Law, policing experts: BCA should not be sole investigator on deadly shooting of Ricky Cobb II

BCA investigation of deadly I-94 shooting

BCA investigation of deadly I-94 shooting

A pair of experts, one specializing in constitutional law and the other in racial justice in policing, say the Minnesota Bureau of Criminal Apprehension (BCA)’s investigation of the July 31 shooting death of Ricky Cobb II on I-94 at the hands of a Minnesota State Trooper is a clear conflict of interest.

Their concerns directly follow pleas from Cobb’s family and friends for assurance of a transparent and independent investigation into whether the trooper’s deadly use-of-force was justified.

“We’re asking the state to investigate the state. It poses a problem right off the bat,” Hamline University constitutional law and ethics professor David Schultz said on Tuesday, referencing the fact that the BCA and Minnesota State Patrol are both state agencies within the Minnesota Department of Public Safety.

“There is an inherent conflict of interest,” Schultz continued. “The state has an interest in clearing the state troopers of any liability and that type of pressure, again, whether it be formally or let’s say ‘in the back of their minds,’ is going to affect how the BCA does their investigation.”

“There’s both a perceived conflict of interest and a real threat of a conflict of interest,” echoed Yohuru Williams, the founding director of the Racial Justice Initiative at the University of St. Thomas. “And certainly people in the community are looking at this are asking the question: Can the BCA conduct an investigation of its own since State Patrol and BCA under the same Commissioner?”

Governor Tim Walz, responding to whether BCA can impartially investigate use-of-force by a state trooper at an unrelated press conference on Tuesday, maintained confidence in the BCA’s ability to effectively carryout the investigation.

“I have been in contact with the family, and we’ll meet again tomorrow with Ricky Cobb’s mother, reassuring them, as I’ve said, that we need to have a transparent, fair and rapid investigation of what happened here, and I am confident,” Gov. Walz said.

“Why not have some type of entity that’s external to the BCA involved in this particular investigation, just to make sure that those concerns are addressed?” Williams said in an interview on Tuesday.

“The state is investigating itself and having to make a determination regarding whether or not it did anything wrong. And nobody, no agency can do that fairly,” Schultz added in a separate interview.

The BCA should remove itself from the investigation, according to Schultz, who said the state should instead turn to the U.S. Department of Justice or a neighboring state, like Wisconsin, to conduct it.

“We actually investigated a little bit, and we can’t according to state law. Wisconsin can’t do it,” Walz initially said in response.

Asked about other agencies, Walz said, “Which would leave the only real agency that has the capacity to do it, would be either Hennepin County or the City of Minneapolis. And I think in this case, we think the resources, the professionalism, and I think the trust of the people of Minnesota is still with the BCA to look into that.”

“The fact that the public can look at this and say, ‘We’re not sure they can do this fairly,’ that immediately should take them out of the equation,” Schultz concluded.

“Even though stakeholders were proactive in releasing body cam footage and other things, let’s just do this in a way that there are no questions,” Williams added.

A BCA spokesperson said they cannot recall a time in the three years, since the BCA Independent Use Of Force Investigations Unit was established, that questions of a conflict of interest have been raised, including in the other — albeit much fewer — cases of use-of-force involving state troopers.

5 EYEWITNESS NEWS posed the following two questions to the BCA, Governor Walz, the Department of Public Safety, Attorney General Keith Ellison and Hennepin County Attorney Mary Moriarty:

  • Should the BCA, because it is the state investigative arm of Minnesota police, be investigating another state police agency? Should the BCA recuse itself?
  • Does it not, at least, give the appearance of a conflict of interest?

Statements from the agencies that responded are included below.

Read the full response from the BCA:

The Bureau of Criminal Apprehension’s Force Investigations Unit (FIU) is a separate and independent unit within the BCA whose personnel are specially trained to investigate incidents in which law enforcement uses deadly force. The BCA as an agency is entirely separate from the State Patrol, with separate leadership, separate statutory authority, separate facilities and with very different missions.

The unit investigates each case thoroughly and objectively, regardless of the law enforcement agency involved. The investigation is then reviewed by a county attorney who decides whether to file charges. The BCA does not make charging decisions. Once investigations are fully adjudicated all public information from the case files is published on the BCA website.

This unit was established at the recommendation of the State of Minnesota Working Group on Police-Involved Deadly Force Encounters and with the support of the Minnesota Legislature. Lawmakers affirmed their support by approving ongoing funding for the unit in the recent legislative session. The BCA also has a clear conflict-of-interest policy, requiring staff to alert leadership if they have a relationship with any people involved in an incident under investigation. If a conflict exists, that staff member is not included on the investigation.

FIU agents are among the most highly-trained force investigators in the nation and we are proud of their expertise and commitment to these cases.

Walz’s office, ahead of the press conference, responded:

The BCA is the best-equipped agency in the state to complete a thorough investigation.

Read the full statement from Attorney General Keith Ellison:

I have a longstanding interest in this issue. In February 2020, just three months before the death of George Floyd, the working group that then-DPS Commissioner John Harrington and I co-chaired about reducing deadly-force encounters with law enforcement released its 28 recommendations. One of those recommendations was to establish a dedicated unit for investigating police uses of deadly force at the BCA that would be independent of the rest of the agency and any Minnesota law-enforcement agency. After George Floyd was murdered, the Legislature passed a law to do just that and most recently made the unit permanent.

Investigations of the use of deadly force are highly specialized. BCA’s Force Investigations Unit has developed more experience and expertise in this type of investigation than any other law-enforcement agency in the state. Any prosecutor faced with the decision of whether to lay charges in a use-of-force incident needs to receive the most thorough investigation possible. This is what the Force Investigation Unit is uniquely able to provide.

The role of the Force Investigation Unit is solely to investigate facts and relay them to prosecutors. Prosecutors alone are the decision-makers about whether the facts indicate the law was broken and whether charges should be brought.

The Force Investigation Unit has conducted every investigation that I have been involved in in full independence of the law-enforcement agency involved in the use of force. I have no reason to doubt it is conducting a fair, impartial, and independent investigation of this incident.

Read the full response from Hennepin County Attorney Mary Moriarty’s communications director:

It is important that concerns about the process be raised and addressed in a transparent way to ensure the community has confidence in the integrity of the legal process. The legislature established a procedure that directed the BCA to create an independent unit with appropriate expertise to conduct use of force investigations in Minnesota, including when the use of force is carried out by other state agencies. Once the case is submitted to us for review, we will use all the resources available to analyze the evidence, assess the thoroughness of the investigation, and make a charging decision as quickly as possible.