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Minneapolis Injured protesters with rubber bullets.

POSTED: May 27, 2021, 3:00 am

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Editor’s note: This is a follow-up to last year’s joint investigation by KHN and USA Today finding that police in several cities violated their own crowd-control policies during protests over racial injustice and police brutality.

As police in riot gear approached the demonstrators, Soren Stevenson raised his hands like scores of others and called out, “Hands up, don’t shoot.”

Suddenly, tear gas canisters and rubber bullets rained down.

The demonstrators had gathered for a sixth straight day to decry Minneapolis police officers’ use-of-force practices after the slaying of an unarmed Black man named George Floyd.

Stevenson, a graduate student at the University of Minnesota Humphrey School of Public Affairs, lost his left eye after an officer fired a plastic-tipped round at him — even though Minneapolis Police Department policy bans the use of those munitions against nonviolent people.

According to a federal court complaint that cites video of the incident and witness accounts, Stevenson was unarmed, had committed no crime, posed no threat and was not in a chaotic crowd.

It wasn’t an isolated event. Dozens of people were seriously injured during the protests last summer, leading to lawsuits, promises of reform and calls to ban the use of rubber bullets for crowd control.

“This is a moment in time where we can totally change the way our Police Department operates,” Minneapolis Mayor Jacob Frey said when the City Council banned chokeholds soon after Floyd’s death. “We can quite literally lead the way in our nation enacting more police reform than any other city in the entire country, and we cannot fail.”

Nearly a year later, there is scant evidence that Minneapolis has changed how its police officers use less-lethal weapons or strengthened its oversight. Instead, the city may be a study in stymied reform, unenforced policies and a lack of transparency.

The Minneapolis Police Department still has not given the public or the City Council a full accounting of how it responded to last summer’s demonstrations. The department has failed to disclose basic facts such as the number of protesters arrested or wounded.

No officers have been disciplined for their actions during the protests. The only discipline related to the protests was meted out to an officer who described the department’s toxic culture in a GQ story, despite not being authorized to talk to the media.

“I’m appalled by the behavior of our police during the protests,” City Council President Lisa Bender said. “For this to be the department in our city with the least amount of transparency is the opposite of what it should be.”

From New York to Portland, Oregon, an investigation by USA Today and KHN last year found that police violated their own crowd-control policies during protests over racial injustice and police brutality.

Michelle Gross, co-founder of the nonprofit Communities United Against Police Brutality, said she’s seen no reform or accountability regarding Minneapolis officers’ conduct, including their use of rubber bullets. “I call it ‘cop exceptionalism,’” she said. “They do what they want.”

The Minneapolis City Council passed a resolution last month calling for an end to the use of rubber bullets, tear gas and other less-lethal rounds. It was merely a “statement of values” with no legal force.

Police Chief Medaria Arradondo rejected the resolution as “unhelpful and uninformed,” according to the (Minneapolis) Star Tribune, saying if officers can’t use less-lethal weapons they would have only guns and batons to combat demonstrators “who are here to strike harm and chaos and destroy our city.”

Council Member Says Police Escalated Tensions

Floyd was killed May 25, 2020, by police during an arrest that was captured on video and seen worldwide.

In a city raw from complaints of officer abuses, outrage exploded into street demonstrations. Police responded with riot squads armed with tear gas and less-lethal firearms that launch 40-millimeter projectiles tipped with hard foam or plastic, commonly called rubber bullets.

For six days and nights, some peaceful demonstrations escalated into arson, looting and chaos, making it difficult for outsiders to sort out whether protesters or police triggered violence.

Steve Fletcher and other City Council members contended officers inflamed crowds with tear gas and rubber bullets. “The community gathered Tuesday night to mourn and express their outrage, peacefully,” he tweeted May 28 amid the violence.

“It was bad choices by Minneapolis police officers that escalated the situation to the point that it turned into a prolonged week of action,” he said later, according to the Star Tribune.

Officers used about 5,200 less-lethal munitions over six days, according to records provided to USA Today.

Frey told USA Today that officers faced unprecedented conditions in which violent provocateurs mixed with peaceful protesters. “Distinguishing between those two became increasingly difficult,” he said.

At least 57 people were injured so severely by less-lethal projectiles that they required urgent care during protests in Minneapolis from May 26 to June 15, 2020, according to the University of Minnesota’s medical school.

Of those, 23 were hit in the face or head. Ten were blinded or suffered severe eye trauma. Sixteen suffered traumatic brain injuries.

Minneapolis policy defines a less-lethal weapon as one that “does not have a reasonable likelihood of causing or creating a substantial risk of death or great bodily harm.”

