Crying Wolf At the Blue Wall: The Minnesota Police Associations’ Lawsuit Should Misfire.
After looking briefly at the Police associations’ lawsuit, I must contend that it is a red herring — a cry of wolf from those who too often have stood at the Blue Wall of Silence.
The main problem with the lawsuit is its preposterous claim that the newly-amended Minn. Statute 609.066 regarding the use of deadly force will require police to either forfeit their right against self-incrimination or give up their defense of justified force.
Neither happens or is required as I read the new Minnesota deadly force law.
To the contrary, the law simply incorporates the requirement of an articulable reason for the use of deadly force — it does not and cannot command the testimony of an officer under threat of prosecution.
We know from practice, law, and common sense that police articulate or describe the reason or reasons for using deadly force every day of the week — through their reports.
Those routine reports have never been viewed as imposing a threat of self-incrimination upon our police. The reason is simple: police are not facing or threatened with prosecution at the time they use deadly force or when they write a report.
Because officers routinely articulate the basis for using deadly force in police reports there is no right to even assert a claim against self-incrimination when doing so.
And it is these routine reports which would serve as an adequate articulation of the specific facts justifying the use of deadly force. Nothing in law or procedure would treat those reports as “testimony” as the law understands it for the purpose of the Fifth Amendment.
Police officers clearly write reports daily. And we who have practiced criminal jurisprudence understand these are adequate to raise facts for an affirmative defense at trial —if a police officer were ever charged — thereby placing the burden on the State to prove beyond a reasonable doubt that the force used was unreasonable.
Nothing in the new Minnesota law forces police officers to take the stand to testify at trial, or prevents an expert from opining on the appropriate use of force; neither must officers incriminate themselves, or alternatively forgo their right to assert self-defense.
Nor can a department force an officer by an internal investigation to give incriminating evidence — we know that because in 1967 the United States Supreme Court decided in Garrity v. New Jersey that statements made in an internal discipline case cannot be offered to prosecute police officers.
In my view, this aspect of the Minnesota law enforcement associations’ latest court action is totally misplaced and mistaken.
It is simply crying wolf at the same old blue wall of silence.
-Albert Turner Goins
(Albert Goins is a Minnesota lawyer.)