Tags
BCA, Brent Peterson, Joe O'Brien, Justine Damond, Laurie Miller, Matthew Harrity, Minneapolis, Mohamed Noor, MPD, Stephen Muehlberg
Justine and Don Damond
In Update 7.2: All Fished Out, I explained, in some detail, the substantial problems with one of the two search warrants served the morning after Justine Damond’s death. Particularly, the warrant to search her home had no basis in probable cause, as absolutely required by the 4th Amendment, nor was there any professional reason or need to search it. Her home—and any vehicles—were removed in time and distance from the scene of Damond’s death. They were uninvolved. There was no reason, none at all, to believe any evidence relating to her shooting by Minneapolis PD Officer Mohamed Noor could possibly be found there. In other words, it was an unlawful fishing expedition.
The other issue I explored in that article what the reason for the fishing expedition. Were the officers involved merely incompetent? Incompetent but well-intentioned; trying to be thorough? Or were they corrupt, searching for anything they could possibly use against Damond to assist Officer Noor? It’s possible their motivation was, in part, all three possibilities, but in any case, they found nothing, or nothing they were willing to write on the return to the court. Damond was clean, and there was, predictably, no evidence with any bearing on the case.
It has been my experience that whenever the police conduct a fishing expedition on the home or vehicle of someone they’ve shot, or someone who might otherwise cause them great difficulties, it’s almost always done to try to find something–anything–they could use to harm that person, and to excuse their actions. Is that the case here? Time will tell.
In that article I neglected to note one additional factor: Officer credibility. Police officers, particularly local officers that must work with the same prosecutors and judges throughout their careers, have only one thing going for them: their reputation for competence and integrity. They zealously guard that reputation, for without it, they’re useless. I would never have taken an affidavit/warrant like that produced by BCA Agent Joe O’Brien to a prosecutor or judge. If I had, my reputation would have been shot. Judges speak with each other about such things. That Judge Laurie Miller actually authorized a warrant based on not a shred of probable cause is another matter for another time.
Thanks to reader SPD3454, I now have access to an affidavit/warrant/return written by BCA Agent Brent Peterson, produced on 07-31-17. While it’s not quite as specific as I prefer such things to be—I’ve always been a bit fussy that way; I’m referring primarily to formatting issues—it does, in fact, provide sufficient probable cause for a warrant, and also fills in some of the factual blanks with which we’ve thus far been contending.
Note that the affidavit actually, specifically, and particularly, describes the things to be seized and the place to be searched. Peterson also narrowly explains why he wants to search for and seize that material.
His probable cause statement notes the names of the officers involved, and notes they were involved in an “officer involved shooting.” That phrase means only one thing in the criminal justice system: a police officer shot a citizen, for whatever reason. Peterson does not identify the specific crime(s) that might have occurred, but at least suggests that’s an issue and reason for the warrant.
Here are some interesting factual issues from the affidavit:
*The BCA knew it was an officer involved shooting from the first moment of its involvement. Agent O’Brien danced around this issue in his affidavits.
*Peterson suggests the BCA processed the officer’s uniforms and duty equipment. This could mean anything from taking everything they were wearing into evidence—which should have been done—to merely doing gunshot residue processing of Harrity and Noor’s clothing, etc. As I’ve noted in the past, at the very least, Noor’s handgun and all spare magazines should have been taken into evidence as soon as possible, and because both officers were present, the same should have been true of Harrity. It would be necessary to exclude Harrity as a shooter and to confirm his account of Noor shooting across him through the driver’s window. It also notes that other evidence has been taken from both officers.
What other evidence? Surely swabbing was done for gunpowder residue on Noor’s hands and clothing. Any notes the officers may have done that night must have been seized. The list would surely go on, but without knowing what the BCA was confronted with at the scene, I can’t speculate further.
*Peterson confirms Harrity gave the BCA a statement. Though he does not specify what Harrity told agents at the scene, it’s reasonable to believe he told them there a shorter version of his later, much longer recorded statement. That statement would have been enough to confirm Noor shot Damond. Had that not happened, nothing the BCA did after arriving on the scene makes sense.
