Police Use of Force Laws: Minnesota Falls Short

Today, a Minnesota court will hear several significant motions in the cases against Derek Chavin 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:

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[1] 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.”