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Kim Potter Trial: Manslaughter Charged in “Taser! Taser! Taser!” Shooting Death of Duante Wright

Kim Potter Trial: Manslaughter Charged in “Taser! Taser! Taser!” Shooting Death of Duante Wright

Ironically, Potter would likely have been legally privileged to shoot Wright, had she done so intentionally.

Tomorrow morning begins the jury selection in the Minnesota trial of former Brooklyn Center Police Officer Kimberly Potter, on charges of 1st and 2nd degree manslaughter for April 11, 2021, shooting death of criminal suspect Duante Wright, whom Potter shot in the mistaken belief that she was wielding her less-than-lethal Taser electroshock weapon.

The shooting and immediately surrounding events were captured on Potter’s body camera.

Uniformed officers initially pulled Wright over for driving a vehicle with expired license tags. The officers discovered that Wright, 20 years old, had an outstanding arrest warrant during the stop.  It’s my recollection that the underlying offense was a weapons charge.

As Wright was about to be handcuffed while standing by his car’s open driver’s side door, he suddenly began to resist arrest violently.  He dove back into the vehicle, scrambling around, and ultimately was in a position from which to drive the car.

Potter had been hanging back and observing the arrest until Wright began to resist violently.  She was reportedly present in the role of a training officer, and at the time had 26 years as a police officer.

Potter approached the driver’s side door of Wright’s car, threatened to tase Wright, pulled her Glock 17 service pistol, shouted “Taser! Taser! Taser!” and then fired a single 9mm round into Wright’s body.

At that point, Wright took off driving the vehicle, making it a few blocks before crashing to a stop. He would be declared dead at the scene.  Immediately upon Wright’s departure from the scene, Potter can be overhead stating, “Holy shit, I just shot him.”

Initially, it seemed that Potter would face no criminal charges in this event, as then-Police Chief Tim Gannon characterized the shooting as a tragic accident.  On Tuesday, April 13, 2021, however, Chief Gannon and Officer Potter resigned from the department. On Wednesday, April 14, 2021, Potter was charged with second-degree manslaughter under § 609.20(2), a felony that carries a sentence of up to 10 years.

That charge was supplemented on September 2, 2021, with an additional count of first-degree manslaughter predicated on reckless use of a firearm, under § 609.205(1), a felony that carries a sentence of up to 15  years.

Both of the crimes charged are predicated on a mental state of recklessness.  That is, prosecutors do not claim that Potter intended to shoot Wright.  Rather, they argue that by drawing her Glock 17 from the holster on the right side of her duty belt in place of the Taser placed, as required, on the left side of her duty belt, Potter created an unreasonable risk of causing death or great bodily harm, and consciously disregarded that risk.

The degree of risk being deadly in nature and the conscious disregard of that risk differentiates recklessness from mere negligence.  Where recklessness is a valid basis for a criminal charge, as in this case, mere negligence would warrant only a civil suit for damages and not create criminal liability.

I expect that Potter’s legal defense will be either that her conduct was at worst mere negligence so that there ought to be only civil and no criminal liability, or even that her conduct qualifies as a genuine accident to which neither civil nor criminal liability attaches.  Accident is a genuine legal defense, much as self-defense is a genuine legal defense.

That said, a legal defense of accident in cases involving firearms is difficult, because firearms are inherently dangerous instruments, and thus the standard of care is very high. For practical purposes, unjustified death, injury, or risk created by the handling of a firearm is treated as a strict liability offense and is inherently criminally reckless (absent some intervening event outside the gun handler’s control)

Certainly, Potter’s black Glock 17 pistol and her bright-yellow Taser are not difficult to distinguish under normal circumstances. They are worn on opposite sides of her duty belt, with the Glock by her dominant-side right hand and her Taser by her “weak-side” left hand.

The scene of Wright’s arrest, however, was arguably not a normal circumstance, at least not once Wright began violently resisting arrest, presented himself as lunging into the car perhaps for a weapon (his outstanding arrest warrant was, I believe, for a weapons charge), and then positioning himself to drive wildly from the scene, in effect preparing to use the car itself as a weapon.

