Commentary

A close read of the Minnesota statute on police use of deadly force

July 25, 2022 6:00 am

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As of this writing, we are still awaiting completion of the investigation into the shooting of Tekle Sundberg, including its most critical details. Body camera footage recently released notwithstanding.

In the absence of information, some have been quick to defend the shooting based on the trauma experienced by neighbors, who hours earlier had found their lives in danger. This perspective fundamentally misunderstands Minnesota law, which does not authorize police to use deadly force based solely on a suspect’s actions at a distinct point of time.  

Others are quick to presume this shooting was a racially discriminatory act, which — while understandable given the evidence of the MPD’s culture of discrimination as found by the Minnesota Department of Human Rights along with the experience of many over decades — lends itself to a nearly impossible case to prove. Similar to those defending the shooting on the basis of the earlier threat to neighbors, it relies on past conduct as evidence for the present.

The law rightfully does not allow past problems to exclusively determine present accountability. 

To best be prepared to evaluate the evidence, if and when more becomes public, it may be helpful to read through the Minnesota law about police authorized use of force. Here then is the statute, for which only a few lines of irrelevant technical language have been removed, with commentary interwoven. 

609.066 AUTHORIZED USE OF DEADLY FORCE BY PEACE OFFICERS.

Subdivision 1.Deadly force defined.

For the purposes of this section, “deadly force” means 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. The intentional discharge of a firearm, other than a firearm loaded with less lethal munitions and used by a peace officer within the scope of official duties, in the direction of another person, or at a vehicle in which another person is believed to be, constitutes deadly force.

The specific reference to a firearm makes this statute obviously applicable in the Sundberg shooting. Reasonably knowing the substantial risk is clear cut in all police shootings and most other police instigated deaths. A rare instance of police using this paragraph in defense was Derek Chauvin, whose lawyers tried to argue he reasonably didn’t know he was causing risk of death or great bodily harm. The jury didn’t buy it.

Subd. 1a. Legislative intent.

(1) that the authority to use deadly force, conferred on peace officers by this section, is a critical responsibility that shall be exercised judiciously and with respect for human rights and dignity and for the sanctity of every human life. The Legislature further finds and declares that every person has a right to be free from excessive use of force by officers acting under color of law;

The statute leads with an aspirational statement intended to impart broad values. Such language could support civil lawsuits against city police departments for having policies or procedures woefully failing to support this aspiration. But it lacks standards helpful for evaluating the criminal liability of officers who use deadly force, including those who shot Sundberg. 

(2) as set forth below, it is the intent of the Legislature that peace officers use deadly force only when necessary in defense of human life or to prevent great bodily harm. In determining whether deadly force is necessary, officers shall evaluate each situation in light of the particular circumstances of each case;

There has generally been more public attention given to the reasonableness standard for police use of deadly force (which is printed below) than the necessity standard, but both are essential for evaluating the criminal liability of police who kill. Here, killing a suspect to prevent death or great bodily harm provides a clear standard, while the rest of the language is hopelessly vague. 

As information is made available, the key thing to look for will be whether evidence shows not only that Sundberg generally posed a threat to shoot and harm others, but did so right at the point he was killed from across the street by police snipers. Otherwise, necessity would be lacking.

The most critical evidentiary consideration is what the edited version of bodycam footage publicly released intentionally omitted.

(3) that the decision by a peace officer to use deadly force shall be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances known to or perceived by the officer at the time, rather than with the benefit of hindsight, and that the totality of the circumstances shall account for occasions when officers may be forced to make quick judgments about using deadly force,

The reasonableness standard derives from legal interpretation established by the U.S. Supreme Court. Fundamentally, its primary purpose is to set a high bar for finding police misconduct given the split second decision-making that often is involved. And it emphasizes the framing of the subjective experience of the officer, as opposed to an objective view that is removed from the situation and implicitly has the benefit of hindsight. 

Police associations and defenders can be quick to emphasize this standard, which seemingly gives wide latitude for police to act free of criminal culpability, so long as the perceptions that led to the killing, no matter how erroneous, could plausibly have been subjectively held. Many find this to give police too much free reign in practical application, especially when possibly accompanied by unconscious racial bias. Adding fuel to the fire has been police “warrior training,” which certainly can be expected to risk worsening problematic subjective perceptions — both in regard to the inflated sense of danger and racial bias. 

