Tomorrow morning begins the jury selection in the Minnesota trial of former Brooklyn Center Police Officer Kimberly Potter, on charges of 1st and 2nd-degree manslaughter for the April 11, 2021 shooting death of criminal suspect Duante Wright, whom Potter shot in the mistaken belief that she was wielding her less-than-lethal Taser electroshock weapon.
The shooting and immediately surrounding events were captured on Potter’s body camera.
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Duante Wright Traffic Stop & Arrest Warrant
Wright was initially pulled over by uniformed officers for driving a vehicle with expired license tags. During the stop, the officers discovered that Wright, 20 years old, had an outstanding arrest warrant. It’s my recollection that the underlying offense was a weapons charge.
As Wright was about to be handcuffed while standing by the open driver’s side door of his car, he suddenly began to violently resist arrest. He dove back into the vehicle, scrambling around, and ultimately was in a position from which to drive the car.
Potter Unintentionally Shoots Wright
Potter had been hanging back and observing the arrest until Wright began to violently resist. She was reportedly present in the role of a training officer, and at the time had 26 years as a police officer.
Potter approached the driver’s side door of Wright’s car, threatened to tase Wright, pulled her Glock 17 service pistol, shouted “Taser! Taser! Taser!” and then fired a single 9mm round into Wright’s body.
At that point Wright took off driving the vehicle, making it a few blocks before crashing to a stop. He would be declared dead at the scene. Immediately upon Wright’s departure from the scene, Potter can be overhead stating, “Holy shit, I just shot him.”
Potter Charged with Manslaughter
Initially, it seemed that Potter would face no criminal charges in this event, as then-Police Chief Tim Gannon characterized the shooting as a tragic accident. On Tuesday, April 13, 2021, however, both Chief Gannon and Officer Potter resigned from the department, and on Wednesday, April 14, 2021, Potter was charged with second-degree manslaughter, under § 609.20(2), a felony that carries a sentence of up to 10 years.
That charge was supplemented on September 2, 2021, with an additional count of first-degree manslaughter predicated on reckless use of a firearm, under § 609.205(1), a felony that carries a sentence of up to 15 years.
Criminal Recklessness & Firearms
Both of the crimes charged are predicated on a mental state of recklessness. That is, it is not claimed by prosecutors that Potter intended to shoot Wright. Rather, they argue that by drawing her Glock 17 from the holster on the right side of her duty belt in place of the Taser placed, as required, on the left side of her duty belt, Potter created an unreasonable risk of causing death or great bodily harm, and consciously disregarded that risk.
It is the degree of risk being deadly in nature and the conscious disregard of that risk that differentiates recklessness from mere negligence. Where recklessness is a valid basis for a criminal charge, as in this case, mere negligence would warrant only a civil suit for damages, and not create criminal liability.
Legal Defense of Accident
I expect that Potter’s legal defense will be either that her conduct was at worst mere negligence so that there ought to be only civil and no criminal liability, or even that her conduct qualifies as a genuine accident to which neither civil nor criminal liability attaches. Accident is a genuine legal defense, much as self-defense is a genuine legal defense.
That said, a legal defense of accident in cases involving firearms is difficult, because firearms are inherently dangerous instruments, and thus the standard of care is very high. For practical purposes, unjustified death, injury, or risk created by the handling of a firearm is treated as a strict liability offense, and is inherently criminally reckless (absent some intervening event outside the gun handler’s control)
Wright’s Contribution to Own Demise
Certainly, Potter’s black Glock 17 pistol and her bright-yellow Taser are not difficult to distinguish under normal circumstances, and each is worn on opposite sides of her duty belt, with the Glock by her dominant-side right hand and her Taser by her “weak-side” left hand.
The scene of Wright’s arrest, however, was arguably not a normal circumstance, at least not once Wright began violently resisting arrest, presented himself as lunging into the car perhaps for a weapon (his outstanding arrest warrant was, I believe, for a weapons charge), and then positioning himself to drive wildly from the scene, in effect preparing to use the car itself as a weapon.
I expect that the Potter defense will argue that her conduct might qualify as reckless in the coolness of 20-20 hindsight, but that Wright’s contribution to the chaos by his violent resistance to lawful arrest is an important aspect of the totality of the circumstances that ought to mitigate Potter’s mental state to something less than reckless.
Potter Likely Privileged to Use Deadly Force
Interestingly, under the totality of the circumstances, it seems likely that Potter would have been privileged to use deadly force upon Wright, had she done so intentionally in the belief that Wright had re-entered the vehicle to access a weapon or intended to use the vehicle itself as a weapon. In that case, the appropriate justification for the shooting would be self-defense and defense of others. Because Potter so clearly did not intend to use deadly force, however, self-defense would seem to be off the table, as self-defense is an inherently intentional act—one cannot commit an act of accidental self-defense.
