Management by policy absent accountability - a bad plan.

On 8/10/2016, the Minneapolis StarTribune ran an article about new policies for Minneapolis cops. By way of introduction to this article, here are the policies. The date indicates the day they were included in the MPD Policy Manual. 
5-303.01     
DUTY TO INTERVENE (07/28/16)
(A-D)
A. Sworn employees have an obligation to protect the public and other employees.
 B. It shall be the duty of every sworn employee present at any scene where physical force is being applied to either stop or attempt to stop another sworn employee when force is being inappropriately applied or is no longer required.
 5-304 THREATENING THE USE OF FORCE AND DE-ESCALATION (10/16/02) (06/01/12) (07/28/16)
(A-D)
A. Threatening the Use of Force
 As an alternative and/or the precursor to the actual use of force, MPD officers shall consider verbally announcing their intent to use force, including displaying an authorized weapon as a threat of force, when reasonable under the circumstances. The threatened use of force shall only occur in situations that an officer reasonably believes may result in the authorized use of force. This policy shall not be construed to authorize unnecessarily harsh language. (08/17/07) (07/28/16)
 B. De-escalation
 Whenever reasonable according to MPD policies and training, officers shall use de-escalation tactics to gain voluntary compliance and seek to avoid or minimize use of physical force. (06/01/12) (07/28/16)
 1. When safe and feasible, officers shall:
 a. Attempt to slow down or stabilize the situation so that more time, options and resources are available.
i. Mitigating the immediacy of threat gives officers more time to call additional officers or specialty units and to use other resources.
ii. The number of officers on scene may make more force options available and may help reduce overall force used.
 b. Consider whether a subject’s lack of compliance is a deliberate attempt to resist or an inability to comply based on factors including, but not limited to:
 ·         Medical conditions
·         Mental impairment
·         Developmental disability
·         Physical limitation
·         Language barrier
·         Influence of drug or alcohol use
·         Behavioral crisis
 Such consideration, when time and circumstances reasonably permit, shall then be balanced against incident facts when deciding which tactical options are the most appropriate to resolve the situation safely.
 
2. De-escalation tactics include, but are not limited to:
•    Placing barriers between an uncooperative subject and an officer.
•    Containing a threat.
•    Moving from a position that exposes officers to potential threats to a safer position.
•    Reducing exposure to a potential threat using distance, cover or concealment.
•    Communication from a safe position intended to gain the subject’s compliance, using    verbal persuasion, advisements or warnings.
•    Avoidance of physical confrontation, unless immediately necessary (e.g. to protect someone or stop dangerous behavior).
•    Using verbal techniques to calm an agitated subject and promote rational decision making.
•    Calling additional resources to assist, including more officers, CIT officers and officers equipped with less-lethal tools. 

I am glad that Chief Harteau recognizes that there should never be a “time limit” when responding to potentially critical incidents. Historically, as she noted, that has not always been true in policing. Clearing your calls so you can race to the next one was, and still is, a priority for some officers. On its face, the new policy appears to be aimed at changing police behaviors regarding people in crisis, a problem that has received national attention lately as a result of police shooting unarmed citizens. But by itself, a new policy - without training or specifics on how street cops are supposed to implement it, in a city where police behaviors are causing a rift in police community relations - doesn’t change anything. You can’t policy your way out of bad police procedure. That’s bad management and an abdication of responsibility on the part of Harteau’s administration. 
Improvement in police community relations and specifically MPD’s response to persons in crisis will not come from policies; it will come when misbehaving cops are held accountable and out of the Crisis Intervention Team training that MPD is currently doing. That training will provide officers with a set of responses to critical incidents that involve some options to deadly force and it may be the most important training the street officers will ever get. I know from my experience working with the New Orleans Crisis Intervention Team trainer, Cecile Tebo, that the essence of the new policy changes in the MPD manual can possibly accomplish two things. First, they will reinforce the principles taught in Critical Incident training and second, they will lend support to the officers who take the time needed to use de-escalation techniques with a person in crisis. The problem is that the policy lists responses and actions that are best left in the training curriculum and not put in the manual. More on that later. 


