The Kim Potter Verdict

Kim_Potter

After four days of deliberations, a Minnesota jury found former police officer Kim Potter guilty of first-degree manslaughter and second-degree manslaughter in connection with the April 11th shooting death of Daunte Wright.

Bodycam footage of his arrest showed Wright, who was being detained after a traffic stop due to an outstanding warrant, struggling with police. He managed to evade them got back into the car. He appeared to be attempting flee in his vehicle. Potter could be heard saying, “I’ll tase you,” followed a few seconds later by, “Taser, taser, taser!” Potter then shot Wright with her gun. She immediately said, “Oh, shit, I just shot him.” Officers attempted CPR, but Wright was pronounced dead at the scene.

Neither the prosecution nor the defense seemed to question that Potter had made a terrible mistake in the heat of the confrontation. Based on the Minnesota first degree manslaughter law, I see no way Potter could have been convicted of that crime:

609.20 MANSLAUGHTER IN THE FIRST DEGREE.

Whoever does any of the following is guilty of manslaughter in the first degree and may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $30,000, or both:

(1) intentionally causes the death of another person in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances, provided that the crying of a child does not constitute provocation;

(2) violates section 609.224 and causes the death of another or causes the death of another in committing or attempting to commit a misdemeanor or gross misdemeanor offense with such force and violence that death of or great bodily harm to any person was reasonably foreseeable, and murder in the first or second degree was not committed thereby;

(3) intentionally causes the death of another person because the actor is coerced by threats made by someone other than the actor’s coconspirator and which cause the actor reasonably to believe that the act performed by the actor is the only means of preventing imminent death to the actor or another;

(4) proximately causes the death of another, without intent to cause death by, directly or indirectly, unlawfully selling, giving away, bartering, delivering, exchanging, distributing, or administering a controlled substance classified in Schedule III, IV, or V; or

(5) causes the death of another in committing or attempting to commit a violation of section 609.377 (malicious punishment of a child), and murder in the first, second, or third degree is not committed thereby.

As used in this section, a “person of ordinary self-control” does not include a person under the influence of intoxicants or a controlled substance.

I did not see the trial, and I can register no definitive opinion on the guilty verdict on second degree manslaughter at this time. However, I will say this:

  • The episode should have been handled civilly, not as a criminal matter.
  • I believe that it was an abuse of prosecutorial discretion and ethics for Potter to have been charged at all, and am quite certain that without the George Floyd Freakout and rioting, she would not have been.
  • Not would she have been charged if she were black and had shot a white Daunte Wright.
  • I do not think any white officer in Potter’s position could get a fair trial in Minnesota, and the convictions should be reversed on that basis.
  • If I were a Minnesota police officer, I would resign immediately. No officer can discharge his or her duties safely and confidently with such a precedent.
  • If every officer walked off the job tomorrow, they would be ethically justified.

25 thoughts on “The Kim Potter Verdict

  1. Even as a non lawyer I can read the requirements. I have not heard any testimony that would suggest that any of the requirements for first degree manslaughter were met. I agree wholeheartedly with your final two points but it is unlikely that sufficient numbers of officers will resign in protest because despite the police unions individual officers will not be willing to lose a paycheck.

    This idea is replicated in a conversation with a person complaining about vaccine mandates at his employer. According to him t”his employer does not want to fire people for being unvaccinated but it does not want to lose billions in government revenues from credit card processing fees it imposes. This firm and a few others could shut down government if they acted as a group and told the feds to take a hike with their mandate. Imagine if tomorrow government agencies no longer could use government credit cards and issued code it cards would not be processed.

    As long as we are willing to trade our individual Constitutional rights for a few pieces of silver we can expect that we will soon lose all of our liberties.

    Ironically, the government wants us to vaccinate so we protect others but those with the ability to check out he power of government are unwilling to use the power they have because they are unwilling to sacrifice those few pieces to protect all of our rights.

    • As long as we are willing to trade our individual Constitutional rights for a few pieces of silver we can expect that we will soon lose all of our liberties.”
      Hear, hear! Thus endeth the republic.

    • Unless there was an erroneous ruling of law that’s going to be a tough sell. A jury is findings of credibility are not reviewable on appeal.

      • I think that’s probably right, although John Hinderaker, whose analysis is similar to mine, believes it was plain error for the judge to send the charges to the jury, since the fact didn’t support them. He wrote at Powerline,

        “…the verdicts are wrong and should be reversed on appeal. The first degree manslaughter count requires that Potter caused another’s death “in committing or attempting to commit a misdemeanor or gross misdemeanor offense with such force and violence that death of or great bodily harm to any person was reasonably foreseeable…” But Potter was not committing or attempting to commit a misdemeanor or gross misdemeanor, she was executing a lawful arrest of a criminal. There was a similar issue in the Derek Chauvin case.

