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Daunte Wright Shooting Trial LIVE: Day 1

Daunte Wright Shooting Trial LIVE: Day 1

Welcome to our coverage of the Kim Potter manslaughter trial over the April 11, 2021, shooting death of Duante Wright in a suburb of Minneapolis, when then-police officer Potter accidentally used her Glock 17 pistol in place of her intended Taser.

Welcome to our coverage of the Kim Potter manslaughter trial over the April 11, 2021, shooting death of Duante Wright in a suburb of Minneapolis, when then-police officer Potter accidentally used her Glock 17 pistol in place of her intended Taser.

In this LIVE post we’ll provide real-time live streaming and commenting on the trial proceedings throughout the day, starting with Judge Regina Chu welcoming the jury, likely reading them the preliminary jury instructions, and then opening statements by the State and defense. For additional insight into the State’s apparent legal strategy to achieve a conviction in this case, be sure to scroll down below the Live Comments section below.

Live Stream

Live Commenting

For some more detailed background on this event and court proceedings to date, see these earlier posts:

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

Background on the State’s Strategy to Convict on Recklessness

Potter is charged with first-degree manslaughter predicated on reckless use of a firearm, and second-degree manslaughter. The criminal complaint is can be found below, under today’s Live Commenting.

As we have seen in numerous recent politically-charged prosecutions–including the Derek Chauvin trial, the Kyle Rittenhouse trial, the trials of the McMichaels and Bryan over the death of Ahmaud Arbery–the State appears to be basing its hope for conviction on some or all charges brought on a surprisingly broad definition of the legal doctrine of recklessness, a form of mens rea or mental state required for certain crimes, such as the manslaughter charges against Potter.

Generally speaking, conduct is reckless, and thus creates legal liability, when the actor intentionally creates a risk of unjustified death, and then intentionally ignores that risk.  The classic example is that of the drunk driver, who knowingly operates a motor vehicle while under the influence. That conduct is reckless, and if he runs someone over and kills them then the reckless killing is involuntary  manslaughter.

A similarly classic example involving firearms might be that of someone firing a warning shot into the air to disperse some simple trespassers from his property, only to have the bullet enter the 5th story window of a nearby apartment and kill the resident there.

In that example, the intent to create the dangerous circumstances is rather explicit–both the driving while intoxicated and the firing of the shot under presumptively unjustified circumstances are conduct that creates an unjustified risk of death, and the actual driving and shooting is the intentional ignnoring of that risk.

Increasingly, however, I see trials in which prosecutors are trying to cast the next of recklessness in a far wider fashion–and that includes this trial of Kim Potter.

A curious facet of the Potter trial is that it is undisputed that she never intended to create an unjustified risk of death, and never intentionally ignored the risk of which she was unaware.  Nobody was more surprised than Potter when she pressed the trigger of her weapon and she heard a gunshot fired–she having mistakenly presented her Glock 17 9mm pistol instead of the Taser shock device she had intended to use.

Lacking the intent to either create an unjustified risk of death or to ignore that risk unknowingly created, Potter’s conduct might well seem negligent, and thus grounds for civil liability, but not reckless in the technical legal sense.

The Minnesota Supreme Court, however, has made moves in recent years, however, to expand the scope of recklessness specifically in the context of handling firearms.  By recent, I mean primarily 2008, when the state Supreme Court handed down the decision of State v. Engle, 743 N.W.2d 592 (MN Sup. Ct. 2008).  The court’s description of the basic facts of the case is concise, so I’ll just share that here:

On November 2, 2003, Engle, a private security guard, arrived at a St. Paul housing complex to assist a fellow security guard in apprehending a suspected thief.   The suspect attempted to flee, but eventually the guards held him at gunpoint, sitting in the driver’s seat of a stolen car.   Somehow, in the course of removing the suspect from the car, Engle discharged his gun, shooting and paralyzing the suspect.   Both parties concede that the discharge was unintentional.

Engle would be convicted of recklessly discharging a firearm in a municipality, that conviction was affirmed by the court of appeals, and Engle then proceeded to the Minnesota Supreme Court for a final attempt at reversal.

Engle’s argument for reversal was the same as he’d made at trial- that his conduct could not have been reckless as a matter of law, because he never intended the underlying conduct that created the unjustified risk of death–the actual discharge of the pistol.  The firing of the gun was in effect an accidental outcome arising from the physical struggle to remove the suspect of the car.

The trial court reasoned that the relevant legal definition of recklessness in the context of firearms did not require an intent to actually discharge the gun, but merely the intent to engage in conduct while handling the firearm in a manner that it was likely to discharge–in the case of Engle that conduct being the keeping of the gun in hand while struggling to remove the suspect from the car.  The actual discharge of the shot was unintentional, but the holding onto the gun while struggling with the suspect was intentional conduct that created an unjustified risk of death.

