Problem officers in most Minnesota agencies not required to keep body cameras on

The League of Minnesota Cities' 2019 model policy for law enforcement agencies with body cameras recommended special rules requiring that any officer with a proven history of misconduct be required to use the devices.

Two years later, fewer than 10 departments across the state have adopted such guidelines. A Star Tribune analysis found that of the 108 Minnesota agencies whose camera policies were publicly available, eight had separate guidelines for officers who have had discipline issues.

Those agencies are Fairmont, Faribault, Maplewood, St. Paul Park and White Bear Lake police, and the Anoka, Olmsted and Rice county sheriff's offices.

The use of body cameras has caught on in a big way across the country in recent years, as officials have come under increasing pressure to hold police accountable after a series of high profile killings of citizens that sparked protests nationwide. But while the recording devices have helped document misconduct in places such as Minneapolis and Baltimore, there are no national standards governing how or when the cameras should be activated and who should have access to footage.

In Minnesota, as in many states, local jurisdictions are largely allowed to set their own rules.

A key term frequently used for rules governing dishonest or problematic officers is "Giglio/Brady," referencing two U.S. Supreme Court cases: Brady v. Maryland and Giglio vs. United States. The cases determined that prosecutors must disclose all evidence, even evidence that aids a defendant, to guarantee the constitutional right to a fair trial. That includes evidence of potential dishonesty by a law enforcement officer.

A draft policy for the Minnesota Department of Natural Resources, one of several state law enforcement agencies that recently announced plans to start using body cameras, requires its conservation officers to record most public encounters, but has no separate requirement for officers who are deemed less credible, or "Giglio-impaired." Neither do the state's largest police departments, Minneapolis and St. Paul, which in recent years have bought more recording devices and strengthened rules on their use.

When Maplewood police began using the cameras in 2016, the first officers to be assigned the devices were those with credibility issues, said Paul Schnell, the police chief at the time. In creating its camera policy, Schnell, who retired from the department in 2017 and is now commissioner of the state Department of Corrections, said officials saw the need for safeguards for officers with a history of lying on the stand and other credibility issues.

"How do we protect the interests of our investigations, our cases, and really bolster officers who have Brady status?" he said of Maplewood's camera policy.

The department's policy led to a lawsuit by the city's police union, which argued that it should have been crafted through collective bargaining.

Schnell said the department reviewed best practices found in other places, as well as the League of Minnesota's model policy, which recommended that cities should "allow for the issuance of special instructions on (body camera) use to officers deemed to be Giglio-impaired."

Maplewood police Lt. Mike Dugas, who runs the department's professional standards unit, said its camera policy was crafted based on recommendations from the Minnesota Chiefs of Police Association, International Association of Chiefs of Police and policy-writing services, such as Lexipol.

"Our intention was that we didn't want to have any questions regarding those officers' actions, and we wanted to ensure that cases those officers were involved in were completely captured on video, to ensure that there was no question if any of those cases went to trial," Dugas said.

Former Hennepin County chief public defender Mary Moriarty said prosecutors are supposed to maintain lists of officers who have been flagged as unreliable witnesses, which under federal law they must turn over to the defense before trial, along with other evidence that could weaken their case. And while it makes sense that officers on those lists should face extra scrutiny, Moriarty said, it also points to the bigger questions about the country's justice system.

"If an officer has been found to have lied under oath, why is that person employed, why is that case charged in the first place?" said Moriarty, who is running for Hennepin County attorney to replace the retiring Mike Freeman. "Who would ever want to call a cop who has been found to have lied to a judge?"

A recent survey of more than 200 Minnesota police chiefs found that while the vast majority supported the use of body cameras, most — particularly of smaller, outstate departments — hadn't adopted the technology, citing the high cost: not only for equipment and data storage, but also for comprehensive audits, which are required under state law.

The survey by the Minnesota Chiefs of Police Association found that the number of agencies using the technology had nearly doubled since a similar audit five years ago.

Jeff Potts, the statewide group's executive director, said that as the cameras have become more widely adopted, departments have imposed tighter rules giving officers less discretion about when to record their encounters with the public.

For instance, he said, Minneapolis requires officers to switch on their recording devices well before arriving on the scene of an emergency. New technology also allows cameras to be turned on automatically as soon as, say, an officer activates the emergency lights on a police squad car.

"So the need to create carveouts and provisions went away when everybody was subject to the same policy," said Potts, the former chief of police in Bloomington. "It doesn't really matter if you're Brady-impaired or not, you're still going to have to have the cameras on whenever you're interacting with the public or not."

During the 2021 legislative session, a measure that would have provided annual funding for agencies to buy body cameras was left out of the final $2.6 billion public safety bill.

Rachel Carlson, loss control manager for the League of Minnesota Cities, said the model policy was not binding but meant to offer advice to police chiefs from smaller, rural agencies who couldn't necessarily afford to buy cameras for all of their officers. But, with the technology becoming more commonplace, that concern has also become a "moot point," she said.

"Some of the smaller chiefs were saying, 'Well I don't have the money to buy cameras for all 20 of my officers, if I had a Brady-Giglio officer who's been having some problems, what if I buy a camera just for them?'" Carlson said. "I could speculate that some agencies didn't feel as though they needed it, maybe they didn't have Brady-Giglio officers, maybe they felt that their oversight was enough."