For cop who killed Daunte Wright, will 'wrong gun' plea work?
Attorney Ben Crump, representing the family of Daunte Wright, holds up images depicting X26P Taser and a Glock 17 handgun during a news conference at New Salem Missionary Baptist Church, Thursday, April 15, 2021, in Minneapolis. (AP Photo/John Minchillo)
Steve Karnowski, The Associated Press
Published Sunday, November 28, 2021 10:39AM EST
MINNEAPOLIS (AP) -- When a suburban Minneapolis police officer shot and killed Daunte Wright in April, her reaction on body-camera video seemed to instantly establish the key facts of the case: “I grabbed the wrong (expletive) gun,” Kim Potter said. “I'm going to go to prison.”
But legal experts say a conviction for Potter, who says she meant to pull her Taser, isn't as certain as it might seem - at least on the most serious charge she faces, first-degree manslaughter. Jury selection begins Tuesday.
The shooting of Wright, a 20-year-old Black man, by the white officer sparked intense protests in Brooklyn Center just as nearby Minneapolis was already on edge as that city's fired officer Derek Chauvin was on trial in George Floyd's death.
The concrete barriers, chain-link fencing and National Guard soldiers that surrounded the courthouse for that trial are gone, but enhanced security will be in place for Potter's trial - with fewer entry points and the closure of a parking garage.
Potter, who resigned two days after the shooting, says she made an innocent mistake when she reached for her pistol instead of her Taser. But prosecutors, including the leader of the team that got Chauvin convicted for murder, say Wright's death was manslaughter and that Potter, an experienced officer who was trained to know better, should go to prison.
The big questions for the jury will be whether Potter's actions rose to recklessness or culpable negligence, as the law requires. Defense attorneys also argue that Wright was responsible for his own death because he tried to drive off from a traffic stop and could have dragged an officer to his death if Potter hadn't intervened.
“What we have basically is an innocent mistake,” defense attorney Earl Gray said in a preview of his arguments. “That she wasn't culpably negligent and that she didn't cause the death of Mr. Wright. He caused his death himself.”
According to the complaint, the officer Potter was training, Anthony Luckey, told Wright they stopped him the afternoon of April 11 for the air freshener hanging from his rear-view mirror and the car's expired license plate tabs. Luckey then found an arrest warrant for a weapons violation. They went back to arrest him, joined by Sgt. Mychal Johnson.
Wright obeyed Luckey's order to get out. But as Luckey was handcuffing him, Wright pulled away and got back in. As Luckey held onto Wright, Potter said “I'll tase ya.” The video then shows Potter, holding her handgun in her right hand and pointing it at Wright. Again, Potter said, “I'll tase you,” and then two seconds later: “Taser, Taser, Taser.” One second later, she fired a single bullet into Wright's chest.
“(Expletive)! I just shot him. ... I grabbed the wrong (expletive) gun,” Potter said. A minute later, she said: “I'm going to go to prison.”
Prosecutors allege that Potter committed first-degree manslaughter by causing Wright's death while committing a misdemeanor crime, namely recklessly handling a gun, when death was reasonably foreseeable. The second-degree manslaughter count alleges that she acted with culpable negligence. Neither charge requires the intent to kill.
Prosecutors suggested in pretrial filings that Potter should not have even used her Taser. Police probably could have found Wright later so the officers should have let him drive away, they suggested.
Experts agree that drawing a firearm instead of a stun gun is rare. To avoid confusion, officers typically carry their stun guns on their weak sides, by their nondominant hand, and away from handguns carried on their strong side. That's how Brooklyn Center officers are trained and how Potter had her duty belt arranged. And there are several obvious differences between the two weapons. For one thing, a Taser is yellow. A Glock is all black.
Joe Friedberg, a local defense attorney who isn't connected to the case, said Wright's attempt to drive off when Officer Johnson was partly inside the car would have been sufficient grounds for Potter to shoot and kill him intentionally - and that is enough to acquit, he said.
Mike Brandt, another local defense attorney not connected with the case, saw it differently. He said it's clear Potter mishandled a firearm - an element of the first-degree manslaughter charge - though the jury might struggle with whether she did so recklessly. The “culpable negligence,” or taking an unreasonable risk, is easier to prove, making second-degree manslaughter more likely, Brandt said.
In one of the best-known cases of grabbing a gun instead of a Taser, a transit officer in Oakland, California, killed 22-year-old Oscar Grant in 2009. Johannes Mehserle was sentenced to two years in prison for involuntary manslaughter.
Oakland civil rights attorney John Burris, who won a $2.8 million settlement for Grant's family, said Taser mix-ups have dwindled since police across the country stepped up stun-gun training after Grant's death.
Burris said he thinks Potter had the right to use reasonable force and could get credit from the jury for intending to use her Taser. And if that happens, he said, the best the prosecution might get is a conviction on the lesser charge. But if the jury agrees she should not have used her Taser at all, he added, they might find it was first-degree manslaughter.
Still, if Potter comes across as remorseful, she'll get empathy that could result in an acquittal or hung jury, Burris said.
“These are tough cases,” he said. “A lot of emotion comes in a case like that. If an officer did not intend to kill someone, that officer is going to be highly emotional. That emotion is going to have an impact on jurors.”
Attorneys are expected to screen jurors closely for their attitudes on the sometimes destructive protests that occurred in Minneapolis after Floyd's death. Questionnaires sent to potential jurors asked about their views of those protests and others over the past two years, as well as whether they participated, had been injured or suffered property damage, or knew anyone who had.
Similar questionnaires were used in the Chauvin trial, where jury selection took 11 days, and his attorney repeatedly asked potential jurors whether they could set aside strong public opinion and deliver a fair verdict.
The trial timeline for Potter sets aside at least six days for jury selection, with opening statements no sooner than Dec. 8.
Zaynab Mohamed, community advocacy manager for the Minnesota chapter of the Council on American-Islamic Relations, was among the activists who repeatedly demonstrated outside the home of the county prosecutor who originally had Potter's case to demand murder charges be filed. That didn't work, but the prosecutor eventually handed the case over to Attorney General Keith Ellison's office.
Mohamed said people are “more energized than they ever were.” She said an acquittal for Potter would mean another outpouring.
“I think there will be a level of anger, and people will take to the streets like they did after the murder of George Floyd,” she said.