REPOST: “Wrong Apartment” Shooting 911 Recording

NOTE:  This blog post was originally published on June 12, 2019.  Given the timeliness of the content, however, and with the “wrong apartment” case going to the jury for deliberations, I thought it appropriate to republish it here today.

Today’s Post of the Day takes a listen to the leaked 911 call made by former Dallas cop Amber Guyger immediately after she shot and killed Botham Jean when she mistakenly walked into his apartment thinking it was her own apartment, and perceived him as an intruder.

The evening of September 6, 2018, then Dallas police officer Amber Guyger returned home to her apartment after a 12-hour shift. As she approached her apartment door she noted it was partly ajar. Opening the door she spotted a shadowed figure inside her apartment. Drawing her service pistol she verbally challenged the intruder. When the intruder was non-compliant with her verbal commands she fired twice, mortally wounding the intruder. (All of this is based on Guyger’s own narrative of events.)

Oops: A Mistaken Killing

There was just one problem: Guyger wasn’t at her own apartment at all, but rather at the apartment one floor above her own. Also, the man she shot, Botham Jean, was not an intruder but was simply minding his own business in his own apartment when Guyger suddenly showed up and shot him.

Guyger has since been fired from the Dallas police department and charged initially with manslaughter, which charge was later bumped up to murder.

Awful But Lawful Fatal Shootings

It is undisputed that Botham Jean engaged in no conduct that justified him being shot and killed by Guyger. To the surprise of many, however, that doesn’t necessarily mean that Guyger shooting and killing Jean was a crime.

How can it be lawful to kill someone who has not, in fact, done anything to warrant being killed? The explanation lies in the fact that the law does not require a defender to make perfect decisions in self-defense. The law merely requires a defender to make reasonable decisions in self-defense. Mistaken perceptions and actions in self-defense may be perfectly lawful, so long as they are reasonable mistakes.

Lawyers and cops often refer to such cases as “awful but lawful.”

Legal Issues are Relatively Straightforward

The controlling issues in this case are, really, rather straightforward, and I’ve previously written about them in this prior blog post:

News: ‘Oops, Wrong Apartment’ Shooting Bumped to Murder (12/1/18)

As I wrote in that earlier post:

There is only one legal issue, and only two factual questions, that really control the outcome in this case (from a legal perspective–I don’t claim to have any political expertise).

The first question is: Had the shooting actually taken place in Guyger’s own apartment, and Jean was a genuine intruder upon whom Guyger stumbled, under poor lighting conditions and with Jean unresponsive to her commands, would she have been lawfully justified in shooting him?

If the answer to the first question is “yes,” [as it would seem almost certainly the case] the second question is: Was Guyger’s entry into Jean’s apartment an act that qualifies as criminally reckless? Or, conversely, was Guyger’s mistaken entry into Jean’s apartment a reasonable mistake under the circumstances?

The jury in this case will be tasked with evaluating both (1) do they believe that Guyger had a genuine, good faith belief that she was walking into her own apartment, and (2) was that belief one that would have been held by a reasonable and prudent person under the circumstances (including such factors as poor lighting, the fact that she’d just completed a 14-hour shift, that her key-card appeared to function normally to open the door, etc.).

And in concluding that post:

If the jury concludes that Guyger would have been entitled to use deadly force against Jean had she been in her own apartment, and if the prosecution fails to prove beyond a reasonable doubt that Guyger’s mistaken entry into Jean’s apartment was criminally negligent, an acquittal would be the appropriate verdict in this case.

Leaked: Recording of Guyger’s 911 Call

Guyger called 911 immediately after shooting Jean, but until recently the recording of that 911 call had been sealed by the trial judge in the case. That recording has since been leaked, presumably by the Dallas police department, and to the considerable consternation of the judge.

News reports about the leaked 911 recording seem to be consistently presenting it as bad for Guyger’s defense. A typical example of such negative coverage is found in this news story:

In the seconds after Dallas police officer Amber Guyger shot and killed a man inside his own apartment last year, she called 911 and expressed concern that she would lose her job instead of performing CPR on him.

This view, however, rather misses the point, on several levels.

Does 911 Call Help or Hurt Guyger’s Narrative?

For example, we’ve no idea if CPR would have been an appropriate response by Guyger. CPR, after all, is appropriate only if someone has stopped breathing. It’s quite possible that during the period of the 911 call the wounded Jean was breathing under his own power. In that case, CPR would have been contraindicated, and it would not have been error or malice not to provide CPR.

Indeed, at about three minutes into the 911 recording, one can hear an apparent moan from Jean, indicating that at least at that point he was still breathing under his own power.

Similarly, Guyger’s verbalized concerns about losing her job certainly appear odd when heard on the 911 call, but actually has nothing to do with her decision making in firing the shot, which naturally occurred earlier. Also, it is common for people in the immediate aftermath of a deadly force event to act in a manner that seems odd when contrasted with normal day-to-day life.

