My latest interview appeared in Westlaw Today.
Q&A: Will federal oversight improve Minneapolis policing?
2023 CIVILRBRF 0075
•WESTLAW TODAY Civil Rights Briefing
•June 28, 2023
(June 28, 2023) - Law professor David Schultz explains the significance of a recent U.S. Department of Justice report that found persistent civil rights violations by the Minneapolis Police Department and discusses what his own research unearthed about the city's payouts for police misconduct claims.
Schultz, who recently released a first-of-its-kind statewide database1 on governmental payouts for police misconduct incidents in Minnesota, says the DOJ report raises important questions about how little Minneapolis has paid to resolve claims.
He cautions that while the MPD will be subject to a consent decree mandating certain reforms as a result of the DOJ's investigation, it will likely take years to see meaningful change.
Westlaw Today: What stood out to you about the DOJ's report on Minneapolis policing?
David Schultz: The DOJ report2 is perhaps the most comprehensive ever done on policing in Minneapolis, with a more detailed analysis and statistics than the Minnesota Department of Human Rights Report3 from last year. The latter report concluded, "A pattern or practice of discrimination is present where the denial of rights consists of something more than isolated, sporadic incidents, but is repeated, routine, or of a generalized nature."
The basic takeaway from the DOJ report is that the MPD violated First (free speech) and Fourth (illegal search and seizure) Amendment rights systematically, especially in terms of its use of force against people of color.
In reaching that conclusion it is first important to understand two points concerning the DOJ report. First, its focus is on the use of excessive force. It did look at other issues such as police stops and what is often called racial profiling, but most of the report examined racial disparities in terms of use of force. Second, the U.S. Supreme Court has said that questions about the use of force raise constitutional questions, defining them as a Fourth Amendment search and seizure issue.
The picture the report paints of Minneapolis is troubling. It reinforces a point that many of us in Minnesota have made for years — Minneapolis is a tale of two cities.
As the report states: "The typical white family in the Twin Cities is doing better than the national average for white families, and the typical Black family in the Twin Cities is doing worse than the national average for Black families."
The causes of the racial disparities are many, but when it comes to policing, the DOJ offers several stark conclusions:
- The MPD uses unnecessary or excessive force across a range of tactics that include physical restraint, tasers and weapons.
- Officers discriminate against people of color in their enforcement activities, including the use of force and traffic stops.
- Despite banning neck restraints in 2020, the MPD still uses them.
- Officers fail to intervene to prevent other officers from using excessive force and do not provide needed medical care.
- The MPD violates the First Amendment rights of protestors and the media to cover, photograph, or report on police misconduct.
Overall, the report reaches a series of conclusions that the MPD is out of compliance with the U.S. Constitution, in part because of poor or improper training or supervision.
WT: Were you surprised by the DOJ's findings?
DS: Nothing in this report came as a surprise, at least to me. There are two reasons for this. One, back in the 1990s I was a researcher at the Institute on Race and Poverty at the University of Minnesota, and we documented the extensive racial discrimination in Minneapolis, and we found the Twin Cities area to be one of the three most segregated metropolitan areas in the nation. Thus, the problems with race should not have been a surprise.
Second, in the early 2000s, I taught a class on police civil and criminal liability at Hamline University. Unfortunately, news of police misconduct and payouts for constitutional violations were a constant source of case studies for my students. I mentioned both of these points because they both frame my perspective on this report and suggest that there were many warnings ahead of the DOJ report.
WT: How will the DOJ's report shape Minneapolis policing going forward?
DS: The DOJ report comes with it a consent decree and federal monitoring of the city of Minneapolis. This is alongside a consent decree with the Minnesota Department of Human Rights. The city will be under legal obligation to undertake reforms. In the past, the city lacked the political will or ability to forge and implement reforms. The DOJ is asking for a lot of change — the question is whether the city can do this on its own or even as a result of possible litigation. Whatever happens, it is not going to occur overnight.
WT: Have other cities in the United States entered into consent decrees with the federal government over policing? Have those agreements led to meaningful reforms?
DS: Minneapolis is not alone. Albuquerque, New Mexico; Oakland, California; and Seattle, Washington; are but three examples of other cities that entered into consent decrees. The lesson from them is that reform is slow, complicated and expensive.
