LEAKED: “Wrong Apartment” Shooting 911 Recording
Guyger repeats 20 times during 911 call she thought she was in her own apartment
There was a recent leak, in violation of court order, of the 911 call made by former Dallas cop Amber Guyger (mugshot in featured image). The call came immediately after she shot and killed Botham Jean when she mistakenly walked into his apartment, thinking it was her apartment and perceived him as an intruder.
This post examines some of the legal implications of Guyger’s statements during that 911 call.
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 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 comes from Guyger’s narrative of events.)
Oops: A Mistaken Killing
There was just one problem: Guyger wasn’t at her apartment at all, but rather at the apartment one floor above her own. This made the man she shot, Botham Jean, not an intruder but a man merely minding his own business in his apartment when Guyger suddenly showed up and shot him.
The Dallas police department has since fired Guyger and charged her initially with manslaughter, which later became a murder charge.
Awful But Lawful Fatal Shootings
It is undisputed that Botham Jean engaged in no conduct that justified Guyger shooting and killing him. To the surprise of many, however, that doesn’t necessarily mean that Guyger committed a crime.
How can it be lawful to kill someone who has not done anything to warrant a person killing them? The explanation lies in the fact that the law does not require a defender to make sound 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 entirely 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 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
1412-hour shift, that her key-card appeared to function normally to open the door, etc.).
And:
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.
Awful, but lawful.
Leaked: Recording of Guyger’s 911 Call
Guyger called 911 immediately after shooting Jean, but until recently the trial judge sealed the recording. Someone has since leaked the recording, 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 like 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 necessary only if someone has stopped breathing. It’s entirely possible that during the period of the 911 call, the wounded Jean was breathing under his power. In that case, CPR would not have helped, 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 power.
Similarly, Guyger’s verbalized concerns about losing her job indeed appear odd when heard on the 911 call, but 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 come across as cold-hearted, self-centered, and perhaps an indication of malice on her part—and that could well be relevant to a murder prosecution.
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 critical issues in this case: Did Guyger’ genuinely, even if mistakenly, believe that she had come upon an intruder in her 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.
Guyger indeed 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 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. 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 troubled 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 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 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 at least ought to be, the critical issue in determining Guyger’s criminal responsibility in her killing of Jean.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense CONSULT Program
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[Featured image is a police mugshot of Amber Guyger.]
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Comments
I’m sorry but I cannot justify, in any way, a point of view that normalizes what she did.
As a cop you’re expected to have a presence of mind to know where you are and what you’re doing. You don’t shoot someone and you sure don’t walk into their house and shoot someone for no reason because you’re too damned stupid to figure out where you’re at and what you’re doing.
Too often, cops invade the wrong houses and kill people for reasons that are specious at best.
there has to be accountability.
just saying “I’m sorry, I thought I had it right” doesn’t cut it because when you kill someone you take away everything they have, or will be.
Put her in jail and keep her there.
Everyone talks about “a few bad apples don’t make them all bad”
no, they sure don’t but you don’t keep the bad apples around either.
She was off duty. The presence of mind you allege a cop is expected to have while on duty is therefore irrelevant. The only question is whether this is a mistake anyone — including you — could easily have made. Since neither of us knows the exact details we cannot answer this question.
I thought that police were never off duty, but none the less, if she walking around with a firearm then she’d better be in the correct state of mind
Depends on the department and the area. I have a buddy who is a cop in the North East and they have to turn in their guns at the end of every shift and pick them up when they go on shift. They have no arrest powers when off duty and are basically just a civilian.
But then again I have a buddy here where I live and the local PD encourages them to carry when off duty (not required) and they retain arrest powers.
I also have a buddy who is a Deputy US Marshall and they are required to be armed 24/7 when outside their own home. So it varies.
Psst, Your cop hate is showing. I guess it’s hard to be humble when your perfect in every way, huh?
No one is trying to “normalize” anything and anyone can make a mistake especially when exhausted after working a stressful job.
It has been a while but what I recall being an issue was that then Officer Amber Guyger was fatigued & overworked. What struck me was that her particular assignment was serving arrest warrants, So we have exhausted cop parking on the wrong floor of her own apartment building and going through the wrong hallway to the wrong door(with a doormat unlike her door which had no doormat) after possibly spending the day knocking down doors serving warrants at residences she has never been before… This story had not sounded right from the beginning.
One report I recall said that the off duty officer had a blood test but I do not recall the results being published.
Here is one of the articles from my browsing history. The darn EU has caused several of my other articles to be no longer available to me. The EU says that it is for my protection…
Guyger’s story appears to have changed multiple times following Jean’s slaying. In one version of Guyger’s story, Jean answered the door. In another version, he was across the room when she shot him twice. One version has Jean and Guyger exchanging words–another does not.
Multiple witnesses attest that they heard Guyger pounding on Jean’s door. Guyger claims she used either a key-card to open Jean’s door and/or that the door was already ajar. Various other discrepancies in both Guyger’s account–and the official law enforcement response–have been noted by North Texas attorneys.
–Botham Jean’s Family Plan to Sue Amber Guyger | Law & Crime
–https://lawandcrime.com/crime/botham-jeans-family-will-soon-sue-amber-guyger-and-the-city-of-dallas/
-RETRIEVED-Wed Jun 12 2019 05:58:52 GMT+0200 (Central European Summer Time)
Guyger’s story has not changed.
Last year, there was a Texas Rangers arrest warrant and a Dallas PD search warrant that gave conflicting info. The police have since said the evidence at the scene matches Guyger’s statement that the victim was not at the door, he was inside.
Well, I can certainly see the police report stating that at the time the officer’s gun discharged that the resident fled away from the door. I guess we will see what or if the witnesses say about their statements that they heard the officer pounding on the door and arguing with the victim when they are under oath for the criminal and civil trials.
We will also hear more about her struggle with and shooting of a suspect the previous year of this more recent shooting. While I do not want to see anyone railroaded especially a police officer, I am particularly concerned that our police officers are qualified and not hired because they meet a certain gender and racial profile quota.
My question is:
did she go home immediately after her shift ended or did she stop off first for a couple?
Dude is dying on the floor and your flipping about your job?
That’s hard to empathize with.
YOU are responsible for every round you send down range.
Guyger sounds very, very, very credible on the audio. Quite a difference than the mere transcription. A good reason to tape depositions.
The most curious facts are how she behaved inside the apartment, in shooting the victim. That is, did she really feel threatened by his acts to justify shooting him if the apartment was indeed hers?
