North Dakota refuses to send officers to Minnesota after state passes new deadly force law that endangers police

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FARGO, ND — Minnesota’s new deadly force law has resulted in some North Dakota law enforcement agencies ending participation in a mutual aid agreement with other agencies along the border of the two states.

The Minnesota law took effect on March 1, and some North Dakota authorities say their officers will not be permitted to assist their Minnesota counterparts due to uncertainty how the changes could play out in a situation involving deadly force.

Minnesota police were only given a notice of 11 days by three North Dakota law enforcement agencies regarding their withdrawal from the mutual aid agreement, Valley News Live reported.

The previous law used to say officers could use deadly force if a reasonable apparent threat of death or great bodily harm was present, the Grand Forks Herald reported.

However, the word “apparent” was removed from the new law. The important word is seen as marked for deletion in the Minnesota Police Accountability Act of 2020.

Clay County Attorney Brian Melton, of Minnesota, said the new law means that officers may no longer use deadly force when they feel there is an apparent threat, Valley News Live reported.

Melton said officers must now go through a three-part test before they use any force in the middle of dangerous and life-or-death situations:

“The threat must be articulated with specificity, that’s it’s reasonably likely to occur absent the action the presence of the police officer and the threat must be countered without unreasonable delay.”

Melton also said officers can’t use deadly force if they merely think a suspect has a gun. Officers now have to be able to say they saw the suspect with a gun, he said.

There are various circumstances that must be considered, making the law complicated, Melton said.

The standard the Minnesota law presents differs from what officers train for based on the U.S. Supreme Court ruling for Graham v. Connor, according to InForum’s report.

The 1989 opinion stated courts must rule on whether force was necessary under the circumstances and not on the intent of an officer.

However, following the death of George Floyd last May, Minnesota lawmakers changed the standard for using deadly force from an “apparent threat” to a more complicated formula, which has resulted in confusion, according to InForum.

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Police officers in both states have said the new Minnesota law makes no sense, and now Minnesotans who live near the border are more vulnerable than before because they can no longer depend on North Dakota’s backup.

For example, if a critical incident happens on the Minnesota side, there will be 18 less members on the SWAT team, five less on the bomb squad and four fewer members on the Metro Street Crimes Unit, according to Valley News Live.

Cass County Sheriff Jesse Jahner said his officers regularly assist agencies across the border in Clay County on a weekly and sometimes daily basis.

The sheriff told Alpha News if officers are not trained properly, they may not be able to know what standards they need to follow under another state’s law:

“That can obviously cause a safety issue for citizens. That can cause a safety issue for the suspect, and certainly for our officers.”

Speedy implementation of the new law also did not give law enforcement agencies enough time to interpret its legal ramifications or train their officers on it, the Grand Forks Herald reported.

Law enforcement agencies also expressed apprehension over late guidance provided by Minnesota Attorney General Keith Ellison for officers to become familiar with such a significant change in protocol, according to Alpha News.

Officers have said it isn’t practical to follow the rules of the three-part test when they’re facing armed or suicidal individuals, according to Valley News Live.

Melton confirmed agencies are concerned about the law’s ambiguity, according to InForum:

“They’ve changed some things that make it more difficult for a police officer to do their job.”

Melton then provided an example of what an officer is supposed to do now:

“If they go and engage that person and that person is holding a gun to their own head, but then they suddenly point it at the officer and that officer chooses to engage, that officer is in trouble or in violation of this statute because they can’t use deadly force to control an individual.”

As the new law went into effect, the Fargo Police Department, West Fargo Police Department and Cass County Sheriff’s Office all announced their agencies were suspending all operations in the state of Minnesota for the foreseeable future.

All three agencies also called the new law a risk to public safety and officer safety without proper education and training for the law enforcement officers who are supposed to follow it.

West Fargo Police Chief Denis Otterness told Valley News Live:

“It’s frustrating and concerning. We never want to leave our other law enforcement partners feeling like they’re out on their own and that we’re not able to respond.”

However, the chief said it was a difficult, but necessary decision:

“These are high-risk, high-liability situations, and we have to have our staff properly trained before we ask them to go out and do the very difficult job they have to do.”

Chief Otterness said:

“Officers must articulate a threat with specificity, know death or great bodily harm is likely to occur if an officer doesn’t use deadly force, and the threat must be addressed with deadly force without unreasonable delay.

“It can’t be something that you perceive.”

Otterness also said that he had no idea how long it would be before North Dakota agencies could begin offering help to law enforcement along its Minnesota border again.

Fargo Police Chief David Zibolski told Valley News Live that it was necessary to pull out of the mutual aid agreement in order to protect his staff:

“I certainly don’t want to send one of our officers over there who’s involved in a deadly force scenario, and it’s found later, ‘Well, you’re in violation of Minnesota law and now you’re going to be charged with a crime.’ Whereas if the same situation happened in Fargo, they would not be charged with a crime.

“Can you train someone to understand two different legal force standards in a second? These are very dynamic, two-to-three-second decisions that happen and lives are at stake here.”

Sheriff Jahner explained his rationale for withdrawing to KVRR:

“We just want to make sure that we are doing our due diligence to interpret it correctly, put together some training, and the whole goal of it, of course, is to make sure that public safety isn’t jeopardized and that our citizens are safe and we can respond safely to those situations that they are involved in and keep them safe.”

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