I expect that the Potter defense will argue that her conduct might qualify as reckless in the coolness of 20-20 hindsight, but that Wright’s contribution to the chaos by his violent resistance to a lawful arrest is an important aspect of the totality of the circumstances that ought to mitigate Potter’s mental state to something less than reckless.

Interestingly, under the totality of the circumstances, it seems likely that Potter would have been privileged to use deadly force upon Wright, had she done so intentionally in the belief that Wright had re-entered the vehicle to access a weapon or intended to use the vehicle itself as a weapon.  In that case, the appropriate justification for the shooting would be self-defense and defense of others.  Because Potter so clearly did not intend to use deadly force, however, self-defense would seem to be off the table, as self-defense is an inherently intentional act—one cannot commit an act of accidental self-defense.

This case appears to be pushed aggressively by the Minnesota Attorney General Keith Ellison, who was also a prominently featured personality during the trial of Police Officer Derek Chauvin over the death of George Floyd in Minneapolis.  Brooklyn Center, where Potter was a police officer and she unintentionally shot Wright, is a nearby suburb of Minneapolis.

And that’s about where we are at, as jury selection in the trial of Ms. Potter is set to begin tomorrow.  We hadn’t initially planned to cover this trial in real-time because the judge had refused to allow news cameras in the courtroom, but she recently reversed that decision.

Accordingly, we’ll be live commenting and live-streaming this trial every day at Legal Insurrection, much as we did the recent Rittenhouse trial in its entirety, as well as the chunk of the Ahmaud Arbery case trial that did not overlap with Rittenhouse.

We’ll also be providing an end-of-day wrap-up analysis of each day’s proceedings in the evening, with both live daily coverage and end-of-day analysis expected to run through to the verdict.

OK, folks, that’s all I have for you on this topic.

Until next time:

Remember

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.

 

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Comments

The justice system railroading of this officer is tragic. I completely understand Branca’s legal analysis and agree with it, but I don’t understand why the violent resistance of dangerous criminals is looked at as some kind of noble or even reasonable act by the left. It is a complete perversion of a civilized society that such behavior is excused.

    broomhandle in reply to healthguyfsu. | November 29, 2021 at 9:44 pm

    I understand it. The Left has fabricated a fantasy where racist police officers hunt and kill people for sport all over the country. Therefore, resisting arrest is can be seen as a noble protest against widespread racist murders by police. It’s a game of pretend to project hate and violence against police.

      Yes, a handmade tale of rabid diversitists, but often of the same color a la Mandela’s Xhosa vs Zulu before and after apartheid, Obama’s Luo elite vs deplorables, etc.

    c_programmer in reply to healthguyfsu. | November 30, 2021 at 9:27 am

    The left has a central narrative to maintain: That America is a deeply racist country and all you have to do for bad things to happen is be black. Keep in mind we have a massive organization who’s premise is that America is still having a conversation about whether black lives are important.

    This narrative is not consistent with any evidence or happenings in the past few decades. The left HAS to prop up these dirtbags as saints to bear a passing resemblance to the situation. Anyone who actually looks at the circumstances will think “gee, maybe their lifestyle was the key mover in their demise,” but that is less likely to happen when you depend on the mainstream media. Even the ones like Brianna Taylor who didn’t deserve to die put themselves in a situation where getting hit by a stray bullet is more likely. It is not about race.

    So it’s back to the “shoot first and ask questions later, right?”

This case is one of the reason I think Glocks are utterly idiotic for police officers to use.

The lack of a physical safety, and the conscious act of switching it off before firing, is what causes this and numerous other incidents with police every year.

    Olinser,

    I have to disagree: the first shot is ‘double action’ – requiring a hard squeeze; same with an old revolver; the subsequent shots fire more rapidly.

    In other words, if Kim Potter was armed with an old revolver, the shooting would have been the same:

    https://us.glock.com/en/learn/glock-pistols/safe-action-system

      Bruce Hayden in reply to TheFineReport.com. | November 30, 2021 at 1:18 am

      Not my experience with Glocks, and not what Glock says, which is:

      GLOCK’s revolutionary SAFE ACTION® System provides a consistent trigger pull from the first to the last round. The three automatic independently-operating mechanical safeties are built into the fire control system of the pistol.