The door was ajar, and her being a police officer (that is, someone who would tend to investigate a break-in to even her own apartment) lends creedence to her story.
This is a tragedy all around. But to imprison Guyger for a mere mistake? Ridiculous – and a mockery of the victim’s death.
In context of the hysteria of her phone call (listening to it via audio), her statement about her losing her job sounded kinda ‘normal.’
Whoever leaked the audio sure sympathizes with her. Must have been al shaprton.
This is a lot stranger case than comes out in this little snippet – take the situation of the door. SHE SAID the door was ajar; but a neighbor on the same floor posted a video publicly, showing how all the doors in that building (it’s new, btw) are made so that they close automatically. None of the doors in that building can just be ajar, so it’s a very strange claim. Also, another neighbor on that floor is going to testify that she was calling out to the tenant who was shot by name before the shooting, indicating at the very least that she knew very well who he was, and that he was certainly not a criminal. (in fact he was a very upstanding man with a good career, never been in any trouble)
These are a couple of the reasons the charge has been upgraded to murder. Saying “I thought it was the wrong apartment!” 20 times may have been nothing more than a quickly thought out attempt to build some kind of defense for what she had done.
No one is making determinations on the entire case, we are discussion one piece of evidence, that happens to be in her favor.
As far as the automatic closing doors those mechanisms are easy to disable and/or something could have been in the door so while the video of the neighbor is easily dismissable.
As far as the other neighbor who will testify, strange that you know all this without being on the legal team, so what? First you don’t know what testimony they will give until they give it. Remember during the George Zimmerman case there was that one neighbor who was an obviously mentally disturbed lady that they put on the stand who claimed that Zimmerman was on top the whole time and that he shot Martin in the back.
I’m not saying that she isn’t guilty, I am also not saying she is guilty, I wasn’t there.
It’s going to be a very interesting case to watch. Recall that there was no “rush to judgement” in this case – she wasn’t arrested or charged with anything for the first 3 days, and only then was she booked for manslaughter. That was where the case stood for 3 months while an investigation was done, and it was only *After* the investigation was concluded that a Grand Jury looked at the evidence and bumped the charge up to murder.
Obviously, the evidence that the Grand Jury saw is still sealed, but it’s not a stretch to say that they saw something that doesn’t quite line up with what’s been said publicly. So, we shall see.
Oh, I agree and my “something isn’t right” o’meter is hitting the red zone on this one, I just don’t know what.
Honestly when I first heard this story I was betting that there was some kind of relationship between the 2 and it was a domestic thing.
“20 times may have been nothing more than a quickly thought out attempt to build some kind of defense for what she had done.”
Stop resisting …
Tom, I read something last year about that claim… about the doors. The poor guy propped his open making it ajar. DPD is ate up with SJW and BLM, so this officer really needs to get her case moved to another county. I doubt she’ll get a fair jury in Dallas.
Tom, all I’m going to say is that I’ve been in entirely too many hotel rooms that are supposed to close and lock automatically…. and don’t.
True, there’s any number of reasons for a self-closing door not to close quite all the way. My screen door does that. You can get a piece of entryway rug caught on it. Etc…
The only thing I really have to say is the 911 call establishes the emotional state of the officer who just finished a double-shift, came ‘home’ to find an intruder in what she thought was her living room, and…
I cannot in any way think this was premeditated, as several individuals have put forward.
I would never enter my home if I found the door ajar. I would call the police and wait for help.
Having said this, I don’t think murder was the appropriate charge.
Would you call the police even if you were the police?
a moment ago you were suggesting that since she was off duty she wasn’t in the proper state of mind, so call the police
Actually no he didn’t claim that. He stated, correctly, that she was off duty and the commenter that he was replying to was expecting the same levels of awareness off duty as on which is impossible and unreasonable.
Being off duty, she was not required or expected to be in an on-duty frame of mind. Nevertheless, if you were a policeman and found what seemed to be a burglar in your home would you call the police, or would you attempt to handle it yourself?
yes, for back up.
As mentioned above, she *Said* the door was ajar; but one of the key points of the trial will be to see whether the prosecution can show she was lying about that. There’s supposedly going to be testimony from someone on that hall who saw her trying to get in, that contradicts much of what she’s said.
I would never enter my home if I found the door ajar.
I would, and have.
I’m not claiming it’s a good idea, but it happens.
Do you walk around with a gun? She was armed and trained. To say she wouldn’t clear her own apartment is … well, just a tad disingenuous … in my opinion.
If a civilian entered the wrong apartment, out of sheer stupidity, and, subsequently murdered the homeowner in cold blood, under belief that the home was his/hers, why would the mens rea of the killer be relevant, at all? It would seem to me that a “reasonableness” standard of evaluating the behavior of the killer is totally and rightfully undermined by the idiotic act of entering another person’s home, and, attacking the person living there, regardless of what the intruder’s mindset was, at the time. In other words, if you enter someone’s “castle,” and initiate violence against the denizen thereof, you really shouldn’t be the beneficiary of a “reasonableness” standard, as would normally be applied in self-defense cases.
In my mind, I see no difference between the culpability of someone who intentionally enters another person’s home, with the intent to do harm to the resident, and, someone who enters another’s home, accidentally, and ends up initiating violence against the resident, under the belief that the home is theirs.
To enter someone’s home by mistake, as a resident of an apartment building, you have to be either dumb as rocks, or, under the influence of drugs/alcohol, or, both. Fatigue, the rationale cited here, sounds like BS, to me. It is not at all “reasonable” to make such a mistake.
Mens rea and reasonableness are always relevant. The fact that it is someone’s castle is only relevant to what the homeowner does, not to what the intruder does. Had the homeowner shot her, reasonably believing her to be a threat to his life, he would not even have been charged. But now she’s the one being charged, so all that’s relevant is her perspective, not his.
To enter someone’s home by mistake, as a resident of an apartment building, you have to be either dumb as rocks, or, under the influence of drugs/alcohol, or, both.
I actually got into the wrong car once (not even the same make as the one I was driving), and didn’t start to think about what was wrong until I noticed that there were keys already in the ignition, as well as in my hand. And I didn’t have the handy excuse of being dumb as rocks, or anything else. Unfortunately, this stuff happens. And some apartments are a lot closer to being identical than different makes of cars.
I actually lived in a big apartment place like hers once… all the doors look the same… and if you didn’t pay attention when walking up flights of stairs, it is EASY to get on the wrong floor. She focused on her door being ajar before even noticing the # on the door… totally human mistake.