There has been a lot of discussion recently in professional journals, the news media, and other venues about police use of deadly force and de-escalation training. De-escalation has been a part of police training in academies and law enforcement schools since I started with Minneapolis in 1975. As an advisory board member at Hibbing Community College for over 30 years I signed on with many of my colleagues to use of force curriculums that emphasized de-escalation. Over the course of my career I witnessed and used de-escalation techniques that included everything listed in the new policies plus some that would have violated those policies but were very successful. The phrase “You couldn’t make this stuff up!” is said every day on the street as officers deal with the human condition; a condition you can’t manage by policy. 

In a StarTribune, August 11, 2016, editorial “Lt. Bob Kroll, president of the Minneapolis Police Officers Federation, said many officers already use de-escalation techniques. “It’s always easier to resolve a situation verbally,” Kroll said. “But I’m concerned that officers not be afraid to defend themselves.” It is true that many officers work hard to de-escalate situations. It is not true that it is always easier to resolve a situation verbally. If it was true we wouldn’t need the Crisis Intervention Team training. It is better for everyone when a situation can be handled and resolved without the need for physical force and most cops really do try to make that happen. It is a win/win for everyone. But, de-escalation in critical incidents is hard and it takes practice and experience to become adept at de-escalation skills. 

For the officer trying to resolve a critical incident, active listening skills and the ability to communicate (dialogue) are critical; and sometimes they will fail despite their best efforts. When that happens the officer’s legitimate use of coercive force may become necessary to protect the citizen and themselves. Following an event that ends in force or deadly force, whether you did the right thing or not, you will be second guessed in the media, face potential lawsuits, get criticism from within your department, and be forced to explain why a cell phone video showing only tiny bits and pieces of the event don’t match up exactly with what is in your report or what witnesses claim they saw. It’s no wonder Lt. Kroll is concerned. 

I am concerned because it is unrealistic to think that a policy added to the Minneapolis Police Manual detailing how force should or should not be applied in a given situation will change behaviors. The reality is that no officer ever faces the same situation. Each officer brings a different skill set. No set of facts or circumstances is ever identical to what you could imagine or train for. No suspect, victim, witness, weapon, or other factor is the exactly the same. Based on policy, we train under general guidelines being specific in our policies only when truly necessary. An example would be defining the specific weapon allowed for a duty weapon or the requirement for a specific score on targets with that firearm on the range. How we train to meet those policy guidelines is in the training curriculum. 

When we put details best left to the training curriculum into policy such as what we see in the new use of force policies in Minneapolis we only create fodder for plaintiff’s attorneys.  Given the nature of the job you will always be able to find something in a critical incident that could be considered a violation when you put that much detail in a department policy. That concerns me because those details will play in the minds of some officers, especially new officers, involved in critical incidents and it could be a fatal distraction just when they should be focused on the safety of the citizens and themselves. 

Some of the folks that I consider the best and wisest men and women in law enforcement have always told me that a policy manual is made up of guidelines that inform officers on how they expect an officer to do the job under normal circumstances with the understanding that there is nothing “normal” or routine about any call for service. And there are always exceptions. If Chief Harteau’s purpose for the new policies is to improve police behavior, the department and the citizens would be better served if the Minneapolis Police made an effort to investigate misconduct, hold officers accountable to the policies and laws already in place and make supervisors do the job they are being paid to do –  supervise. 