*The BCA took “body camera videos,” the vehicle involved and 911 audio and radio traffic audio into evidence. We also learn the MPD issues iPhones to its officers, and the BCA took those from Noor and Harrity as well.
*The affidavit confirms Noor has not given a statement, which also strengthens the probable cause for his official documents.
Peterson repeatedly refers to probable cause, which he actually provides.
The final page is merely required language. This affidavit is, fortunately, clear of the generic, ridiculously broad list of potential things that may or may not be evidence of a crime in some circumstances. It actually meets the requirements of the 4th Amendment.
The warrant, authorized by Judge Stephen Muehlberg, unlike the warrant analyzed in Update 7.2, is also specific and professional. I’ve omitting the second/signature page, as it too is merely required language.
The return is also professionally done, and to the point.
Final Thoughts:
One would hope the superiors of the agents that did the initial investigation, and of Judge Miller, would have a significant chat with them about the 4th Amendment, proper procedures and professional conduct. Unless of course, a political fix is in, or is in the process of being installed. In that case, they would be lauded—quietly—as heroes of the resistance.
As a result of this warrant, we now know a bit more about the case than we did before. One should not imagine that when the BCA presents the results of its investigation to the local prosecutor, every bit of that information will immediately be made public. If the investigation provides a case for the prosecution of Officer Noor, much of the information will be withheld from the public as the case progresses. If it does not, the same will probably be true for political reasons; there will be much the politicians involved will reflexively seek to keep under wraps. However, in either case, sufficient information will be made public through the normal criminal justice process that we’ll be able to get a gradually clearer picture.
As always, I’ll continue to update as necessary. Unless something comes up to require another path, my next article will address the political and cultural issues swirling around the case.
Stately McDaniel Manor 
Great stuff on this case. I think this case is more egregious than any police case. Yet, no protests. No media coverage. What does your gut tell you? How would you make a case for this being a legitimate shooting
By the way, I’ve followed you since Trayvon l’affaire.
Dear DCMarc:
Thanks! Glad to have you on board. There is only one way to excuse this: the police have to assert Noor—any reasonable police officer–would have seen Damond as an imminent threat of serious bodily injury or death. Because we don’t have all the facts, we can’t be absolutely certain that’s not a viable explanation in this case, but based on what we do know, and what appear to be the very narrow field of possibilities in this case, that can’t possibly stand unless the politicians involved are willing to establish the precedent Minneapolis police may kill anyone when they’re startled.
Actually, there have been protests and media coverage, at least locally and in Australia, but there will be no national coverage, no white lives matter movement because Justine Damond was white and the man that shot her is a black immigrant Muslim. He’s triple protected as a minority, immigrant, black, and perhaps even enjoys social justice tribal protection. None of this fits the media narrative of evil police purposely murdering young black men without cause.
Black immigrant Muslim? Bud that might be a true statement but the fact remains “The STATE killed Justine.” Noor was just the arm that did it.
Yes all we can do is be speculative in this matter because Noor has been given the opportunity to remain quiet which for some reason seems to be a forever right for him and every other human that has formed a social bond with the fiction.
I find it puzzling that Noor gave a brief statement and if he did not then he cannot be made to talk, but if he did utter any words to or about his actions that night then he has given up that right of silence. I say this because that is what would happen to me or you if we killed someone.
Best of my thinking goes is to get Justine’s Dad over here and have him file murder charges against Noor and that would get the ball rolling, he can always file a tort later.
What was that saying? “Intent follows the bullet.”
Oh and I would like to say that Mike is doing some dam fine reporting on this.
Dear Michael69:
Just FYI: The 5th Amendment is absolute. Noor may say a few words, and then invoke his right to remain silent. He can decide to talk later, and again invoke his right to remain silent. He cannot be compelled to testify against himself. The MPD may compel him to speak in an inter-departmental interview, and whatever he says can’t be used against him in a criminal trial. He can refuse such interview, and the MPD can then discipline him, including firing him, but he can’t be compelled to testify against himself in any criminal matter.