The court of appeals would affirm this reasoning and Engle’s conviction, and the Supreme Court would do the same in  State v. Engle, 743 N.W.2d 592 (MN Sup. Ct. 2008).

One can understand, if not necessarily agree with, the public policy rationale for expanding the scope of recklessness in the context of firearms.  The idea seems that firearms, being inherently dangerous instruments, should require an exceptionally high duty of care, essentially a strict liability duty of care.  If you bring a gun into play, you are responsible for any unjustified outcomes of having done so, absent the outcome having been a pure accident without any liability whatever.

Obviously, Potter’s circumstances are distinguishable from those of Engle.

In Engle’s case, he knew he had a gun in hand, knew that he had drawn his pistol in the first place–that was all intentional conduct, as was keeping the gun in hand while struggling to remove the suspect from the car.

In Potter’s case, it seems undisputed that she had no conscious awareness at all that she had presented a Glock 17 pistol or was pointing the muzzle of a pistol at Duante Wright and pressing the trigger of a pistol while doing so–the entire time of her engagement with Wright, Potter believed she was pointing a mere Taser at Wright.

Nevertheless, the State argues that Potter’s conduct can be fairly characterized as reckless handling of a firearm even if she never intended to present a firearm, because Potter did intend to present some weapon, and that intent alone is sufficient intent, in the context of handling a firearm, to qualify as reckless handling of a firearm (the State’s full motion on this issue is embedded below):

Defendant consciously and intentionally acted when she chose to use force and when she reached for, grabbed, and aimed a weapon at Mr. Wright, which resulted in her recklessly handling and using a firearm, despite any unreasonable, subjective belief that it was a Taser.

Judge Regina Chu, presiding over the trial of Kim Potter, has informed the parties that her definition of recklessness will be drawn from the broad view endorsed Engle, which she believes to be the controlling law on the matter, rather than the narrower, more traditional view espoused by the defense, keeping the door open for a conviction on recklessness even absent an intent by Potter to fire a shot or even have a gun in hand.

State’s Motion in Support of Engle View of Recklessness

Criminal Complaint

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

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Comments

I cannot help but wonder how this would have been different if the Officer had not shouted ‘Taser’. Would she have been better off fighting an excessive force charge than an accidental discharge indictment?

    golfdoc50 in reply to MattMusson. | December 8, 2021 at 10:58 am

    I saw this suggested and it’s an intriguing question. Given the full court press by the state and the Judge in its pocket I don’t think it would help.

    Smooth23 in reply to MattMusson. | December 8, 2021 at 11:07 am

    Maybe that’s what comes out of this trial. Maybe warning “Taser Taser Taser’ will be seen as a liability for the officers now, when they could choose between lethal and non-lethal force.

      Taser, taser, taser, was a warning to the other officers to disengage with the suspect before they got themselves tased as a result of the suspect being tased.

Can already see this judge is just going to blanket overrule any defense objection.

I just fell asleep watching her, this is great. Going to start replaying her when I have insomnia

The allegation of reckless use of a firearm in count 1 is superfluous. First degree manslaughter under section 609.20 (2) is predicated on a fifth degree assault under section 609.224, it is not predicated on “reckless use of a firearm.” The mens rea of fifth degree assault is “intentionally” and one of the attendant circumstances of fifth degree assault is lack of justification for inflicting bodily harm on the alleged victim. The officer was justified in “intentionally” inflicting bodily harm on the alleged victim therefore she is not guilty of manslaughter under section 609.20 (2).

Watching the video again, I must think: Is having a taser AT ALL a liability.? Why would any cop want to have a taser if they’re going to be put in prison for pulling the wrong weapon?

This whole case stinks

    Having a taser is definitely a liability for officers and for society. A taser meets Minnesota’s definition of a deadly weapon. When the use of a deadly weapon is justified an officer puts his own life and the lives of others at risk by using a deadly weapon that may not be up to the task of stopping the deadly force threat. I don’t see any good reason for an officer to risk his life or the lives of others to protect the life of a violent felon that society would be better off without.

I bet the number of times an officer draws and fires their taser in training is actually very small. Drawing and firing the Glock during training is a few hundred times a year. Under stress, muscle memory takes over. The fact she was “trained” on the taser would seem insufficient to overcome this.

An amazing story. Most of you will probably remember it.

“It’s about how an American hero, Sgt. Ray Jennings, was railroaded for murder by corrupt politicians and the FBI.”

https://threadreaderapp.com/thread/1467730398952058881.html

If only the perp had not resisted arress none of this would have happened. This is now a common theme in all these cases. Matbe Sgarpton could put out a national action alert. Do not resist arress!

