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Damond, her fiance Don,(center) and his son, Zach

In Update 19, posted the same day now ex-Minneapolis Police Officer Mohamed Noor was arrested for the murder of Justine Damond, I provided an updated time frame, and also clarified a number of factual issues about which we could only speculate until the probable cause statement was made public.  It’s important to keep in mind PC statements, which are supposed to be entirely factual and complete, often are not. It’s also important to keep in mind testimony offered at trial is always more complete and detailed than the probable cause necessary for arrest. There, the prosecution has a much more significant burden: proof beyond a reasonable doubt. In this follow up article, I’ll explore the applicable Minnesota state statutes, and also delve into the current state of the politics involved, a substantial issue in this case.

The Law:

As we discuss these laws, please keep in mind I am not an attorney, nor do I have any experience with Minnesota law. However, all laws are supposedly written so that a person of average intelligence can understand them. Let us consider first the circumstances under which Minnesota Peace Officers can use deadly force. I’ve included only those sections of the statues that appear to have a direct bearing on this case. By all means, take the links and read everything if so moved.

609.066 AUTHORIZED USE OF DEADLY FORCE BY PEACE OFFICERS. 

Subdivision 1.Deadly force defined.

For the purposes of this section, ‘deadly force’ means force which the actor uses with the purpose of causing, or which the actor should reasonably know creates a substantial risk of causing, death or great bodily harm. The intentional discharge of a firearm, other than a firearm loaded with less lethal munitions and used by a peace officer within the scope of official duties, in the direction of another person, or at a vehicle in which another person is believed to be, constitutes deadly force. ‘Less lethal munitions’ means projectiles which are designed to stun, temporarily incapacitate, or cause temporary discomfort to a person. ‘Peace officer’ has the meaning given in section 626.84, subdivision 1.

Subd. 2.Use of deadly force.

Notwithstanding the provisions of section 609.06 or 609.065, the use of deadly force by a peace officer in the line of duty is justified only when necessary:

(1) to protect the peace officer or another from apparent death or great bodily harm;

(2) to effect the arrest or capture, or prevent the escape, of a person whom the peace officer knows or has reasonable grounds to believe has committed or attempted to commit a felony involving the use or threatened use of deadly force; or…

One may be certain Hennepin County Prosecutor Mike Freeman and his Deputies studied this statute with care. Obviously, the defense must argue sections 1 and 2. The problem is, Harrity’s statement not only confirms he had no idea who or what was near his window, but goes on to state the obvious: Noor was in a substantially poorer position to determine whether any threat existed than Harrity. If Harrity did not shoot, though scared to death through his own incompetence, why did Noor shoot?

Such things must be judged on the “reasonable officer” standard. Would a reasonable police officer, knowing what Harrity and Noor knew, or should have known, at that moment, believed they were in imminent–not possible–danger of death or great bodily harm? Harrity has essentially said Noor, in a blind panic, fired at potential movement. Most likely, he fired at Harrity’s panic. I’ll get into the politics of this shortly.

Section 2 is even more of a stretch for the defense. They’d have to argue Noor reasonably believed Damond was about to commit a felony involving the threatened use of deadly force. Harrity has already closed that door, saying he couldn’t see Damond’s hands, and only caught “a glimpse” of a head and shoulders near his car door. And what would the possible felony be? It could be nothing other than a homicidal attack on Harrity or Noor. In other words, the threat of an attack on the officers was also the probable cause for the use of deadly force, and Harrity has already testified there was no possibility of knowing that probable cause. Talk about a circular argument.

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.

In the Minnesota murder statues, this is not a specific “intent to kill” crime. It is clearly the most applicable statute with the highest level of punishment. Firing blindly, and in a panic, at sound and/or movement is certainly “eminently dangerous to others.” The trouble with this case is the “depraved mind” elements. Minnesota statutes do not define “depraved mind,” so the burden falls to the prosecution to construct a reasonable and compelling definition that will be convincing to a jury. The danger is such an attempt may make it easy for the defense to establish reasonable doubt on those semantics alone: “Ladies and gentlemen of the jury, Mr. Noor’s actions were motivated by reasonable fear. He was certainly not depraved.” A good prosecutor should be able to convince a jury on this count, but a less capable one…?

