(FOX 9) - There are 86 Minneapolis Police officers who might need to have their discipline history disclosed if the officers were to testify in court, the FOX 9 Investigators have learned.
So-called ‘Brady Cops,’ could have a history of misconduct, dishonesty, or abuse that would need to be reviewed in court chambers before being disclosed to the defense in a court proceeding. The disclosure is required under a 1963 U.S. Supreme Court decision that, among other things, requires exculpatory evidence is shared with the defense.
The Minneapolis City Attorney’s Office said it has reviewed 1,700 cases with potential ‘Brady issues,’ involving 244 Minneapolis police officers in the last 24 years. Eighty-six of those officers – about 12 percent of the department -- are still on the force.
But before the murder of George Floyd, former officer Derek Chauvin would likely have been under the radar. On paper, he didn’t look like one of the worst police officers.
Chauvin’s discipline record shows 17 separate investigations. Yet, he was disciplined in only two of those cases, with a letter of reprimand.
The other 15 investigations were "closed with no discipline."
To a discerning eye, that is a red flag that coaching was used instead of discipline.
The City of Minneapolis does not consider coaching to be the same as discipline, therefore documentation of the offense is not considered public information.
"Minnesota law says the only time you can see complaint data for police officers is when there is discipline and it is final," said Abigail Cerra, who sits on the Police Oversight Commission.
Cerra considers it a semantic game that keeps an officers’ true discipline record secret from the public.
"This is sort of wonky, but when it’s not discipline, it’s not public," Cerra said.
Minneapolis Deputy Chief Amelia Huffman urged caution when looking at cases where there was no discipline.
"As difficult as it is not to draw conclusions, it’s important not to fill the vacuum of information with too much speculation," Huffman said.
"Officers often get unrelated complaints over the course of a long career. I’d be cautious about jumping to conclusions about patterns that may or not be there," she said.
Feds Indict, City Coaches
But state prosecutors did see a pattern with Chauvin and wanted the jury considering murder charges against Chauvin for killing George Floyd to know about that pattern too.
In a court memorandum, prosecutors detailed seven cases where Chauvin used excessive force, several of those cases involved the use of neck restraints. The jury never heard about those previous cases.
In September of 2017, Chauvin preemptively struck a 14-year-old in the head with a flashlight, and pinned the teenager, prone with a neck restraint, for 17 minutes. The teenager was restrained for several minutes after he lost consciousness.
That case never led to discipline. It is unclear if Minneapolis Police leadership knew about the case or whether it is reflected by a case number in Chauvin’s non-public discipline record.
But the September 2017 incident was egregious enough that federal prosecutors have now charged Chauvin in that case with a civil rights violation. Body camera footage from the case exists but has yet to be made public.
"What riles up folks like me who are advocates for transparency is the information was so available for the Attorney General’s office, when they looked for it," said Andrew Gordon of the Legal Rights Center, a non-profit that provides legal services to the poor and indigent.
For many reform advocates, the Chauvin case put a spotlight on a discipline system that seems dysfunctional by design.
"It’s garbage in, garbage out," Gordon said.
During a recent six-year period, in which the MPD received 2,013 complaints, Gordon calculated that ‘coaching,’ was used in 90 percent of the cases.
Gordon said there is a role for coaching, but "I think where it falls down is when you are doing it for an officer who kicked the crap out of someone."
"And you’re putting your arm around them and saying, ‘You did a bad thing, but that’s okay.’ That’s where it falls down," Gordon said.
A Timely Tool
Huffman, who oversees the MPD’s Internal Affairs Unit, said coaching is only used for minor policy infractions, known as ‘Category A,’ as defined in the MPD’s ‘discipline matrix,’ and a nearly 600-page Policy & Procedure Manual.
Huffman said it includes infractions like failing to use a seat belt or not activating a body camera.
"I think coaching is an important tool to improve employee performance. One of our most important goals to do what we do better," Huffman said.
She says coaching, which is used throughout Minneapolis City Hall to improve employee performance, can resolve an issue in a few weeks with a discussion with a supervisor, while an Internal Affairs investigation could drag on for months.
A coaching issue is also not subject to mediation or the involvement of the police union. Huffman also said coaching more than twice in a few years for the same issue would lead to discipline.
Asked if coaching would be used for use of force issues, Huffman said not on her watch.
"So, I have not scrutinized every coaching decision we’ve made in the Minneapolis Police Department. I would never send a use of force violation into the coaching process," she said.
Complaints about Minneapolis Police are dealt with in two separate tracks: Through the MPD’s Internal Affairs Unit (IA), and the Office of Police Conduct Review (OPCR), a civilian unit under the city’s Civil Rights Department.
The heads of both departments, known as the Joint Supervisors, make recommendations to Chief Medaria Arradondo, who can impose discipline, or coaching.
Chauvin’s secret discipline record didn’t stop him from testifying in court.
The FOX 9 Investigators learned Chauvin was called on to testify in court cases more than 36 times.
And despite his secret history of unreasonable force, it doesn’t appear a single Brady notice was given in any of those cases.
"So, the information is there," Gordon said. "It’s just not being disclosed to the public, and not being disclosed to defense attorneys like me."
Cerra, of the Police Oversight Commission, said she experienced the same thing in four years as a Hennepin County Public Defender, especially when dealing with the since disbanded Gang Strike Force.
"I would say this cop was actually part of force that was disbanded for misconduct, there is Brady Data and I know it, and the City Attorney would just throw up their hands and say there is no Brady Data," Cerra said.
Cerra has also filed a complaint with the City of Minneapolis alleging that potential Brady Data from OPCR was not being shared with the courts. Cerra provided the FOX 9 Investigators with a 2018 memo from former City Attorney Susan Segal describing the Brady process that omits any reference to OPCR.
The City of Minneapolis Communications Department declined to make someone from the City Attorney’s office available for an interview to explain the process in detail.
Instead, the city provided two ‘Memorandum of Understanding,’ describing elements of the Brady Data process for the MPD Internal Affairs Unit and the Office of Police Conduct Review (OPCR).
In a statement, Mary Ellen Heng, the deputy of the Criminal Division of the Minneapolis City Attorney’s Office said it includes information on coaching when looking for Brady Data in the records databases maintained by Internal Affairs and the Office of Police Conduct Review.
"Whenever we subpoena a law enforcement employee for a trial or hearing whose records may contain Brady material, our process has been to review the associated records. If they have the potential to constitute Brady material in the context of the case, our process is to either disclose those records or request a judge to perform an in-camera review of the records to determine if disclosure is appropriate," Heng wrote in the statement.
Heng wrote that in addition to a direct check of the databases, the City Attorney also conducts quarterly checks of records they may fit one or more of the following categories: abuse of authority, bias against a group, prior conviction of a crime, credibility, Data Practices violation, mishandling of evidence, making false statements, making improper inducements to witnesses or suspects, and untruthfulness.
But Gordon, of the Legal Rights Center, believes the City Attorney has a conflict because they also represent the City of Minneapolis from lawsuits.
"There is a narrative to maintain that someone like Derek Chauvin is a bad apple," said Gordon. "That the system is not fallible, that the system works. If we were to see the actual data behind coaching, the number of complaints, forms of discipline, that narrative itself would crumble," Gordon said.
Deputy Chief Huffman admits there is a tension between transparency and "all the other values we have in running an organization.
"If transparency is our paramount value, then we will sacrifice in some other areas. So, at this point we try to balance the need for transparency with other needs, like coaching people to improve performance in a timely fashion, and increasing employee engagement," Huffman said.