Do not expect reforms overnight — it could take years to see meaningful change. Change is incremental and requires new training, new personnel, and perhaps millions of dollars to finance it. The story in these cities is that meaningful reform requires a change in political and organizational culture. This is never easy, but reform can happen.
WT: You recently released your own report looking at how much local governments in Minnesota have paid to resolve police misconduct allegations. How much has Minneapolis paid out? How does the city compare to the rest of the state?
DS: After Minneapolis paid out $27 million to the family of George Floyd, many wondered how much governments pay out for police misconduct. Reporters from across the country asked me this question. I told them that nationally there is no database on this, nor is there one in Minnesota or any state. In previous research, I made some estimates that the amount was in the billions. I decided to construct a database for Minnesota and did this with the help of some students.
We surveyed all cities in Minnesota with populations of 5,000 or more; all 87 counties; and the State Patrol, Metro Transit, and the University of Minnesota Police. This produced an effective coverage of 98%-100% of the population of the state. Requests were sent to 239 governmental units asking for a list of all instances of police misconduct resulting in payouts from January 1, 2010, to December 31, 2020. Results were obtained from all 239 surveyed.
Here is a summary of what we learned:
- Nearly 30% of all governmental units made some form of payout.
- There were 490 incidents that resulted in payouts.
- The estimated total payout is $60,784,822.
- The estimated total payment for Minneapolis is $36,535,708.10.
- Minneapolis accounted for 60.1% of total payouts in the state.
For the entire state, the mean or average payout per incident was $124,500. For Minneapolis alone, the mean or average payout was $212,416. The mean or average for the rest of the state excluding Minneapolis was $76,255.
In Minneapolis, the median payout is between $26,282 and $28,010. For the rest of the state, it is $6,500. The overall median payout was $12,000.
WT: What else do we know about the incidents that resulted in payouts?
DS: My report asked for information about instances resulting in payouts, and they included use of force, property damage, improper and improper use of data, among other instances. However, the largest category was unspecified. We simply do not know or have sufficient data to tell us whether race or other factors were involved in an incident.
We need mandated statewide collection and standardization of data about police misconduct if we are going to seriously think about any policy change when it comes to policing.
WT: How does your report connect to the DOJ's findings?
DS: First, the DOJ report is only about Minneapolis. My report is statewide. Two, my report covers all instances of police misconduct which resulted in payouts. Third, the DOJ report gathers its own statistics to analyze, while my report is based on an analysis of self-reported data from governmental agencies. Fourth, the DOJ was able to discuss and examine race issues in Minneapolis. My statewide report lacked the data to do that.
Another way to view how the reports interact is in the focus on Minneapolis. The two reports look at different time frames but reach parallel conclusions on issues such as payouts for misconduct. But what jumps out is that the total instances of misconduct in Minneapolis and statewide may be higher than thought.
WT: Given the DOJ's findings, has Minneapolis paid about what you would expect to resolve police misconduct claims?
DS: I think Minneapolis has probably paid far less than it should. The DOJ report indicates thousands if not hundreds of potential situations where excessive or inappropriate force was used, or individuals were stopped in violation of their constitutional rights. Yet there were only 172 payouts reported for Minneapolis over the 10-year period I looked at.
If the DOJ report is accurate, there could have possibly been hundreds of other instances that should have resulted in payouts. Why the underreporting?
WT: Why do you think those other incidents did not result in payouts?
DS: What I discuss in my report is that in Minneapolis, and perhaps across the state and nationally, those who receive payouts are perhaps only a small fraction of those whose rights have been abused. For many, they do not know their rights were violated or they do not have the resources, such as an attorney, to mount the legal challenges to sue or negotiate compensation. Perhaps some fear retribution or perhaps some are not sympathetic plaintiffs who are in a position to fight for their rights.
While in general police do a good job under difficult situations, the scope of police misconduct outlined in the DOJ report suggests the cost of this misconduct in terms of violations of constitutional rights may be greater than I estimated. Finally, I have spoken to other researchers gathering information suggesting the cost to victims in terms of medical bills, psychological damage, etc., may also suggest victims have been undercompensated.
Notes
1 https://bit.ly/437oFGE
2 https://bit.ly/44dwVFM
3https://bit.ly/435WCXU
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