If only the perp had not resisted arress none of this would have happened. This is now a common theme in all these cases. Matbe Sgarpton could put out a national action alert. Do not resist arress! Resisting arress is the proximate cause. Not Guilty.

    Eggshell Skull in reply to Elzorro. | December 8, 2021 at 6:46 pm

    Sure, and even larger issue is why these people are out on the streets at all.
    One could even make the case that it’s bad for them, just as well as for the police and society.
    They’ve systematically released people who’s risk is extreme, and then the general public has to deal with it, or in this case, the consequences of police interactions, like a burnt down city.

Jonathan Cohen | December 8, 2021 at 2:16 pm

When did submitting to arrest become optional?

Defendant consciously and intentionally acted when she chose to use force and when she reached for, grabbed, and aimed a weapon at Mr. Wright, which resulted in her recklessly handling and using a firearm, despite any unreasonable, subjective belief that it was a Taser.

Of course she “consciously and intentionally acted when she chose to use force and when she reached for, grabbed, and aimed a weapon at Mr. Wright,” Nobody disputes that. But that conscious and intentional act was justified and therefore cannot be reckless even under the Engle definition. It would be different if any use of force had been unjustified; in such a case, where she intended to illegitimately use a small amount of force and she ended up using a much larger amount, manslaughter seems appropriate. But everyone agrees that’s not what happened here. So it seems to me the state’s argument is dishonest.

    The state is trying to convict the defendant without having to prove the mens rea of the offense charged beyond a reasonable doubt. Recklessness is not the mens rea of the offense charged under count 1. The mens reas is an intentional use of misdemeanor force that is the proximate cause of death of the homicide victim. Hopefully the state won’t get the defense and the court so confused by this immaterial and irrelevant issue of recklessness that they can’t see through the states attempt to violate the defendant’s constitutional right to due process of law. In this case the force that was used was unintentional and just because there was an intent to use a different level of force doesn’t make the force that was used intentional.

Mom: He was a great father to his son

Also Mom: I was basically raising his child

Richard Aubrey | December 8, 2021 at 3:02 pm

Wanting to resist is one thing.
See the vid. How did this clown get loose, get into the car in a position to drive away, and who had the freaking keys?

Play the grieving mother card. Of course the defense can’t really go after her on anything because it increases the sympathy factor.

Paul In Sweden | December 8, 2021 at 5:44 pm

I am not getting a good feel from Officer Luckey. Sounds to me that he has started three different police officer training programs for three different police departments with a total time on the job of three years spanning more than ten years. Is that right? Is Officer Luckey out of training now?

He seemed pretty weak when he tried to handcuff him

Also the first instruction should have been to turn the car off and put keys on dash before leaving the cat

I’m speculating the defense on cross of Luckey is trying to establish that Wright’s actions suggested intent to flee by driving car away, pedal to the metal, which was a dangerous move and one that would justify use of deadly force. So even though Potter yelled “Taser, taser,” her training kicked in and she drew her service weapon as she had been trained despite what she said out oud. Defense will need to produce some expert testimony to back this up. I can’t see a defense otherwise. Of course, her immediate remorse and hysterics argue against this.

    Paul In Sweden in reply to golfdoc50. | December 8, 2021 at 6:44 pm

    I was thinking that the prosecution was trying to use Officer Luckey as a police authority to impugn Officer Kim Potter.

Eggshell Skull | December 8, 2021 at 6:40 pm

The State got Ofc Luckey to admit the call ‘Taser, Taser, Taser’ was to protect Ofc safety.
Ofc. Luckey did not back off from the target,
Yet she fired the ‘taser.’
I’m wondering if that’s going to be their angle; She was reckless to fire whether it be a firearm or taser.

God, I’d hate to be a cop- they’re asking you why Ofc. Luckey did the minutest of movements- It all happened within a moment, and certainly most the movements weren’t ‘decisions,’ but reactions.

All I have to say is that Baldwin is lucky his “accident” happened in New Mexico rather than Minnesota. Per the Engle decision, he would be going away for his “accident”.

MidnightTreeBandit | December 8, 2021 at 8:22 pm

Why is it that none of the videos make apparent the sound of Officer Potter’s pistol firing? Some kind of police cam sound abatement feature?

    henrybowman in reply to MidnightTreeBandit. | December 9, 2021 at 1:34 am

    Ironically, the cheaper the sound equipment, the more attenuation you get of impulse noise. It is easier to design sound amp circuitry that minimizes gunshots than circuitry that reproduces them faithfully. Relatively-inexpensive ($15) electronic earmuffs are available to sport shooters that amplify voices and animal sounds, yet suppress gunshots entirely.

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