This case appears to be pushed aggressively by the Minnesota Attorney General Keith Ellison, who was also a prominently featured personality during the trial of Police Officer Derek Chauvin over the death of George Floyd in Minneapolis. Brooklyn Center, where Potter was a police officer and where she unintentionally shot Wright, is a nearby suburb of Minneapolis.
Live Trial Coverage Starting Tomorrow: Jury Selection
And that’s about where we are at, as jury selection in the trial of Ms. Potter is set to begin tomorrow. We hadn’t initially planned to cover this trial in real-time because the judge had refused to allow news cameras in the courtroom, but she recently reversed that decision.
Accordingly, we’ll be live commenting and live-streaming this trial every day at Legal Insurrection, much as we did the recent Rittenhouse trial in its entirety, as well as the chunk of the Ahmaud Arbery case trial that did not overlap with Rittenhouse.
We’ll also be providing an end-of-day wrap-up analysis of each day’s proceedings in the evening, with both live daily coverage and end-of-day analysis expected to run through to the verdict.
OK, folks, that’s all I have for you on this topic.
Until next time:
Remember
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Stay safe!
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
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Keith Ellison can be relied upon to be on the anti-police side of any controversy. He first came to local prominence speaking on behalf of the gangbangers who murdered Minneapolis police officer Jerry Haaf in 1992. He fits right in with the likes of Benjamin Crump and Al Sharpton. I’m sure there is a good deal of political pressure to punish Kim Potter regardless of the underlying facts or mitigating circumstances.
I think here defense will be “mistake of fact.” The burden of going forward with the evidence sufficient to prove beyond a reasonable doubt that there was no mistake of fact, or that the mistake of fact was not reasonable in the circumstances, is on the prosecution. I seriously doubt the prosecutor going to be able to introduce any evidence at all on either one unless she wasn’t following regulatons and training.
If the taser feels and works like a firearm at all, and if she has been trained to use the taser with her gun hand (cross draw), then the prosecuton doesn’t have a leg to stand on. Obviously be a little easier for the prosecution if officers are trained not to use the taser with their gun hand. And that’s just talking about the defense, the prosecution has to prove all the essential elements of the crime before you need a defense. Going to be hard to prove the officer was consciously aware of the risk of drawing the wrong weapon in a high stress situation and going to be hard to prove that the officer consciously disregarded that risk.
Potter’s Taser was not positioned for crossdraw. It was positioned in a straight cant holster on the weak side, so really could only be drawn with the left hand. That said, Potter has piece of paper in her left hand throughout, and this may well led to her using her right hand to draw the pistol while her brain was saying “Taser! Taser! Taser!” When we run self-defense simulators and give people an IR pistol in one hand and an IR OC spray in the other, it’s amazing how much more complicated the decision making becomes for them.
In addition, the complaint states that she had received substantial training in the use of the CEW and in addition had received training and signed a notice (on several occasions) warning of the possible consequences of drawing a firearm when intending to draw the CEW. This is a tragic accident. I feel sorry for Officer Potter. I say “Officer” because as with many positions where when one achieves a position or title of service that title is for life.
I retired 2 years ago after 38 years of service. The last year I felt like I was walking on egg shells. I feel very sorry for those who are still there, for those who feel a calling to protect others, and those who want to do a good job. If they make a mistake, they will be held to an impossible standard.
It was clearly a mistake of fact, but the question of a mistake being reasonable or not is ridiculous. A mistake is by definition something that we have no control over, and have no awareness of while making, so how can it be reasonable? The law expects a person to be reasonable, but a mistake itself is neither reasonable nor unreasonable; the reason it happens is that humans are fallible.
No doubt the jury will decide the mistake was unreasonable, or rather that it was unpardonable, for an obvious reason (not the law in black and white, but the law of black and white).
A couple of comments:
1. Here have been a total of 18 CEW/FA weapons confusion incidents in the world in the last 20 years.
– Five of the 18 resulted in death.
– Sixteen of the 18 were in the U.S. (4 of the deaths were in the U.S.)
2. 1 weapons confusion incident per ≈ 256,410 CEW field discharges.
3. 1 weapons confusion incident per ≈ 883,589,744 officer-civilian contacts or calls for service (CFS).
Have a terrific evening!
4. 1 CEW/FA weapons confusion death (by firearm) per ≈ 1,187,115,400 officer-civilian contacts or CFS.
