The charge against Kim Potter is morally appropriate but could prove legally difficult.
Kim Potter, the officer who killed Daunte Wright by shooting him with a firearm when she apparently meant to use a Taser, is being charged with second-degree manslaughter. This strikes me as a morally appropriate charge, but it could be legally difficult to prove.
Why? Because of the way Minnesota’s homicide statutes are worded. There doesn’t seem to be a charge that clearly captures what Potter did.
Here’s the second-degree-manslaughter statute, in relevant part:
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
Both “culpable negligence” and “consciously” present issues. In a previous police-shooting case, for example, jurors were instructed that to find culpable negligence, they needed to think the defendant acted with “gross negligence coupled with an element of recklessness,” meaning he consciously committed an unreasonable act that created a substantial risk. Of course, while even Tasers are dangerous, Potter consciously thought she was using a weapon designed to incapacitate rather than kill, in response to a suspect resisting arrest.
A New York Times story presents similar doubts:
Richard Frase, a professor of criminal law at the University of Minnesota, said the second-degree manslaughter statute is worded narrowly enough that the case might prove difficult for prosecutors to prove, noting that it requires them to show that Ms. Potter consciously took a chance of “causing death or great bodily harm.”
“She thinks she’s firing a Taser,” he said of the former officer. “How can we prove beyond a reasonable doubt that she consciously took chances of at least causing great bodily harm?”
As did the law professor Alafair Burke in a Twitter thread. Burke writes that Minnesota “has no applicable statute for criminally negligent (non-conscious) homicide,” meaning the state “has made a policy decision to leave most negligent homicides free from criminal punishment unless coupled with consciousness of the risk of grave injury or death.”
Somewhat oddly, while the portion of the statute above requires a conscious decision, one can be prosecuted for the same offense for shooting someone out of a negligent belief that they are an animal. So the case would be a slam dunk if Potter had thought Wright was a deer, rather than thinking her firearm was a Taser.
Whatever the outcome of this case, Minnesota might want to rethink its homicide laws.