Don Damond, Erik Scott, Freddy Gray, Jack dunphy, Joseph Daly, Justine Damond, Mike Freeman, Minneapolis, Minneapolis PD, Mohamed Noor, Paul Applebaum, Randy Hopper, Robert Bennett, Susan Segal, Trayvon Martin
Writing about incidents like the murder of Justine Damond is fascinating. My goal is always to provide accurate information and insight one can’t find elsewhere. During that process, I’m often reminded how easy it is for the public to become misinformed, and once such misinformation is out there, it becomes urban legend. For example, in the Trayvon Martin case, many still believe Martin’s hoodie and Skittles were significant factors in his death. They believe Zimmerman left his truck to pursue Martin against police orders. They believe Martin actively hunted Martin down and shot him without provocation. All of this, and much more,is entirely false.
Even generally well-informed people often make significant, though inadvertent, errors. One such is Jack Dunphy, a pseudonym of a former Los Angeles police officer who writes for PJ Media, as I have in the past. In a recent article, he comes to the same conclusion I have: Mohamed Noor’s shooting of Justine Damond is indefensible:
Noor, who was fired from his job upon being charged, has not made a statement to investigators, as of course is his right. But any police officer who uses force must be able to articulate the reasons for it. We can see a glimpse of Noor’s defense in the charging document itself, in which Noor’s partner, Officer Harrity, is quoted as saying that as he and Noor reached the end of the alley after checking it for signs of the possible sexual assault Damond had reported, he was startled by a voice and a thump on their police car.
Thus far, Dunphy is accurate, except that Harrity and Noor were not investigating a possible sexual assault. The dispatcher didn’t mention sexual assault or rape. I quoted the dispatch transcript of Damond’s call in Update 2:
Caller [Damond]: Hi, I’m, I can hear someone out the back and I, I’m not sure if she’s having sex or being raped.
Operator: Give me the address.
Caller: XXXX Washburn Avenue South.
Operator: Washburn Avenue South. You said it’s behind (inaudible)?
Caller: And there’s a (inaudible) out the back, yup, yup. And I think she just yelled out ‘help,’ but it’s difficult the sound has been going on for a while, but I think, I don’t think she’s enjoying it. I think it’s, I don’t know.
Operator: Okay, already got a call started and help on the way. Uh, you can’t see anything, you’re just hearing a female screaming then, is that what you’re saying?
Caller: Yeah. It sounds like sex noises, but it’s been going on for a while and I think she tried to say help and it sounds distressed.
I added the actual radio dispatch to Harrity and Noor in Update 3:
Squad 530 to 5024 Washburn Avenue South. Female screaming behind the building.
There was an additional message from the dispatcher to Harrity and Noor via their vehicle’s computer, which I quoted in Update 19:
2327:42: The dispatcher aired this call to the unit–Squad 530–a Ford Explorer SUV carrying Officers Harrity (driver) and Noor (front seat passenger): ‘Squad 530 to 5024 Washburn Avenue South, female screaming behind building.’
2327:47:Another call was sent to 530’s computer, giving the address and the designation ‘UNK TRBL,’ or ‘unknown trouble.’
While it’s clear Damond told the dispatcher there might be a rape,or perhaps just people having sex, that’s not at all what they told Harrity and Noor, who went to the call thinking it a routine noise complaint of some unknown source. The probable cause statement does not explain this, likely leaving Dunphy the impression the dispatcher told Harrity and Noor, word for word, what Damond said. This kind of message degradation is common. Dispatchers have a set number of criteria they use to efficiently communicate call types with officers; they categorize them to help officers understand what they’re about to confront. This inevitably causes compression of messages to fit those categories. This is important to keep in mind as we analyze Dunphy’s comments.
But Justine Damond did not throw a beer bottle at the police car. Indeed, it was she who had called the police in the first place, which raises a question about the way Noor and Harrity handled the call. According to the charging document, Damond called 9-1-1 and reported she could hear a woman in the alley behind her house ‘who was either having sex or being raped.’ Noor and Harrity were dispatched on the call, arriving in the vicinity about ten minutes later. Harrity, driving the patrol car, turned off his headlights and entered the alley from 50thStreet, then drove south toward 51stStreet and past the rear of Damond’s home. After finding nothing amiss in the alley, Harrity stopped at the southern mouth of the alley while Noor typed in a ‘code 4’ on their car’s computer, indicating that no further assistance was needed.
The charging document says the officers were preparing to ‘clear’ from the call and go to another when Noor shot Damond. I find this baffling. The officers had responded to a possible sexual assault in progress and, after driving through the alley and finding no evidence of a crime, were willing to leave without doing any further investigating. A radio call of this nature should not have been handled so perfunctorily.
Again, Noor and Harrity were not responding to a possible rape in progress, but a common noise complaint. Their lackadaisical response to the call suggests just that, not that they believed they were responding to a potentially violent felony.
Investigators never located the source of the noises Damond had reported, but let’s play ‘what if.’ What if there had in fact been an assault taking place as Damond suspected, and the perpetrator, on seeing or hearing the approaching police car, had managed to silence his victim for the time it took the police to pass by? The appropriate measure after driving down the alley would have been to ask dispatch to contact the reporting party and ask for more information. Damond might have been able to provide a more precise location of the sounds she had heard, or, if a crime had actually been committed, might have seen the perpetrator making his getaway.
