MINNEAPOLIS, MN – The Minneapolis Police Department (MPD) is reportedly taking its first steps toward enacting a Use of Force policy. The document is a staggering 72 pages long.
Since the late 1980s, the defining case law on the issue of use of force and whether an officer used excessive force or not is Graham v. Connor.
Use of force incidents are subject to the “objective reasonableness” standard for the Fourth Amendment rather than a “substantive due process” standard under the 14th Amendment.
“Objective reasonableness” is defined in one, rather short paragraph and specifically states how officers are often forced to make split-second decisions about the amount of force necessary to stop a threat in a particular situation.
However, in Minneapolis, back in fall 2022, newly appointed Police Chief, Brian O’Hara delivered his message on the proposed reform, saying, “The reality is: we have earned it. Policing as a profession has earned it. The cities where this happens, there is good reason - it’s because of our behavior."
The 72-page use of force policy is complex, which actually makes it harder for an officer to do their job, but easier for the department to discipline, fire or prosecute an officer who had to make a split-second decision - the very thing Graham v. Connor states right in its decision in using “objective reasonableness” rather than substantive due process.
One section of the proposed policy provides a brief definition of using “only objectively reasonable force” and it states, “Officers shall only use force consistent with a critical decision-making model, and only when that specific type of force is objectively reasonable, necessary, and proportional to the threat as reasonably perceived at the time."
This definition is repetitive and confusing compared to what the United States Supreme Court wrote in its decision on Graham v. Connor. In the high court’s explanation, words like “critical-decision making model," “perceived," “proportional," or “necessary” are not used because those words do not fit with “objective reasonableness” or situations where officers are forced to make split-second decisions.
Another section of the policy states, “Officers shall engage in interactions with community members and resolve incidents without resorting to the use of force, including through de-escalation strategies, when feasible."
Again, in the Supreme Court’s decision on Graham v. Connor, the term “feasible” is not used. This is because it is confusing and extremely subjective. Graham v. Connor, the case law that all police departments use when training officers on use of force, is about objective reasonableness.
Graham v. Connor states, “The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation."
The policy uses the word de-escalate several times throughout and its definition is the longest out of all the other terms used. “De-escalation," it defines.
"Taking action or communicating verbally or non-verbally during a potential force encounter in an attempt to stabilize the situation and reduce the immediacy of the threat so that more time, options, and resources can be called upon to resolve the situation without the use of force or with a reduction of the force necessary.
De-escalation may include the use of such techniques as command presence, advisements, warnings, verbal persuasion, and tactical repositioning."
De-escalation is very important and having good interpersonal communication skills is top three most important skills to have as a police officer. But, it is an officer’s responsibility to keep himself, the community and the alleged suspect or person they are actively in a confrontation with, safe.
MPD’s proposed use of force policy does not align with that thought process, saying, instead, “Sworn MPD employees shall use the lowest level of force needed to provide for the safety of any person or MPD employee, stop an attack, make an arrest, bring a person or situation safely under control, or prevent escape.
"While MN Statue includes Choke Holds as legally permissible in Deadly Force situations, MPD officers are prohibited from using such techniques, including in Deadly Force situations."
So, to recap, MPD police officers are to use the “lowest level of force," cannot use choke holds even if their life or a third party’s life depends on it, but can use their service weapon under the “objective reasonableness” standard of Graham v. Connor.
These proposed reforms are estimated to cost the city $16 million in 2024 and $11 million in 2025, and according to Mayor Jacob Frey, “change isn’t cheap."
Since the late 1980s, the defining case law on the issue of use of force and whether an officer used excessive force or not is Graham v. Connor.
Use of force incidents are subject to the “objective reasonableness” standard for the Fourth Amendment rather than a “substantive due process” standard under the 14th Amendment.
“Objective reasonableness” is defined in one, rather short paragraph and specifically states how officers are often forced to make split-second decisions about the amount of force necessary to stop a threat in a particular situation.
However, in Minneapolis, back in fall 2022, newly appointed Police Chief, Brian O’Hara delivered his message on the proposed reform, saying, “The reality is: we have earned it. Policing as a profession has earned it. The cities where this happens, there is good reason - it’s because of our behavior."
The 72-page use of force policy is complex, which actually makes it harder for an officer to do their job, but easier for the department to discipline, fire or prosecute an officer who had to make a split-second decision - the very thing Graham v. Connor states right in its decision in using “objective reasonableness” rather than substantive due process.
One section of the proposed policy provides a brief definition of using “only objectively reasonable force” and it states, “Officers shall only use force consistent with a critical decision-making model, and only when that specific type of force is objectively reasonable, necessary, and proportional to the threat as reasonably perceived at the time."
This definition is repetitive and confusing compared to what the United States Supreme Court wrote in its decision on Graham v. Connor. In the high court’s explanation, words like “critical-decision making model," “perceived," “proportional," or “necessary” are not used because those words do not fit with “objective reasonableness” or situations where officers are forced to make split-second decisions.
Another section of the policy states, “Officers shall engage in interactions with community members and resolve incidents without resorting to the use of force, including through de-escalation strategies, when feasible."
Again, in the Supreme Court’s decision on Graham v. Connor, the term “feasible” is not used. This is because it is confusing and extremely subjective. Graham v. Connor, the case law that all police departments use when training officers on use of force, is about objective reasonableness.
Graham v. Connor states, “The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation."
The policy uses the word de-escalate several times throughout and its definition is the longest out of all the other terms used. “De-escalation," it defines.
"Taking action or communicating verbally or non-verbally during a potential force encounter in an attempt to stabilize the situation and reduce the immediacy of the threat so that more time, options, and resources can be called upon to resolve the situation without the use of force or with a reduction of the force necessary.
De-escalation may include the use of such techniques as command presence, advisements, warnings, verbal persuasion, and tactical repositioning."
De-escalation is very important and having good interpersonal communication skills is top three most important skills to have as a police officer. But, it is an officer’s responsibility to keep himself, the community and the alleged suspect or person they are actively in a confrontation with, safe.
MPD’s proposed use of force policy does not align with that thought process, saying, instead, “Sworn MPD employees shall use the lowest level of force needed to provide for the safety of any person or MPD employee, stop an attack, make an arrest, bring a person or situation safely under control, or prevent escape.
"While MN Statue includes Choke Holds as legally permissible in Deadly Force situations, MPD officers are prohibited from using such techniques, including in Deadly Force situations."
So, to recap, MPD police officers are to use the “lowest level of force," cannot use choke holds even if their life or a third party’s life depends on it, but can use their service weapon under the “objective reasonableness” standard of Graham v. Connor.
These proposed reforms are estimated to cost the city $16 million in 2024 and $11 million in 2025, and according to Mayor Jacob Frey, “change isn’t cheap."
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