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 14 12-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

P.S. Wednesday, June 12 is the last day to take advantage of the Law of Self Defense FATHER’S DAY SALE, through which  you can get your Dad a free copy of the hardcover, autographed version of our best-selling book, “The Law of Self Defense, 3rd Ed.” and expect to receive it in time for this Sunday.  Click here for details.

[Featured image is a police mugshot of Amber Guyger.]