In the Hopper: Deadly encounters; civil commitments; temptress law

Editor’s note: In the Hopper is a summary of Minnesota legislation of interest to the legal community.

A final report by the state’s Police-Involved Deadly Force Encounters Working Group is due in April. But an executive summary of the report’s 28 recommendations and 33 action steps, was presented on March 4 to the House Public Safety committee. Public Safety Commissioner John Harrington and Deputy Attorney General David Voigt presented it.

Work group co-chairs Harrington and Attorney General Keith Ellison launched the 18-member panel more than a year ago. It includes 11 members who either are current or past law enforcement or judicial officers. Clarence Castile, uncle of the slain Philando Castile, is among them. He became a St. Paul Police Department Reserve officer in 2017.

The work group also includes academics, community activists, lawmakers and public-interest attorneys.

Harrington said the group’s recommendations are the product of seven long and often emotional hearings and listening sessions that began in August 2019.

The group tackled questions like who should investigate deadly police encounters; how they can be prevented; how police should be held accountable; and how communities and police officers devastated by fatal encounters can be helped to heal.

Among its many recommendations are:

• Improve police-community relations. As part of this, the state Peace Officer Standards and Training (POST) Board would develop materials to educate and train law enforcement agencies on “model practices in communication, transparency and openness.”
• Improve police training to deal respectfully and better communicate with those who lose family members to deadly-force encounters.
• Develop a joint Attorney General/Public Safety Department office to serve as “Minnesota’s Peacemaker,” to help mediate disputes and prevent conflicts. The office might also respond to hate crimes.
• Create an independent unit inside the Bureau of Criminal Apprehension (BCA) with authority to investigate officer-involved shootings.

Advocates and family members of people who have been killed in Minnesota police encounters were far from impressed, particularly with that last idea.

“What I want to know is when are you all going to stop letting the police investigate the police?” said Matilda Smith, whose son Jaffort, 33, was killed by police on May 9, 2016, allegedly after he shot a woman and then fired at police.

“The police investigating the police is just like me investigating my own child,” Matilda Smith said. “It’s not right and it’s not fair.” She accused the BCA of lying to her and said officers treated her disrespectfully, even smirking at her, after her son was shot multiple times.

Monique Cullars-Doty, aunt of the slain Marcus Golden and a Black Lives Matter activist, said she was “completely underwhelmed” by the list of recommendations.

The group mainly contained people who “are upholding the system” whose suggestions, she said, seem more concerned about the impact of deadly encounters on police officers than the community. “They’re not going to break that thin blue line to make real change,” she said.

No bill related to the work group’s efforts was heard during the House committee’s March 4 afternoon hearing. However, a bill with similar ideas was heard later that night (see story, page 1).

However, Rep. Carlos Mariani, DFL-St. Paul, the Public Safety committee chair, said that several of the advocates’ legislative suggestions — including one by activist Toshira Garraway to end a three-year statute of limitations on wrongful-death litigation after deadly police encounters — might be pursued.

Civil commitments. People under civil commitment wouldn’t automatically have that status revoked because of lost paperwork, if a bill moving through both the House and Senate is signed into law.

Meanwhile, those suffering mental illness might not have to depend on police to attend to them in a crisis if the legislation clears all hurdles.

Senate File 2902 from Sen. Jerry Relph, R-St. Cloud, is a 76-page bill shepherded by mental illness advocates NAMI Minnesota. It mostly modernizes language.

References to the “mentally ill” become “a person who poses a risk of harm due to a mental illness,” for instance. And the term “treating physician” is changed to “treating medical practitioner” to reflect the reality that nurse practitioners, physicians’ assistants and other clinicians often help to treat mental health patients.

But it also offers some substantive change. One provision authorizes the state Human Services Department to launch a “services for engagement and treatment” pilot project. Counties may develop them as well, but would not be required to.

NAMI Minnesota Executive Director Sue Abderholden said that provision stems from the many call she has received over the years from people seeking help for a family member who is manifesting signs of mental decompensation.

Routinely, she said, those families are told nothing can be done by law, unless their family member poses a safety danger. At that point, police are often called — sometimes with tragic results.

Under the provision, an outreach worker, mobile health crisis team or peer specialist could be sent out to engage the person experiencing symptoms at their home. The patient might then be directed to voluntary medical treatment, possibly avoiding civil commitment or jail, Abderholden said.

If the pilot takes off and counties begin adopting the approach, Abderholden said, it could reduce the risks associated with police encounters with the mentally ill. “It’s really early intervention,” Abderholden said.

“You can have someone go out and try to connect with that individual,” she said, “people who know motivational interviewing and things like that, and get them voluntarily to go into treatment instead of waiting until they’re a danger to themselves or others.”

Another part of the bill — one that Assistant Hennepin County Attorney John Kirwin says is of most interest to attorneys — stops the automatic practice of ending civil commitments when paperwork isn’t delivered to the committing court on time.

Civil commitment status reports are due from treating facilities 90 days and six months after a person is civilly committed. Under current law, if they aren’t filed on time, commitment automatically ends.

But under the bill, courts would have to notify the county, facility or program to which the person is committed and order a report filed within five business days. If no report shows up after that time, a hearing would have to be held within three business days.

“It happens on a somewhat regular basis — the paperwork drops and then they’re just released,” Kirwin said. “That may not result in big tragedies, but a person who needs the care is going to decompensate without it, losing ground.”

The Senate bill, and its companion House File 2898 from Rep. Heather Edelson, DFL-Edina, both have been successful thus far. The Edelson bill cleared House Judiciary on March 3 and was scheduled for a hearing in House Health and Human Services Finance on March 11, after this newspaper’s deadline.

Relph’s Senate bill, which passed Senate Judiciary on March 3, is expected to get a hearing in Senate Human Services Reform next week.

Temptress law. Bad news: Under Minnesota law, if you are a married woman who has an affair with another man — whether he’s married or single — you both could go to jail for a year. Well, maybe not him. He could skate.

The law, Minn. Stat. Sec. 609.36, offers the male paramour a legal out. If he can show he was blissfully unaware of his lady friend’s betrothal at the time of their tryst, he can use his ignorance as an affirmative defense at trial. The statute doesn’t carve out that opportunity for her.

Rep. Kelly Moller, DFL-Shoreview, doesn’t know of anyone who has been prosecuted under the dusty statute within living memory. Still, she said, it’s a law that has no business existing in modern Minnesota.

Her bill, House File 2023, repeals a law that has roots dating to 1861. It was — apparently consciously — retained when Minnesota modernized its Criminal Code in 1963.

“Not only is it shocking to me that it’s a crime, but there’s a lot of sexism built into the statute, too,” Moller said.

The statute only criminalizes a married woman’s adultery with a man, though her illicit partner stands to be punished, too. But a married man who embarks on an affair with a single woman? On that, the law is silent.

“I’ve had to read it over and over again,” Moller said. “Like, surely this can’t be real.”

Moller credits Sen. Sandy Pappas, DFL-St. Paul, author of her bill’s companion, for the repeal idea. Moller thinks the law is a throwback to a time when women were seen as beguiling temptresses, before whose wily seductive powers the mere male was rendered impotent — morally speaking.

House Public Safety took a first step to deleting the blue law when Moller’s bill unanimously passed on March 4, sending it on to House Judiciary. It has yet to be scheduled for a hearing there. Meanwhile, Pappas’ Senate File 1490 awaits its first hearing in Senate Judiciary.