The Shooting Gallery: Police Violence MEGATHREAD

[DGuller]

That's pretty much where I am on this issue.  I think that first degree manslaughter is so outlandish that I'm wondering whether the prosecutors or the judge should suffer some professional consequences for allowing that to proceed.

I still can't help but go back to my original thought about the larger picture here:  it seems like the only time cops get reliably convicted for causing death is when they're actually making an honest mistake, and in those cases you can even make a case that they're being overly aggressively prosecuted.  The BART cop, the insurance executive grandpa playing a cop, Kim Potter, all went to prison because they fucked up under stress without meaning to take a life.  On the other hand, trigger happy psychos who executed Philando Castile or Daniel Shaver walked free after knowingly killing completely innocent victims of a situation, and even the cop who shot Walter Scott in cold blood had a mistrial and for some reason accepted a guilty plea before the second trial. 

The moral of the story seems to be: don't fess up, don't even try using a taser, just say he was reaching for a gun, the worst that can happen is that you'll have to go through an acquittal.  It doesn't pay to be honest, it just pays to look out for yourself.

[grumbler]

Yeah, how do you define her attempting to engage in a perfectly legal apprehension as a crime? I do not see how first degree can even possible apply.

1. She was not commiting another crime. Even if she was ridiculously sloppy, what is the crime she was committing?
2. Being reckless with her weapon is not a crime. Was she charged with such a crime?

I think the first degree was basically just appealing to the juries sense of outrage, and I doubt it survives appeal.

The crime the prosecution alleges she was committing when she committed the manslaughter was reckless handling of a firearm.  That must mean that her handling of it was reckless even in the absence of pulling the trigger, which, as I stated above, seems absurd.  It does not need to be separately charged if included in the first-degree manslaughter charge.  I am not sure that an overzealous indictment is appealable, nor is a jury's verdict.  The only grounds for appeal that I can see is that the judge improperly instructed the jury on the grounds for finding her guilty of first-degree manslaughter.  Lawtalkers would know better than I, though.

The second degree seemed very much legit for me, until I dug into what is actually required for "culpable negligence". What is the actual, legal difference between negligence (which is a mistake that could result in you getting sued) and culpable/criminal negligence (which is a mistake that your can be held *criminally* liable for).

And that requires, as I understand it, three things (this is mostly from that video I posted).

1. You have to engage in a dangerous or reckless behavior that is not justified by the circumstances
2. You have to recognize that the behaviour is dangerous or reckless.
3. You have to disregard that danger and do it anyway.

Clearly #1 is there. She pointed her gun at someone and shot them.

But I don't think 2 or 3 are there. She did not know her actions were dangerous or reckless, nor did she disregard that knowledge (since she did not have it to begin with).

I think that the key here is not what she actually knew about the dangers of her actions, but what a reasonable person in her place should have known.  The key to the prosecution's case, as I understand it, is that a reasonable police officer with her training should have been able to recognize, in the five seconds between drawing her weapon and firing it, that she was not holding a taser.

[Berkut]

I definitely agree hat a reasonable person, and certainly a reasonable police officer, SHOULD HAVE known. But that isn't the legal standard as far as I can tell. The legal standard is DID KNOW. She clearly did not.

I think the fact that she should have known means she is almost certainly liable to get sued and fired and be help responsible for her actions. To make it a crime though, it seems like the standard is not "should have known" but "did know".

But definitely the case for first degree just seems a bit ridiculous.

[grumbler]

I definitely agree hat a reasonable person, and certainly a reasonable police officer, SHOULD HAVE known. But that isn't the legal standard as far as I can tell. The legal standard is DID KNOW. She clearly did not.

I think the fact that she should have known means she is almost certainly liable to get sued and fired and be help responsible for her actions. To make it a crime though, it seems like the standard is not "should have known" but "did know".

The standard isn't that the prosecution must show that she DID know, because that would be impossible, barring a confession.  The standard is more like "was what she did so far from the reasonable that it could only be due to willful negligence?" 

[Berkut]

I definitely agree hat a reasonable person, and certainly a reasonable police officer, SHOULD HAVE known. But that isn't the legal standard as far as I can tell. The legal standard is DID KNOW. She clearly did not.

I think the fact that she should have known means she is almost certainly liable to get sued and fired and be help responsible for her actions. To make it a crime though, it seems like the standard is not "should have known" but "did know".

The standard isn't that the prosecution must show that she DID know, because that would be impossible, barring a confession.  The standard is more like "was what she did so far from the reasonable that it could only be due to willful negligence?" 

Anything that goes to intent suffers from that some "impossibility", yet there are many things in the law that require intent.

The prosecution does have to get a confession, they just have to convince a jury beyond a reasonable doubt that she did in fact know, contrary to her testimony. That is still not the same as "should have known".

Otherwise the bar for criminal negligence looks pretty indistinguishable from the bar for just regular negligence.