      This safe, simple, and fast system allows the user to concentrate fully on shooting without having any additional actions to disengage and reengage safeties. This means it is safe if it’s dropped, and additionally it functions at temperatures from -40° to 122° Fahrenheit.

      While your preference for a 1911.type safety is good theory, the reality is that you train to draw and fire. If you have a 1911 type safety, you train to disengage it before you have completed your presentation. Yes, at the range, you can push out, then disengage the safety and put your trigger finger on the bang switch. But under stress, in a crisis situation, it had better be habit, because if it isn’t, then you are likely to be trying to fire as if your life depended on it, but nothing is happening because the safety is still on.

        I think TheFineReport.com was trying to allude to the trigger reset occuring well before where the fully forward position of the trigger is. What I mean is where normal pre-travel begins when first pulling the trigger or from entirely letting off the trigger after a shot or shots. The striker spring is not fully tensioned in this state. Describing it as double action is a misnomer and doesn’t really convey what is going on from full pre-travel. He ended up phrasing it kind of wanting in clarity.

      The only time I’ve ever used a handgun with a separate safety lever was in the military. When Sig made the 320 model they even created 2 versions of the gun. One with the safety lever for the military and one without. I don’t know of a civilian law enforcement agency that uses a safety now days because in a gun fight it’s not something that needs to be worried about. In this case the on/off switch on a Taser is very similar in placement and feel of a safety lever on a handgun that uses one, so it probably wouldn’t have prevented anything.

        TargaGTS in reply to Chewbacca. | November 30, 2021 at 12:44 pm

        I did not realize the 320 was originally configured without a safety. The new Sig that’s the civilian variant of the M17 (which is based on the 320) does come with a safety. To me, it (the new civilian variant) looks almost identical to the M17.

        FWIW, before I retired, we generally carried M9s (and before that, M1911A1s). We carried the M9s in garrison under Condition 1 (mag inserted, round chambered safety ON). But, the minute we headed outside the wire, everyone who rated a pistol carried it safety-off in the holster for the very reason you mention; it’s just one less thing to worry about in a firefight particularly when your sidearm is your backup weapon. I do know that military police and guards under arms here in the states or other bases carry under Condition 1.

        I’ve never carried a taser. So, I have no experience in their relative hand-feel. Is it possible the presence of non-passive safety would have made a difference? Maybe, I guess. Still, like you, I more inclined to believe it likely wouldn’t have made a difference because of unconscious muscle memory you build; you pull your weapon, you disengage the safety.

      This is incorrect. The “safe action” system sold by Glock is designed to give consistent trigger pulls for every shot. There is no difference between the first shot and subsequent shots. The link you posted says this in the first sentence.

      Olinser is also incorrect: There is an external safety on the Glock. It’s right there on the trigger and is disengaged when you start the trigger pull.

      You are thinking of SigSauer P220/P229 type of pistols (I think CZ has a similar one). One can safely decock the hammer and put the pistol into DA/SA mode. Glock is purely a “my finger is the safety” kind of firearm.

      Also, no revolver that I am familiar with has DA/SA operation.

    mailman in reply to Olinser. | November 30, 2021 at 6:32 am

    Its a mindset issue. Having a different firearm would not have made any difference, even if she had to flick the safety manually. The end result would have been the same (cost reduction to the local community due to career criminal being taken off the street).

    mbecker908 in reply to Olinser. | November 30, 2021 at 11:31 am

    Hogwash. I’m no fan of Glocks but for lots of other reasons. My EDC is a Walther PPQ45, a striker fired pistol with no physical safety. Same “drop safety” that Glock has.

    The reason your comment is utter hogwash is that a Glock probably weighs about three pounds and a Taser about half that. Also, police carry the Taser on the opposite side from their firearm.

