Opinion: Five years after the murder of George Floyd, city still only paying lip service to transparency

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For four years and counting, we have been litigating against the city of Minneapolis and its Police Department over public access to so-called “coaching” records. At the heart of the lawsuit is whether coaching — a one-on-one session between an officer and his supervisor to address officer misconduct — constitutes “disciplinary action” under Minnesota’s open records law.

We say it does, at least sometimes, and that records that document the coaching and that are maintained in the officer’s personnel file are thus public under the law. The city says it does not and that coaching records and the misconduct giving rise to coaching are thus private personnel data that cannot be publicly disclosed under the law. A Hennepin County District Judge recently agreed with the city, and our client, the Minnesota Coalition on Government Information, is in the process of appealing that decision.

The appeal is important because the vast majority of police misconduct complaints are addressed exclusively through coaching, resulting in a culture of secrecy within the department. Moreover, although the city publicly claimed for years that it coaches only low-level or A-level violations, this is not true. Our lawsuit revealed that the city has coached B- and C-level misconduct such as mishandling department-issued firearms, violating the MPD’s confidential records policy and even violating the U.S. Constitution. Likewise, in its 2023 report, the federal Department of Justice noted that MPD coached officers after they unlawfully entered a Black family’s home, with firearms and tasers drawn, and conducted a warrantless search of the premises. The family sued and won. The MPD, on the other hand, diverted the case to coaching over officers’ “use of profanity.”

The DOJ’s findings resulted in a consent decree agreement between the DOJ and the city that aimed to address this lack of accountability and transparency. The Trump administration has now moved to dismiss the consent decree. Our appeal is important for that reason, too. If the federal government will not hold police departments accountable, then it’s on us — private litigants — to do so.

However, litigation will never be enough. Here are two lessons we’ve learned over the past four years:

First, it is long past time for the Minnesota Legislature to amend the personnel data section of the state’s open records law, if not for all public employees then at least for those authorized to use deadly force in the name of public safety.

Currently, under the law, not even substantiated complaints of police misconduct are public. Rather, allegations of misconduct become public if, and only if, the police chief decides (in his sole discretion) to discipline the misconduct and if, and only if, that discipline withstands challenge by the officer under the grievance and arbitration process set forth in the police union’s collective bargaining agreement. As a result, very little misconduct is ever made public.

The law should be reformed so that complaints of police misconduct become public when submitted — or at the very least when they are substantiated. Shielding misconduct from public view unless and until the “final disposition” of “disciplinary action” means that the public will never learn about the vast majority of police misconduct. Even when it does, because the disciplinary process takes so long, it may learn of it too late.

For example, when Derek Chauvin murdered George Floyd, the public learned that, over the years, he had faced at least 17 misconduct complaints. He was only disciplined once, for improperly escalating a traffic stop and failing to have his squad camera turned on during the incident. As for the rest, they remain confidential to this day, and the public has no idea what he was accused of doing. Had those complaints been public, perhaps there would have been more accountability for Chauvin, perhaps Floyd would be alive today, and perhaps Chauvin would be a free man.

The Legislature should also amend the open records law to give it more teeth, so that governments more readily comply with it. Right now, too many are willing to take their chances in court — or to gamble that people will never sue to begin with. And they aren’t wrong, for a host of reasons:

• Litigation takes too long. Chauvin murdered Floyd in the spring of 2020, and here we are almost five years later, still fighting about access to basic police misconduct records.

• Litigation costs too much. Along with the ACLU, our firm is handling the case over coaching records on a pro bono basis. But at normal rates, the lawsuit would have cost well over a million dollars, and it’s not over yet. Very few news organizations, nonprofits or private citizens can take on that financial burden, no matter how strongly they believe in the right of access. Meanwhile, although the law permits recovery of attorneys’ fees, these are left entirely to the discretion of the judge — who, notably, is also a public servant and is often loathe to saddle taxpayers with the burden of paying for a public entity’s mistakes.

