Police Use of Force Laws: Minnesota Falls Short
Today, a Minnesota court will hear several significant motions in the cases against Derek Chauvin and the three other former Minneapolis police officers charged in the killing of George Floyd. Among the matters Judge Peter Cahill will consider in the September 11 hearing are the state's motion for a joint trial of all defendants and the defendants' motions to change venue from Hennepin County. Motions to dismiss charges also have been filed and remain pending. The court's ruling on these matters will have a significant impact on how the cases proceed.
The four defendants face charges of murder and manslaughter, but the charges appear to sidestep the fact that they were committed by armed state actors. Few U.S. states have criminal statutes that specifically address the use of excessive force or other violations of law by police officers. Like Minnesota, most states use generally-applicable statutes to prosecute police misconduct, such as statutes prohibiting criminal homicide or assault.
Attempting to fit the square peg of human rights violations by armed state actors into the round hole of general criminal statutory schemes can be challenging. Violence between civilians is qualitatively different from that experienced by civilians at the hands of the state.
International standards on police use of force address this disconnect, yet no major U.S. city follows international standards regarding police use of force.. These standards call for armed state actors to follow basic principles:
- In any use of force, the police and other law enforcement officials must respect the principles of necessity and proportionality.
- Each use of force must be justified and justifiable.
- Rules governing the use of force, including weapons that may lawfully be used, should be set out in national legislation and other administrative provisions.
- Medical assistance shall be provided to any person, including a criminal suspect, who has been injured during action by any law enforcement official.
- The police and other law enforcement officials shall be held accountable for their use of force.
- Operations shall be planned to minimize the risk of death or injury.
International standards on police use of force derive from core treaty obligations which recognize the right to life, security of the person, equal protection, and non-discrimination. International handbooks and codes of conduct for law enforcement officials flesh out international legal standards. Core international treaties and documents address police misconduct, including the Universal Declaration Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the Code of Conduct for Law Enforcement Officials, and the Convention against Torture (CAT).
In particular, the excessive use of force by police is specifically prohibited by two major international treaties to which the United States is party: the ICCPR and the CAT. While U.S. reservations to the treaties mean they require specific enacting legislation to create civil or criminal liability for the state actor, the rights enshrined by these treaties are no less real.
The international standards seek to counter the risks of human rights violations which attend the deployment of armed state actors. Police-who are trained to use authorized and reasonable force against civilians when they deem it necessary-must be held accountable for human rights violations when they abuse that power.
Like many U.S. states, Minnesota fails to meet these international standards regarding police use of force. The resultant accountability gap has contributed to growing impunity for extrajudicial killings and for sub-lethal human rights violations.
Earlier this year, the University of Chicago Law School International Human Rights Clinic published Deadly Discretion: The Failure of Police Use of Force Policies to Meet Fundamental International Human Rights Laws and Standards. The report scored the United States' 20 largest cities on their compliance with international law. The authors employed four key measures in their assessment: legality, necessity, proportionality, and accountability. Its findings are sobering and help to explain the escalating demands for fundamental changes in policing.
"No city satisfied the requirement of legality because no state has a human rights compliant state law. The failure to enact legislative standards on police use of force undermines the rule of law, frustrates accountability for misuse of state power, and weakens police department policies."
What makes for compliant state law?
- LEGALITY | Use of force policies must sit within a human rights compliant federal and state legislative framework that properly balances security needs with individual human rights.
- NECESSITY | All law and policies on police use of force must comply with the necessity requirement and only allow for force when "absolutely necessary" to save the life or prevent serious bodily harm of an officer or civilian as a "last resort" to other alternatives.
- PROPORTIONALITY | In addition to being necessary, the use of force must always be proportionate to the threat the officer confronts and weighed against the fundamental human rights of the individual, including the rights to life and security of person.
- ACCOUNTABILITY | Accountability requires an independent, external review of each use of lethal force by the police as well as departmental transparency of use of force policies and practices.
While legislation passed in Minnesota in July 2020 took a step toward bridging the accountability gap, much work remains. At the top of the list: enacting legal limits on police use of force that comply with international human rights and standards of necessity, proportionality and accountability and protect and enable individual human rights.
Retired attorney Duane Krohnke walks through the September 11 hearing agenda here.
You can find a detailed analysis of the law on police use of force worldwide maintained by the Centre for Human Rights at the University of Pretoria.
 See, for example, the United Nations Office on Drugs and Crime's Handbook on Police Accountability, Oversight and Integrity (New York, 2011) and United Nations Convention Against Corruption (New York, 2004).