Justine’s dad can’t file any sort of charges. That’s entirely up to the local prosecutor. Even police officers can’t override his discretion. They may arrest someone on probable case, and the prosecutor can decided not to pursue the case. Justine’s Dad may wish to see Noor prosecuted, and can raise as much noise as possible about it, but it’s still up to the prosecutor.
And thanks for your comment and kind compliment.
If I was Harrity, I would be royally pissed off at Noor for shooting across me like that.
Dear Jame W Crawford:
I would not be in the least surprised if Harrity suffered eye or hearing damage, perhaps facial burns.
As was mentioned in the previous post (8-8-17) on this case, it’s possible that Noor will claim that he mistook the victim’s cell phone for a weapon.
There have been cases of police officers making that kind of tragic mistake before. But, in those cases, there was more involved than just someone walking around with an object in his or her hand. IIUC, Tamir Rice actually pointed a realistic-looking toy gun at a cop, Dillon Taylor reached toward his waistband after a cop told him not to move, and Amadou Diallo ducked into a doorway as if trying to run away from the cops, then came back out with an object (one article said a pager, another said his wallet) in his hand.
So, I can see how even a good officer could make a tragic mistake when someone makes a furtive movement. Given how often police have to make judgments in a split second, I am sometimes surprised that “bad shootings” are not very common.
That said, it does not appear that Justine Damond was doing anything that a reasonable person would consider threatening. Somehow, I doubt that she suddenly drew her phone from a pocket and pointed it at the cops as if aiming a gun.
People reach for their phones, pens, lighters, and keys all the time. And loud noises -tires blowing out, firecrackers, lightning and thunder-happen all the time. If you are justified in shooting because you are startled, then you have a license to go around shooting anything that moves.
I think the bicyclist had both officer’s attention. They were likely eyeing him to see if he was disheveled or had anything about him that would indicate he was involved the assault they were looking for. The bike was coming from the passenger side. After passing through an alley where you don’t encounter anyone, then seeing the bicyclist, I would imagine they would both be looking at him.
There were also fireworks reported in that area that someone else called in as possible gunshots. There is radio traffic in the middle of the traffic about the shooting addressing the aerial fireworks.
Justine smacked the trunk according to reporting, can that sound like a slug hitting a car to someone inside it? Is it unreasonable for an officer to mistake any impact with their vehicle, while seated in it as something it isn’t? Especially when directly after the sound (which was reported as loud) a person appears seemingly out of nowhere with a cell phone in her hand.
There is one other factor, I think people should consider if they are trying to be honest. Her son described her as passionate. He made that remark when he spoke the first time to the media. It paints the picture in my mind that she did smack the car loud and may have been really animated when she appeared at the driver’s window.
You can string all those details together and see how they can add up to the tragedy they did. I am not so sure it’s a nefarious as some paint it to be.
I would really like to know if Noor habitually feared ambush to the point that he drew his gun while seated in the car with no obvious threat present or if this was a one off.
There was none, zero, zip, nada reason for Noor to have had his gun drawn at that point in time.
Dear Marty:
Well, certainly no obvious, on-the-record reason.
Dear DT:
Even if she were passionate and animated, I shudder to think how many people I could have shot matching that description in my police career. “Deals with passionate and animated people” is practically a generic portion of any police officer’s job description. You just don’t get to shoot them for that.
Regarding the bicyclist, that’s part of why a complete, to the second time frame is so vital. That would tell us where the bicyclist was, and what, if any, effect he had on this case.
Dear Tom:
What you said.
Following with much interest your postings on this case. The local MSM is doing their usual thing, not presenting like what you’re doing. Guess they figure it would require too much thought for their viewers/listeners.
Dear Nylon12:
Thanks, but a large part of it is they don’t know how to fully integrate the usual progressive narratives. That and they likely don’t know enough about the criminal justice system and the law to know what questions to ask or why.
PuttingOnItsShoes said a few things in previous articles that I didn’t want to read, but I’ve been thinking that maybe he’s right.