        “Further, she did not act with “such force or violence” that death or great bodily harm was foreseeable. On the contrary, what was foreseeable to her when she tried to pull her taser was minor injury at worst.

        “The second degree manslaughter charge requires that death be caused “by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.” There was no evidence that Potter “consciously” took the chance of “causing death” to Daunte Wright. Consciously, she was trying to use her taser, which would not have killed or seriously injured Wright.

        “In my opinion, Attorney General Keith Ellison should not have brought these charges against Potter, and Judge Regina Chu should not have submitted them to the jury. Will Potter’s conviction be reversed on appeal? It should be, but I don’t think anyone holds out much hope that Minnesota’s appellate courts have that kind of courage. The lynch mob atmosphere that prevailed in the Chauvin trial was more muted here, but I assume there would be riots if an appellate court did the right thing.

          • It could well be plain error. However, you and I both know the higher courts in MN have no doubt been feverishly researching how to leave this verdict stand. Even if they did reverse, I’m sure the Feds are just waiting in the wings to hit her with civil rights charges and make sure she never draws a breath of free air again. Justin Volpe, who brutalized Abner Louima waaay back in 1997, still has 3 years to go after this coming year. Personally, I think they should tack on four more, and have his 30-year sentence run from the day of sentencing, with no credit for time served and no credit for good behavior.

      • There are a couple things that the defense left open. One of the most noticeable differences between the Rittenhouse trial and the Potter trial were the objections and motions. Grey did a much better job of getting objections on the record than Richards did.

        One of the more egregious (in my mind) rulings was after the defense’s use-of-force expert testified that in his opinion, Potter et al should have let Wright go, because they knew his name and could have apprehended him later, when it was safer to do so. The judge had previously said that Wright’s criminality (and it was so much worse than I originally stated) was off the table because Potter could not have known about it, but Grey argued that as a point of fact, Wright had a history of avoiding arrest, not showing up for court, and slipping capture, and that they should be able to bring that up to impeach the witness. The judge ruled against that, and Grey could not explore that. At the end of the day Grey read the facts of Daunte Wright’s rap sheet and storied history in justice invasion (which included the fact that Officer Johnson, on scene, was Wright’s arresting officer in more than one situation) and moved for a mistrial.

        Another egregious moment was following the testimony of the elderly woman from the car that Wright hit after being shot. For context: The defense had already made the point that after a half dozen officers, just as many bodycams, and literally dozens of pictures of the same car and scene, the prosecution was trying a very cumulative case (designed to put the same evidence in front of a jury multiple times to try to bias them). The judge warned against that and subsequently sustained several objections to that effect. Then they called the driver. She obviously didn’t know anything about the shooting itself, not being on scene, but was asked about her health, and her husband’s health, which has been failing post-accident. The defense objected on relevance and the prosecution admitted that the testimony would be used for… I forget the term and Google is failing me…. But material that the judge could use to consider a harsher sentence than the guidelines allowed in the case of a conviction. The defense had asked for the judge to decide those issues in the case of a conviction, and argued that it was inappropriate for the jury to see material not relevant to the actual conviction. The judge sustained that objection and said that material for sentencing guidelines would be part of a post-conviction bifurcated process. Then the prosecution called the daughter of the driver, who was never on scene, to testify about her father’s failing mental capacity and the judge didn’t seem fit to sustain the objections.

        I have the impression that the appeal i going to be exceptionally multifaceted and thick.

  2. Seems to me, the non-lawyer, that Potter must have been or was presumed to have been in violation of MN 609.224. That would require a conclusion that she intended to inflict serious bodily harm. An intent to taser would be sufficient for that conclusion. The plain language of the law, 609.20, is that if someone is in violation of 609.224 and causes a death, the person is guilty of 1st degree manslaughter.
    So, it appears the jury followed the law. But, bad law?
    As usual, Jonathan Turley provides a pretty good legal analysis: https://jonathanturley.org/2021/12/23/the-potter-verdict-was-the-jury-right-but-the-law-wrong-on-culpable-negligence/#more-182178

      • That, of course, is what makes sense, but that exception for the use of non-deadly force is not in MN 609.224. The authorization and limitations for the use of deadly force by peace officers is in MN 609.066. But, it is not clear that this section would apply, given the description of “less lethal munitions” therein. In trying to understand how the jury could reach a guilty verdict, I am reminded once again that understanding the law is not for us amateurs.

        • HJ you wrote
          I am reminded once again that understanding the law is not for us amateurs.

          Laws must be written to be understood. Vague or ambiguous laws are what tyrants use to punish enemies.

          If I cannot understand the law, how am I supposed to follow it. This is not the same as ignorance of the law.

    • Thus, according to Turley any error that results in death from a firearm can be construed as 1st degree manslaughter. The term “reckless” is ill defined and seems to be arbitrarily employed.

