It's unlikely that the names of the officers who fatally shot Winston Smith atop a Minneapolis parking ramp last month will ever be made public.
Minnesota and federal laws call for concealment of the names of officers working undercover, and the legal hurdles against their release are high — especially since they were deputized as federal agents by the U.S. Marshals North Star Fugitive Task Force.
"The government has a privilege to conceal the identities of officers acting in undercover capacity," said John Marti, a former federal prosecutor in Minnesota.
Activists have demanded that the Minnesota Bureau of Criminal Apprehension release more information about the shooting, including the names of the officers. They've also called on Gov. Tim Walz to open an independent investigation into the shooting, which has brought a new wave of demands for police accountability more than a year after Minneapolis police killed George Floyd.
One scenario could allow release of the names — if the officers are criminally charged.
That's unlikely though, given the lack of video evidence, said Don Gemberling, who serves on the board of the Minnesota Coalition on Government Information and helped craft the state public records law that shields the officers' names.
"I'm not quite sure how a criminal case comes out of this," Gemberling said. "You've got a bunch of cops, basically, who are gonna say, 'I saw he had a gun, I was afraid for my life, and I fired.' Or, 'I saw he had a gun, and I saw the other officer take him out.' "
Officers who shoot someone in the line of duty usually aren't criminally charged, and without strong evidence, such as video footage showing misconduct, it's even harder to establish criminality. The officers were not wearing body cameras, and no other video footage has publicly emerged.
It's unclear why officers deputized by the U.S. marshals in Minnesota are not yet allowed to wear body cameras. The U.S. Department of Justice ruled in October 2020 that deputized members of federal task forces could wear them. The marshals began phasing in this policy in February 2021, according to a statement released in early June, but there was no explanation for the delay in implementing the policy in Minnesota. The U.S. marshals' office in Minneapolis directed all questions to the Washington, D.C., public affairs department.
"U.S. Marshals Service task force members do not generally operate in any undercover capacities," spokesman Dave Oney wrote in an e-mail to the Star Tribune. Oney said officers deputized by the marshals might have undercover duties for their local agencies, but did not elaborate as to why task forces would choose to deputize local undercover officers — and risk blowing their covers — rather than non-undercover agents. He referred additional questions back to the BCA, which is investigating the case.
The BCA declined to comment on an "open and active" case.
The two officers, deputized from the Hennepin and Ramsey County sheriff's offices to serve on the federal task force, were working undercover when Smith was shot in Minneapolis' Uptown neighborhood on June 3.
Smith's passenger, Norhan Askar, said she never saw Smith with a firearm, despite the BCA's statement that he produced a gun when confronted. She claims officers opened fire after he raised his cellphone to videotape the encounter. She also told her lawyers that the officers did not identify themselves as law enforcement agents after they surrounded her and Smith in unmarked cars.
The BCA said investigators found a gun and spent cartridge casings in the car while executing two search warrants.
Abigail Cerra, a volunteer member of the Minneapolis Police Oversight Commission, said it's unusual that two undercover officers would be sent out together on a high-profile arrest in the middle of the day. Typically, Cerra said, undercover officers are not the ones to make arrests, as that would mean outing themselves as law enforcement agents.
She said she understands why agencies want to keep an undercover officer's name secret. Blowing the cover of an undercover agent means they could never serve in that role again, and it could put the officer and their family in danger. That danger of exposure made her question why the two officers who shot Smith were making such a public arrest in the middle of the day.
"I was just surprised to hear that none of the officers could be named because they're all undercover," she said. "I'm like, 'What are you doing with this really super public arrest?' "
Minnesota law states that information about undercover personnel becomes public record once that person is no longer serving in an undercover role. However, it gives the agency's Data Practices Office discretion over whether release of that information will "threaten the personal safety of the officer or jeopardize an active investigation."
Government agencies generally make conservative interpretations of the statute when the information could damage their reputation or cause them problems, Gemberling said. Even if the officers were no longer undercover, their agencies could still legally shield their identities.
It's unclear whether the officers who shot Smith are still operating in an undercover capacity, which is determined by their local agencies rather than the BCA or the U.S. Marshals Service, according to Bruce Gordon, communications director for the Minnesota Department of Public Safety. He deferred all questions about the officers' undercover status to the county sheriff's offices. At least six calls over the course of 10 days to Hennepin County sheriff's spokesman Andy Skoogman went unanswered. Ramsey County sheriff's spokesman Roy Magnuson did not respond to at least three calls and two e-mails.
While criminal prosecution of the officers looks unlikely, several lawsuits are possible. Attorneys for Askar have already announced their intent to sue the U.S. marshals and the Hennepin and Ramsey County sheriff's offices.
In such a suit, Gemberling said, the plaintiffs could petition the court to "compel discovery" of the officer's names.
A judge has the power to release information protected by the Minnesota public records law, but must apply a balancing test to determine whether the value of the information outweighs the potential harm it could cause.
"The stronger the case, the more likely the court is to order relief," said Marti, now an attorney with Minneapolis's Dorsey and Whitney law firm. "That relief could be, 'You've got to identify these officers,'" he said.
But the case would likely be hamstrung by the same factor standing in the way of criminal charges — lack of evidence. Based on the information publicly released, Marti doubts the plaintiffs could build a strong enough case to persuade a judge to order the release of the officers' identities.
Twin Cities civil rights attorney Robert Bennett said that since the officers were deputized as federal law enforcement agents, Smith's family members would likely have to file a Bivens Action — a complex legal action that allows people to sue the federal government in certain circumstances. That, too, would rely on evidence of wrongdoing on the officers' part.
Without concrete evidence in the form of video footage and multiple credible, corroborated eyewitness accounts, the plaintiff probably could not make a strong enough case for why the officers' identities need to be revealed.
"It takes real evidence, not speculation, before a court is going to order law enforcement agencies to disclose those identities," Marti said.
Maya Miller • 612-673-7086