I might agree if it was the wrong house on a street, but from someone who has lived in the wonder cookie cutter world of apartments, it’s not that hard of a mistake to make.
Also if you think fatigue can’t affect you just as much as drugs or alcohol, then no offense, you have never been really tired before.
I assume the fatigue factor would also apply to RNs doing a double shift or a 12 hour shift. 😉
Oh, yea. I have been so tired no even hospital coffee would make a dent.
Shortly AFTER ending a 12-hour shift (I don’t recall seeing how soon it was), Guyger was so tired she didn’t realize she was on the wrong floor of her apartment building, entered the wrong apartment, and killed an innocent civilian who was minding his own business in his home because he didn’t comply with demands from a disembodied voice in his doorway. Just a few minutes BEFORE Guyger went off-shift, was she a cop who was so tired she didn’t know where she was? She was a killing waiting to happen, and although circumstances seem to favor her here, what would have happened had she gunned down someone during a traffic stop?
She didn’t go off-shift just before entering the apartment.
The two point of law which Mr. Branca illustrated will be the ultimate determining factor. Whether entering the wrong apartment raises to the level of criminal or culpable negligence will depend upon the jury.
Now, there are a couple of other factors which may have a bearing on the outcome. The first is the amount of time between Guyger’s contact with Jean and the time she fired. If the interval was very short, this could either help or hurt her defense, depending upon other factors. If the time elapsed was reasonably long, say 10 seconds, or longer, this would likely bolster her defense. Also, at issue would be whether she identified herself as a police officer. A failure to respond to a person identifying themselves as a police officer, at least verbally, would raise alarm that the person was a danger. Another factor is whether she attempted to put any additional distance between herself and Jean, before she fired and whether Jean was moving toward her during that period. The most important thing will be the exact condition of the door, when she arrived.
Like it or not, she will be held to a higher standard due to her training and experience. If the door was noticeably ajar, then she should have entered with her gun drawn and immediately attempted to illuminate the room. She should have entered as a LEO entering a possible occupied burglary scene, not as a normal resident walking through the door. Also, if the apartment is above ground level, and Guyger’s apartment was on at least the third floor, the “intruder” is largely trapped. Announcing herself, before entering, would have been appropriate under her training. While failing to do any of this indicates any malice, on her part, it can have an effect on whether the jury feels she was criminally negligent. It is another story if the door was not ajar, but simply not locked. She could have overlooked that and entered with no suspicion that the apartment could have been occupied. And, if Jean had suddenly stood up from the couch or a chair or stepped into the room from another room and was in close proximity to Guyger, then a startle reflex could well have already committed Guyger to firing, without conscious thought.
Guyger is more than likely going to have to take the stand, in her own defense. A lot will depend upon what she has to say. This was a terrible incident. In hindsight, some things should probably have been done differently. Several lives have been inexorably changed for the worse. And no one will be happy with the outcome.
and whether Jean was moving toward her during that period.
Surely a man has every right to eject an intruder from his apartment. Because of her error (if such it was), there’s no way to consider this an aggressive move by the unfortunate Mr. Jean.
It’s not about if he had the right to advance, it is about what his advancing looked like in her perception and how it affected her decision making. Yes, from his point of view he may have been ejecting an intruder. However, from her point of view it could have easily been an attack.
You are missing the point. This is ALL about the reasonableness of Guyger’s actions. If a reasonable man entered what he believed to be his apartment and was confronted by a large person whom he did not know or recognize, would that person advancing upon him instill a reasonable fear of attack in him? If it does, then this can be a mitigating circumstance with regard to Guyger shooting Jean. If Jean was simply standing in one place, this reduces the existence of a reasonable threat and reduces, or eliminating a mitigating factor.
We have no idea what was going through Jean’s mind, because he died before he could tell us. And, as there is no evidence that Jean did anything wrong, he was, apparently, that rarest of animals, an innocent victim. So, what is at issue is whether Guyger’s actions, including entering the wrong apartment mistakenly, rise to the level of criminal negligence.
this f’ing idiot should be in prison.
you know what this tell me?
she realized she screwed up and immediately tried to set up / create an excuse a defense for herself.
hell I operated as MP in germany under much tighter regs than this. and her actions piss me off.
prison time needed.
Very very small point for you CPR fans out there:
“CPR, after all, is necessary only if someone has stopped breathing”
CPR is needed if the heart isn’t beating or ineffectively beating.
CRP is needed if not breathing … as the heart will follow suit.
Forget breathing, he is running out of blood and blood pressure.
Is this case negligent homocide and not murder?
A generic sort of scenario for CPR is a person keeling over at his desk. Giving CPR to a man who has been shot in the chest is possibly going to make things worse. Exasperate internal bleeding, move to bullet someplace more dangerous etc.
The biggest factor is this though. 911 is not just to report an emergency, but to get advice. If she should do CPR, ther 911 operator should tell her to.
I am a 25+ year nurse and I can tell you that my advise in this situation would be to control the airway, apply pressure to the wound and pray for the medics to not be on coffee break. Unless you have the training to rig an occlusive one way dressing for a sucking chest wound.
If he was shot in the upper left chest then all CPR may have done was pump more blood into an Hemithorax.
CPR is only needed if the person does not have a pulse or you can’t detect a pulse, period. Breathing is a different aspect of the cycle.
+ Pulse + Breathing = Normal
+ Pulse – Breathing = Breathe for them
– Pulse – Breathing = CPR
– Pulse + Breathing = Basically doesn’t happen.
Hemithorax is a collapsed lung due to blood filling the lung space.
ABC’s: Reaffirming your point. If he is breathing and if he has a pulse… even thready… no CPR is needed. If either stops… you HAVE to start CPR because in 5 or so minutes it won’t make a difference since brain damage will set in. Keeping a sucking chest wound occluded at least may give some functionality to the lung if no pneumothorax.
Did she Swiss cheese the guy with multiple shots?
Not that I have heard. I could be wrong but from what I have read it was one shot to the upper left chest. Not the best place. In that area the severity of the wound would be determined by how far midline the shot was, close to the breast bone is very bad. Further away from the breast bone you are moving away from the heart and major vessels so better chance of survival.
Reminds me of the Christopher Roupe case in Euharlee, Georgia. Female cop with male partner were trying to serve a warrant, and a 17 year old boy opened the door and the female cop shot him in the chest, point blank. Claimed he had a “gun” in his hand. No gun was found, family said he had a wii controller.