    Drawing her firearm instead of the Taser was a complete act of [accident/negligence] pick one. She’d have had the same result with a S&W revolver.

This would be one of those cases where the prosecution would never want me on the jury. There is no way I would convict this woman of anything. Not every mistake is negligence. I don’t care what the peculiarities of the law are. It would vote not guilty all day long, 7-days a week even if that meant jury nullification.

As a side note, I’m close personal friends with a man whose life was ruined because the car he was driving was hit be a felon fleeing police in a high-speed pursuit. That car is a weapon. Period. The only action she should have against her is a letter in her file for NOT intentionally shooting the man.

mere negligence would warrant only a civil suit for damages and not create criminal liability

Why is that? I’m pretty sure that were I, a civilian, to have negligently discharged my firearm, killing someone, that I would shortly be charged with criminally negligent homicide or involuntary manslaughter.

    Char Char Binks in reply to randian. | November 30, 2021 at 6:46 am

    But she was a police officer performing her duty, not some Gomer playing with a gun.

    CuriousJustice in reply to randian. | November 30, 2021 at 8:00 am

    Read the statute quoted in the article. Mere negligence is not the standard for the crime. It’s culpable negligence while consciously taking a chance of causing death or great bodily harm.

James B. Shearer | November 30, 2021 at 12:41 am

“… There is no way I would convict this woman of anything. ..”

How did you feel about the Amber Guyger case?

This kind of thing sort of reminds me of people who accidently leave their kids in hot cars and they roast to death. Maybe just a mistake but a really bad mistake. And I suspect a mistake people will be less likely to make if they know they will be prosecuted for it.

A lot people here were ready to convict Alec Baldwin of something although he seems a lot less culpable than this woman.

    Baldwin is fully culpable for the shooting and elective abortion of an innocent woman and injuring a man. This officer, unlike the Capitol Hill “hero”, shot the man for not plausible, not even imminent, but a probable, and likely immediate, and progressive threat to the viability of the officer(s).

    c_programmer in reply to James B. Shearer. | November 30, 2021 at 9:48 am

    Not OP but I probably would have voted to convict Guyger for manslaughter (not murder which is what she got). Her mistakes were so ridiculously unreasonable she has liability. If she’s not liable then carrying a gun has zero attached responsibility.

    I’m not so sure about this case which means I’d probably acquit Potter criminally. She was objectively in a fight that someone else started when she made this mistake. I think her mistakes were fewer and more understandable than Guygers. The department definitely needs to look at their procedures and training to figure out why this officer was on the streets instead of at a desk. At the end of the day you get the police you pay for so this is probably a consequence in defunding the police.

    I don’t know if I’d vote to convict, without hearing the evidence I’m leaning toward not, but there is absolutely no comparison between this case and Guyger. And Baldwin? Please. Baldwin is 1,000 times more culpable than Potter. If I have to explain why you wouldn’t understand it.

    I can’t say I’m absolutely sure of the facts of that case. If that’s the off-duty officer who entered the wrong apartment (or hotel room, whatever it was), I would say that’s an entirely different sets of facts. In this case, this is an officer who is lawfully attempting to effect arrest on someone who’s committing a felony. She accidentally shot him rather than taze him. My position is discharging her firearm would have been just as warranted for the reason I stated: That car is a deadly weapon. And, as the events of last week clearly demonstrated, a weapon that is FAR more potentially lethal than a firearm, particularly a pistol.

    And I suspect a mistake people will be less likely to make if they know they will be prosecuted for it.

    Unfortunately, this is an assumption, not a provable fact.

    The modern mania for criminal trials of people involved in stupid accidents would rest on more solid ground if there was any reason to believe that law magically makes anyone more careful. In some isolated cases, it probably does. But it’s hard to credit the assumption that any general law against doing dumb or careless things can make anybody become less dumb or careless.

I wonder if the cop failed the first rule..never talk to the cops?
Another perp who thought he was bulletproof.
Should her statements to the police be admissible, was she forced to file a report?

    henrybowman in reply to Elzorro. | November 30, 2021 at 3:56 am

    The minute she said “shit, I shot him” on her own bodycam, she talked to the cops.
    Way back in high school, I internalized the lesson Bill Cosby taught me: “Never say oops!”

