New POST Board rules called a 'game changer' in state licensing of police officers

When Minneapolis police officer Derek Chauvin was arrested three years ago in the murder of George Floyd, the leadership of the state board that licenses police officers found itself in a predicament: It couldn't revoke Chauvin's license without a criminal conviction.

That restriction changes Tuesday, when a series of state rules take effect governing standards for the Minnesota Board of Peace Officers Standards and Training (POST), following years of committee meetings and hearings driven by a groundswell of public concerns about the nature of policing.

Until now, the POST Board could revoke a license only when an officer was convicted of a felony or certain gross misdemeanors. Now the board can revoke the license of an officer who violates its conduct guidelines, based on evidence presented in an administrative hearing — regardless of whether the officer has been charged or convicted of a crime.

"There was frustration on the part of citizens and even people in law enforcement that there were some bad actors out there who engaged in conduct that the board could not take action against unless and until criminal charges were filed and the officers were ultimately convicted," said Erik Misselt, the board's executive director.

There are other changes. Previously the board could take action on officers' licenses only for unauthorized use of deadly force. Now it will also be able to take action for excessive or unreasonable force.

The new rules are a game changer, said Mendota Heights Police Chief Kelly McCarthy, who chairs the POST Board that approved the rule changes. The change enables the board to take action against a misbehaving officer even if their department won't, she said.

"We know that there is a lot of conduct that we do not want officers engaging in that falls short of being convicted of a crime," she said. "Now we can potentially address misconduct sooner."

The rule changes aren't free of controversy. The Minnesota Police and Peace Officers Association (MPPOA), which represents the police rank and file, opposes the board's authority to revoke licenses prior to a criminal conviction, said spokeswoman Leslie Rosedahl. So does Law Enforcement Labor Services, a public safety labor union.

In a letter last July, the two groups said that stripping an officer's license before criminal charges are filed will only increase the number of investigations "without the protections afforded criminal defendants, not the least of which is guilt beyond a reasonable doubt."

McCarthy counters that POST is "a licensing board, and every other licensing board in the state has the authority to investigate the conduct of its license holders and does not require a criminal conviction."

'Reasonable oversight'

Created in 1977, the POST Board's scope was deliberately restricted by state leaders who wanted it to have very limited jurisdiction, says Misselt. One of its rules stated that the board "believes that internal discipline is properly a function of the appointing authority."

Historically, McCarthy said, much of the board's work involved the education of new cops and administration of the test to become an officer. "These functions are absolutely vital but are not the first thing that the public thinks of when they think of the POST Board," she said.

A draft of the new rules was approved last year by the board, altered somewhat based on the recommendations of an administrative law judge, and approved by Gov. Tim Walz. They sprang from calls for reform that escalated after Floyd's murder in 2020, when Walz recommended proposals to the POST Board "to transform policing in Minnesota."

Chauvin at the time was jailed and awaiting trial after his arrest, so the fact that he was still a licensed police officer was not necessarily a problem for the public. But had he been released pending trial, technically he could have been hired by another department because he still held a peace officer's license.

On June 25, 2021, Chauvin was sentenced to 22¹⁄₂ years in prison for Floyd's murder. That same day, the POST Board revoked Chauvin's license. The three other Minneapolis officers convicted in Floyd's death also had have their licenses revoked.

A committee of citizens and law enforcement representatives appointed in 2020 by the POST Board spent more than two years going through all the rules to see what needed to be added, updated or expunged.

"By including so many people of diverse backgrounds and experience in the rule-making process, we were able to create a product that validates the work of our hardworking officers across the state while addressing community concerns," McCarthy said.

Under the new rules:

— Police departments must determine whether a job applicant, in previous law enforcement positions, was disciplined or subject to court findings involving abuse of police authority, bias against a protected class, statements of dishonesty, mishandling of evidence or property, undisclosed or improper inducements to witnesses or suspects, unreasonable or excessive force, and unauthorized access or unlawful misuse of government data.

— Officer applicants must "be free of discriminatory conduct" and have no record of membership in a "hate or extremist group" or "criminal gang."

— Applicants no longer need to be U.S. citizens, though they must be able to legally work in the country.

— It's no longer a deal breaker for an applicant cited for shoplifting to become a police officer. "Our advisory group went through each disqualifying conviction with a racial equity lens and only included those convictions that met our standards," McCarthy said. "Theft of moveable property under $500 is no longer a mandatory disqualification. Members of the rules advisory committee acknowledged that laws are not always equally applied."

— A hiring agency considering job applicants must consult the National Decertification Index, a national registry of police officers whose licenses have been revoked for misconduct.

— Applicants must be trained in first aid to the level of Emergency Medical Responder or higher.

— Each law enforcement agency must now have a "public assembly/First Amendment activity policy."

The new rules will have implications for other offenses involving a police officer. For instance, Misselt said, it used to be that the POST Board had limited sanction options if an officer charged with domestic assault pleaded to a lesser charge or was acquitted. Now in such a case the board can take action without a conviction.

Michelle Gross, president of Communities United Against Police Brutality (CUAPB) and a longtime critic of the POST Board, praised the new rules. Gross, who was on the advisory committee that helped shape the changes, noted that the POST Board took no action on the Metro Gang Strike Force, a multi-jurisdictional law enforcement unit in the Twin Cities that was shut down 14 years ago for engaging in widespread misconduct.

"Now there are standards the POST Board can act on," she said. "A lot of work has gone into this. It's been a long and really good process."

Bryan Litsey, a retired law enforcement professor at Metropolitan State University and former chief of the South Lake Minnetonka Police Department, also served on the advisory committee. He said the changes were long overdue.

"There needs to be sensible, reasonable oversight that promotes good policing and at the same time holds those accountable for those officers who engage in inappropriate conduct," Litsey said. "From my experience, most officers do not want to serve with bad officers, and they want reasonable oversight and accountability."