Justine and Don Damond
Some readers have observed that Prosecutor Mike Freeman’s statement that it will take until the end of the year to make a charging decision may not be strictly binding. Perhaps, since Freeman has already received the complete BCA investigation, he’ll decide much sooner? Perhaps he was thinking the investigation would take much longer? While this view is possible, it still seems likely Freeman will not issue a decision until after the November Minneapolis mayoral election, and/or until he and the local progressive political elite can be sure whatever decision Freeman might make will be to their advantage.
There remains no practical, ethical reason why a charging decision should take more than a few weeks, a month, at most. This is a simple case. The suspect–MPD Officer Mohamed Noor–is known, all witnesses have been interviewed and all evidence processed and analyzed. Prosecutors know precisely what every witness will say. The only remaining factor is politics. In that vein, let’s review the primary Minnesota statutes any prosecutor would have to consider in a case like this. I’ve omitted portions of the statutes that clearly do not apply to the Damond case. Interested readers may take the links to read the complete language of the statutes.
Mohamed Noor
609.185 MURDER IN THE FIRST DEGREE.
(a) Whoever does any of the following is guilty of murder in the first degree and shall be sentenced to imprisonment for life:
(1) causes the death of a human being with premeditation and with intent to effect the death of the person or of another;
Even if Freeman were inclined toward charges, this charge is unlikely. It is possible to form intent in a matter of seconds, but premeditation usually is considered to involve foreknowledge and planning to kill. All known evidence suggests Noor was panicky, afraid, and acted out of irrational fear and/or incompetence.
609.19 MURDER IN THE SECOND DEGREE.
Subdivision 1.Intentional murder; drive-by shootings.
Whoever does either of the following is guilty of murder in the second degree and may be sentenced to imprisonment for not more than 40 years:
(1) causes the death of a human being with intent to effect the death of that person or another, but without premeditation; or…
This charge is also unlikely. While it does remove the element of premeditation, it still requires intent. One can argue that the mere act of firing his weapon indicates intent to kill, but again, what is know about Noor’s shooting of Justine Damond indicates panic and incompetence, not considered intent to kill. Anyone near Noor’s car—even a shadow or passing puff of smoke–would probably have been shot that night.
609.195 MURDER IN THE THIRD DEGREE.
(a) Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years.
The “depraved mind” element of this statute is what will probably prevent a prosecution on this statute. Noor was certainly reckless, but that probably does not, by itself, rise to a depraved mind.
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 include this statute merely to illustrate the specificity the law usually requires in such things. Clearly, none of the subsections of this particularly stature apply to the Damond case.
609.205 MANSLAUGHTER IN THE SECOND DEGREE.
A person who causes the death of another by any of the following means is guilty of manslaughter in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both:
(1) 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; or…
In consideration of Minnesota’s murder/manslaughter laws, this may be the most likely charge. Arguably, even considering Noor’s most likely defenses, these elements are provable. It’s also possible this could be charged, and bargained down to a misdemeanor, but that would pretty much require the criminal justice process to be in service to the progressive narrative. Sadly, in Minneapolis, this is not outside the realm of possibility.
I am not intimately familiar with Minnesota statutes, so it is possible there is some narrowly tailored statute of which I am unaware that might be employed, but were this a case where one non-police citizen killed another, these are the most likely statutes to be considered.
As is often true in such cases, it is foreign news outlets that provide the most accurate and interesting coverage, as The Guardian does:
The Minneapolis police union boss has broken his silence, saying Officer Mohamed Noor, who shot Justine Damond dead in July, should not be charged simply on that basis that the Australian yoga instructor was a ‘fine young woman in a nice neighbourhood’.
…Lieutenant Bob Kroll has also alleged a lack of objectivity and professionalism on the part of the top prosecutor in the case, Hennepin county attorney Mike Freeman, who will decide if Noor will be charged.[skip]
‘Freeman’s comments that ‘I’m saddened by the death of this fine young woman’ and that ‘it didn’t have to happen – it shouldn’t have happened’ show he is focusing on the status of the person lost rather than the events leading to a tragic loss,’ Kroll, president of the Police Officers Federation of Minneapolis, who has previously declined to comment on the shooting, wrote.
“This comment breaks with the imperative that fairness cross all socio-economic boundaries. We want an assurance that Noor will not be charged simply on the basis of Damond’s status as a fine young woman in a nice neighbourhood. [skip]
“This comment brings Freeman’s objectivity into question.
Actually, Kroll is right about that. However, I remain more worried about a charging decision dictated by political correctness rather than the rule of law.
Kroll also said in his letter that ‘irresponsible comments by public officials are fuelling the creation of police widows and widowers.
Perhaps, but not necessarily in this case thus far.
Kroll’s letter to The Star Tribune about which The Guardian speaks may be found here.
A Police Viewpoint:
Keep in mind the officers of the Minneapolis PD know more about this case than we do, however, it’s unlikely that kind of inside knowledge changes the basic facts of the case in any significant way. They may know what a witness said, or an officer involved said, but that won’t change the essential elements.
Unless virtually everything the public knows about the case is wrong, honest officers know this was a bad shoot. They know this because they know if, God forbid, they ever did anything like Mohamed Noor did, they’d have no way to explain or excuse it. They know their consciences would be haunting them the rest of their lives. One simply does not shoot and kill people that do not deserve to be shot and killed. There is no bigger mistake in police work.
Less honest officers, and union officials, will ignore the facts and try to obfuscate them when they can’t ignore them. They will try to minimize Noor’s actions and build up as much sympathy for him as they can. Some will stretch to suggest Noor’s actions were understandable and reasonable.
