How public safety in Minneapolis can begin its next chapter

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Last month, the federal Department of Justice issued a blistering, 92-page report detailing myriad failures of the Minneapolis Police Department — egregious and excessive force by officers (including in the presence of DOJ investigators), discrimination against Black and Indigenous people, and a total lack of accountability for officers — and announced that the DOJ and Minneapolis would negotiate the terms of a consent decree.

If past is precedent, these negotiations will likely focus on improving police policies, training, supervision and internal affairs investigations. These types of changes, while expensive, have meaningfully improved other cities' police departments in the past — at least while court monitors were in place. But to truly transform public safety and accountability in Minneapolis, equal if not more attention must be paid to two additional areas: limiting the scope of police responsibilities and expanding access to the courts for people whose rights are violated.

Police and their critics seem to agree on at least one thing: Officers are asked to do too much. Police are routinely called upon to respond to situations where there is no safety concern and no need to arrest — calls related to mental health issues, substance abuse, homelessness and other quality of life concerns — and the police response all too often results in arrests or force that could have been avoided. Cities across the country are experimenting with having crisis responders — instead of police — respond to these types of calls.

Minneapolis is among them — its behavioral crisis response (BCR) team, instead of police, is supposed to be dispatched when people in mental health distress are in need of assistance. But the DOJ's report makes clear that BCR is underfunded and understaffed, such that police end up responding to many of the calls that should have been directed to BCR. The DOJ has rightly signaled that its consent decree negotiations will prioritize expanding the capacity of BCR and improving their coordination with emergency dispatchers. To be effective, the investment will need to be substantial — approximately 10% of Minneapolis 911 calls concern people in mental health distress, but BCR has only two vans and a few million dollars, compared with the nearly $200 million allocated to the police. And the consent decree should go even further; non-police crisis responders should be dispatched to other types of nonviolent calls as well.

The shocking internal accountability failures in Minneapolis reported by the DOJ also make clear how important it is to have meaningful recourse in the courts when people's rights are violated. As I detailed in my book "Shielded: How the Police Became Untouchable," the U.S. Supreme Court and state and local governments across the country have created multiple barriers to relief in civil rights cases that make these cases exceedingly difficult to win. Although millions have been paid by Minneapolis to victims of police misconduct, many whose rights have been violated have been denied justice in the courts.

Among the cruelest barriers to relief is a doctrine called qualified immunity, which shields officers from damages liability, even if they have violated the Constitution, so long as there is no prior court case holding unconstitutional nearly identical facts. After the DOJ issued its Minneapolis report, President Joe Biden again called on Congress to pass the George Floyd Justice in Policing Act — a bill passed by the House but failed in the Senate that would have eliminated qualified immunity among other important reforms.

Yet states don't need to wait for Congress to do away with qualified immunity. Minnesota should pass the bill recently introduced by Republican state senator Cal Bahr that would allow people to sue for state constitutional violations and prohibit qualified immunity for those claims. The city of Minneapolis can also require officers to carry liability insurance, pay settlements and judgments from the police department's budget, and require that the department or an outside auditor gather and analyze information from lawsuits for lessons about misconduct by its officers and failures of supervision and internal affairs investigations.

Although community groups have long documented the Minneapolis Police Department's failures, the DOJ's report marks the beginning of a new and important chapter in efforts to improve. But long-lasting change will require more than better training, supervision and accountability — it will also require the city to reimagine public safety and ensure meaningful justice in the courts.

Joanna Schwartz is a professor of law at UCLA, where she teaches civil procedure and courses on police accountability and public interest lawyering. Her writing, commentary and research focus on police misconduct, qualified immunity and indemnification.