Consider this scenario. I repeat and embellish some of the points POIS made earlier, along with my own spin and speculation:
What if Damond was an SJW looking for attention? As POIS pointed out, she was a “faith healer”, or close enough, which could predispose her to some nutty ideas. Her original goal was to be a veterinarian, and nobody ever chose to become a yoga instructor over vet school because her SAT scores were too high. Maybe I’m being unfair; after all, I’m not a doctor, and I doubt I could have qualified to be one.
Maybe she recently saw Wonder Woman, felt a sudden surge of Girl Power, and wanted to strike a blow against the Rape-iarchy, so she imagined a female in distress, and herself coming to the rescue. This may be fanciful, but not beyond possibility.
Damond claimed NOT that she directly and unequivocally witnessed an assault, or heard a woman calling for help, but that she heard “sex noises”, and “I don’t think she’s enjoying it.”. I assume that the perceived lack of enjoyment was an understated, euphemistic way of saying it was rape, not that the man was merely an incompetent or inconsiderate lover who couldn’t or wouldn’t satisfy her. Or maybe it was consensual, and that made it a noise/lewd public behavior complaint. No one else in the vicinity reported any such thing. Nevertheless, she persisted in calling 911.
The police who arrived saw and heard no sign of any crime, and the caller wasn’t there to meet them, so they started to leave for another call. Damond wanted to prevent the police from leaving, and rashly rushed the car in the dark, slapping the back or side of the cruiser to get their attention. She may have reasoned, if that’s the word for it, that the racist police only shoot black and brown men, not blonde or bleached women, not imagining that officer Noor had an off-the-chart PC score unattainable by her.
Maybe Damond didn’t hold the cell phone in a threatening manner, but not imagining that she could possibly herself be considered a threat, she made no effort to make her actions appear unmistakably nonthreatening. The loud banging, combined with Damond’s sudden appearance at the door (and Noor’s questionable decision to hold his gun unholstered in his lap) led directly to her death.
I hope I haven’t offended anyone with this, but I think it’s necessary to consider these possibilities, and not reflexively presume Noor guilty.
Regardless of her religious beliefs or mental state, I have seen no evidence that she was reasonably perceived as a threat that justified the use of deadly force. Then again, I saw insuffecient justification for shooting Levoy Finnicum. He was repeatedly slapping his right pocket with his right hand. The fact that he was left handed and had a small pistol in his left pocket should rouse suspicions about the claimed justification. Looked a lot like Finnicum was responding to FBI-HRT shooting him with less lethal rounds to provoke his response so that OSP would shoot him. Since FBI-HRT has been caught lying about shooting at the pickup before it ran the road block, I feel justified in my suspicions.
As always, I blame Clinton.
A cop is supposed to know a suspect is left-handed before shooting? Really?
Dear Char Char Binks:
I suspect we’ll find, if the investigation is professional and honest, an undertrained person unfit to be a police officer, panicked upon hearing noise and seeing movement, and fired wildly at both. Why he was undertrained and unfit will certainly be objects of speculation, but we don’t need to go too far afield on this one.
We have no evidence Damond was some kind of nut, nor that if she were, it had anything to do with this situation. The transcript of her 911 calls do not suggest panic, and again, the most likely explanation for her call was she was trying to help someone she thought might need help.
As far as presuming guilt, I can’t see any evidence justifying Noor’s shot. Damond is dead at his hand. This goes beyond mere error. He is, of course, innocent until proved guilty, but for the moment, he appears left with: “I heard a sound noise, I had my gun out already, I was startled, so I shot the first thing I saw moving.” That’s not going to play well with a jury.
Unfortunately, if the politicians have their way, a criminal jury may never get this case. Then Damond’s family and loved ones will be left with seeking civil justice.
Dear Bucky Barkingham:
I’m sure they’re doing that already. It’s virtually certain Minneapolis is going to be shelling out a great many taxpayer dollars.
What do you make of Damond’s attorney’s recent statements that he found the search of the home reasonable?
Dear David-2:
Tactics. He’s maneuvering on behalf of his client. I don’t know what he knows, but I’m sure it’s more than we know, and for that reason, what might seem to make little sense to us is likely a shrewd tactical move.