Perhaps if all Guyger had talked about during the 911 call was her job, her sole focus on that issue could be seen as cold-hearted, self-centered, and perhaps an indication of malice on her part—and that could well be relevant to a murder prosecution.

In fact, however, concern about her job constituted only a small part of what she verbalized during her call.

Indeed, much of the 911 call strikes me as supportive of at least one of the key issues in this case: Did Guyger’ genuinely, even if mistakenly, believe that she had come upon an intruder in her own apartment?

Here’s that 911 recording in its entirety (fair warning, there are a couple of expletives), followed by a transcript of the recording for those who prefer reading over listening:

Operator:       Dallas 911. This is Carla. What is your emergency?

Guyger:           Hi this is an off-duty officer. Umm, can I get, I need to get EMS, uhmm, I’m in nu–

Operator:       Do you need police as well or just EMS?

Guyger:           Yes. I need both.

Operator:       OK. What’s the address?

Guyger:           [Expletive] I’m at apartment number 1478. I’m in 1478.

Operator:       And what’s the address there?

Guyger:           Ummm it’s 1210 S. Lamar, 1478, yeah, I…

Operator:       What’s going on?

Guyger:           I’m an off duty officer. I thought I was in my apartment and I shot a guy thinking he was, thinking it was my apartment.

Operator:       You shot someone?

Guyger:           Yes. I thought it was my apartment. I’m [expletive]. Oh my god. I’m sorry.

Operator:       Where are you at right now?

Guyger:           I’m in. What do you mean? I’m inside the apartment with him. Hey, come on.

Operator:       What’s your name?

Guyger:           I’m Amber Guyger. I need, get me. I’m in.

Operator:       OK we have help on the way.

Guyger:           I know but I’m, I’m going to lose my job. I thought it was my apartment.

Operator:       OK.

Guyger:           Hey man.

Operator:       Hold on.

Guyger:           [Expletive]

Operator:       OK. Stay with me. OK.

Guyger:           I am. I am. I’m going to need a supervisor.

Guyger:           Hey bud. Hey bud. Hey bud. Come on. Oh [expletive]. I thought it was my apartment. Operator: I understand. We have help on the way.

Guyger:           I thought it was my apartment. Hurry. Please.

Operator:       They’re on their way.

Guyger:           I need. I. I thought it was my apartment. I thought it was apartment. I could have sworn I parked on the third floor.

Operator:       OK. I understand.

Guyger:           No. I thought it was my apartment. I thought it was my apartment. I thought it was my apartment. I thought it was my apartment.

Operator:       And what’s the gate code there?

Guyger:           I don’t know. I don’t know.

Operator:       You don’t know? OK?

Guyger:           I thought it was my apartment.

Operator:       They’re trying to get in there. We have an officer there. You don’t know the gate code?

Guyger:           No. I thought it was my apartment. I thought it was my apartment.

Operator:       And what floor are you in right now?

Guyger:           The fourth floor. Fourth. Fourth. Hey bud, they’re coming, they’re, I’m sorry, man.

Operator:       Where was he shot?

Guyger:           He’s on the top left.

Operator:       OK you’re with Dallas PD right?

Guyger:           Yes.

Guyger:           Oh my god. I’m done. I didn’t mean to. I didn’t mean to. I didn’t mean to. I’m sorry. Hey bud.

Operator:       They’re trying to get there to you, OK.

Guyger:           I know. I, I, stay with me bud.

Guyger:           Holy [expletive]

Operator:       OK. They’re almost there. They’re already there. They’re trying to get to you.

Guyger:           Holy [expletive]. I thought it was my apartment. I thought it was my apartment. Holy [expletive]. I thought it was my apartment. Oh my god. [Expletive].

Guyger:           I thought it was my apartment.

Guyger:           I’m so sorry. I’m so sorry. [Expletive]

Guyger:           Holy [expletive].

Guyger:          Oh my god.

Operator:       OK, they’re trying to get to you. Do you hear them? Do you see them?

Guyger:           No. No. Oh my god. I, I, How the [expletive] did I put the, how did, how did I [inaudible] I’m so tired.

Guyger:           Oh they’re here. They’re here.

Operator:       OK. Go ahead and talk to them.

Arriving officer: [Inaudible]

Guyger:           No, it’s me. I’m off duty. I’m off duty. I [expletive]. I thought it was my apartment. I thought this was my floor.

It’s true that Guyger mentions during the 911 call that she’s concerned about losing her job.

She mentions that once.

In contrast, consider how many times she asserts that she (mistakenly) believed she had entered her own apartment.

She does so twenty times. In under six minutes.

It’s also a misrepresentation to claim that Guyger appeared cold or uncaring or malicious towards Jean. In fact Guyger sought to communicate with him in a comforting or encouraging or apologetic manner throughout the 911 call.