[Correction] Sorry – too much multi-tasking, and I do not know how to access and correct a comment once posted:
[Correction] 1 CEW/FA weapons confusion injury [NON-death] (by firearm) per ≈ 1,187,115,400 officer-civilian contacts or CFS.
5. 1 CEW/FA weapons confusion (by firearm) death per ≈ 3,086,499,000 officer-civilian contacts or CFS.
I have always wondered why the criminal justice system never considers the factor of the amygdala hijack in criminal responsibility. In an extreme emotional state, the thalamus’ stimuli goes directly to the amygdala which blocks input from the neocortex or “thinking/rational brain” which then goes along for the ride, unable to control what the prehistoric brain (amygdala) is doing. We calmly watch the video while Potter goes into an almost panic state thinking she is doing one thing (taser) when her amygdala is doing something else. So maybe the amygdala was thinking he’s going for a gun or going to run us over, shoot him, while her neocortex is saying taser him.
People when they think they are about to die go into an automatic mode and can’t believe they did what in fact they did How does or would a defense lawyer explain to the jury that it’s not her fault and these thing happen? If she had sufficient time to think about everything, these taser/glock events would never happen. I’ve never seen this science used by the defense in a trial even though the defendant was in pure panic mode and though he was about to die.
As ignorant as it is, the Missouri Supreme Court has held that you have to make a conscious decision to use force and that decision has to be reasonable. Evidence that your decision was reasonable, but that the decision was made subconsciously (was an instinctive reaction to a deadly force threat) isn’t sufficient to justify your use of force. That isn’t what the law was in Missouri before it was recodified in 1977 with the enactment of a criminal code (not supposed to be a change to the law, but simply a recodification). But I know of one guy convicted of first degree murder because he simply told the truth—the initial aggressor attacked me, I was in fear for my life, and I just “instinctively” drew my weapon and filled him full of lead. His mistake, not telling the court that he had a actual subjective belief that the use of deadly force was necessary. The court took the positon that if you don’t have any belief at all, then you cannot have a “reasonable belief.”
Prior to 1977 the only time you needed a “reasonable belief” was when your actual belief was wrong (mistake of fact). If the evidence showed that the use of deadly force was actually necessary, what you believed and whether it was reasonable wasn’t even an issue.
That Potter said “Taser, taser, taser” does not mean that taser was ALL she thought about, or her only belief. It only means this is what she said. Maybe her neocortex said “taser, taser, taser” but her amygdala said “shoot him”. I doubt Old English law or even Missouri law says anything about the neocortex hijack.
Andrew Blanca distinguishes reasonable belief into the two categories: subjective and objective. Perhaps her peers – other officers present, not the crazy DA – would say, “Potter, you did the right thing but your emotional outburst was not in your best interest. You should keep you mouth shut and only say stuff like that to your attorney or after when we’re in private to debrief”. I would propose that Potter did not know at the time why she did what she did and that “taser, taser, taser” did not necessarily express her subjective belief.
Big O, I always appreciate your comments and thoughts. Thanks.
Tasers are not “less than lethal force”. They are classed as “less lethal force”, but nevertheless lethal force. The officer’s credibility is seriously in question as it strains credulity to believe a training officer of her experience could make such a mistake.
The question in my mind is whether the use of deadly force of any degree was authorized in this instance. Your analysis concluding that use of the Taser was “less than lethal force” is fundamentally flawed. I suggest you remove this flawed analysis, do your research and try again.
Use of deadly force is authorized when the criminal is or will be an imminent threat to society. A criminal fleeing from police in a motor vehicle is an imminent threat to society.
Tasers are not “less than lethal force”. They are classed as “less lethal force”, but nevertheless lethal force.
Tasers, like guns, are “weapons.” Tasers are not classed as “force” or “physical force.”
Based on my understanding of what Andrew Branca has said before, things like tasers and pepper spray are in a weird category, where they aren’t lethal force, except when they are.
When used for self defense purposes — and this is generally how police use them — they are “less than lethal force”, because while it’s possible someone might die from being tased or pepper sprayed (due to unknown physical weaknesses, such as a poor heart, asthma, or an allergy), generally that’s not the expected outcome. Calling them “less than lethal” or “less lethal” are an acknowledgement of the inherent danger that comes from using these things. Heck, even a baton (an obvious lethal weapon) is “less than lethal” when used properly, although it takes a lot of training to use it properly. But to be considered “less than lethal”, they have to be used defensively — in the case of the police, usually they are attempting to subdue a suspect or to get someone to back off.
