Police reform or political theatre
On Feb. 21, Chief Administrative Law Judge Jenny Starr approved new Minnesota Police Officer Standards and Training Board rules they have been working on since 2020; and now, it goes to the governor’s office to be adopted as rules of law.
The new rules would allow non-citizens who have a permanent residence permit or an authorization to work to become licensed officers; require all officers to report to the POST Board of alleged violations of their coworkers and punish those who don’t; forbid licensure of anyone associated with a hate group, extremist group, or acts of discrimination at any time in their life; and require a Brady-Giglio disclosure.
Most people in Minnesota expect that any changes made to the laws and rules of law would happen through legislation. However, this wasn’t the case for these rules. Even politically-active and informed people have not been aware of the new rules nor the board’s existence or power. Rep. Mike Wiener, senate candidate A.J. Peters, retired lawyer Marlene Clark, former mayoral candidate and coffee shop owner Daiv Freeman, and even our own publisher had not received any news or updates about any of the rules or process.
“We received 1,667 written comments on the proposed rules during the first comment period, and held two public hearings, including one in the evening hours,” Rebecca Gaspard, the St. Paul-based POST’s rules and legislative coordinator, wrote in an email when asked about the lack of publicity.
Todd County Sheriff Mike Allen and Long Prairie Police Chief Ryan Hanson had not been made aware of the proposals and their specifics; Hanson had found two brief mentions about the board’s agenda in emails from the Minnesota Police Chiefs Association.
“I know they’ve been working on rule changes for a number of years,” Allen said, noting that he subscribes to the board’s emails and watches for changes on their website but hadn’t seen any updates on these rules.
After sending emails to over 40 authors of the form letters in favor of the new rules, only five people responded. Surprisingly, most of them weren’t informed either— not even of the letter they signed.
Bill Sorem, a retired journalist from Minnetonka and apparent author of one of the 1,000 form letters in favor of the rules, thought maybe the letter was tied to a petition he signed through a newsletter he subscribed to.
“I do not support the Defund the Police movement. I’m 89 so my reporting and activist days are behind me,” Sorem wrote in an email to the Leader.
After sharing the letter with him, Sorem wrote, “I vaguely remember signing the protest action, but the letter overstates and does not accurately portray my feelings.”
While a lot of letters did not address every specific rule change, the nearly 1,000 identical letters favored all the rules and started off their argument with, “Policing in our nation has historically dark origins with the first distinctly American police system being the slave patrol.”
The letter made mention of “those who chose to attack our democracy on January 6” and spoke in favor of revoking licenses of officers connected to “white supremacist, extremist, or hate groups”, increasing accountability, and allowing non-citizens to become officers.
“Since I am a passionate liberal, I do admit to signing a lot of action petitions on causes I support. I try to be careful and stick with serious trusted sources, but some do slip through. I characterize the email I sent as not accurate,” Sorem wrote to the Leader.
The majority of these form letters and other comments in favor of the new rules came from addresses outside of Minn., such as Calif., Ore., Wash., N.Y., N.H., Ohio, Mass., and Hawaii—just to name a few.
“I did indeed leave a comment about the proposed police rules and would need to reread the proposal again to refresh my memory before I made a comment on the subject,” wrote Brent Rocks of Portland, Ore., a signer of one of the identical form letters.
One Minnesota address listed at the end of a form letter was from Abdullahi Mohamud of 419 Cedar Avenue S in Minneapolis. This address was associated with alleged voter fraud reported by the Star Tribune in 2014 and was later found to have 140 voters tied to it.
“It’s not a house; it’s a mall and business with mailboxes,” Reporter Eric Roper of the Star Tribune said.
Mohamud responded to an email asking for a comment about the new rules proposals, and he merely replied, “Thank you.”
“Please note that there is no procedure identified in statute and rule related to the ‘vetting’ of public comments,” Gaspard wrote when asked about how the board and administrative law judges vetted the sources of the letters.
A key driving force for the rules changes on the board has been POST Rules Chair Justin Terrell. Terrell was appointed to the board by Governor Tim Walz in February 2021 and has been leading the rules modifications process with a wide coalition behind him as he is also executive director of the Minnesota Justice Research Center (MJRC), a non-profit organization.
When the POST Board held a public comment period for about 30 days last July, hundreds of organizations fueled with passion for racial justice were already informed and equipped by MJRC to rally support and mobilize their members to send in comments in favor of the rule modifications.
Groups like Communities United Against Police Brutality, CAIR, and ISAIAH, a well-funded multi-faith coalition that states its objective is to fight racial and economic injustice, shared links last summer with their members that led to a downloadable “toolkit” created by the MJRC.
The toolkit outlined the rule-making timeline, and instructed how and when to share support for the new rules during the public comments and hearing. The 11-page booklet includes three form letters, which played an obvious role in the comments made in favor of the rules.
The vast majority of the letters in favor of the rules were sent through a DC-based software marketing company EveryAction Inc. It is unknown at the time of this writing who paid for this service, but EveryAction Inc. isn’t a free software.
EveryAction Inc. received $6.7 million during the 2022 election cycle from political action committees, with top-paying customers being Progressive Turnout Project and Stop Republicans PAC (which are the same entity) at a combined $1.7 million according to OpenSecrets.
“You can gain supporters by utilizing our advocacy tools to help advance your mission and engage people who support the mission,” Jack Brown, a representative for EveryAction Inc., said.
“Our system automatically connects your supporters to their local/state legislator and it will auto-fill the letter with their details and send it to them,” Brown explained.
