Police licensing board gets green light on new rules for law enforcement

POST Board could take cops off the street for misconduct

By: - January 24, 2023 9:12 am

A Minneapolis police squad car in front of the burned out Third Precinct police station blocks off Minneahaha Avenue for a street festival in October 2021. Photo by Max Nesterak/Minnesota Reformer.

The chief administrative law judge has approved groundbreaking new rules governing police licensure and conduct proposed by a Minnesota licensing board. 

The Minnesota Board of Peace Officer Standards and Training, or POST Board, is on its way to being able to take cops off the street for misconduct even if they haven’t been convicted of a crime or disciplined by their police department. 

The Minnesota Office of Administrative Hearings signed off on most of the rule changes regarding screening, selection, education and licensing of officers, with a few minor tweaks.

The proposed rules would bar applicants from being involved in extremist or hate groups or groups “directed at inciting or producing imminent lawless action.”

Some police groups objected to the portion regarding hate groups: The Minnesota Police and Peace Officers Association — representing 10,000 public safety officials — as well as the state’s largest law enforcement union, Law Enforcement Labor Services, told the POST Board the rules are unnecessary,  vague and exceed the board’s authority.

The rules would also disqualify law enforcement applicants and discipline licensed police officers for discriminatory attitudes or conduct. Conservative and religious liberty groups opposed the rule, arguing it infringes on constitutionally protected rights. They argued that the POST Board can’t regulate off-duty speech and memberships of police officers. 

Administrative law judges agreed with the POST Board that it can do so when the restrictions are closely related to a substantial public purpose – such as uniform application of laws.

“The applicable case law makes clear that the speech and associational rights of law enforcement personnel are not absolute,” they wrote.

In a win for the police groups and conservatives, however, the judges found terms like “extremist or hate group,” “harmful actions against other persons,” “white supremacist,” and “hate or extremist material” to be too vague to make clear to applicants and licensees what conduct is prohibited by the regulations.

They suggested the POST Board more narrowly define “hate or extremist groups,” focusing on groups that oppose equality of rights to vote, free speech, free assembly, travel or accessing citizenship. That’s more likely to include extremist groups that advocate violence and, say, racial or political hierarchy, they said. Police could continue to belong to groups that “merely hold traditional views on marriage and the raising of children,” they wrote.

“Because of the political and associational freedoms involved, hewing to this dividing line is worth the POST Board’s close review and consideration,” the judges wrote.

The administrative law judges also found the POST Board did not provide evidence to buttress its proposal to set a minimum age to be eligible for licensure at 18 (currently there is no minimum). 

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

A police chiefs association opposed the rule, saying Brady-Giglio isn’t clearly defined statewide, and could lead to applicants being unfairly disqualified. The state sheriffs group also opposed the rule.

The administrative law judges said proposed rules around Brady-Giglio disclosures aren’t clear enough because they don’t specify what to do if a Brady-Giglio disclosure didn’t result in discipline or a court finding. So the judges suggested language revisions to fix that portion.

POST Board chair Kelly McCarthy said the board now needs to have a special meeting on final approval of the rules, which then go to Gov. Tim Walz for approval.

The three-year rulemaking process began in August 2020, a few months after George Floyd was murdered by Minneapolis police, sparking interest in the board’s role in police misconduct after the divided Legislature stalled on reforms. A 2020 audit reported the board could expand its statutory and regulatory functions to do more oversight.

The makeup of the board has changed since it was expanded by two members to 17, and Walz appointed seven new members in February 2021. That transformed it from a “sleepy” board into a “dynamic” reform-minded board, according to Rep. Carlos Mariani, DFL-St. Paul, former chair of the House Public Safety and Criminal Justice Reform Finance and Policy Committee. 

The POST Board has estimated the new rule would require it to hire five to eight new staffers, at a cost of about $130,000 each, to handle an increase in complaints primarily related to unreasonable or excessive use of force complaints. 

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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.