returned fire after being hit with a rubber bullet by a Minneapolis Police Department SWAT team.

A citizen advisory council is considering a contentious proposal that would give the state’s police licensing board the power to remove problem officers from the streets, even without disciplinary action from their bosses.

The state’s Peace Officer Standards and Training Board, or POST Board, currently has authority to strip an officer of his or her license only if they lie or cheat on a board test, lie to the board, commit sexual assault or harassment or use deadly force.

The proposal debated by the newly formed Ensuring Police Excellence and Improving Community Relations Advisory Council on Wednesday would allow the board to take disciplinary action for broader range of misconduct, including excessive force and criminal conduct, even without a conviction, for violations such as DUIs, domestic abuse, assault, felony drug crimes, soliciting prostitutes or theft.

While rule changes to police licensure must follow a lengthy process, police reform advocates say the change is necessary for upholding statewide standards for the 15,000 licensed peace officers in Minnesota and removing bad cops from the ranks, particularly when their police chiefs and sheriffs fail to do so.

‘Dramatic overreach’

A Republican lawmaker on the advisory council spoke against the proposal. Rep. Paul Novotny, R-Elk River, a former sheriff’s deputy, put out a press release Tuesday saying it would be a “dramatic overreach by the POST Board” and “an effort by Governor Walz’s anti-law enforcement appointees to jam through controversial policies they know would never pass at the Legislature.”

He said the full POST Board should reject or delay the measure “until its consequences can be submitted properly and be fully vetted.”

“At a time when the long-term effects of the so-called police reform policies are wreaking havoc in the state, this would set a dangerous precedent by allowing anti-police activists to abuse the POST Board process to discipline officers and potentially end their careers even when an officer hasn’t been charged or convicted of a crime,” Novotny said in the release.

He said if police use unlawful force, officers will be held accountable by state law and the judicial process.

Stallings case cited

But leaving consequences up to police investigators and local prosecutors doesn’t always work, said Rep. Carlos Mariani, DFL-St. Paul, who chairs the House Public Safety and Criminal Justice Reform Finance and Policy Committee. 

In a Reformer interview, Mariani cited the Jaleel Stallings case, in which a Minneapolis SWAT team shot rubber bullets at people protesting the police killing of George Floyd without warning from an unmarked van, prompting Stallings to fire back, thinking they were white supremacists. Stallings then was beaten by two police officers.

The MPD officers didn’t tell investigators they fired first when they encountered Stallings, and their conflicting accounts of the incident were later contradicted by body camera videos played during the July trial. Stallings was acquitted by a jury of eight charges, including attempted murder. 

Stallings’ attorney, Eric Rice, told the advisory board that having a system reliant upon convictions to discipline police is inadequate. There are incentives for cops not to report their peers’ misconduct, Rice said, and incentives for internal affairs departments not to investigate or sustain complaints. The current system, Rice said, too often results in no charges being brought against police misconduct, or a weak prosecution of such cases. 

The alternative is to remove the conviction requirement and focus on the conduct, Rice said.

Novotny said he was concerned that Rice was painting all cops with a “broad brush.”

“I know it’s really convenient to use the blue line of silence tagline,” he said. “Would you make the same assertion about lawyers — that lawyers will cover up for lawyers?”

Rice responded that one of the great things about the legal profession is its “robust system of ethics” designed to eliminate conflicts of interest.

Rather than a criminal conviction, the POST Board would just need to look at the facts and find a preponderance of evidence (i.e. more likely than not) the conduct occurred rather than wait for a case to be prosecuted. In the Stallings case, for example, no police officer was charged with any crime. Only Stallings was charged.

What standards should apply?

Wright County Sheriff Sean Deringer, a member of the advisory council, questioned how much due process officers would have, and who would decide whether there was enough evidence to take action on licenses.

Rep. Cedrick Frazier, DFL-New Hope, who is not on the advisory council but attended the meeting, said the proposal would align the POST Board with other licensing boards that do investigations.

Novotny disagreed, saying “I wouldn’t want the standard that you’re proposing to be put into play here on any profession… Are you saying that there’s prosecutors in this state that are part of systemic racism?”