But the reasonableness standard is not the end of the story; necessity still comes into play, and the two standards must be judged in conjunction. Even as what constitutes necessary in any single situation may trigger a range of interpretations, Minnesota law carefully points to a standard by which, at minimum, the risk of death or great bodily harm exists if the police do not at that moment take the action. 

Prosecutors who honestly do not believe they can prove reasonableness and necessity are ethically required not to proceed with charging. This is what has so far occurred with the recent killings of Amir Locke and Winston Smith, and could occur with Sundberg. 

Otherwise, juries are the ones who ultimately must interpret reasonable and necessary, however guided through jury instructions. And it’s fair to say that this is no science: Different juries could hear the same case and draw different conclusions. 

Consider the different jury results for Officer Jeronimo Yanez, who was acquitted in the killing of Philando Castile, and Officer Mohamed Noor, who was convicted in the killing of Justine Ruszczyk Damond. Both officers acted recklessly based on horrifically poor subjective perceptions that were split second. But there was a clear distinction of necessity, even if reasonableness was accepted in both instances. The belief a gun was about to be wielded against Yanez (even if objectively preposterous) led the jury to qualify the shooting response as necessary. But the possible threat of an armed ambush (and therefore at risk of death) based solely on a thump on the back of a police car led a jury to find Noor’s police shooting not legally necessary as an initial response.

As for the Sundberg shooting, that he was perceived as having put others at risk of death earlier will make it easier for officers to convincingly have perceived that more shots could be forthcoming.  But there still has to be a necessity component — what exactly the police shooters believed was the danger immediately prior to firing.

(4) that peace officers should exercise special care when interacting with individuals with known physical, mental health, developmental, or intellectual disabilities as an individual’s disability may affect the individual’s ability to understand or comply with commands from peace officers.

If Sundberg’s parents were on the scene and made mental health circumstances known, this could impact the standards by which reasonable and necessary should be evaluated.

Subd. 2.Use of deadly force.

(a) … the use of deadly force by a peace officer in the line of duty is justified only if an objectively reasonable officer would believe, based on the totality of the circumstances known to the officer at the time and without the benefit of hindsight, that such force is necessary:

Reasonableness standard again.

(1) to protect the peace officer or another from death or great bodily harm, provided that the threat:

Part of the definition of necessity again.

(i) can be articulated with specificity by the law enforcement officer;

Can’t be reasonable if the officer can’t provide a subjective perception.

(ii) is reasonably likely to occur absent action by the law enforcement officer; and

(iii) must be addressed through the use of deadly force without unreasonable delay; or

Both of the above (along with the following paragraph) further clarifies the definition of necessary as inclusive of the timing; what could have happened just after if the officer didn’t shoot?

(2) to effect the arrest or capture, or prevent the escape, of a person whom the peace officer knows or has reasonable grounds to believe has committed or attempted to commit a felony and the officer reasonably believes that the person will cause death or great bodily harm to another person under the threat criteria in clause (1), items (i) to (iii), unless immediately apprehended.

(b) A peace officer shall not use deadly force against a person based on the danger the person poses to self if an objectively reasonable officer would believe, based on the totality of the circumstances known to the officer at the time and without the benefit of hindsight, that the person does not pose a threat of death or great bodily harm to the peace officer or to another under the threat criteria in paragraph (a), clause (1), items (i) to (iii).

Not okay to shoot someone suicidal unless someone else is also at immediate risk.

Everything in this article concerns only the law which guides the criminal accountability of the police officers who fired their weapons at Sundberg from a rooftop across the street. Not addressed are the standards for police policy or procedures, which may have made the shooting of Sundberg avoidable, and for which Minneapolis taxpayers may yet bear civil liability. Or how to prevent racial bias from creating discriminatory determinations of reasonableness and necessity — whether by police, prosecutors, or juries.

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Michael Friedman
Michael Friedman

Michael Friedman is the former executive director of the Legal Rights Center. He previously served as chair of the Minneapolis Civilian Police Review Authority, serving in that capacity for three years.

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