• Even when claims are meritorious, you run the risk of landing a judge who does not understand the law, confuses it and creates bad precedent, or is outright hostile to the notion of transparency and holding public servants accountable.

• Perhaps most nefarious of all, litigation itself gives public entities a roadmap for papering over what the judge in our case called “clumsy” and “imprecise” documents so they can skirt transparency rules in the future. Litigation can shed light on duplicity, but it does not itself fix or overcome it.

Second, and perhaps even more depressing: The people who suffer the most at the hands of the police simply don’t complain. For example, there is no evidence in the public record that Zoya Code or John Pope ever complained about how Chauvin kneeled on their necks before he murdered Floyd using the same maneuver. Those most vulnerable and targeted by police misconduct often don’t know how to complain or the complaints get thrown out on a technicality. Alternatively, members of these communities don’t have time to complain, they don’t believe a complaint will make a difference, or they simply want nothing to do with the police. While these facts are grim, they are not at all surprising and are entirely understandable. Still, it means lawyers like us can only do so much to make necessary change through the legal system. We can win every case, but if there are no records of police abuse because no one has enough faith in the system to report it, we have wasted a colossal amount of time.

Where does this leave us? Again, we need swift and decisive action by the Legislature. But while we wait for that, the city of Minneapolis is not nearly as hamstrung by the open records law as it would have you believe, and we have three proposals for it:

First, start responding to open records requests for indisputably public documents, such as arrest and incident reports, more quickly and stop over-redacting them. Clients of ours — and we represent most media in town — report that this problem is worse than ever before. Basic and timely compliance with the open records law is the floor and allows journalists and grassroots groups to contact those who deal with the police and shed light on their experience.

Second, create an independent ombudsman to survey those individuals who have actually interacted with the police under stressful circumstances. We are asked for feedback after nearly every commercial transaction (How was your stay at the Hilton? Please rate the quality of your Google Meet call. The YMCA wants to hear from you!), yet no one systematically conducts consumer satisfaction surveys of the people who call police to their homes. A couple years ago, the city pretended it might do this, announcing a partnership with Zen City to conduct consumer perception surveys. But a recent open records request shows the surveys to be so generic as to be useless. Already Minneapolis works with violence prevention groups whose employees live in and have the trust of at-risk communities. Similar groups should be tasked with canvassing actual consumers of police services as opposed to random city residents, reporting on their experiences and helping those constituents file complaints about police misconduct they witnessed or, worse, suffered.

Third, when someone does complain, help them publish the complaint themselves. Many government officials we have spoken with over the years say that they wish the law were different. They say they wish they could shed light on misconduct, but they can’t. This is only half true. The open records law may currently prevent police departments from making complaints accessible upon receipt. But it does not require them to mislead complainants by telling them their experience is confidential (still, some do exactly this). In fact, the law does not prevent government entities from explicitly encouraging complainants to talk about their experience to whomever they want, including to the media. It does not even prevent the government from giving complainants a copy of their complaint and a link or QR code to a non-government website where the complainant can publicly post the complaint. So if these officials are interested in paying more than just paying lip service to the notion of transparency, they should get on board with this.

Will some unsubstantiated complaints get posted? Of course. But will the fact of publicity light a fire under the Police Department to quickly investigate and address legitimate complaints? You would certainly hope so. And if a bunch of people are posting complaints against the same officer, does that tell us something? You betcha.

Minneapolis, you claim to care about police accountability even as you drag your feet on open records request, strip the media of access to scanner traffic and make untenable arguments in litigation. Five years after the murder of George Floyd, it’s time to stop playing games. Lobby for reform at the Legislature, and help the press and public create a clearinghouse of complaints filed against police.

Leita Walker and Isabella Salomão Nascimento are free speech attorneys in the Minneapolis office of Ballard Spahr LLP. The views expressed in this article are theirs and do not necessarily reflect the views of the Minnesota Coalition on Government Information, any other client, or their law firm.