The former Minnesota police officer Kim Potter has been arrested and charged with second degree manslaughter in the shooting of Daunte Wright. The charge allows for up to ten years in prison but it also has a standard that could prove challenging in the prosecution.
There is evidence that the shooting of Wright was a case of “weapon confusion” in Potter firing what she thought was her taser. The case is very similar to Oscar Grant shooting discussed in my earlier column. That case of weapon confusion led to an involuntary manslaughter conviction.
Here is the Minnesota 609.205 provision:
A person who causes the death of another by any of the following means is guilty of manslaughter in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both:
(1) by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another; or
(2) by shooting another with a firearm or other dangerous weapon as a result of negligently believing the other to be a deer or other animal; or
(3) by setting a spring gun, pit fall, deadfall, snare, or other like dangerous weapon or device; or
(4) by negligently or intentionally permitting any animal, known by the person to have vicious propensities or to have caused great or substantial bodily harm in the past, to run uncontrolled off the owner’s premises, or negligently failing to keep it properly confined; or
(5) by committing or attempting to commit a violation of section 609.378 (neglect or endangerment of a child), and murder in the first, second, or third degree is not committed thereby.
If proven by a preponderance of the evidence, it shall be an affirmative defense to criminal liability under clause (4) that the victim provoked the animal to cause the victim’s death.
Obviously, this case will turn on the first provision and whether Potter “creat[ed] an unreasonable risk, and consciously [took] chances of causing death or great bodily harm to another.”
In the video, Potter is heard yelling “taser, taser, taser” before she swears and says “Holy S**t I just shot him.” We have seen many cases of officers confusing tasers with service weapons in struggles.
The question is whether such a split second error constitutes consciously taking chances of causing death. In the Grant case, the jury rejected more serious charges in favor of the involuntary manslaughter charge.
The Minnesota Supreme Court previously ruled in State v. Frost (1983):
“[S]econd-degree manslaughter under section 609.205(1) involves an element of awareness of the risk by the defendant. Stated differently, the statute requires proof of an objective element and a subjective element, the objective element being gross negligence and the subjective element being recklessness in the form of an actual conscious disregard of the risk created by the conduct. This interpretation is based on the wording of the statute itself and, further, is in accord with the view espoused by the drafters of the Model Penal Code that liability for manslaughter should not be premised on “inadvertence to risk” (that is, disregarding of a risk of which one should be aware) but on a conscious disregarding of a substantial and unjustifiable risk of which one actually is aware. Model Penal Code §§ 210.3, Comment 4 and 210.4 Comment 1 (1980).”
I believe it is essential for reasonable people to contact their members of congress about this and demand that there be an investigation of this woman’s murder.
She is entitled to have her death properly investigated and not merely ignored. Nothing she did warranted her killing and a cover up by the Speaker of the House of Representatives, which this clearly is.
Stop today and call your congressman and make clear your disgust with the silence of Congress on this matter.
A Capitol police officer shot and killed Ashli Babbitt at point-blank range, in the neck, for climbing through a window in the Capitol. His identity is protected, he will face zero charges.
Total annihilation of justice.
The public deserves to know the Capitol officer’s identity. There needs to be a public, transparent investigation.
Jonathan: You say there is “evidence” of “weapons confusion” when officer Kim Porter shot and killed Daunte Wright. How do you know? Well, because Porter shouted” “taser” three times before she shot Wright. That is only evidence that Porter made the statement but little in the way of proof of her intent. There is a lot of “confusion” all right in this case— most of it being offered by you. It would be nice to know, for example, when Porter shouted those three magic words. Perhaps if Porter shouted those words before she drew her weapon then maybe your defense might have merit. But if Porter shouted those words after she drew her weapon we might have a different situation entirely. We already know Porter was a 26 year veteran of the police department. She had even been the president of the police union at one time. If anyone knows about the difference between a laser and a sidearm it’s Kim Porter. If she drew her weapon before uttering those fateful three words perhaps it was to obscure her real intent–to make it seem she was “confused” between her laser and her sidearm. A full investigation and trial may reveal the truth. But right now Porter literally has a “Blue wall” between her and the community. Porter was briefly held in the jail next to the court house where Derek Chauvin is on trial for the killing of George Floyd. Porter is now at home with a wall of police protection. The neighborhood is dotted with “No Parking” signs. There is a fence surrounding her house with police guards and a sign that reads: “”Caution: Lasers in Use”. No doubt an attempt at irony. But the message is clear. Porter has the police union at her back.
The problem is that during the reign of Trump/Barr the police were encouraged to believe that if they shot and killed an unarmed black man the DOJ would come to their defense. Many police officers and police unions still believe that. When Chauvin was first charged, he agreed to plead guilty to third-degree murder. AG Barr rejected that deal because it would make the Trump administration look like it was caving in to community outrage over the killing of George Floyd. If we are going to have a sober and rational discussion of police conduct and misconduct it starts from the premise that police must be trained to treat whites and blacks equally in terms of the application of traffic and other laws. Had Wright been white no doubt he would have been let to go with a simple warning about the obstruction on his rear view mirror. You don’t contribute to trying to resolve this problem by automatically arguing that Kim Porter was justified in killing Wright because it was an “inadvertent act” caused by “weapons confusion”. You sound more like your buddy Bill Barr or Porter’s defense counsel!
“The problem is that during the reign of Trump/Barr the police were encouraged to believe that if they shot and killed an unarmed black man the DOJ would come to their defense. Many police officers and police unions still believe that.”
Please read some history. During the reign of Obama, NYPD police officer Daniel Pantaleo put Eric Garner in a chokehold for selling a few cigarettes. Eric Garner perished.
Daniel Pantaleo was not only not fired or reprimanded during the Obama reign, he got a pay raise.
It was not until 2019 that Pantaleo was fired.
https://www.politico.com/states/new-york/albany/story/2016/09/officer-in-eric-garner-death-boosts-overtime-pay-105359