MINNEAPOLIS – Minnesota Attorney General Keith Ellison resisted calls for weeks to take over the prosecution of the white suburban Minneapolis police officer who fatally shot Black motorist Daunte Wright. He finally did so last week after one county prosecutor quit the case and a second asked him to step in.
The move satisfied many activists who hope Ellison — fresh off winning a murder conviction for the police officer who killed George Floyd — will file more serious charges in Wright's case. It also fueled expectations that Minnesota may more frequently bypass local prosecutors who activists complain undercharge police officers or don't charge them at all.
Gov. Tim Walz, a Democrat, is throwing his support behind the idea, one that several other states are also exploring.
“I just know that the community, especially when it involves a police-involved shooting, feels much more comfortable if it’s a third party or an independent prosecutor,” he said this week in an interview on Minneapolis' KMOJ-FM, a radio station with a largely Black listenership.
In the year since Floyd's death, bills have been introduced in Minnesota and several other states to transfer jurisdiction over excessive force cases or officer-involved deaths from local prosecutors to either state attorneys general or special prosecutors, according to the National Conference of State Legislatures, though most of them haven't passed.
Maine has long given its attorney general sole power in such cases. The state's attorney general issue regular reports on whether deadly force encounters were justified — typically finding that they were.
In New York, a recent change in state law gave Attorney General Letitia James jurisdiction over all deaths involving police. Previously, she was limited to investigating cases in which the person killed was unarmed, and she had the option of passing them back to local district attorneys. Colorado and Virginia have also given their attorneys general more authority to investigate and prosecute such cases since Floyd's death, said Amber Widgery, a law enforcement policy expert with the NCSL.
Colorado Attorney General Phil Weiser used his new powers last August to open a “patterns and practices” investigation into potential constitutional rights violations by the Aurora Police Department. That move buttressed the investigation his office was already conducting into the death of Elijah McClain, a 23-year-old Black man who was injected with the sedative ketamine after Aurora police stopped him while he was walking home from a store in 2019.
But bringing in outside prosecutors isn’t a cure-all.
Attorneys general who are sympathetic to police might not choose to pursue such cases as aggressively as a progressive like Ellison, who has sought more funding to expand his office's capacity to take on such cases. Ellison, who is Black, has also talked passionately about “equal justice for anyone who commits a crime whether they wear a badge or not.”
And while special prosecutors may be independent, they’re appointed, meaning they don't have to face voters the way attorneys general or local prosecutors do.
In the Wright case, white police officer Kim Potter was recorded on her body camera video shouting “Taser! Taser!” just before she shot Wright with her handgun during a traffic stop. Wright family members and activists have rejected the possibility that Potter mixed up her Taser with her handgun.
Nekima Levy Armstrong, a civil rights lawyer and activist in Minnesota, favors a permanent special prosecutor’s office. Levy Armstrong led protesters in noisy demonstrations outside the home of the suburban prosecutor handling Wright’s case, demanding that he bring murder charges. He eventually quit the case.
“Without pressure from the people and demonstrations and calls for justice and accountability we would see no change," Levy Armstrong said. "We would see no prosecutions. We would see no convictions.”
Ramsey County Attorney John Choi, who has handled police prosecutions — his office unsuccessfully prosecuted the officer who killed Black motorist Philando Castile in 2016 — said sending cases to the attorney general is the best option because it would alleviate possible conflicts of interest and provide accountability.
“They would be subject to the will of the voters no matter what,” Choi said. “Everybody gets a chance to vote for their attorney general.”
But resources are a problem. Ellison's office has just three full-time prosecutors in its criminal division, and relied heavily on outside attorneys working free of charge to prosecute Derek Chauvin in Floyd's death. And the office is still gearing up for the joint trial of three other officers in that case next spring.
Current state law doesn't allow attorneys general to take over cases on their own, but they can step in when a county prosecutor seeks help. As a practical matter, the office currently declines most requests due to lack of resources; it's why Ellison resisted taking over the Wright case.
Walz is asking legislators for $1.82 million to add 11 permanent prosecutors in Ellison's office. It's a funding request that faces problems in the Senate, where majority Republicans have already targeted Ellison over some enforcement actions taken during the coronavirus pandemic.
The GOP has also opposed Walz and Democrats on most major racial justice reforms surrounding policing and prosecutions. Negotiations at the Capitol on a budget that includes attorney general funding are continuing, with the outcome unclear.
In Wright’s death, the prosecution initially went to a suburban prosecutor under an agreement in which metro counties take each other’s deadly force cases involving police. That agreement expires next week.
Hennepin County Attorney Mike Freeman, whose office asked Ellison to take the prosecution in Wright’s death, said he expects the agreement will continue until it’s amended, or until the Legislature provides money to bulk up the attorney general’s office.
“It’s clear from recent developments in the last three months that none of us can do our own cases anymore,” Freeman said.