[jimmy olsen]

Wow, Kim Potter found guilty on both charges.  Seems a little twisted how so many psychos with itchy trigger fingers don't even make it out of the grand jury, while someone who openly and credibly admitted to an awful mistake is found guilty.  Obviously the jury is aware of much more than what is known to the public, but given my level of knowledge, this outcome just seems to reward blue code of silence mafia approach to police accountability.

It's only surprising because police in America routinely get away with acts that are far more egregious than this.

[grumbler]

Wow, Kim Potter found guilty on both charges.  Seems a little twisted how so many psychos with itchy trigger fingers don't even make it out of the grand jury, while someone who openly and credibly admitted to an awful mistake is found guilty.  Obviously the jury is aware of much more than what is known to the public, but given my level of knowledge, this outcome just seems to reward blue code of silence mafia approach to police accountability.

It's only surprising because police in America routinely get away with acts that are far more egregious than this.

No, it's only surprising because the DA grossly over-charged, and the judge and jury went along with it.

[Razgovory]

Did other statutes or state Supreme Court rulings affect how this law is to be read?

[Berkut]

Wow, Kim Potter found guilty on both charges.  Seems a little twisted how so many psychos with itchy trigger fingers don't even make it out of the grand jury, while someone who openly and credibly admitted to an awful mistake is found guilty.  Obviously the jury is aware of much more than what is known to the public, but given my level of knowledge, this outcome just seems to reward blue code of silence mafia approach to police accountability.

It's only surprising because police in America routinely get away with acts that are far more egregious than this.

Do you have any data to support that?

[Sheilbh]

No idea if this is good law - but from a quick search this seems to be the elements from the Minnesota Supreme Court. Basically it's a mix of subjective and objective:

A person acts "recklessly" when he consciously disregards a substantial and unjustifiable risk that the element of an offense exists or will result from his conduct; the risk must be of such a nature and degree that its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation. A person acts "negligently" when he should be aware of a substantial and unjustifiable risk that the element of an offense exists or will result from his conduct; the risk must be of such a nature and degree that his failure to perceive it involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation. The difference between the terms "recklessly" and *320 "negligently," as thus defined, is one of kind rather than of degree. Each actor creates a risk of harm. The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it.
[...]
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.

[Admiral Yi]

That fits with my understanding.  And by that definition I don't see how the officer was reckless.

[grumbler]

No idea if this is good law - but from a quick search this seems to be the elements from the Minnesota Supreme Court. Basically it's a mix of subjective and objective:

A person acts "recklessly" when he consciously disregards a substantial and unjustifiable risk that the element of an offense exists or will result from his conduct; the risk must be of such a nature and degree that its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation. A person acts "negligently" when he should be aware of a substantial and unjustifiable risk that the element of an offense exists or will result from his conduct; the risk must be of such a nature and degree that his failure to perceive it involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation. The difference between the terms "recklessly" and *320 "negligently," as thus defined, is one of kind rather than of degree. Each actor creates a risk of harm. The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it.
[...]
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.

That's pretty much what I said above.  Note the "reasonable person" and "law-abiding person" standards.  The act doesn't need to be compared to what the actor thought lawful; it is compared to what law-abiding or reasonable persons would think lawful.  There are defenses of legitimate belief in the lawfulness of an unlawful act, but those don't apply here.

[Berkut]

No idea if this is good law - but from a quick search this seems to be the elements from the Minnesota Supreme Court. Basically it's a mix of subjective and objective:

A person acts "recklessly" when he consciously disregards a substantial and unjustifiable risk that the element of an offense exists or will result from his conduct; the risk must be of such a nature and degree that its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation. A person acts "negligently" when he should be aware of a substantial and unjustifiable risk that the element of an offense exists or will result from his conduct; the risk must be of such a nature and degree that his failure to perceive it involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation. The difference between the terms "recklessly" and *320 "negligently," as thus defined, is one of kind rather than of degree. Each actor creates a risk of harm. The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it.
[...]
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.

That's pretty much what I said above.  Note the "reasonable person" and "law-abiding person" standards.  The act doesn't need to be compared to what the actor thought lawful; it is compared to what law-abiding or reasonable persons would think lawful.  There are defenses of legitimate belief in the lawfulness of an unlawful act, but those don't apply here.

THis seems pretty key to me:

The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it.

She was negligent, but not reckless.

[grumbler]

THis seems pretty key to me:

The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it.

She was negligent, but not reckless.

Yes.  That's been my argument all along.  The question the jury should have been considering, IMO, was whether her negligence amounted to a crime, not whether the crime was compounded by another crime or not.

[Iormlund]

Saw camera footage from an LAPD officer yesterday.

Guy basically grabs a rifle, shoves his mates out of the way while they tell him to hold up and then promptly shoots and kills the suspect (who poses no immediate danger to anyone at this point) ... and a 14 yo girl who was in the dressing room behind him.

If I was in the jury I would have a very hard time not convicting this guy of voluntary manslaughter.