When used offensively, though, all these things become straight-up lethal force — but that’s because the assumption is, once you’re incapacited, the attacker is going to do unknown horrible things to you. Otherwise, why would they wish to incapacitate you? But this isn’t an unusual feature of “less than lethal” weapons, though — a baton, for example, is merely “compliance force” when a police officer hits someone in the buttocks or the thigh with it, but it becomes “lethal force” when the target is the head.
“Potter had been hanging back and observing the arrest until Wright began to violently resist. She was reportedly present in the role of a training officer, and at the time had 26 years as a police officer.”
Is it reasonable to say she was asking one of the “trainee” officers to use their taser? When she did not see them act on what she was telling/directing them to do she reasonably stepped up with a gun instead of a taser to stop impending harm to others. her officer trainees of violence with concealed weapon or the car itself?
Is it reasonable to say she was asking one of the “trainee” officers to use their taser?
Every thing you say can and will be taken out of context and can and will be used against you. That is why you don’t say anything period. That’s a good theory of justification you have there but she blew it by opening her mouth and admitting that she “used the wrong gun.” She is now stuck with the “unintentional use of a firearm” defense. It would completely destroy her creditability to claim the intentional use of the Glock and have the prosecution then present evidence that her excited utterance was that she intended to use the taser.
The issue is that everything was caught on bodycam.
The advantage to using bodycams, and surveilance cameras, and dashcams, is that when something weird happens, and you did nothing wrong, there is a record to show what, exactly, happened. I was recently in an accident, and while I was clearly not at fault, I nonetheless wish I had a video record of what happened, because it happened too fast for me to understand what went down. (I was hit by a car that was hit by a car that allegedly ran a red light, so I remember both the first hit, and wondering if the second car was going to hit me as it was coming my direction. It did.)
The disadvantage is that, if you did do something wrong, or even if it just looks like you did something wrong, there is a video record of it. And if you delete it, the Prosecution is going to automatically assume you were trying to hide evidence of your wrongdoing.
The lethality of a taser depends on how it is used. There are parts of the body where tasers are lethal, such as near the heart. High chest cavity is to be avoided to avoid heart arrest. Abdomen and back shots are preferred. All a taser does is lock up the muscles if your lucky – they only work half the time. A taser in the eye or neck is not good. Used as designed and taught, they can be effective and humane.
Use of a taser does not mean that lethal force is not warranted in the circumstance, only that less lethal is preferred initially to deadly force to resolve the situation according to force continuum. Officers prefer have a few moments to organize their approach to a suspect to be detained. In this instance, there was no time available to organize the police response to resisting arrest, the suspect escaping to the interior of a car where a gun could be accessed, or wildly leaving the scene and endangering officers and the public, and traveling to another location where arrest would be more dangerous and difficult. Time to organize the police action means this officer will use the taser, another officer will do lethal cover and use lethal force if the taser fails. Since Potter said, “taser, taser, taser” she was announcing to her trainees that she would employ the taser and that they should be ready with lethal if warranted due to changing circumstances. She was communicating and helping here fellow officers coordinate. She was NOT telling them or Wright, the detainee, that lethal force was not justified. If she mistakenly used the firearm instead of the taser, it was a SMALL mistake, a training mistake, but inconsecuencial since lethal force was reasonably justified in this instance. To get a conviction, the prosecutor must prove beyond a reasonable doubt, and beyond Potter’s right to limited immunity that the her actions were GROSSLY negligent. If not, she has limited immunity as does every policemen. Because of LIMITED IMMUNITY, historically convictions against police are very rare. But as with recent big publicity cases, the facts are not important if you can seat a prejudiced jury, pound the table, and get a judge who is liberal and/or ignorant of the law and/or weak. She has my respect. Her police chief is just a political appointee, so he threw her under the bus to protect his … what’s the word I’m thinking of?
If she mistakenly used the firearm instead of the taser, it was a SMALL mistake, a training mistake, but inconsecuencial since lethal force was reasonably justified in this instance.
I would say: “No harm, no foul.” That would be justice, but the courts do not care about justice, the courts only care about the rule of law and the court’s rule of law is that the people are not entitled to justice.
Like I said in a previous post, it all depends on state law in the state. Our legal system has become so preverted by the courts, that actual innocence or actual justification as a matter of fact is no longer enough to keep you from being hung. A lot of people are being held in prison today by the courts on the theory that proof of actual innocence isn’t enough to justify releasing them from prison.
Potter said taser, taser, taser, which was the optimal intention and solution, but when she saw his thick woven jacket, she knew that the taser would never work because the thongs would not penetrate the demin fabric.