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…

(2) by shooting another with a firearm or other dangerous weapon as a result of negligently believing the other to be a deer or other animal; or…”

One might call this the “buck fever” statute, in fact and application. Buck Fever describes a hunter so desperate to shoot a deer, he fires at noise or movement without actually seeing his target or having any idea of what might be beyond it. Absent the element of unjustified fear, this well describes the shooting of Justine Damond.

The key here is negligence. The argument is no reasonable, competent police officer would have put them selves in that position, and once there, they surely would not have fired at potential sound and movement, having no idea what they were shooting at or of the backstop. Noor’s actions were inherently unreasonable, and any sane person would know death or great bodily harm could easily result.

The alley where Damond was killed

Remember that Noor has not spoken on his observations. The only evidence on what he might have known or observed is provided by Officer Harrity, who was careful to add that Noor could not have observed or known as much as he did. One can be reasonably certain Harrity will testify that Noor’s shot was a complete and shocking surprise; the PC statement did not spell that out, but strongly implied it. He will testify he didn’t recognize the source of his glimpse of movement was Damond until she was clutching her punctured abdomen and exclaiming that she was dying or dead. That is a devastating statement. The prosecution, if they have a shred of ability, will get Harrity to say Noor couldn’t have known who or what he shot until he left the police vehicle and walked to Harrity’s side, where he saw Damond, dying or dead, on the ground.

The possibility exists the prosecution will treat Harrity as a hostile witness, particularly if he tries to argue he had objectively reasonable grounds to think he was subject to a deadly ambush at any moment. His testimony has already destroyed that lame argument, but he may yet try. Even so, a competent prosecutor could destroy him: “Officer Harrity, you’ve testified at the end of the alley you relaxed, turned on your lights, and were speaking about ignoring Ms. Damond and heading to another call. Is this how you approach the probability of an imminent, deadly ambush? And does your training tell you to shoot at sound or movement when you have no idea what is making that sound or movement?”

Obviously, any competent prosecutor would want Harrity to be fully on their side and absolutely credible, but if Freeman is right in his assertion that the MPD is working against him, such cooperation might not be possible. In many respects, it comes down to whether Harrity is willing and able to honestly critique his errors, or if the desire to retain some shred of police dignity is overwhelming. At least he didn’t shoot Damond too.

Noor’s attorney surely would not want Noor to testify, but if the prosecution is competent, he may have no choice. It’s impossible to see, given the known evidence and the testimony of Harrity, how Noor could possibly justify his shot. If Noor doesn’t testify, the only testimony in evidence is Harrity’s, and it’s deadly to Noor.

The most obvious additional option is a plea bargain wherein Freeman drops the Third Degree Murder charge in exchange for a plea to Manslaughter. This is almost certainly why Freeman charged both crimes. Dumping the Murder charge eliminates the “depraved mind” problem.

Political Angles:

Consider this from The Guardian:

Jaylani Hussein, the executive director of the Minnesota chapter of the Council on Islamic Relations, said the Somali and Muslim communities in Minnesota ‘stand with Justine’ and were asking for justice, while at the same time questioning why police leaders and the police union had opted to not defend Noor in the same way they had officers involved in past police shootings.

Hussein said while Noor is Somali American his actions did not reflect on his community. ‘We need to recognize him for who he is,’ he said. ‘He was trained by the police department. He acted as a police officer. Mr. Noor is responsible for his actions.

The mere fact this organization is not screaming racism and Islamophobia speaks volumes. The police union has been mostly silent on this case, as has the leadership of the Minneapolis Police Department. The default statements one expects in support of police officers have been generally lacking, and those made have been weak soup indeed. There is only one possible reason for this: they all know Noor was wrong, and so obviously wrong, they’d look like complete, morally bankrupt idiots to defend him. Will high-ranking administrators of the MPD testify they train their officers to shoot people like Damond, one of the most sympathetic victims of a police shooting anyone has ever seen?

Notice too the city political structure is mostly silent. One can be certain there has been a great deal of behind the scenes stroking of Muslim/Somali constituents, but that “community” may be ready to forego social justice harangues in this case.

At this point, the case is Freeman’s to lose. More as it develops.