Here are the numbers that show that Minneapolis PD needs to do a better job of holding their cops accountable: As of 2010 Minneapolis ranked 4th in the nation for complaints of police misconduct out of the 89 agencies with 500-999 sworn officers, while the State of Minnesota ranked 37th overall. By comparison, the St. Paul Police Department, our sister city, doesn’t even show up in charts and graphs of departments with high numbers of complaints. (Reeves, 2011) (National Police Misconduct Reporting Project, 2015)

You could argue that those numbers are now 6 years old and things are better under the new policies. I would argue that things are worse as a result of the lack of accountability in the MPD. 

As evidence I present the following:

Minneapolis Police Officer Tyrone “Barze has been the subject of at least six other lawsuits alleging excessive force and wrongful arrest since 2012, according to federal court records. Two of the suits were later dismissed, but the city paid $318,772 in settlements over the past two years, records show.” (Jany, 2016)

As of August 28, 2013 – “Of 439 cases involving Minneapolis police misconduct handled by a new office created last fall, not one so far has resulted in discipline of a police officer.”
… In addition, the city of Minneapolis made $14 million in payouts for alleged police misconduct between 2006 and 2012, but the Minneapolis Police Department rarely concluded that the officers involved in those cases did anything wrong, according to a Star Tribune analysis.
… (Furst, 2013)

An MPR News analysis of data from the Minneapolis City Attorney shows the city has paid out more than $21 million to resolve misconduct lawsuits and claims during the last decade. (Williams, 2014)

Officer Michael Griffin “A Minneapolis police officer whose two excessive force lawsuits have cost the city $410,000 has had 19 complaints filed against him since he started in 2007, six of them last year.” (McKinney, 2015)

Enough said about that. If you are a taxpayer in Minneapolis, you should be concerned too. 

The August StarTribune editorial also talks about the new policy on Peer Intervention in cases of excessive force. I have some knowledge of how that works. In New Orleans I spent almost four years off and on authoring a two-day program on Peer Intervention that works for the cops and the citizens. This was a huge project working with and being advised by Dr. Ervin Staub, Dr. Joel Dvoskin, Civil Rights Attorney Mary Howell, Critical Incident Team Trainer Cecile Tebo, Federal Prosecutor Steve Parker, Cold case homicide investigator Dr. Everett Doolittle, Civil Rights Activist Ted Quant, Police Psychologist Dr. Erin Nelson, the U.S. Department of Justice, the federal consent decree monitors, community members, and New Orleans Police Officers across all ranks – current and retired. 

The New Orleans Police Department struggled for many years with corruption and significant challenges to their legitimacy. They are on the road to recovering their legitimacy. Part of that recovery is the peer intervention program. Here is what New Orleans Police Superintendent Michael Harrison wrote about the peer intervention program they have trademarked under the name “Ethical Policing is Courageous” (EPIC). “We believe this is the transformational tool that will catalyze our many ongoing reformation efforts and help make this agency one of the premier law enforcement organizations in the United States.”

In their effort to regain legitimacy with the community and comply with a federal consent decree, New Orleans officers understand that Peer Intervention is not just about the use of force. Peer intervention creates the synergy that allows officers to hold each other accountable for any act or failure to act that might dishonor the badge, the agency or the officer’s family. It is about permission to intervene and permission to accept an intervention from another officer. You don’t accomplish that with a policy; you accomplish it by spending hours in a facilitated dialogue about peer intervention as an officer survival tool. And most importantly, you accomplish it when everyone from the Chief to the lowliest intern believes and practices peer intervention without the fear of retaliation or recrimination.   

The use of force, when excessive, is already governed by Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865.May 15, 1989. To better understand how that works, here are some key citations from that opinion that give officers guidance to using force.

The Fourth Amendment "reasonableness" inquiry is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation. Pp. 1871-1872.

With respect to a claim of excessive force, the same standard of reasonableness at the             moment applies: "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers," Johnson v. Glick, 481 F.2d, at 1033, violates the Fourth Amendment. The calculus of reasonableness must embody *397 allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation.


As in other Fourth Amendment contexts, however, the "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.

An officer's evil intentions will not make a Fourth Amendment violation out of an objectively             reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional.    