Police can be amazingly careless. Mark Steyn discusses this from time to time.
I notice you you conveniently leave out that Officer Gentry was cleared by a Grand Jury.
Gremlin, go send one of your children to the door with a WII controller in his hand.
The grand jury will clear whoever.
Hey, your cop hate is showing you may want to cover that back up.
that’s not cop hate. that’s accuracy. Look, there are a lot of times that cops shoot and shouldnt have. Remember the one where that young man was on his hands and knees and was being made to CRAWL to the cops?
he was wearing basket ball shorts and he was crying and begging them not to shoot him.
one shot him
https://youtu.be/n1pJe_Tcdeg there’s the video link.
and was cleared by a grand jury.
that kid left behind 2 children because a jackass cop was afraid that a young man had a bazooka in some basketball shorts.
on his hands and knees with 5 cops pointing weapons at him.
so no. I don’t have much sympathy for officer. She made the wrong call and now someone is dead by her hand.
it would be different if she hadn’t walked into his apartment but you have to have the mental acuity of a turnip to forget where you live and not check the apartment number..
Funny I always heard that half assed lawyer could get a GJ to indict a ham sandwich.
A ham sandwich absolutely. Just not a pig.
Or the case of the guy in NYC who pulled out his black wallet in darkened hallway to show ID and was Swiss Cheesed by SWAT. “Be care out there…”
Thanks for this. I live in DFW and you will not find this kind of analysis in the local media here. When the recording was first released, all you could read/listen to was superficial crap.
Based on this 911 call alone the pursuit of a murder charge is too high a bar for the prosecution to clear. They should have resisted political pressure and stuck with the manslaughter charge. In fact, even manslaughter could be too high a charge.
Some people here are trying to maliciously place yourselves inside the mind of this cop, saying crap like she made this up on the fly to get out of trouble. If you can listen to that 911 call and think that speaks to your depravity and hatred of law enforcement. If I was on the jury and heard that call I would immediately stand up and tell the court there is no need to continue because there is no way I am going to return back a guilty verdict on a murder charge.
The Dallas county DA hates cops. Full on SJW/BLM. No fair trial will be had here. They need to move the trial.
with respect to the statement “based on this all alone”… but you can’t ever base a case on just one piece of testimony, especially a secondary piece of evidence like the phone call. (It’s not direct evidence of what happened, it’s evidence of what the accused was saying about it a short time after it happened)
A trial will establish whether other evidence directly contradicts it. For example: the door locks on those doors are sophisticated, they actually have an electronic chip built in that records any time a key is used. Investigators confiscated the lock mechanisms from both his apartment, and from hers. Those records are sealed, but presumably were presented to the Grand Jury.
What would one think of this phone call if the key lock evidence says that first she went to her own apartment, and then she went upstairs to his, carrying her gun? I don’t know if that’s true, of course – but it hasn’t been ruled out yet, either.
I understand what you’re saying, but what you are stating is highly improbable. Also, based on the facts ad presented the officer indicated she got off on the wrong floor, not that she went upstairs then back down.
There might be more evidence that must be examined, but I believe this evidence is so exculpatory for the defense. Remember, it is the prosecution which must present overwhelming evidence beyond all reasonable doubt, not the defense.
We aren’t talking any sort of premeditated murder, but rather probably depraved mind/depraved heart 2nd Degree Murder, which essentially requires some sort of negligent, maybe even grossly negligent, behavior intentionally done, that caused a death. Classic example is shooting into a crowd, where you aren’t aiming at anyone in particular, but rather just throwing the dice and taking your chances that you will hit someone. Here, she intended to shoot a shadowy figure based on her (mistaken) belief that it was her apartment he was in, and that he had failed to respond to her verbal commands, but probably didn’t intend to kill him. Was her behavior reckless? Maybe, esp since one thing that people are taught in shooting is to identify your target before shooting it. Was it reckless enough for 2nd Degree Murder? That’s what juries are for.
Let me add that recklessness is one of the reasons not to drink and carry. You get enough alcohol in you, and you seriously risk turning what might have been manslaughter into 2nd Degree Murder, and may even lose a self defense defense, since you may be unable to argue subjective reasonableness.
Here is the Murder statute:
Texas Penal Code – PENAL § 19.02. Murder
(a) In this section:
(1) “Adequate cause” means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.
(2) “Sudden passion” means passion directly caused by and arising out of protvocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.
(b) A person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or
(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
(c) Except as provided by Subsection (d), an offense under this section is a felony of the first degree.
(d) At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.
Note, in particular, (b)(2): (b) A person commits an offense if he:(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual
Thus, three initial elements:
1) did she intend to cause serious bodily injury when she shot the guy? Hard to argue that she didn’t.
2) was her act clearly dangerous to human life? She shot him center mass, as she was trained to do.
3) did he die? Yes.
This is why it probably wasn’t just manslaughter, and to keep from being convicted, she needs to establish some privilege for utilizing lethal force as an affirmative defense (see my posts below for some of the relevant TX statutes).
Where do imagine the legal justification of self-defense fits into that statutory framework?
After all, everyone who kills someone in lawful self-defense also fulfills those statutory elements of murder–yet is free of criminal liability.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
http://lawofselfdefense.com/
My understanding of self defense (etc) (which I thought I got from reading your articles and book) is that self defense (etc) is an affirmative defense to a crime of violence, up to, and including, murder. As an affirmative defense, that means that even if a prosecutor can prove the other elements of a crime, they also have to prove that the affirmative defense is not available as a license to perform the act that is otherwise proven.
I think that this is more complicated than it probably should be. The defendant here appears to have committed the crime of murder, having satisfied the three elements of the offense (see above). The question then is whether the shooting was legally justified. So, traditionally the state proves the three elements of Murder, and the defendant then asserts that the killing was legally justified. The complication seems to be that most (all now?) states now require prosecutors to disprove the asserted legal justification for the use of force beyond a reasonable doubt so negating the legal justification for the use of force now appears to be one more element that prosecutors need to prove (assuming that sufficient evidence can be introduced supporting the legal justification for use of force). You would know better than I whether some states still phrase their jury instructions to only ask about, for example, self defense, if the other elements of the offense have been proven beyond a reasonable doubt.
It is never objectively reasonable to enter someone else’s under the mistaken impression it is your own. Unless you are a child or cognitively disabled or blind, you have a duty to yourself and society to not enter the homes of others. Too drunk, too high, too stupid tired means you are negligent.