“That is what every other licensing board currently has the ability to do,” Frazier said. “You don’t have to break the law, violate the law or be charged with a crime in order to violate the public trust.”

Rep. Kaohly Vang Her, DFL-St. Paul, noted that the POST Board is already a finder of facts for sexual assault, deadly force and cheating cases.

Asked about statewide disciplinary standards, Deringer went off on the Minneapolis Police Department, saying his days of sticking up for the MPD were over. 

“I’m like, holy crap, everyone, that doesn’t happen. Cops do not do that. Well, no s***, three weeks ago, every news station across Minnesota releases the (Stallings) body cam footage of the Minneapolis Police Department again making headlines because why? That’s exactly what they were doing. I am telling you folks that I was absolutely disgusted watching that. And I’ve defended (the MPD) for the very last time.”

He’s a district director for the Minnesota Sheriffs Association, which he said is “ready to write a letter saying we absolutely denounce whatever is going on with the Minneapolis Police Department.”

“I’m telling you from the top down, that agency needs an overhaul. We are absolutely disgusted,” Deringer said. “I am appalled at the lack of leadership in that agency.”

He said it’s not fair to other agencies in the state that “truly do an unbelievable job serving our communities.”

“Yet we are all cast in the same barrel of crap coming out of Minneapolis proper,” Deringer said. “I’m not saying that they are not issues in outstate Minnesota. Again, I’ve got two deputies on admin leave right now.”

Discipline is inconsistent

Duluth Police Chief Mike Tusken said Deringer was a “hard act to follow” and covered most of the same points he’d planned.

Tusken said discipline of officers is not consistent statewide.

“I do think that that lack of consistency at times, is what our communities look at and say ‘Well wait a minute, what’s going on here?’ We all get painted with a broad brush and it’s not just Minnesota.”

A new, reform-minded POST Board chair, Mendota Heights Police Chief Kelly McCarthy, and George Floyd’s police killing sparked more interest in the board’s role in cases of police misconduct. A 2020 audit said the board could expand its statutory and regulatory functions to do more oversight.

The board was also expanded by two public members, to 17, and Gov. Tim Walz appointed seven new members to the board in February. That changed its makeup from a “sleepy” group dominated by conventional law enforcement thinking into a more “dynamic,” independent board, Mariani said.

“You basically had the fox guarding the chicken coop and that was pretty self-evident by the lack of any kind of meaningful, relevant, current innovation that aligns the licensing practices with truly good, best practices in law enforcement,” he said.

Mariani said he worked with the governor’s office to appoint people to the board who would “actually take action.”

Legal authority

McCarthy said in an interview Tuesday there’s a process the board can use for the Stallings case — although she is not allowed to confirm or deny whether the board has started that process.

The public expects the police licensing board to function like a nursing or teachers’ licensure board, she said, but it doesn’t have the legal authority to do so, but she would like it to “be more in line with public expectations.”

“I think when you tell the public, ‘We don’t have the legal authority to take away your license when we see you murdering a man,’ I think they’re pretty shocked by that,” McCarthy said. “If you’re a hairdresser and you mess up my perm, I can go and have your license taken away.”

The board is in the midst of a major rule overhaul. McCarthy said she hopes that will have a positive effect on police reform. It will take time. Rule changes must go through an advisory committee, then the full board, and then if 25 people request a hearing, it will be held before an administrative law judge. The judge will review the proposed rule either way.

“It’s no small feat to change a rule, which is why it really hasn’t been done in the past at the POST Board,” McCarthy said. “We really need to hear from the public right now, and we need to listen to them.” 

This story was updated Dec. 7 to correct/clarify how the POST rulemaking process works. 

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Deena Winter
Deena Winter

Deena Winter has covered local and state government in four states over the past three decades, with stints at the Bismarck Tribune in North Dakota, as a correspondent for the Denver Post, city hall reporter in Lincoln, Nebraska, and regional editor for Southwest News in the western Minneapolis suburbs. Before joining the staff of the Reformer in 2021 she was a contributor to the Wall Street Journal and the New York Times. She and her husband have a daughter, son, and very grand child. In her spare time, she likes to play tennis, jog, garden and attempt to check out all the best restaurants in the metro area.