Under Graham v. Connor, an officer’s use of force comes down to doing what is necessary when it is necessary by a reasonable officer at the scene, given the facts known to that officer and the totality of the circumstances without regard to the officer’s motivation. It really is that simple, and that complicated. 
The law regarding intervening in another officer’s actions is much clearer. There is a legal duty to intervene in the misconduct of other officers. Here are some of the most important cases. 

In Putman v. Gerloff, 639 F.2d 415, 423 (8th Cir. 1981) “We conclude although Crowe was a subordinate, the evidence is sufficient to hold him jointly liable for failing to intervene if a fellow officer, albeit his superior, was using excessive force and otherwise was unlawfully punishing the prisoner. . ..” 

In Anderson v. Branen, 17 F.3d 552 (2d Cir. 1994). “[A]ll law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence. . ..”  

In Torres v. Allentown Police, No. 13-3066 (2014). “Plaintiff can sustain a claim for a Fourth Amendment violation against an officer who did not participate directly in the use of force if that officer failed to intervene despite having had a reasonable opportunity to do so. . ..”  

In summary: Officers are allowed to use the force necessary in the judgement of a reasonable officer at the scene but officers must intervene in a case of excessive force. The new MPD policy that states “Sworn employees have an obligation to protect the public and other employees. It shall be the duty of every sworn employee present at any scene where physical force is being applied to either stop or attempt to stop another sworn employee when force is being inappropriately applied or is no longer required” doesn’t work on several levels. 
First of all, there are many reasons why physical force may look like it is being “inappropriately applied”. When an officer decides that force is necessary and their training or physical abilities at that point in time are not sufficient to use force in the text book approved manner, it is the backup officers’ first responsibility to assist that officer to gain control of the suspect using the force necessary based on how a reasonable officer would act. Cops don’t have the luxury of playing 20 questions about why the officer lost control and needed help. When what they are doing is not working and they are starting to improvise should cops assume from the policy that the only option is to “stop” the use of force? Sorry, that’s not usually an option. 

I walked a beat in downtown Minneapolis by myself on many nights when there was no partner available. I was a trained use of force instructor. In the one-on-one struggles that occurred with drunks, prostitutes, drug dealers and other assorted characters I was able to “appropriately” apply force in most of those struggles. Blood, sweat, alcohol, drugs and the willingness to fight to the death make the word “appropriate” difficult to define. I’ve had my own weapon pointed into my chest twice by “unarmed” men trying to kill me over misdemeanor offenses. I was attacked three times with knives. The “appropriate” response by a reasonable officer would have been to shoot them. I didn’t. What I did in each case was probably inappropriate given the circumstances, but everyone survived. That’s 5 lives, plus mine, that made it through the night because I responded in an inappropriate but creative manner based on my skills and abilities. Every police officer I have ever talked to who had any time on the street can tell you similar and scarier stories of survival. 
 
Next, when is force “no longer required”? This can be a tough question. Striking someone in handcuffs or when they appear to be under another officer’s control may be excessive. But how do we judge that when a jury in the District of Minnesota, United States District Court, cleared Minneapolis Police Officer Jason Andersen of excessive force even after other police officers found it necessary to intervene and stop Andersen and they testified in federal court that his force was excessive? (Hanners, 2015)

    Officer Michael Griffin was indicted on 9 counts regarding alleged brutality and the jury cleared him on 6 counts and could not come to a unanimous verdict on the other three. There are important issues in this case that bear reflection regarding peer intervention. 