Temporary impairment may be an explanation but it is not an excuse for negligence.
So, you live in a multi-story building in which a common elevator opens onto identical corridors on each floor. You get off the elevator, turn right, walk down to the third door on the right and enter. Why? Because this is where your apartment is located on your floor. How often do you reach the apartment number on the door? Probably never. And, as most apartment building either do not allow personal decoration on the outside of the door, all the doors look alike, except for the number on it. Would you say that it is possible to accidentally enter the apartment directly above or below yours in such a building, if the door was not unlocked?
Sp far, there has been no evidence presented that Guyger knew she was entering an apartment other than her own. No evidence has been presented that she even knew Jean, let alone had any reason to harm him. So, what this appears to be was what it has been presented to be, a tragic event which was precipitated by a mistake or false assumption. Whether this will be enough for the jury to acquit Guyger or convict her is still up in the air.
“there has been no evidence presented”
to be clear, there’s been a lot of evidence presented to the Grand Jury, but of course it’s sealed and we aren’t being allowed to know what it is, yet. What gives me pause is that the case went to the Grand Jury, asking for a manslaughter charge, and the GJ looked at the actual evidence and bumped the charge up to murder.
Actually, we do not know that the GJ was presented a manslaughter case and that they, on their own, came back with a true bill for murder. As you point out, we have NO idea what went on with the GJ. We also have no idea what evidence the prosecutor presented. With GJ proceedings, one must always keep the old saying that a GJ will indict a ham sandwich in mind. And, there would be no reason for the prosecution to take a manslaughter case, for which the defendant had already been charged, to the GJ. However, if a prosecutor had a manslaughter case which he wanted to elevate to a murder charge, then a GJ indictment gives him cover.
I have testified before a few GJs. And, unless the jurors ask pertinent questions, the prosecutor totally controls the proceedings. Also, it seems that the longer a GJ has been empaneled, the more aggressive they become in their questioning.
I’ve personally lived in apartment buildings of generic design where every floor was essentially identical, and mistakenly getting off the elevator on the wrong floor was not at all an unusual experience. Even walking down the hallway that was essentially identical to my actual floor and trying to work my key into what I thought was my apartment door happened more than once.
I expect the defense will be presenting a great deal of evidence on this factual issue at trial.
At least, they’d better.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
Interesting thought on entering a “wrong apartment”
I have often tried to open someone else’s car in the parking lot mistaking it for my car – mostly due to being absent minded/not paying attention – especially since several times it has been a different model with the only similarity being similar color and and SUV.
Yea, getting older sucks doesn’t it? LOL, trust me I know.
Even with houses, they are often exactly identical either to the one next door or to the one two doors down, and sometimes even to the one in the same position on the next block.
Guyger’s arrest warrant by the Texas Rangers said both apartments on the inside and outside “are in most ways identical or extremely similar”. The door was not shut, the lights were not on when she went in. Would you not have any anxiety and confusion after a long day of work, or would you be 100% absolutely guaranteed sure you were in the wrong place in a building that basically had no discrepancies?
I’m not taking her side, I’m saying it’s not as much of a stretch as you think it might be.
That humans engage in negligent situational awareness on a regular basis doesn’t make it reasonable or less negligent.
Pay attention to where you are, as this case illustrates, lives depend on it.
Um, yes, it does. The definition of reasonable and non-negligent behavior is how “the man on the Clapham omnibus” would behave in the same circumstances.
If I found my apartment door ajar, police or not, and I didn’t have my family in there, I would retreat to a safe position and call 911 for help. One way in, one way out. Have your gun drawn.
How about we get some more information. It may have been included in earlier posts, but we need to know what time of day or night this occurred. The above post says 12-hour, but also says 14-hour at one point. Which? And what were the scheduled hours of her shift? How long (weeks, months) had she been on that shift? Did she go someplace between getting off shift and getting home?
I would also be interested in knowing what her assignment was that day that made her so “exhausted” that she drove to the wrong level of the parking garage. Are the spaces in the garage assigned to the tenants?
I ask all this as one who has experience in this kind of thing. The work schedule/time-of-day is relevant to her mental state, as is the nature of the work she had been performing.
And Milhouse: On-duty or off, cops are cops. They don’t forget or have their memory erased (like that thingy in Men In Black) when they leave the building. They react as trained to perceived crimes and emergency situations the same when they come across them.
The reference to a 14-hour shift was an error on my part. 12-hours is, I believe, the correct shift duration. Since corrected.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
http://lawofselfdefense.com
I am wondering if retreating from the apt. will be brought up. Since she was between the guy and the door…
So sad.
Retreat won’t be a legal issue in Texas, it’s a “hard” stand-your-ground jurisdiction.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
http://lawofselfdefense.com
She had completed a 12 hours shift, which I believe is the normal operational shift in Dallas. But, she had a late arrest which resulted in after shift overtime. I have read that the shift plus overtime was approximately 15 hours straight. I am not positive about this, though.
They are not, however, when off duty, “expected to have a presence of mind to know where [they] are and what [they]’re doing”. Off duty means off duty; they are expected, when off duty, to relax — with the aid, if they choose, of lawful substances suited to that purpose — and eventually to sleep so they can return the next day to duty and to the presence of mind that demands.
WRT sucking chest wounds; I used my hand once. Then somebody gave me a hamburger bun bag to get a better seal. The guy lived.
Cool. Very cool.
I’m not sure “cool” is the way I would describe it, but it was a damn good job, lol.
Andrew, I seem to recall, and admittedly I haven’t seen anything about this recently, but there seemed to be a gap between her shift ending and her arriving at the apartment complex. Was a blood alcohol test taken after the shooting? What were the results? Would it change the situation if this officer had stopped at a bar for a post-shift drink or two?
I don’t know if Guyger was tested for alcohol or drugs. She certainly doesn’t sound drunk on the 911 call.
If there is evidence of voluntary impairment of any kind, however, it would certainly devastate any defense based on reasonable error. There’s no provision in the law for “reasonable drunken error.” If she was drunk and made poor decisions as a result, that’s going to be on her.
But again, I’ve seen no evidence indicating impairment, so unless the prosecution surprises us with something, that path seems unlikely.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
http://lawofselfdefense.com
I read three or four article which said that blood had been drawn from Guyger, following the shooting. I have no idea what the results of that were. However, if she was significantly impaired, that would usually work against a charge of either 1st or 2nd degree homicide, without huge extenuating factors.
