Law enforcement opposes rules banning cops from being involved in extremist groups

Policing industry, religious rights groups says the rules are too vague and would invite lawsuits

By: - November 17, 2022 6:00 am

Photo by Scott Olson/Getty Images.

The law enforcement lobby showed up Tuesday to oppose new rules proposed by the state’s police licensing board‚ including banning law enforcement officers from being involved in hate, extremist or white supremacist groups — because they said the wording is too vague.

The Peace Officer Standards and Training Board has proposed sweeping changes that primarily focus on minimum licensure standards and officer standards of conduct. The rules would also give the POST Board the power to take problem cops off the streets for misconduct, even if they’re not convicted of a crime or disciplined.

The rulemaking by the once sleepy POST Board is a key test of the Walz administration’s efforts to tighten regulations of policing and police, even as newly empowered Democrats at the Legislature will likely look for still more ways to reform policing. 

The POST Board first adopted the rule regarding affiliation with extremism in August 2020, a few months after George Floyd was murdered by Minneapolis police, sparking a push for the POST Board to enact reforms that a divided Legislature failed to enact. 

Brian Peters, executive director of the Minnesota Police and Peace Officers Association — representing 10,000 public safety officials — said 92% of their members who responded to a survey have concerns about the proposed rules.

Mark Schneider, representing Law Enforcement Labor Services — the largest Minnesota law enforcement union — and the Minnesota Police and Peace Officers’ Association, said the rules aren’t needed, are ambiguous and exceed the POST Board’s authority.

Others opposed a rule that would require applicants to disclose conduct that resulted in a so-called Brady-Giglio disclosure. That’s when prosecutors are constitutionally required to hand over exculpatory evidence to the defense, including about officers testifying on a case who have been disciplined or shown to be untruthful. 

A police chiefs association opposed the rule, saying Brady-Giglio isn’t clearly defined statewide, with interpretation varying from county to county, and prosecutor to prosecutor. Jeff Potts, executive director of Minnesota Chiefs of Police Association, said that could lead to applicants being unfairly disqualified.

The state sheriffs also have a problem with the rule.

Richard Hodsdon, general counsel to the Minnesota Sheriffs’ Association, said he has “extreme concern” about using Brady-Giglio issues as grounds to deny applicants or discipline officers, especially given the staffing shortage in law enforcement. He teaches law enforcement about Brady-Giglio and said there’s no consensus on definitions of it.

“There are… thousands of police officers in this country who are on a so-called Brady-Giglio list and still testify in court every day, who do their jobs effectively and very competently,” he said.

Prosecutors often “over disclose” Brady-Giglio issues, he said, especially since the Minnesota Supreme Court disbarred the Carlton County attorney in 2020 for not properly disclosing police misconduct.

Hodsdon, who helped draft POST rules in the late 1970s, also opposed — on First Amendment grounds — a rule that would disqualify law enforcement applicants or discipline licensed peace officers for discriminatory attitudes or conduct.

The POST Board has proposed tweaking that rule to recognize religious freedom, but Hodsdon said the rule still violates the First Amendment protection of freedom of association.

Several conservative and religious freedom groups also opposed the rule. True North Legal, the National Legal Foundation, Pacific Institute and Northstar Law and Policy Center said the rules infringe on constitutionally protected rights, such as freedom of speech and religion. A spokesperson for the groups, Renee Carlson, said the rules would invite “a plethora of costly legal challenges.”

Carlson said government employees have freedom of speech and religion even while on the clock, and the POST Board cannot punish pre-employment beliefs.

She contends the language is ambiguous, and violations could stem from “nearly any method of communication,” she said, including financial contributions.

Carlson said the rules violate officers’ due process and have a preference for “one set of perspectives over another,” also known as “viewpoint discrimination,” a violation of the First Amendment. The rule could be used to attack people with sincerely held, religious-based opinions that are critical of “prevailing culture practices” with regard to marriage and sexuality, she said.