But most, even the most honest, will be thinking about appropriate punishment. They’ll agree Noor should, at the least, face a lengthy suspension, psychological evaluation, counseling, and perhaps retraining. A somewhat smaller number will think he should be fired. Few will think he deserves to be prosecuted. They can see themselves, particularly in the contemporary anti-police climate, in Noor’s shoes, even if they don’t deserve to be there. It’s just too close for comfort.
Some of this police calculus will depend upon Noor’s reputation within the MPD. This is a constantly evolving calculus. Police officers are only as good as their last arrest. If Noor is known as a solid, reliable officer, overall opinion will tend to go more lightly on him. If not, many will be glad to see him go.
If you think, gentle readers, I’m too cynical about the potential for Noor’s fate to be decided by the nebulous rules of social justice rather than the rule of law, you have little idea how police officers think. Minneapolis officers know precisely how politicized their police department and city government are. They know who is immune from arrest, and in progressive cities, their numbers are considerable. They don’t like it, but they recognize reality and deal with it.
No matter what decision Freeman makes, there is going to be enormous public outcry. The rank and file of the MPD will not be expressing their opinion—don’t think the union line is necessarily theirs—but if Noor is prosecuted, they likely won’t be upset.
Sort of related. The Minnesota Governor appointed a 15 member task force to review police community relations. This was after the Philandro Castile shooting death across the river in Falcon Heights and the Jamar Clarke shooting death in Minneapolis.
The report was issued today, after it was approved 6-3 with six task force members either not attending or abstaining. Governor Foster Brooks, excuse me, Mark Dayton was very proud of the report.
“The recommendations broke down into five categories including criminal justice and social justice reform, police training, diversity recruitment and retention, community and law enforcement health and wellness and policy development and implementation.”
Sounds like high level pablum, but I have not seen a copy.
http://www.startribune.com/gov-dayton-s-law-enforcement-commission-releases-first-extensive-report/448695363/
http://kstp.com/news/governor-council-on-law-enforcement-and-community-relations-recommendations-minnesota-mark-dayton/4619416/?cat=12196
Dear rd:
Thanks! I can’t wait to see ow important “diversity recruitment and retention is, and wellness? Priceless.
“Criminal justice and social justice reform.” Translation: don’t arrest anyone who looks like he could be Barack Obama’s hypothetical son.
“Diversity recruitment.” Translation: ignore qualifications. Hire more gays, more women, more blacks, more transgendered, left-handed, diabetic, epileptic, schizophrenics. Hire more Muslim immigrants who get startled and fire their weapons whenever someone breaks wind in the wrong direction.
Can a state-certified peace officer/law enforcement officer be held to a higher standard than a civilian when the case involves possible negligence? For example, if a cop accidentally shot someone while carelessly handling a firearm, or if a cop blew a red light and accidentally ran over a pedestrian, could the cop be charged with murder instead of manslaughter, or first degree manslaughter instead of second degree?
A prosecutor or a plaintiff’s lawyer might argue that the defendant had “special knowledge” as a result of his training, and therefore should have known better.
Dear Tom:
The standards are the same for police and non-police alike. It’s possible an officer might be more likely to be convicted because of their supposed training and special knowledge, but as I’ve often written, most police officers are anything but highly trained and highly competent with guns. In some circumstances and some places, police officers would be more likely to be charged with a crime than a non-police officer. In other circumstances and places, less. But regarding a murder or similar charge, the police face the same laws as the rest of us.
You have written before about inadequate police tactical and marksmanship training, but I would think that even the most Keystone-like agency would have to have the minimum training required by the state board, including basic safety rules: be careful where you point a firearm, don’t touch the trigger unless you intend to shoot, and be sure of your target.
Mike, I am not familiar with Minnesota case law to the extent that I can assess whether “depraved mind” applies to these facts, but I can tell you that under common law, “depraved” doesn’t necessarily mean what it has to mean in common usage before it can support a charge. From the ordinary use of the word, it would require a mind that is evil, perverted, or sadistic, etc, but, under the common law, it can also encompass conduct that is so reckless, so stupid, so dangerous that the depravity can basically be imputed to the actor. It would probably take some analysis from the case to guess whether Noor’s apparently incredible stupid decision to drill Justine Damond rises to level of “depravity” in the legal sense. My guess is that Freeman will just not want to risk an overindictment, so I expect second degree manslaughter to be the charge.
Dear Harambe’s Ghost:
I expect Freeman to announce no charges, putting it all down to a tragic accident. Noor, after all, has suffered enough.
Correction, it would probably take some analysis from the “case law”, not the case.
On another note, I have no problem whatsoever with Freeman’s comment about the victim being a “fine young lady”. Contrary to the disingenuous article from Kroll, there is nothing to indicate that this assessment is based on socio-economic status. It has to do with her being a good citizen and a non-criminal. Granted, even if she was a horrible person with a terrible criminal record, Noor would not be any less guilty than he is or isn’t, assuming the exact same facts in this particular case. Still, I fail to see how the comments are objectionable or show any type of unfair bias. To me, it’s only objectionable, if, in a different case, he says, “well, this victim was kind of a loser, so we’re probably just going to half-ass this prosecution”.
I guess it would also be inappropriate, in a case where the shooting was totally justified, and he says, “well, we’re still going to go after him, because even if the victim really screwed up on this occasion, and caused a justified shooting, she’s a fine young lady”. Of course, that statement would hardly fit the facts of this case, anyway. Somebody sure did screw up on that night, and it wasn’t Justine.
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