You smell that? Smells like a politically motivated prosecution.

Ellis us a very politically motivated AG Let’s see how the evidence develops at trial

Char Char Binks | November 30, 2021 at 6:54 am

She was charged with first degree manslaughter to negate her defense of Mistake of Fact, turning her mistake into criminal recklessness.

The problem is not that this officer is being tried. The problem is that she’s being tried alone. Everyone along the line who put this woman in that position should be tried right along with her. She had 26 years on the job. She was functioning as a training officer. And yet, as I watch the video, I would have thought she was the rookie. She was hesitant and weak as she moved in to oh so gently put hands on the suspect, and then, in a moment, became emotionally unraveled to the point at which she could not tell a Glock from a Taser. Those responsible for hiring her, evaluating her, and letting her loose on the streets for 26 years should be tried, as well. She was clearly unqualified. But, you know…women. Equality at all costs. In this case, the cost of the suspects life, her life, and the Chief’s career. Whatever legislative body decided that it was a good idea to put female cops on the streets of that town would be tried as well, if there were any justice.

Oh, and let’s not forget the male cop, twice her size, that couldn’t manage to exert enough force to put cuffs on a guys he already had against the car with hands behind his back. Maybe they just need to rebuild that entire force from the ground up.

    mailman in reply to aslannn. | November 30, 2021 at 9:06 am

    Mistakes can happen at any time regardless of the size or experience of the people involved. She shouldnt be on trial but it is what it is and now she WILL be found guilty. Democrats in that State have seen to it already.

      It’s not just the Democrats who will likely sit on the jury. It’s the fact she was pretty dang negligent in drawing her firearm from the non-Taser side of her body, sticking up into her line of sight, not seeing it was the wrong color, re-iterating that she was going to Tase the dude, then shooting him.

      I’m sorry, but this woman should be hammered for this.
      While I am normally an “Eh, a bad guy got shot, yay for the good guys” sort, this is just awful weapon handling. Yes, hindsight from my office chair is much clearer than in-the-moment weapon handling. But this is why we expect cops to be well-trained. (Egad, I would drill over and over and over that when I announced “Taser!” I would be reaching cross-body – if my arm wasn’t rubbing my belly I wouldn’t draw.)

      BTW, anyone else notice how far away the driver-side cop was when the car started to roll? Yeah, he had moved 10 feet from the woman in that second and a half.

        iconotastic in reply to GWB. | November 30, 2021 at 11:22 pm

        It seems obvious to me that she panicked. Panic is powerful stuff, which is why police officers with 26 years of experience shouldn’t be the one to panic. Just my humble opinion

      Johnny Weissmuller in reply to mailman. | November 30, 2021 at 10:07 am

      Brooklyn Center is a first ring suburb to Minneapolis, specifically next to the worst ghetto, north Minneapolis.

      In discussing the case with my lefty feminist sister-in-law, I suggested maybe a 46 year old woman should not be in the streets. She was so offended !!

    Olinser in reply to aslannn. | November 30, 2021 at 8:42 pm

    The problem is that exactly as with teacher’s unions, the union makes it INCREDIBLY difficult to fire below-standard officers without long and sustained effort on the part of people that care.

    They probably put her on ‘safe’ training detail because they KNEW she wasn’t a good officer. I’ve seen the same thing happen.

Things get hectic and frantic when a suspect resists and tries to drive off while officers are trying to restrain him. While intently watching the suspect, muscle memory takes over. Over her years on the force, Officer Potter had plenty of muscle memory.

Cops are trained about twice a year with their firearms, drawing and firing many times at each training. Cops are usually trained only once on the Taser, firing it only once. (And yes, I’ve been Tased in training. Ouch.)

It’s perfectly reasonable that Officer Potter grabbed her gun under muscle memory, thinking it was her Taser. A safety on the gun wouldn’t have helped because another part of muscle memory in gun handling is to wipe off the safety as you draw.

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