Former Minneapolis police officer Kim Potter received 16 months for an accidental shooting. Given her record and the circumstances of the case, that was justice. But, should she have been criminally charged in the first place? Law professor Jonathan Turley comments on the issue.
Pray for Kim Potter, she was sentenced to 2 years in jail for trying to do her job and making a fatal mistake.
— Brigitte Gabriel (@ACTBrigitte) February 18, 2022 [1]
Turley: The conviction of former Minnesota police officer Kim Potter for manslaughter brought closure for the family of Duante Wright and many in our society. The fact, however, is that it will not bring closure on the problem that originally lead to a hung jury until the judge sent the jury back with an instruction to try again.
Many predicted that the largely white jury would deliver racial injustice. As with the jury in the murder trial of Ahmaud Arbery, these jurors showed again that they exhibit the objectivity and integrity too often missing in our commentators and politicians. The question is not whether the jury got the law right but whether the law itself is wrong in its vague criteria.
This is the latest “weapons confusion” case and the jury understandably found it difficult to find that Potter “consciously disregarded” the risks to Duante Wright when she grabbed her service weapon rather than her taser. The case highlights the problem with criminalized negligence standards, particularly in these weapon confusion cases. The question is whether justice is truly served by applying criminal laws to acts of negligence by officers in these cases.
There was no question in the case that Potter made a terrible and fatal mistake. It is also clear that she did so unintentionally. She called out, consistent with her training, “taser, taser, taser” before firing her service weapon by mistake. She was then shown collapsing at the scene, sobbing that she killed Wright by mistake. The prosecutors did not question that she thought she was grabbing her taser but demanded a long criminal sentence under the ambiguous standard of involuntary manslaughter.
Potter faced two charges. Under first-degree manslaughter, the prosecution has to prove that Potter caused someone’s death while committing or attempting to commit a lesser crime (in this case reckless handling or use of a firearm). The second charge of second-degree manslaughter requires a showing that she causing someone’s death through culpable negligence, by creating an unreasonable risk and consciously taking chances of causing death or great bodily harm.
Both charges are being used to criminalize an undeniable and unintended act. The only real dividing line between negligence and manslaughter is the ill-defined element of “conscious disregard” of a risk. That standard is fine in some cases where the act itself was intended despite the risks. When someone drives through a crowd at high speed, there is a conscious disregard of the risk even if the person does not want to hit anyone.
There is a tendency to treat criminal law as the only way to address fatal tragedies. Yet, there are many cases where tragic injuries or deaths occur without criminal charges. Torts, which I have taught for three decades, often involve wrongful deaths where people are held civilly, not criminally liable. When a physician causes the death of a patient through malpractice or a company causes the death of a consumer through a product defect, the injuries are generally addressed through tort, not criminal, liability…
Officers often make mistakes. We have had officers fired dozens or even hundreds of rounds that endanger others or engage in high-speed chases over relatively minor offenses. Those cases are rarely treated as criminal rather than civil matters. The same should be true for weapon confusion cases and states should narrow the language in these laws by excluding such cases or clarifying the necessary showing for culpability beyond negligence. The jury was told by the court to follow the law and it did so to its best judgment. The question is whether the law itself needs to be reviewed before we have another weapon confusion case.
This piece was written by David Kamioner on February 21, 2022. It originally appeared in LifeZette [2] and is used by permission.
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