So, I do not think there is anything in her blood work which would iompact this case.
I can’t imagine them not drawing blood on her, especially given that she was employed by the PD at the time.
Either a door was ajar or her key worked where it shouldn’t. I haven’t been able to figure out whether she needed a key to get onto the (correct) floor AND her apartment. If the key is generic to hall doors, or whatever the arrangement is, the hall door wouldn’t need to be ajar.
It seems pretty clear Jean’s apartment door was ajar.
But I’m not clear whether a faulty key operation which would encourage her to think she was in the right place actually happened. If so…?
The problem is with the word “ajar. Ajar usually evokes a picture of the door standing open having a visible gap between the door and the frame stop, or even larger. While the door might not have been closed tightly, it is also possible that the door was tightly closed, but not locked. In such a case, it is possible that Guyger inserted her key and turned the door knob at the same time, which may well not have a separate lock, and the door swung open. From there several things could have happened. Exactly what those things were, will determine if the jury feels that the shooting was not criminal.
Personally, I believe that Guyger will likely be found guilty of manslaughter. Unless some surprise defense evidence surfaces at trial.
I do not envy the Juries job on this one.
This will be a complicated case for the defense.
In the first place, as the apartment was not hers, she does not automatically benefit from the Texas defense of property statute. So, the defense will have to convince a jury that she THOUGHT she was acting in defense of her own domicile. Then you have the timeline. As she gave verbal commands to Jean, to which he allegedly did not respond, how much time elapsed between the first command and her first shot? This brings up her prior training. If she was acting as a LEO faced with an assumed burglary in which the assumed perpetrator was still on scene, how closely did she follow accepted practice? Did she have a reasonable fear if imminent attack?
Her problem is that she shot and killed a man who was lawfully in his own apartment. This is a homicide. If lawful self defense does not apply, then all that remains is the degree of the homicide involved. Capital homicide is off the table, as the act would likely have been legal except for negligence on the part of the defendant and she can likely prove that she caused the death under the immediate influence of sudden passion arising from an adequate cause. This leaves manslaughter and criminal negligence. Manslaughter requires recklessness and criminal negligence only requires unusual negligence. I can see a conviction for criminal negligence as being very likely and one for manslaughter being within the realm of possibility. I do not see much chance for an acquittal, unless the defense has some bombshell evidence to present at trial.
Great summary. I totally agree. In my state, it’s voluntary or involuntary manslaughter, if murder counts don’t stick.
To me, a accident, and it is directly attributable to her training, end of shift, and that she is a female officer. Female officers HAVE to resort to force equalizers much faster than male officers. The old joke about don’t hit a female cop or run from a fat cop… both will shoot. A normal male cop will run you down and fight and would also grapple for a bit… just because they can.
This was a horrid, preventable, but VERY human tragic accident. A lot of if only this or that, and for sure… but life is snap judgements. Had the victim been a english speaker, he MIGHT have been able to understand his predicament sooner, but even the language / culture may have not given him the time to react in a way that would given her pause to shoot. It may have been a ” hands up”… pow pow, for all we know. She needs a trial outside of Dallas though… they hate cops and are full on PC/SJW/BLM around here and the DA is .. well… no fan of cops.
Whoa! Did I miss something? The victim wasn’t an English speaker?!
Yeah, nevermind that assertion. I read it somewhere a year ago he didn’t speak English well, but I cannot find that now. In searching, I find that is surely not true as he was from St. Lucia and they speak English there. My apologies on that aspect.
“that her key-card appeared to function normally to open the door, etc.” It was ajar, which to me means not closed. Why use a keycard on an open door? Any thoughts Andrew?
CT
Because it may not have been obviously ajar, and she may not have realized it was ajar until after she used the card swipe. It depends on whether the swipe was on the door or next to it.
I do this with my office door all the time because I find it annoying to have to pull out my keys and unlock my door when I have only been 3 doors down and had the door in my sight the entire time. But my company policy is that doors must be closed and all doors remain in the locked position. So there is a sweet spot on my door where it is “closed” but not so much that the catch can engage and the handle remains in the locked position, but I can push it open with a toe if I am carrying stuff.
I’ll just say, if I believed she genuinely, honest-to-God, went into that apartment believing it was hers, subsequently responding with her defense reflexes, I would not consider her guilty of murder. It is purely because I don’t think I can make such an assumption outside a courtroom, with opposing counsel testing the evidence, that I do not take that stance. I hope we at least get an articulate reason why it was bumped up to murder by the time this is done.
It could be legal. Could. I agree with that. But I will not assume that it is, or should be.
As a non-legal eagle, it seems like it SHOULD be textbook manslaughter to me.
In no way should this ever pass as lawful self defense…awful but lawful my a** (no offense Andrew)
I agree with that view completely – if things happened the way she says they did, it looks like a pretty clear manslaughter case (at most).
“IF”.
Nobody’s mentioned this: according to the prosecution, what was her purported motive in maliciously shooting the victim? That hasn’t been made clear, has it?
I see two issues here. One ALWAYS lock your door. And two, it appears that today’s cops have a tendency to shoot first and then file their report. Did the homeowner threaten her? Did he make any threatening gestures towards him? Just seeing someone in your home, giving her the benefit of the doubt, is that reason enough to kill them if they were not threatening you? What if he had been the apartment maintenance man? They have a key to all apartments. Could she legally kill the maintenance man? I can see why this is called awful but lawful. I personally think it should take a little more to kill a person than seeing them in my Home”. Wouldn’t the first thing you would ask this person is “What are you doing in my home”?. Would you wait for his reply before killing him?
Puzzling me as well. I’m waiting for someone in the know to address this.
I think that would depend on the legal aspects of the Castle Doctrine in the state. Andrew can correct me if I am wrong but in many places being in a home uninvited/illegally basically means you are a deadly threat. Now I don’t know how that works if you are the one coming home and finding someone in your home, but I would think it wouldn’t really change anything.
“What if he had been the apartment maintenance man? They have a key to all apartments. Could she legally kill the maintenance man?”
Generally short of a absolute emergency the maintenance man (or landlord) can not enter your apartment without your permission.
And I’m not defending her here, she was wrong and should go to prison, but I want you to consider that she’s a police officer who thinks there is an intruder in her home and that intruder is moving towards her as she walks through the door. From her point of view the intruder is there for her because of her job.