The POST Board has proposed amending the rule to create an exception based on membership in a religious organization, but Carlson said for many devout, religious observers, “Faith is not confined to membership in organized religion” but is “lived out daily and transcends beyond membership within the walls of a temple, church, mosque or synagogue.”

She questioned whether a private statement made by an officer at any age could be used as the basis for termination or denial of a job — such as a social media post supporting “female athletes desiring to play on female-only sports teams.” Or contributions to a religious group that opposes gay marriage or “expresses concern about harmful gender transition efforts towards minors.” Or membership in a Bible study that is opposed to gay marriage.

“Will a Muslim officer and parent who joins an association of other Muslim school parents expressing concern about males’ access to private female spaces be subject to denial of employment?” Carlson said.

Fridley Police Chief Brian Weierke, president of the Minnesota Chiefs of Police Association, said the rule banning applicants or officers from participating in or supporting white supremacist, hate or extremist groups needs to be more clearly defined so the rule isn’t “weaponized.”

Carver County Sheriff Jason Kamerud said the new rules would hurt recruitment efforts, even as law enforcement nationwide has struggled to recruit and retain officers the past couple of years due to “protests,” the pandemic, and “political rhetoric calling for defunding police.”

He said in the early 1990s, he was among 400 applicants for a job as a deputy, but today, his job openings only attract about 30 applicants.

“Sadly, Minnesota is the epicenter of this anti-police narrative, and it’s creating challenges that, frankly, we’ve never seen before,” he said. “We need POST’s assistance in building onramps to licensure, not creation of rules that thwart our recruitment efforts.”

He said the rules on extremist groups could be interpreted to ban people who participated in non-violent protest actions such as blocking a freeway or violating curfew.

In fact, the proposed rule was prompted by a FBI report, released in 2020, warning about the infiltration of violent white supremacist ideology in law enforcement. As Michael German, a former FBI agent, wrote in the Guardian, “Since 2000, law enforcement officials with alleged connections to white supremacist groups or far-right militant activities have been exposed in Alabama, California, Connecticut, Florida, Illinois, Louisiana, Michigan, Nebraska, Oklahoma, Oregon, Texas, Virginia, Washington, and West Virginia, among other states. Research organizations have uncovered hundreds of federal, state, and local law enforcement officials participating in racist, nativist, and sexist social media activity, which demonstrates that overt bias is far too common.”The proposed rules did get support from advocates of police reform.

Jamael Lundy, former staffer to the House Public Safety and Criminal Justice Reform Committee, said after 50 years of inaction on police accountability, the proposed rules are a “major step forward.”

Elliot Butay, criminal justice coordinator for National Alliance on Mental Illness for Minnesota, served on an advisory committee to the POST Board and worked on the proposed rules. For every person who might want to “take down” a cop for something like being in a Bible study, Butay said, there’s probably an officer affiliated with a white supremacist group. The Minneapolis Police Department is, after all, being investigated by the federal government for racist policing practices, he said.

“We are not trying to play ‘gotcha’ with cops,” Butay said. “We’re not here because the community has just said that we’d like to get rid of cops. We’re here because we all watched a Black man die at the hands of a white officer who had a record of aggression and use of force misconduct, and it was not dealt with with the channels that we have now.”

The chair of the POST Board, Kelly McCarthy, noted the rules will apply to her, too, in her job as Mendota Heights police chief.

“This is not an academic exercise for me,” she said. “These are rules in which I will be subject to, and I believe in the quality of our product.”

The board has received over 1,600 comments on the proposed rules since June. A public hearing before two administrative law judges was held Tuesday and continued Wednesday evening.

Two administrative law judges with the Minnesota Office of Administrative Hearings will do a legal review and prepare a report on whether the POST Board has the statutory authority to adopt the rules, and whether they’re needed and reasonable. The POST Board will likely modify the proposal based on public feedback. The rules could take effect as soon as next year.

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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.