The alleged victims in this case prevailed in a civil suit against Griffin and the city had already paid out $150,000.00 for the settlement before the criminal trial. Griffin has now cost the city a total of $410,000.00. I have always taught that being found liable in a civil lawsuit is the community’s way of telling cops that they may have been within the law, but they were outside community standards. It is this conflict between community expectations and police conduct that is at the heart of our loss of legitimacy in the community. The community has spoken loud and clear regarding how Michael Griffin conducts himself – they don’t like it. 
But rather than being held accountable he is supported in his misconduct. This statement from the Police Federation President Lt. Bob Kroll “We are pleased with the outcome of the jury’s verdict,” said Federation President Lt. Bob Kroll. “Officer Griffin has been vindicated and the truth rules the day. The city has a duty to stop their witch hunt of Officer Griffin after multiple internal affairs investigations and jury verdicts. We expect to see Officer Griffin back to work serving the community and the city to reimburse him for his legal expenses.” (Mayerle, 2016)

 In the Anderson lawsuit, according to the jury, kicking a suspect in the head after other officers already had him pinned on the ground was OK. What was the jury telling us? A street cop is not going to risk reporting or intervening in other officers’ actions unless they believe, based on the actions of their supervisors and department leaders, that they will be backed up and there will be no retaliation from other cops. In the Jason Anderson case there were numerous comments by Minneapolis cops on police social websites that the Crystal Police Department would no longer get any backup from Minneapolis cops.

In case you think this is an isolated instance of police retaliation I had a garage burglary where my son’s racing bikes were stolen. The loss was several thousand dollars. I couldn’t even get a phone call or an answer to my emails from the investigators involved. When that lack of response came up in an online discussion recently Lt. Bob Kroll posted this on a police website,  twelve years after I published the first edition of this book. 

Mike Quinn you likely didn't get a call back on your garage burglary by intent because you are the most reputable RAT the MPD has ever had. Go write another fiction worst seller on dirty Minneapolis Cops. I'm not a fan of yours either. Any time you want to meet to solve our differences I'm game. Coward. (Kroll, 2016)

Based on the lack of accountability by the administration and the support of the police federation demonstrated in the cases I’ve listed it would be career suicide to intervene in another cop’s misconduct in Minneapolis. The policy becomes a moot point - a smokescreen imitation of leadership.

Next question - why are only sworn officers identified in the policy? Don’t non-sworn persons have the right and responsibility to step up when they know that something being done by a sworn officer is wrong or unethical? In the beating death of Jesse Lee Williams in 2006 by deputies of the Harrison County, Mississippi Sheriff’s Office it was the jail nurse that brought the first complaint. (Balko, 2006) 

What happens when a civilian employee becomes aware of a false arrest, brutality or tainted evidence? Shouldn’t they have permission to come forward without fear of retaliation? When you have cops like Barze and Griffin being supported by other cops and not being held accountable by management it could mean the end of a citizen’s career to intervene or report them. If Peer Intervention is the goal you don’t do it with a poorly worded policy that says sworn officers must intervene in cases of excessive force; that’s the law. Policies like this one, that misrepresent the law, cause more harm than good.  

Peer Intervention is summed up in the International Ethics and Leadership Training Bureau Oath: I promise that I will always have the courage to stand by you and for you. I promise that I will never, through action or inaction, allow any act that dishonors you, your family, or the badge. I ask only that you promise to do the same for me. 

     It is also a fundamental principle of the Law Enforcement Oath of Honor: On my honor, I will never betray my badge, my integrity, my character or the public trust. I will always have the courage to hold myself and others accountable for our actions. I will always uphold the constitution, my community and the agency I serve.

Peer intervention is more than just the promise. It is an oath that says: Across all ranks and assignments - I promise to intervene when I see conduct that violates your oath of office or conduct that endangers your well-being or the well-being of your family or career and I give you permission to intervene when you think my conduct violates my oath of office or is endangering the well-being of myself, my family or my career.  

Peer intervention, like all officer survival training, requires training. Everyone in the agency has to understand why and how to implement peer intervention. They have to practice it with hands on role play and say the words “Stop, I got this” or “Time Out, I’ll talk to them” or sometimes it’s as simple as saying “That’s enough.” 