A petition to the POST Board can still be signed at the ISAIAH website, but the specific letter seen on the POST’s public comments isn’t on the website or on the EveryAction signing page. JaNae Bates, communications director for ISAIAH, was reached but did not respond for questions or comment.
“As far as people being unaware that the process was happening, I don’t know what more we could have done to make people aware. All license holders were made aware of the process via communications directly from the POST Board, as well as through the Chiefs Association, the Sheriffs Association, and the MPPOA,” Mendota Heights Chief of Police and POST Board Chair Kelly McCarthy wrote to the Leader.
After the apparent attempts by the board to relay their rule changes “with all stakeholders,” three people commented that they had concerns about the non-citizen rule.
Officer Benjamin Klawitter of Chisago County wrote that law enforcement officers swear to uphold and defend the U.S. and State of Minnesota Constitutions, and it seemed illogical that a non-citizen would do that.
McCarthy is in favor of the non-citizens rule.
“My reason for supporting changing the rules from mandatory citizenship to being legally allowed to work in the state was the length of the citizenship process and a desire for local control,” McCarthy stated.
Former Todd County Sheriff Steve Och and two Todd County deputies were among around 200 Minnesota sheriffs, police officers, and private citizens who had sent in letters last July to the POST Board objecting to the proposed rule modifications and requesting a hearing. Many stated that the new rules would take away Constitutional rights of officers such as due process and infringe on their First Amendment rights.
One of the modifications that drew the most ire from officers commenting to the board requires an applicant to “disclose and facilitate” a review of social media accounts, platforms, and groups the applicant used in the past. It was not specified whether that included dating sites.
In addition, the new rules would also require a psychologist to evaluate potential officers for past “discriminatory conduct”.
“A ‘white supremacist, hate, or extremist group or criminal gang’ is clearly based on someone’s political determination, and not based on an objective definition,” Jason Warnygora of Barnum, Minn. wrote in his public comment to the board.
“The rules seem politically motivated, which is not something that improves our profession,” Marcie Wacker of St. Paul, Minn. wrote.
Locally, both Allen and Hanson have pointed out that people may attempt to slander officers and accuse them of misconduct, knowing that it didn’t happen.
“We don’t want to lose a good deputy especially based off a fictitious complaint,” Allen said.
Allen assured that every complaint that is made gets reviewed.
The POST Board anticipates the number of complaints to rise after the rules are adopted, so they have estimated they would hire eight staff members to handle complaints at an expense of over $1 million to the state.
According to public data at the POST Board’s website, an average of 134 Minnesota licensed officers have been investigated for some form of misconduct per year from 2018 to 2021, and 16 percent of those allegations were sustained after an investigation.
As for the Long Prairie Police Department and Todd County Sheriff’s Office, there have not been any officers under investigation by the POST Board from 2018 to 2021.
“It’s gotta be legitimate complaints,” Allen said, explaining that he looks at body camera footage to help make the determination on whether or not to turn a complaint over to the POST Board.
“If a complaint would be made against an officer, I would look at what happened before, during or after the incident that brought that person to the point of making a complaint. I would look at every part of the complaint to see if it is legit,” Hanson said.
And what is a Brady-Giglio disclosure? Not many can explain it, as the definition is vague even in legal terms, which was why over 200 officers pushed back on it through the rule-making process.
Kinzy Pfeninger of St. Cloud, Minn. sent in a public comment to the board opposing the proposed rule, stating that it didn’t make sense.
“It’s almost like the POST Board author of the rules didn’t understand what this process is in the first place,” Pfeninger wrote.
Indeed, as the POST Board worked through edits surrounding Brady-Giglio at their Feb. 9 meeting, they admitted that there is no definition for Brady-Giglio and pointed out that different courts interpret it differently.
A Brady-Giglio cop makes the officer unable to testify in a court proceeding because of past behavior or activity. The behavior would be something that would impeach the officer’s testimony in court, and that could damage a prosecutor’s ability to get a conviction for a criminal.
This rule would be applicable to the background information an officer supplies to an agency, but a person could have an unlucky situation where they were deemed Brady-Giglio in one county that another county would not have assigned that label to the officer.
“I was completely unaware. I thought there was a standard policy throughout the state, and it wasn’t until I started looking into it that I realized that those policies aren’t consistent around the state,” McCarthy said at the Feb. 9 meeting.
The POST Board addressed how to include Brady-Giglio disclosure in the rules and, despite the ongoing confusion about it, kept it in the list of required disclosures. The board also adopted a definition of a hate group and abandoned an age requirement of 18 years old as a rule for licensure (a few commented to the board that 18 was too young).
They defined a hate group as: “a group that, as demonstrated by its official statements or principles, the statements of its leaders or members, or its activities promotes the use of threats, force, violence, or criminal activity against a local, state, or federal entity, or the officials of such an entity…; or promotes seditious activities; or advocates for differences in the right to vote, speak, assemble, travel, or maintain citizenship based on a person’s perceived race, color, creed, religion, national origin, disability, sex, sexual orientation, gender identity, public assistance status, or any protected class….”
The 17-member, governor-appointed POST Board was created in 1977 and is responsible for over 12,800 active and inactive peace officers, which include state troopers; conservation officers with the DNR; county sheriffs and deputies; and police officers.
According to McCarthy, future comments for or against the proposed rules should be directed to the governor’s office, as he will be the one to accept or reject these rules. Terrell, the Office of Administrative Hearings, and Gaspard did not respond for comment about the involvement of MJRC in influencing public comments.