Clay County asks governor for delay, revisions in use-of-deadly-force law

county commission

Nancy Edmonds Hanson

Minnesota’s year-old police reform measure has ripped apart a partnership between law enforcement agencies here and in North Dakota, Clay County Sheriff Mark Empting told county commissioners this week. Implemented in March, the law – passed last July by large bipartisan majorities in both the House and Senate – has prompted Fargo, West Fargo and NDSU campus police and the Cass County Sheriff’s Department to stop all joint operations on this side of the river. That means ending all mutual aid assistance for emergencies and inter-jurisdictional operations, including the regional SWAT team and the joint Street Crimes Unit.

Commissioners voted unanimously to sign off on a carefully worded letter to Gov. Tim Walz and the State Legislature’s judiciary committees, urging them to suspend the law’s implementation until it’s serious flaws can be addressed.

As county administrator Stephen Larson explained it, one big problem with the law as written and adopted is the requirement that law enforcement officers meet three tests in documenting their use of force. Narrower conditions for the use of force are spelled out in the legislation, including that the officer “articulates with specificity the reason why he used deadly force. The use of force is deemed justified only when necessary to “prevent great harm or death to an officer or bystander.”

Sheriff Mark Empting told commissioners that the law requires retraining 11,000 officers in Minnesota. “We were given 11 days before it was implemented. That isn’t feasible,” he said. He added that Department of Public Safety assistant commissioner Booker Hodges told assembled officers, “I’m not going to lie. This law is about as clear as mud.”

Attorney General Keith Ellison has also raised concerns that the law’s “articulation with specificity” requirement may violate officers’ constitutional rights under the fifth and sixth amendments, including the right not to incriminate oneself.

The letter formulated by, among others, Clay County attorney Brian Melton states, “It is not feasible to require North Dakota officers to discern between two different state standards on use of force in oftentimes rapidly evolving situations, where most times officers divert back to how they are trained. We see strong potential for officers being seriously harmed by the confusion caused by the differences in Minnesota and North Dakota law.”

Larson told the commissioners, “This exposes all law enforcement officers working within the state of Minnesota to criminal prosecution and presumes guilt of an officer using deadly force unless he provides, and the court accepts, a statement covering the three-part test.”

Larson noted that the problem is not Clay County’s alone; it is shared in other communities in the Dakotas, Iowa and Wisconsin that border Minnesota.

The letter to be signed by the commission also carried signatures of the Moorhead, Fargo and West Fargo mayors; Chief Shannon Monroe and his Fargo and West Fargo counterparts; Commissioner David Ebinger (former police chief) and his Cass counterpart Mary Scherling; Sheriffs Empting and Jesse Jahner; and county attorneys Melton and Birch Burdick of Cass.

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