The policy says officers may use less-lethal weapons against individuals posing a threat but “shall not deploy 40mm launchers for crowd management purposes.” It says shots to the head or neck are potentially deadly and should be avoided.

The study concluded, “Projectiles are not appropriate for crowd control.” Years ago, other researchers reached a similar conclusion. But the devices have been marketed for crowd control and, last summer, that’s how police across the country used them.

Frey acknowledged seeing videos of officers shooting nonviolent civilians and journalists — sometimes appearing to target the head. Though such conduct is “unacceptable,” he said, efforts to enforce policies have been thwarted by procedural requirements, union resistance and litigation.

Asked whether any Minneapolis officer has been disciplined for violating use-of-force policies during the protests, Frey said in April “quite a few cases” were under investigation, but he declined to say how many.

Mychal Vlatkovich, a spokesperson for Frey, said Saturday no discipline has been finalized, and the city can’t comment on open investigations.

‘We’re Getting Hit’

Terry Hempfling, 39, an artist who was raised by activist parents, said protesting injustice is a patriotic duty.

On May 29, she and her friend Rachel Clark joined a crowd near the 3rd Precinct police station. Around 11:30 p.m., police ordered protesters to disperse. Hempfling said she and Clark walked away and were unlocking their bikes when tear gas swirled in the darkness. They were trapped between two lines of police.

Hempfling said she was disoriented, eyes and throat stinging, as Clark blurted out, “We’re getting hit.” They climbed a fence to escape but not before Hempfling was shot in the back, breast and leg, leaving an expansive bruise that is still discolored.

Hempfling and Clark, who was hit by three projectiles, are among hundreds of plaintiffs in an American Civil Liberties Union of Minnesota lawsuit alleging Minneapolis and state police have “a custom or policy authorizing the deployment of crowd-control weapons and/or less-lethal munitions in an unconstitutional manner.”

The ACLU complaint contends departmental restrictions on the use of rubber bullets are not enforced, so officers ignore them with impunity. At least a dozen other lawsuits contain similar allegations.

Stevenson, who seeks $55 million in damages plus court-ordered policing reforms, claims in his suit that a rubber bullet fired by a Minneapolis police officer fractured facial bones, ruptured an eye and caused brain damage. As blood streamed from the wound, at least a half-dozen officers allegedly did nothing to render aid — behavior his lawsuit says was not just a violation of policies but inhumane.

“MPD has allowed its officers to get away with policy and constitutional violations without fear of repercussion for decades,” the complaint says.

Ethan Marks alleged he was at a demonstration May 28 with his mother when he was “shot in the eye with a tear gas canister from several feet away.” It hit him so hard he was knocked out of his shoes.

Andrew Noel, an attorney who represents Stevenson and Marks, said police have yet to identify the officers who shot his clients, even though they tracked down suspected rioters with video and social media. “If you can locate those folks, you’d better be able to identify the officers involved,” Noel said.

Hempfling said she has taken part in more than 100 demonstrations and thought she understood how to exercise her First Amendment rights safely.

“I left feeling like I had no clue what a police officer might do to me, regardless of whether I’m being peaceful,” she said.

Attorneys for the city sought to dismiss the ACLU case based in part on a claim that officers faced a “rapidly evolving, violent, and dangerous situation” that required less-lethal force to repel and disperse “unruly individuals.”

A federal judge rejected the motion in March, ruling that plaintiffs plausibly allege city officials tacitly authorized police abuses or were indifferent to them.

ACLU attorney Isabella Salomão Nascimento said the Police Department remains in dire need of reform.

“We really hope this litigation will serve as a vehicle for that,” she said. “This was an outrageous use of force.”

Limited Reforms

In early June 2020, Minnesota’s Department of Human Rights filed an emergency action accusing the Minneapolis Police Department of discriminating against people of color.

The city promptly agreed to a restraining order. As part of that deal, the use of rubber bullets against demonstrators is prohibited unless authorized by the police chief or someone he designates.

Vlatkovich, the mayor’s spokesperson, said Arradondo authorized use of less-lethal weapons during demonstrations in August.

The court agreement included a provision requiring timely and transparent discipline for officers who violate use-of-force policies. Despite repeated requests from USA Today, neither police nor Frey identified any officer punished for misuse of less-lethal munitions.

Citizen complaints of misconduct and abuse by Minneapolis police nearly tripled during the second quarter of 2020, when the demonstrations took place, according to the Minneapolis Office of Police Conduct Review.

Gross, the community activist, said the data is almost meaningless because residents don’t believe police officers are held accountable and seldom bother to report wrongdoing. She serves on an advisory council with the Minnesota Peace Officer Standards and Training agency.