      I am wondering this conviction lets the state off the hook for civil damages given that the jury theoretically found that Potter was not acting within the scope of her employment (reckless use of the firearm) and that only Potter should be sued. It would be a convenient way to prevent another big taxpayer payout to the criminal element in society.

      • If the Feds bring civil rights charges and she gets convicted, that would probably open the door to the public entities being sued for inadequate training, retention, etc.

  3. “I believe that it was an abuse of prosecutorial discretion and ethics for Potter to have been charged at all, and am quite certain that without the George Floyd Freakout and rioting, she would not have been.
    Are you really sure? Remember who Minnesota’s Attorney General is.

  4. In a related case a truck driver was sentenced to 110 years for vehicular manslaughter (4 Killed). His defense was that his brakes failed on a long downhill grade in Colorado. Apparently, there were no runaway ramps for him to access. Nonetheless he was convicted of 4 counts and each sentence was to run consecutively. Truckers are threatening to not accept loads into or out of Colorado until these laws are changed. I guess this will be no justice no toilet paper.

    I don’t blame them.

    I wonder when we will start imprisoning doctors for their medical mistakes that result in death.

    • Part of the issue is that he didn’t take an emergency off ramp which was there while trying to use his emergency brakes, as well as knowingly taking out a truck with faulty brakes. The company which provided it should be held liable for providing one.

      • Was there evidence that the truck had faulty brakes when he left the yard? And evidence that he knew this? It is not unknown that some employers will tell a driver who complains that the vehicle has a defect, that if they want to work that day they take that rig. They may mention other drivers who are available to take the load if he won’t. That is why “owner responsibility” laws exist.

  5. The judge erroed on sequestering a jury with Christmas coming. Threatening to hold the jury hostage over Christmas is a good way to get the holdouts to flip and go with the majority position. If the judge was inclined to sequester, she should have postponed the trial to the new year.

  6. A few things run through my mind that all say that Potter shouldn’t have been charged and that the truck driver was guilty. Not 110 years guilty, but far more guilty than Potter.
    Potter was riding with a trainee, and the way every police officer acted at this traffic stop was blatantly unsafe. The officers were arrayed around Wright’s vehicle in a way that created a crossfire hazard; if a bullet went through Wright, it could’ve very easily struck another officer. The decision was made to arrest Wright based upon a warrant, but the police were sloppy here, too. It was the trainee that started to handcuff Wright and the other officers didn’t intervene while the trainee cuffed Wright while up against the open driver’s door. You’re supposed to arrest the person away from the car, typically by walking the person to the rear of their vehicle before telling him that he’s being arrested; this keeps the person from jumping into the car and driving off. Carelessness and complacency on the part of the police contributed to Wright getting shot.
    The Colorado truck driver drove by TWO runaway truck ramps. Most of my employment has involved driving trucks in mountainous terrain. It is up to the driver to fully inspect their assigned vehicle, which includes several tests for the braking system. It’s spelled out quite clearly that if any of those tests fail, the truck is legally “out of service” and can’t be driven until those defects are corrected. Whether his brakes were working properly initially is yet unknown, but his brakes did fail when he decided to go downhill from the 10,000 ft summit. There is a large pull-out at the summit that is explicitly dedicated for trucks to retest the braking system before going down. Even if the brakes are 100%, they are not capable of stopping a runaway truck.
    Taking 80,000 pounds downhill means using low gears so that the engine can hold the speed down; you shouldn’t be using your brakes at all. This driver got going and used his brakes (not his engine) to control his speed. The braking capability fades as the brakes get heated; the drums expand and separate from the shoes and fail. This driver, whether through inexperience or complacency, ignored the big yellow signs warning trucks to use lower gears or take a runaway ramp. He may have chosen to drive a vehicle that had faulty brakes. Many employers try to coerce people to drive unsafe equipment and he didn’t have the confidence to stand up. I’ll take a pink slip over an accident every time, but I think I may be a unicorn. I’ve refused equipment and my dispatcher never had to wait more than 15 minutes for someone fully aware of why I had refused it.
    I’d have to know more about the trucking company and what type of training he had (I read somewhere that he didn’t speak English, so all of the signs he ignored might not have meant anything to him) to decide on an appropriate punishment, but this accident that killed four people was due much more to the driver than his brakes. If I had been this driver, I would expect some time in jail, but far less than 110 years.
    The alleged trucker shut-down in Colorado just happened to occur during weather with winds over 60mph. With that kind of wind, trucks capsize; any decision to shut-down could be attributed to that. Good story, though.

  7. Brendan,
    I agree with your assessment regarding truck operations. I did not follow the case but reported it as it was reported in our news. I too drove trucks like these for many years before I changed careers. I am aware that catastrophic brake fade can result from not properly gearing down before descending long steep grades. If he did pass 2 runaway ramps that changes my understanding immensely. I was led to believe that was not an option.

    Nonetheless, requiring the sentences to run consecutively seems to be overkill.

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