She was emotional because she knew that when a policeman fires his or her gun, political hell will break out. Police today die because the hesitate thinking through the aftermath of using deadly force. This is why police have limited liability. This is why the police have a general statement that when one resists arrest, bad things happen. Wright decided to resist arrest. He paid for the music. He got to dance the dance. It was unfair on his part to put police into this situation. You can die on the side of the road. Better to be calm and fight it in court.
I don’t think the officer intended to fire the pistol — she was surprised when she fired her gun, instead of the pistol — and I don’t think she made the choice, conscious or not, to use her gun instead of the taser.
Having said that, I think the situation was dynamic enough that an error like this is easy to make, and I’m inclined to give her the benefit of the doubt. Having said that, I’d also like to see what the Prosecution has to say, as to any potential evidence of her guilt. I just hope the Prosecution actually has a case this time, even if they ultimately lose. I’m tired of political prosecutions!
Force Science Institute describes this as a “capture” error, a type of human performance error known as a “slip”.
“A “capture error” can occur when an infrequent action like drawing a Taser is non-consciously substituted by a similar, more familiar, and more practiced action—like drawing a firearm. Research has shown that people are particularly susceptible to this type of error when they are occupied by other mental processes. For police, these processes might involve time-compressed threat assessments, the need for immediate action, or simultaneous efforts to communicate—including verbal warnings and de-escalation attempts.”
https://www.forcescience.org/2021/04/unintended-a-theory-of-taser-weapon-confusion/
Informative read with examples in medicine and other professional fields.
As an aside, I think there is much to be learned in policing by studying aviation improvements over the last 30 years, Crew Resource Management & Just Culture in particular. Those persons willing & committed to serving others are too valuable to continue throwing away and abusing.
Thank you for the coverage Mr. Branca.
Regards
My read on the legal notion of recklessness is that you consciously engage in a dangerous act, and that you deliberately ignore the danger. In this case, I don’t see that the officer consciously engaged in a dangerous act. She was not consciously aware that she had drawn her service pistol. Therefore, she did not deliberately ignore the danger, but instead, was not aware of it. I just don’t see any justice in imputing criminal intent here.
Agreed. Purely a political prosecution without probable cause to believe a crime was committed.
Count one is First Degree Manslaughter based on a predicate midemeanor offense of 5th degree assault. Prosecutor is going to have to prove beyond a reasonable doubt that the officer did not have justification to use any level of force at all.
Count two is Second degree Manslaughter based on “creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another” Prosecution is going to have to prove beyond a reasonable doubt that the officer was “conscious” of the fact that she had drew her firearm instead of the taser.
POLITICAL PROSECUTION WITHOUT PROBABLE CAUSE TO BELIEVE A CRIME WAS COMMITTED.
Ugh. The felony murder rule is bad enough, but misdemeanor manslaughter, I just find that legal concept absurd.
Ugh. The felony murder rule is bad enough, but misdemeanor manslaughter, I just find that legal concept absurd.
Felony murder and felony manslaughter are both pretty old laws. Blackstone said: “And, in general, when an involuntary killing happens in consequence of an unlawful act, it will be either murder or manslaughter according to the nature of the act which occasioned it. If it be in prosecution of a felonious intent, it will be murder; but if no more was intended than a mere trespass, it will only amount to manslaughter.81”
Conventional murder is an unlawful killing with malice aforethought, expressed or implied and conventional manslaughter is an unlawful killing without malice aforethought, expressed or implied. Conventional manslaughter can be voluntary or involuntary, and there are two different types of involuntary manslaughter. The first type is when a man is doing a lawful act without due care for the consequences of the act (gross negligence), and the secod type is when a man is doing an unlawful act without felonious intent (committing a misdemeanor).
As I have tried to follow Andrew Branca over the years, and seen the various terms the States have used to describe various levels of murder and manslaughter, and how they are different for different States, I cannot help but wonder, “Did we really have to change the definitions? What was so wrong with the original Common Law ones?”
Just the other day, I stumbled onto a video from Mas Ayoob, where he was saying that, after you act in self defense, you need to make it clear you thought you were the victim. You shouldn’t say “I’d like to press charges!” because in some jurisdictions, only the DA presses charges, and you’re acting “high and mighty” if you think you can do that yourself. You shouldn’t say “I want to file a complaint”, because in some jurisdictions, the police will immediately wonder “what do you think I’m doing wrong?” because, there, you only file complaints against police officers. So far, though, it seems safe to say “I want to be a witness to this guy’s wrongdoings”. There doesn’t seem to be a jurisdiction that has messed that up. At least, not yet.