She said she witnessed an officer shoot a nonviolent protester in the face with a tear gas canister during last year’s demonstrations, but there was no point in lodging a complaint.

A nurse by profession, Gross referred to the conduct review office as “the place where complaints go to die.”

The city has an appointed Police Conduct Oversight Commission, described on the municipal website as an “independent body which assures police services are delivered in a lawful and nondiscriminatory manner.” The commission conducts audits but has no power over citizen complaints, officer discipline or law enforcement policies.

An analysis by the Minnesota Reformer, a nonprofit news site, found that fewer than 3% of the commission’s cases from 2013 to 2019 resulted in significant discipline of officers. It took an average of 18 months to resolve each case.

The news outlet concluded that the Minneapolis Police Department “is notoriously ineffective at removing bad cops from its ranks” due to a “pattern of mismanagement.”

A City Council bid to reorganize the roughly 800-officer Police Department is caught in a power struggle. The council and activists are pressing to let voters decide whether the department should be replaced by a public safety agency under council control.

Frey opposes those efforts and insists he is changing police customs and rules from within.

For example, he said, one new policy says only SWAT units can use rubber bullets for crowd control. It makes an exception if no tactical squad is available.

Frey said he made “overture after overture” to City Council members, asking for suggestions on what to change without receiving any.

Bender, the council president, said she’s seen no significant reforms under Frey’s leadership. “There is public debate about the use of less-lethal force for crowd control,” she said, “but no public decision-making. The mayor and chief make those decisions behind closed doors.”

City Won’t Say Whether Officers Followed Reporting Policies

The Minneapolis Police Department’s policy manual requires officers to file a report each time they discharge a less-lethal projectile. If someone is injured, an officer is required to notify a supervisor, which prompts an inquiry that must be documented.

It is unclear whether officers complied with those policies during May and June 2020. In response to a public records request from USA Today, the department supplied no records other than a spreadsheet summarizing how many munitions were discharged.

Frey said Arradondo compiled “a whole lot of data” about enforcement efforts during the protests. Asked in early April where that information has been disseminated, he said, “I am trying to get it right now, and we’re expediting the requests.”

Attorneys for shooting victims said the city has turned over few documents in response to their lawsuits, and it has secured protective orders to keep disclosures about police behavior out of public view. Among the records that Minneapolis lawyers want sealed: bodycam videos, internal investigative reports, misconduct reviews and personnel files.

Police agencies commonly seek independent reports that evaluate performance and tactics after major events. Minneapolis did not commission an after-action review of the George Floyd demonstrations until February.

In an email, city spokesperson Casper Hill said the review was delayed because there wasn’t money in the budget. The $250,000 study will not be completed until later this year.

Police Officers Nationwide Fired on Protesters

A nationwide survey by the nonprofit Physicians for Human Rights counted 115 demonstrators who suffered head wounds from less-lethal projectiles during last summer’s demonstrations. That tally, based on news and social media reports, is believed to be a fraction of the total.

The organization concluded that rubber bullets “are not an appropriate weapon for crowd management” and recommended cities ban such use.

Minneapolis police were particularly aggressive, according to the study, firing more neck and head shots than officers in any other city except Los Angeles, which has roughly 10 times the population.

Though laws and regulations are important, policing experts stress that culture is crucial.

Mike Tusken, chief of police in Duluth and an executive board member with the Minnesota Chiefs of Police Association, said crowd control is difficult because civil disturbances are dynamic and there’s no playbook on how to respond.

Though policies set a framework, Tusken said, proper decision-making requires a “culture of discipline” that emanates from training and leadership.

As he watched news across the country last summer, Tusken said, he saw some officers de-escalate tensions, even showing kindness to protesters. A small minority fired on nonviolent protesters.

“Why are they still in policing? Why are they not being held accountable?” Tusken asked. “I’m outraged to see it. The narrative becomes ‘All cops: bad.’”

State Rep. John Thompson said the cycle never seems to end.

In 2016, a close friend, Philando Castile, was pulled over by an officer in a Minneapolis suburb and shot five times as his girlfriend’s 4-year-old daughter looked on. The officer was acquitted.

At Castile’s memorial viewing, Thompson said, he vowed to change things. Four years later, as an elected official, he witnessed officers firing less-lethal projectiles at protesters outside the 3rd Precinct station.

“There were peaceful people there exercising their rights,” Thompson said. “There’s this big bang from a canister, and rubber bullets are flying everywhere.”

This article was reprinted from with permission from the Henry J. Kaiser Family Foundation. Kaiser Health News, an editorially independent news service, is a program of the Kaiser Family Foundation, a nonpartisan health care policy research organization unaffiliated with Kaiser Permanente.

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