Photo by Brooklyn Center Police Department
Below is a USA Today column on fee decisions in the Wright and Babbitt shootings. The sharp contrast between the two decisions raises serious questions about the legal and political issues that arise in such cases.
Here is the column:
Within an hour, indictment decisions in two fatal police shootings were announced with strikingly different conclusions. The decisions taken in the Daunte Wright shooting in Minnesota and Ashli Babbitt in Washington shooting highlight concerns about the political and legal elements that can influence such decisions. The timing of the two decisions, which affected two chaotic situations, raises questions about why Minnesota was charged but not Washington.
During the shooting in Minnesota, police attempted to arrest Wright, who had a pending arrest warrant for police escaping with an unlicensed firearm after a traffic obstruction. Wright freed himself from officers while handcuffed and jumped back in the car to drive away. Kim Potter decided to use her stun gun on Wright, which in the circumstances would likely be considered an appropriate level of violence. In battle, however, Potter grabbed her service weapon rather than her taser. In the video, the officer can be heard screaming “Taser, Taser, Taser” before she swears and says, “Holy S ** t, I just shot him.”
Gun confusion cases
The case has tragically familiar elements called “gun confusion”. There are so many instances of gun confusion that departments have tried a variety of solutions, from specialized training to new designs for stun guns. The problem is that such training can be lost in the fog and frenzy of the violence scene.
The case is similar to that of 2009, when Bay Area Rapid Transit officials battled Oscar Grant to get his arrest. With Grant on the ground, BART officer Johannes Mehserle warned that he would be using a taser, but then grabbed his service weapon and fired a fatal round into Grant’s back.
The videotape of the incident showed Mehserle moving his thumb over his gun as if you were triggering a security for the taser. (His service weapon did not have this type of security clearance). The jury rejected murder or voluntary second degree manslaughter, but found him guilty of involuntary manslaughter.
Unlike previous cases, prosecutors didn’t overwhelm Potter. According to the criminal law provision, however, the prosecutors must prove that the 26-year-old veteran “creat[ed] an unreasonable risk, and deliberate [took] Chances of causing death or great physical harm to another. “The question is whether a possible split-second mistake is legally a conscious choice of an officer.
The Babbitt shooting
In Washington, the Justice Department announced that it would not indict the officer who shot Ashli Babbitt during the January 6 riot. The Washington decision had a number of noticeable differences. Potter was charged within a few days. It has been months since Babbitt was shot in the Capitol. The identity of the officer in charge was not disclosed. Babbitt was an unarmed Air Force veteran with no criminal record. While she has clearly broken the law and has been at the forefront of a riot, there is no claim that she threatened serious bodily harm or death to any officer or possible person. Indeed, there were other officers nearby who could have been hit by the round. (Babbitt was trying to climb through a broken door in the speaker’s lobby when police beat back the mob).
If the officer intended to shoot Babbitt, he probably wouldn’t set the standard for a justified shootout in government cases like Tennessee v. Garner (1985). When the officer fired blind or wildly, he appeared to have many of the same negligent elements as Wright’s shooting.
In particular, the Justice Department statement does not state that the shooting was clearly justified. Instead, it found that “prosecutors must not only prove that the officer used violence that is constitutionally unreasonable, but that the officer did it” deliberately “.” It was stressed that this element was evidence of “bad.” For the purpose of disobeying the law, “requires law” and that “evidence that an officer acted out of fear, error, panic, misperception, negligence, or even poor judgment cannot substantiate the high level of intent. “
Of course, cases of “gun confusion” are often caused by an officer acting out of “fear, mistake, panic, misperception, negligence, or poor judgment”. However, in one case an officer will be charged and in the other case the officer will be released.
An insecure line
The line of distinction can be difficult for the public to see. For officers, this insecure line can mean the difference between discipline and incarceration. Officers must be able to clearly see this line in the performance of their duties, with decisions often being made in fractions of a second in violent incidents.
Both deaths were tragic. There were significantly different political contexts and timelines for the decisions. After Babbitt’s death, there was no outcry over her death because she was part of a notorious uprising that halted a constitutional process for the confirmation of presidential votes. However, the shooting doesn’t seem any more justified than the Wright shooting, which was likely an accident. The Justice Department claims that an officer deliberately shot Babbitt or the mob in general. It doesn’t explain which ones.
In cities from Minneapolis to Portland to Washington, violent unrest is unfortunately widespread today. However, the use of live rounds was never approved unless a significant threat to an officer or other person was demonstrated. Nothing in the announcement in the Babbitt case responds to how such a portrayal was made by the official.
Ultimately, these cases capture the unsafe border in those instances where police errors or mistakes are criminal matters. There is a plausible basis for the indictment in the Wright shooting, but a jury must now decide whether it was a conscious decision or a tragic (but not criminal) mistake. All of these cases are very factual. However, Babbitt’s decision leaves more questions than answers for the public and the police alike.
Jonathan Turley is Shapiro Professor of Law of Public Interest at George Washington University and a member of the USA TODAY Board of Contributors. Follow him on Twitter: @JonathanTurley