Why Use-of-Force Cases Follow a Different Legal Process Than Civilian Arrests
In the wake of recent shootings involving federal ICE agents and the subsequent protests in Minneapolis, a common frustration has emerged within our community. Many residents ask: “If a protestor is arrested on the spot for a misdemeanor, why does it take weeks or months for an officer or agent involved in a shooting to face any legal action?”
To those outside the legal profession, this can look like a double standard. However, from a criminal defense perspective, it reveals a fundamental difference in how our justice system handles immediate “probable cause” versus complex “fact-driven” investigations.
Understanding these two distinct paths is essential for a clear-eyed view of how accountability actually works in Minnesota.
The “Street-Level” Arrest: Immediacy and Probable Cause
Most arrests made during protests or community demonstrations are based on immediate probable cause. If a peace officer witnesses an act, such as a person refusing a dispersal order or physically obstructing a path, they have the legal authority to make an arrest on the spot.
These are often “low-level” offenses (misdemeanors or gross misdemeanors). In these cases, the evidence is simple: the officer’s own observation. The individual is processed, often cited, and released. The investigation essentially happens in real-time.
The Use-of-Force Investigation: A Specialized Path
When an incident involves a “use of force,” particularly a shooting, the legal process shifts into a much more complex and rigid framework. In Minnesota, this is governed by specific statutes and independent protocols that do not apply to standard civilian arrests.
1. The Role of the BCA and Independence
For local and state officers, Minnesota typically utilizes the Bureau of Criminal Apprehension (BCA) to conduct an independent investigation. The goal is to remove the “conflict of interest” that would exist if a department investigated its own officers.
This process is inherently slow because it is comprehensive. Investigators must:
- Collect all available video (body-cam, squad-cam, and bystander footage).
- Wait for forensic and ballistics results.
- Interview every witness and involved party.
2. The Legal Standard: “Objective Reasonableness”
Unlike a disorderly conduct charge, which looks at a simple act, a use-of-force case must be evaluated under Minn. Stat. § 609.066. The law requires that an officer’s actions be judged from the perspective of an “objectively reasonable officer” on the scene at that moment, without the benefit of 20/20 hindsight.
Proving that an officer’s split-second decision was unreasonable requires a “mountain of evidence” rather than a single observation. Prosecutors rarely file charges in these cases until the entire investigative file is complete, as they only get one chance to bring a case to trial.
The Federal Complication: ICE and “Internal” Probes
The current situation in the Twin Cities is further complicated by the involvement of federal agents (ICE and CBP). As we have seen recently, federal agencies often claim “primary jurisdiction” over investigations involving their own agents.
This creates a significant point of friction. While Minnesota state officials (like the Attorney General) may push for local accountability, federal agencies often conduct their own internal reviews first. This “layering” of investigations adds weeks or months to the timeline, often leaving the public and the families involved in a painful state of limbo. In some cases, individuals caught up in these situations may also face federal criminal charges that run parallel to state proceedings.
The Reality of Felony Warrants: A Uniform Standard?
It is often pointed out that under Minnesota Statute § 629.37, a private citizen can technically be arrested immediately if a felony is committed in someone’s presence or if there is “reasonable cause.” On paper, this suggests that if a serious crime occurs, an arrest should be instantaneous regardless of who the suspect is.
However, there is a significant difference between a “street arrest” and a “prosecutorial charge.”
In complex cases, whether they involve a federal agent or a private citizen, prosecutors almost always require a completed investigative file before they will authorize a warrant for a high-level felony.
In Minnesota, if a person is arrested without a warrant, the “48-hour rule” kicks in, requiring a judge to make a probable cause determination almost immediately. In a complex shooting case involving forensics, ballistics, and dozens of witnesses, 48 hours is rarely enough time to build a case that will hold up in court. Prosecutors generally prefer to wait for a full BCA or federal report to ensure their formal Criminal Complaint is accurate and “trial-ready.” An error in a rushed, early complaint can be used by defense attorneys later to undermine the entire prosecution.
Due Process as a Community Safeguard
We recognize that for the families of those lost and for a community seeking immediate accountability, this deliberate pace can feel like a denial of justice. It is deeply frustrating to watch a protestor be processed in hours while a shooting investigation stretches into months.
But as criminal defence lawyers, we see that this “investigation before arrest” model is the standard for all high-level, complex crimes in Minnesota, from homicides to intricate financial fraud. While the speed of misdemeanor arrests is a byproduct of their simplicity, the slower pace of a felony-level investigation is meant to ensure that when the government moves to deprive someone of their liberty, it does so based on an unshakeable foundation of facts.
At Sieben Edmunds Miller, we advocate for due process because it is the only protection any of us have against the power of the state. A rush to judgment risks procedural errors that can cause a case to collapse. True accountability requires a process that is as thorough as it is transparent, ensuring that when justice is sought, it is built to last. If you are facing felony-level charges in Minnesota, understanding this process is critical to your defense.
Frequently Asked Questions (FAQ)
Does an officer being “on leave” mean they aren’t being punished?
“Critical Incident Leave” is a standard administrative step, not a disciplinary one. It removes the officer from the field while the BCA or federal investigators complete their work. It is neither an admission of guilt nor an exoneration.
Why can’t the Governor just order an immediate arrest?
In our system of checks and balances, the executive branch (the Governor) does not have the power to bypass the judicial process. Charging decisions belong to County Attorneys or the Attorney General based on the evidence provided by investigators.
What is a “Grand Jury” and is it used in these cases?
In the past, grand juries were often used to decide if an officer should be charged. Today, many Minnesota prosecutors (like those in Hennepin and Ramsey counties) have moved away from grand juries in favor of making the charging decision themselves to increase transparency.
Why does video evidence take so long to be released?
Authorities often withhold video until all key witnesses have been interviewed. They do this to ensure that a witness’s memory of the event isn’t “tainted” by what they saw on the news, which helps preserve the integrity of the testimony in court.
Can a federal agent be charged with a Minnesota state crime?
Yes. As we discussed in our first article, Minnesota has jurisdiction over crimes committed within its borders. While federal agents have certain “immunity” protections, those protections disappear if it is proven they acted outside the scope of their lawful duties or violated the law.