Again I’m not defending her. She’s in the wrong. I’m just pointing out why a police officer might possibly immediately go to shooting upon seeing a intruder in the apartment and said intruder moving towards the officer.
Obviously she was in the wrong apartment and she’s going to have to pay the price for killing an innocent man.
“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 comes from Guyger’s narrative of events.)”
My problem there is that seeing a shadowy figure, giving him verbal commands, and him not being compliant wouldn’t normally get you to self defense. Where is the reasonable fear of imminent death or great bodily injury? (Or however you break it down) No facts yet in evidence that she was in any fear, not even getting to whether it was reasonable. Rather, from what we have here, she seems more like she was operating like a cop, expecting compliance to her orders, and shooting when the suspect didn’t comply. Except that in most jurisdictions, cops can’t just shoot people who don’t comply with their orders unless there is some danger to someone’s life involved. That is why they have escalation of force procedures. Passive noncompliance shouldn’t justify the use of lethal force.
The only way that I can see her use of lethal force be justified is if the Texas Castle doctrine is so strong that you can use such on a nonviolent trespasser in your home. But, of course, it wasn’t her home. The assumption seems to be that being in your home is part of the Mens Rea of this defense. But possibly the theory that the state is using is that it is more jurisdictional in nature – this defense is available if you use lethal force in your home, and not if you aren’t, and she wasn’t.
Let me also add what is probably obvious here. She used lethal force against someone that resulted in his death. Because she intentionally shot him, even if not intending to kill him, so I think that you get to murder, and not manslaughter. Probably second degree, since there is no evidence of premeditation or anything else that would raise it to first degree. This is where a legal justification for the use of lethal force comes in. If she cannot at least introduce some evidence supporting such a legal justification, then she is probably guilty of the underlying offense. I don’t think that self defense would work for her as a legal justification for using lethal force here in most states (see above). But this is Texas…
“commands, and him not being compliant wouldn’t normally get you to self defense. Where is the reasonable fear of imminent death or great bodily injury?”
Castle Doctrine?
Here are some relevant statutes:
Texas Penal Code 9.32 – Deadly Force in Defense of Person
(a) A person is justified in using deadly force against another:
(1) if the actor would be justified in using force against the other under Section 9.31; and
(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
(A) to protect the actor against the other’s use or attempted use of unlawful deadly force; or
(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
(b) The actor’s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the deadly force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
Texas Penal Code 9.41 – Protection of One’S Own Property
(a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property.
(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:
(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or
(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.
Texas Penal Code 9.42 – Deadly Force to Protect Property
A person is justified in using deadly force against another to protect land or tangible, movable property:
(1) if he would be justified in using force against the other under Section 9.41; and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.
A couple notes. 9.32 essentially requires that the other person either be threatening the use of deadly force, r the commission of one of a list of violent crimes. Not relevant here.
9.41 and 9.42 (defense of property) are limited to a person in lawful possession of land or tangible personal property. The defendant here was not in lawful possession of the real property. She thought that she was, but was not. Which gets me to my question above, whether this is a jurisdictional element, or part of the Men’s Rea. Does mistake of fact matter here?
There are a couple of things that bug me about the situation and the 911 call didn’t help. Yes, Guyger said over and over again while on the phone with 911 that she thought she was in her apartment…but she never once said to the 911 operator that Jean had done anything threatening, menacing, inappropriate, objectionable, improper, impolite, uncouth, or untoward. She also never said she thought Jean was a murderer, rapist, thief, litterer, jaywalker, or anything worthy of fear. But she did manage to assert over and over again that she thought she was in her apartment…as if that’s the only element needed.
As for Texas and the Castle Doctrine, I recall from my law school days that some states had an extra caveat to defense of others cases. For some states it wouldn’t be good enough that you actually and reasonably believed the use of force was necessary to protect a third party, it actually had to be necessary. So if you saw someone being stabbed to death by a crazed lunatic and you shot the attacker, all is good unless it turns out it was all an elaborate YouTube prank…in which case you’re screwed. If it’s not the rule now, I could easily see it soon being in at least one of those jurisdictions that you can’t mistakenly be in someone else’s home and be able to assert the Castle Doctrine.
I’ll end with a short anecdote about a family friend who was at her home alone when suddenly a naked man came running into her house screaming, “they’re after me, they’re after me, they’re trying to get me!” Without hesitation she said to the intruder, “quick, hide under the bed!” And wouldn’t you know it, he did and stayed there until the cops arrived.
Andrew actually goes into this in his class (Which I can not highly recommend enough if you chose to be armed).
Some states the law is that you are judged based on what your perception was when seeing the situation. In that case the Youtube stabbing prank shooting would be justified.
However, in some states you are judged based on what is actually happening, so in that case shooting the Youtuber would not be justified.
Defense of others has always seemed very problematic to me on the surface, unless you are there for the beginning of the confrontation and sometimes even then.
I think Andrew used the analogy of coming upon 2 people struggling, one male and one female. The male gets the upper hand an draws a gun. In defense of the female you shoot.
Scenario 1: You just shot an undercover cop who was trying to restrain a drug mule who happened to be female.
Senario 2: You just shot a rapist who was trying to kidnap a poor lady.
So yea that’s a hell of a choice to base your freedom on.
My advice is unless it is a close loved one, keep it holstered scream and call 911.
This why we base most of our jurisprudence on the reasonable man standard.
In the case of the man struggling with the woman and the man draws a gun and appears to be on the brink of shooting the woman, what would a reasonable man reasonably assume? The truth is irrelevant here. It is all about a reasonable perception.
The kicker is that the reasonable perception may not be accurate. What to do? Well, one thing that can be done is to give the gun handler clear instructions to cease. The key here is clear instructions. If the man does not respond and the threat remains imminent, then action might have to be taken.
The problem, which untrained or poorly trained individuals most often face, is that they immediately commit to an irreversible action, which may turn out to be incorrect. That’s why the bedrock of training for the use of deadly force is patience and learning to think like a “reasonable man”. Though this will not totally shield you from post action legal problems, it can go a long way to reducing them.
Well put, agree 100%
3 + 4 = 8 is a mistake. Entering the wrong apartment on the wrong floor, killing the legal occupant is/should be criminal. Using deadly force at any time must require a greater level of care than normal. One of the Cardinal rules of firearm handling is to sure of your target, darkened room, can’t be sure, back out. This doesn’t sound like a threat of imminent danger.
Very unfortunate situation, but taking human life is final.
