A New Remedy In the Midst of A Minnesota Tragedy.

The tragic death of Daunte Wright on April 11 may now change the landscape of Minnesota law in a way no one could have likely foreseen at the closing of the legislative session of 2020 — a session undertaken in great measure to redress the senseless death of George Floyd on a South Minneapolis street.

Since that Memorial Day, the world and Nation commenced its awakening to the national crisis of excessive use of police violence against all African Americans, and especially against African American males.

The roll call in Minnesota alone is painful and appalling: from Philando Castile, Jamar Clark, and George Floyd, and now on the Sunday after Easter, a 20 year old named Daunte Wright.

In our sense of outrage and near despair we must find the inner resources and strength to salvage hope from pain and to once more fashion strategies for justice in this place of broken hearts and unredeemed promises.

We must look to places for remedies and solutions that were left to us as they have always been: as the legacies of the dispossessed and the often disinherited.

Perhaps, in the legislative changes that came to pass in the wake of the death of George Floyd, we can find such a testament to justice that now may bring a small measure of justice to the grieving survivors of young Daunte Wright.

The Minnesota law regarding the use of deadly force was amended in 2020 as a part of the state’s “Minnesota Police Accountability Act.” And, while I have contended the Legislature did not act with the intrepidity which the moment demanded, it left in the amended law a chance for justice at such a time as today.

In Minnesota Statutes Section 609.066, dealing with “deadly force,” the Legislature added a new subdivision 1a. And, in that language, a thoughtful lawyer may now be able to argue to Minnesota courts that the added language creates a new remedy or “cause of action” when a police officer uses deadly force on a citizen — a citizen such as the 20 year old father named Daunte Wright.

The new section written by the Legislature reads as follows:

“The legislature further finds and declares that every person has a right to be free from excessive use of force by officers acting under color of law.” Minn. Statutes 609.066, subs. 1a.

The Brooklyn Center police officer who shot and killed Daunte Wright plainly acted under “color of law.” The legal definition of that phrase has never been the equivalent of “lawful” or “not criminal.” It arose in the context of the Reconstruction Founding when the so-called Radical Republicans sought to fashion the remedies needed to purge the South of the virulent anti-Black terrorism by the Klan and its quasi-official and official collaborators.

The Reconstruction Congress understood the illicit conspiracy between official and self-appointed purveyors of race-based violence in the Southern states. Their legislative effort would produce the federal statutory structure of the Civil Rights Act and Title 42 United States Code Section 1983, prohibiting and redressing constitutional deprivations “under color of state law.”

But, a federal claim under 1983 faces myriad obstacles — foremost being the defense of “qualified immunity” and the likelihood the officer will also claim her act was simple negligence — and not contemplated by 1983 jurisprudence.

In my view, Minnesota’s new Section 609.066, subdivision 1a, which became effective on March 1, 2021 — less than two months before the death of Mr. Wright — may give one of the strongest available state law bases for a civil remedy to redress this senseless killing.

In the new legislative enactment, a court may now recognize the intention of the Legislature to not only declare its policy but to declare a remedy for anyone who has suffered from “excessive use of force” at the hands of a Minnesota peace officer that results in their death. This remedy should be viewed as separate and distinct from both tort law and federal civil rights law.

Minnesota courts have long acknowledged their power to recognize rights that are more expansive than federal constitutional rights. They likewise should recognize the power of the Legislature to declare remedies that are independent of and more expansive than those recognized by similar federal statutes.

This right to be free from state-based excessive force, as now plainly and clearly stated by the legislature, cannot be intended as a mere legislative thought or prayer — but instead as exactly what it proclaims to be: a right in and of itself. A right that may be enforced, consistent with the so-called “remedies clause” of the Minnesota Constitution, in a court of appropriate jurisdiction.

It still remains to see what obstacles may be placed in the road to justice if such a novel claim is asserted in the wake of this bitter tragedy. One can readily imagine there will arise the usual claims of officer immunity. But, arguably such claims should fail where the Legislature has declared explicitly the personal right to freedom from police excessive force.

Indeed, those defenses that derive from our traditional tort law, such as the defense of official immunity, would seem inadequate to overcome the recognition of this personal right. But that is a discussion for another time.

Ultimately, police violence must be addressed through political and police leadership and training. But, victims must be able to resort to law for justice — no matter its human limitations.

And, as the law now stands, it seems that this new statute may serve as a handhold to climb higher up the mountain of redress — to find it where none might have existed before — and thereby bring a small measure of justice to a family now deep in sorrow.

-Albert Turner Goins

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Albert Goins

Albert Goins

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