The policy implications in peer intervention are critically important. Are officers required to report all interventions? If an officer intervenes in a use of force situation, and it prevents the misuse of force, is that a reportable offense? What if the intervention occurs during a misuse of force but the intervention is successful and the officer complies with the intervention? Is that a reportable offense? Will the officer’s willingness to accept the intervention be a mitigating factor if there is a complaint? What if an officer refuses to allow an intervention? Who reports what? Does a recruit have the authority to intervene with their field training officer or a superior officer? And these are just some of the obvious questions cops have when you implement a peer intervention program regarding use of force or policy violations. 

Some of these issues will be easier when everyone has a body camera. When you know it’s already a recorded event it becomes easier to come forward and tell the truth. But a camera only faces in one direction at a time and it will not, as we have seen already in Minneapolis, record everything you might want to see later. 

If you really want to stop excessive force, hold officers accountable. Minneapolis should look to this New Orleans example for guidance: 
Three New Orleans police officers were fired Wednesday (June 15), and a fourth suspended, for their roles in a September 2015 incident in which a handcuffed man was hit several times while seated inside the department's French Quarter station.

Officer Alfred Moran's body-worn camera showed him using his hands to strike the man, who had been arrested for public intoxication shortly before midnight on Sept. 30, NOPD said. The man was sitting on a bench inside the 8th District station on Royal Street at the time, and had argued with Moran prior to the incident. 

Three other officers – Lewis Simmons, Christopher Jennings and Jeffery Tyler –witnessed their colleague's use of force, NOPD said, but none of them reported the incident to supervisors, as required by department policy. The incident came to light the following day during a supervisor's routine review of body-worn camera footage, said NOPD spokesman Tyler Gamble.

NOPD's Public Integrity Bureau launched criminal and administrative investigations. But Moran, Simmons and Jennings were "untruthful" during the investigation, Gamble said. Tyler, meanwhile, answered honestly when questioned.

The handcuffed man did not require hospitalization, Gamble said, and the department's internal investigation, along with a consultation with the Orleans Parish District Attorney's Office, did not find enough evidence to pursue criminal charges against any of the officers.

Moran, Simmons and Jennings were each fired after Wednesday's disciplinary hearing, while Tyler received a five-day unpaid suspension. All four officers have 30 days to appeal the decision. 

"I expect our officers to follow the law, to follow our policies and our training and to be honest," NOPD Superintendent Michael Harrison said in a release announcing the disciplinary actions. "Today's decision demonstrates that the NOPD is committed to ethical and constitutional policing and that we will not tolerate anything less." (Bullington, 2016)

Finally, peer intervention is not just about intervening in the use of force or policy violations. The oath also means that we are “Our Brothers and Sisters Keeper.”  When that officer that was always ready for roll call, that always had a neat and clean uniform, and never had any complaints about attitude or language, starts to slide in late for roll call in a dirty uniform and is having trouble seeing a reason for the job – it’s Peer Intervention time. 

This also means that the department’s peer support group and crisis intervention team officers should be some of the first ones trained in peer intervention. They are typically in those roles because they understand the need to support other cops in more ways than just taking the Holy Jack of Daniels Oath at the bar. Peer Intervention is about officer survival. Survival of a cop’s career, their family and their freedom. It is about preventing problems and it works in any organization where the bottom line is safe and ethical behavior when everyone in the organization participates. The community understands when a cop makes a mistake or when a bad cop has to be fired. What they do not understand is when a cop is doing something unethical and other cops do nothing to stop them. That is what really destroys community relations and impairs the legitimacy of a police department. 
The Minneapolis Police Department’s ongoing attempts to manage by policy, absent accountability, is bad policy and we are paying the price. 


Michael W. Quinn
CEO- International Ethics and Leadership Training Bureau, LLC.
Minneapolis, MN 55410
http://www.ieltb.com
Mike@ieltb.com
(612) 402 -8829

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