She does so fourteen times.

Further, she’s clearly distraught about her grave error. There’s no indication of malice, other than the arguably weak extrapolation of her single stated concern about her job.

My interpretation of this 911 recording is that it strongly corroborates the subjective prong of the reasonableness test. That is, that Guyger had a genuine, good faith belief (however mistaken) that she encountered Jean in her own apartment.

As noted, that subjective belief alone is not enough to make her use-of-force lawful. That belief must also have been objectively reasonable.

Making that determination is going to take a bunch of facts not known to us—for example, how apparently similar were the apartments on the third floor (Guyger’s) and the fourth floor (Jean’s)? To what extent what Guyger’s misperception a function of her apparent exhaustion after a 12-hour shift, and to what degree is that exhaustion here, as opposed to her department’s, responsibility?

That objective prong of the reasonableness case is likely to be, or alternatively ought to be, the key issue in determining Guyger’s criminal responsibility in her killing of Jean.

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Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense CONSULT Program

5 thoughts on “REPOST: “Wrong Apartment” Shooting 911 Recording”

  1. Yeronimus Pretorius

    Excellent article, and a welcome break from the avalanche of abysmal coverage and commentary this is getting, both from the professional media and social media.

    I agree that there is no case for murder. Guyger obviously had no criminal intent, and the prosecution merely alleges that intent without any evidence at all. They, and the media, don’t seem to know the difference between intending to perform an act and intending to commit a crime. The prosecution even presented a long series of mistakes that Guyger made that night in going to the door, as if that incriminated her, when in fact she made a series of actions that resulted from just one mistake, that is, parking on the wrong floor. Anyway, mistake of fact is, of course, an excuse to a murder charge.

    I came up with my own amateur theory as to how this could be manslaughter, one that I haven’t heard or read of from anyone else. Please set me straight if I’m wrong, which I have no doubt I could easily be.

    Guyger didn’t suddenly find herself in her apartment confronted with Jean. She heard someone inside before she entered, according to her own testimony on the stand. Choosing to go in alone despite that was not only an imprudent error in judgement, but reckless. As a LEO she didn’t call for backup, and as a private citizen she didn’t call 911, which amounts to the same thing. The “burglar” had no means of escape, so she could have waited.

    As you wrote in your book, we can’t just shoot an unknown person who is in our home at any time. After all, it could be a maintenance worker, etc. That would have been highly unlikely at 10 pm, of course.

    HOWEVER, Guyger chose to go in alone knowing that an “intruder” was inside, and she went in blind. She didn’t turn on the lights, even though the switches were right next to the door, the same as in her apartment, and she didn’t use her flashlight. Going in blind meant that she couldn’t see if the man inside was armed. Ordering him to show his hands does little good if she can’t see them in the dark. Jean had no way to keep from getting shot.

    If she couldn’t see his hands, she also couldn’t see any weapon he could have had, endangering her neighbors’ lives from a possible errant gunshot, as well as her own life.

    1. Attorney Andrew Branca

      It’s a reasonable narrative, if supported by the facts. That said, Guyger herself testified for over three hours, and I’ve not had time to listen even to just her testimony, so I’m not sufficiently familiar with the claimed facts to know how well they align with such a narrative (or don’t align). For example, there might not have been enough light to see every detail, but sufficient light to see raised hands (e.g., if Jean had been silhouetted by a backlight), and thus the failure to raise hands was perceived as useful information by Guyger (even if mistakenly).
      I would say, however, that if such were going to be the narrative–essentially, criminal recklessness sufficient to support a manslaughter conviction, rather than intent to unlawfully kill required for a murder conviction–I think the prosecution would have needed to narrowly argue that manslaughter narrative from the start. “Ladies and gentlemen of the jury, we don’t believe Guyger had the intent to MURDER Botham Jean, but what she did was so reckless that the killing nevertheless constitutes manslaughter.”
      Instead, they’ve gone hard for murder, and manslaughter would seem to be possible only as a compromise verdict if the jury gets tired in deliberations–which is not really what I’d call justice.
      Attorney Andrew F. Branca
      Law of Self Defense LLC

      1. Yeronimus Pretorius

        Compromise verdicts are antithetical to justice, but we may get one in this case.

        Guyger was charged with manslaughter before public uproar forced the prosecution to charge murder. In fact, the new DA got elected because the previous DA charged manslaughter, and he knows who butters his bread.

        Having charged her with murder, the state couldn’t do anything but continue with it, despite an utter lack of evidence of criminal intent on Guyger’s part, and overwhelming evidence of mistake of fact. They couldn’t very well argue for murder and then switch to arguing that she had no criminal intent, but acted recklessly, so the jury never got to hear any arguments regarding manslaughter from either side.

        The fact is, the murder charge was brought solely because of the racial aspect. Guyger is guilty of being white.

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