I would like to know what were the commands she gave that the victim did not comply with? What was the distance separating them, and did she have a reasonable fear that he was an immediate threat to her life, or would inflict great bodily harm? Unless she can answer these questions satisfactorily, the “wrong apartment” defense may save her from a murder charge, but not from a manslaughter conviction. On a side note, while I have great respect for the job performed by all LEO, and that they put their lives on the line every day, it seems that in recent years, some are too quick to fire their weapon, when there might be other ways to de-escalate and control a situation.
I think it’s likely she freaked out and her “commands” may have sounded like, “POLICEGETONTHEGROUNDGETONTHEGROUND!!!!” Bang!
It was dark in the apt…the poor guy probably had no idea what was going on…
Why was this guy up and around in a darkened apartment with the all the lights turned off… and the door ajar? I don’t think we’re getting the full story here.
I hope she gets a ‘Death’ Sentence! and She is apologizing to a man who was still alive and failed to render aid!
‘RDMDAWG’ ~ It doesn’t matter if the door was wide open and dark.. You still don’t have a right to just walk into a residence…The Full Story is DPD is covering for an officer… Laws for Thee but not for me….
I am not justifying her shooting the guy, but there is no evidence that she failed to render aid. She could have been on the phone, reassuring him and applying pressure to the wound, which would be an appropriate response. We don’t know and there is no reason to jump to conclusions based on speculation.
Like I said earlier everyone had George Zimmerman convicted and on death row (notable exception being this web site). Then the trial happened and when all the evidence came out the story was completely different than the narrative.
One witness even testified that she saw Zimmerman on top of Martin and that she saw Zimmerman shoot Martin in the back. Granted she was obviously the mentally unstable crazy cat lady.
You’ve never walked through your place of living in the dark? Ever?
You’ve never forgotten to lock the front door? Ever?
You’ve never forgotten to close the front door all the way? Ever?
It’s his apartment. He doesn’t have to have the lights on.
Hah! I never said the poor guy deserved it! I’m casting doubt on the story we’re being fed about the ‘mistaken apartment’.
Who are you to ask what a person does in their own home? He can walk around in the dark naked if he wants to, with the door ajar, and it violates no one’s rights. This is an awful case but anyone who carries a gun must not shoot at the first sign of trouble. All she had to do was to back out of the door and yell for the man to come out. Instead, she shoots a man in the shadows for no threatening reason. Like the idiot cop in MN who shot the Australian woman who had called the police to report a possible rape, she needs to go to jail.
It’s astonishing how much you missed the point I was making.
I moved into a new apt building a few years ago and met my catty corner neighbor in a weird way. Front entrance had stairs at the right and left. There were three floors with four apartments/doors on each floor. I went up the other staircase than I usually did and in coming up the stairs turned to my right and inserted my key. Door wouldn’t unlock so I cranked it and banged a couple times. I then realized my error and turned around bolting for my own door. Just then he popped his head out with a puzzled look and saw my sheepish grin. Going to the wrong door is certainly an honest mistake. The events surrounding the shooting, I am not qualified to make a determination.
I’ve been disappointed with this whole thing.
TURN ON THE LIGHTS?? Ok, arriving at the wrong door is possible, but how long would it take to determine something is very wrong when all the furniture and interior decorating is incorrect?
Then is the first response for a police officer with the responsibility to carry a loaded weapon to shoot someone that seems out of place? If Botham Jean had been in her apartment for some reason… apartment manager responding to a complaint??? Then shooting him would have just been an unfortunate misunderstanding?
Shooting someone with the intent to kill should only be taken as a last resort. No wonder we have the “Black Lives Matter” movement.
Oh, and when did she realize something was wrong? Did she determine something was amiss and choose not to turn on the lights for some silly reason? At that point she should have taken 2 steps back and called dispatch, keeping an open channel.
Of course we are still missing drug tests on both people. There were reports of drug paraphernalia in Botham Jean’s apartment, but no reports on whether either or both individuals were intoxicated (which could lead to altered reality for either or both).
And, wow, poor handling. Possible murder, and she is allowed to go home under her own recognizance, and clean her house? And, she is still out on bail on a murder charge?
Then we get to the 911 call. The disturbing thing about the whole call is a complete lack of interest in administering first aid.
Do DPD officers have first aid training? 911 operators?
Start with the ABC’s. Airway, Breathing, Circulation, etc. The guy’s been shot. Obviously internal bleeding is difficult to deal with, but is there any external bleeding that can be controlled? How’s the pulse? Is he shot in the heart, lungs, muscle, etc? For lung wounds, seal the wound to keep air out??? Pressure, perhaps lots of pressure.
And, obviously monitor for changes in condition.
If she can’t do it alone, then recruit some neighbors to assist. Clean Towels? Something to “seal” the wound? There was a question about building access… perhaps send a runner to direct the first responders and make sure the doors are open with assistance getting to the apartment as quickly as possible. Garage access?
He may well need a big bore IV very quickly… so be ready for that. Shirt off, access to the wound?
Nope… The 911 call is all about worrying about whether or not she will be fired.
One would think the first aid training for anybody carrying a gun with the intent to shoot people would be extensive, and specific to gunshot wounds. Perhaps part of 911 triage would be to have experts that can assist with those vital first moments.
I agree with the first half of your post. The use of deadly force should be a last resort. And, it has been my experience that in the last 15 years, LEAs have been liberalizing the use of deadly force in their training. Another thing which is lacking today, which was taught in the late 1970s through the mid 1990s was movement. LEOs were trained to move away from a threat, either laterally or sometimes backwards. Now most training has reverted to that of the 1950s and 60s, standing flat-footed and shooting an potential threat.
In this case, I do think that the defense will be able to show that the shooting was, in fact, strictly necessary.
Now as to post shooting behavior, Guyger’s actions are not unusual. There is a lot of trauma involved in the use of force by a LEO. In the first pace, LE psychological testing weeds out people who are the least likely to suffer traumatic stress disorders. And, in an unexpected shooting situation, the confusion becomes even greater. People will tend to fall back on their last, best training. However, most LE training for shooting situations ends with the shooting. First aid is not stressed. And, most LE first aid training is little better than administering CPR and using direct pressure to stop bleeding. So, when you take into account fatigue, traumatic stress and adrenaline withdrawal confusion is natural.
Edit: “In this case, I do think that the defense will be able to show that the shooting was, in fact, strictly necessary” should read “In this case, I do NOT think that the defense will be able to show that the shooting was, in fact, strictly necessary”.