Dunphy is correct on the procedure Harrity and Noor should have followed, but not for the reasons he imagines. As I’ve previously written, They should have parked a short distance away, split up, and walked the alley, looking and listening, and taking advantage of the security lights and multiple opportunities for cover and concealment. That alone would have allowed them to detect anything happening in the area. Riding in their car, they could hear and see little or nothing–Harrity’s window was apparently down, but we still have no idea if this is true of Noor’s window–while giving bad guys every opportunity to hear and see them long before they arrived. He’s also right about what they should have done when they found nothing. However, by missing one detail, an important detail, his analysis veered off the correct path.
I don’t write this to denigrate Dunphy, who is clearly an experienced officer, merely to point out how easy it is to get things wrong in these cases. Probable cause statements are never complete; they don’t need to be.
Mohamed Noor has been released on bond. Now begins pre-trial maneuvering. If Prosecutor Mike Freeman and his deputies are confident in their case, which was extended an extraordinarily long time, ostensibly so Freeman could pin down every possible detail, they should have no difficulty voluntarily giving the defense every scrap of evidence. In a good case, it’s the only smart thing to do as it would tend to encourage the defense to beg for a plea bargain on the prosecution’s terms. I suspect Noor is not going to want to go to jail. Former cops don’t tend to do well there.
This presupposes Freeman is actually planning to put on a competent case, and upon conviction, seek a substantial sentence. Another factor might be the supposed hostility of MPD officers toward Freeman, who has claimed some unknown number of them were, at best, reluctant to provide testimony. As I’ve previously noted, the state BCA is certainly no longer his pal, if its agents ever were. This is supposedly why he empaneled a grand jury: to compel the testimony of reluctant officers. If this is true, and I must admit, absent more than Freeman’s word, I doubt it, this might make Freeman at least somewhat reluctant to go to trial. While I have no direct evidence Freeman intends other than putting on a solid, professional case, Minneapolis politics would generally seem to mitigate in favor of Noor. We’ll have to wait and see.
Absent a plea bargain, which I think possible, the trial may commence before the end of 2018, but again, political considerations may make any semblance of normality in this case impossible.
On the civil side, I’m sure Minneapolis, which is self-insured, is in dread of civil suits filed not only by Damond’s fiancé, Don Damond, but by her family, though it’s possible both could be combined. The Star Tribune reports:
The family is represented by Robert Bennett, the dean of Minnesota lawyers when it comes to police misconduct lawsuits, who has won millions of dollars in settlements.
Joseph Daly, an emeritus professor at the Mitchell Hamline School of Law, thinks Bennett will win a settlement of $10 million or more.
‘It would surprise me if this case went for $20 million, but it wouldn’t shock me,’ he said.
Bennett declined to discuss the case or whether he and the city have been in negotiations. Minneapolis City Attorney Susan Segal also would not comment on the case. Occasionally lawsuits alleging police misconduct go to trial, but more often, Minneapolis has settled some of its most expensive cases, concerned that a jury could hand it greater punitive damages plus even higher legal fees. The city is self-insured, so the payout would come from city coffers.
Bennett’s silence shouldn’t be thought an indication of anything, but I’d be surprised if an attorney as experienced and connected, considering the bizarre delay in filing criminal charges in this case, had not begun under the radar negotiations of some sort.
The largest police misconduct settlement in Minneapolis history occurred in 2007 when the city paid out $4.5 million to Duy Ngo, a Minneapolis police officer. Ngo, who was also represented by Bennett, was shot six times by a fellow police officer who mistook him for a fleeing suspect. [skip]
[Attorney Randy] Hopper said he believes a settlement in the Damond case could be “well in excess of $10 million because of the egregious conduct.
If, as I suspect, Minneapolis PD hiring and training was fast tracked to include minority and immigrant candidates–particularly Somalis–that would not normally have been hired, or once hired, should not have been retained, the City is absolutely not going to want its police and city administrators and other officials to be subject to depositions for a civil case. This factor alone is also why it’s possible, perhaps even probable, Noor will take a plea bargain. Ironically, it may be the only leverage Noor has to force a favorable plea bargain, perhaps including no jail time.
St. Paul attorney Paul Applebaum, a veteran local civil rights lawyer, said he expected a settlement in the $5 million to $10 million range.
‘The race of the decedent is huge,’ Applebaum said of Damond, who is white. ‘It’s terrible, it’s sad, it’s unfair, but the race of the decedent, it’s a big factor.
‘I think it will probably settle. The city is in a very weak position and has to entertain astronomical numbers because it’s too risky to go to trial,’ he said. ‘I think it’s a scary case for the city attorney’s office. I think [the city] is going to take seriously any figure [Bennett] demands and try to work it down from there the best they can.
Scary indeed. Even if Noor goes to trial and is found not guilty, I very much doubt that would have any effect on the outcome of civil suits.
Please keep in mind, gentle readers, I have no specific information that would prove malfeasance on the part of the MPD, city officials, or Freeman. There are, however, many strange statements, actions and other bits of unusual evidence, including the general political climate, that might suggest such problems. On the other hand, the case may be handled as just another criminal case. We’ll see soon enough.
One final thought about race: Applebaum is correct, but not because Minnesotans are inherently prejudiced against black people. In virtually all large, Democrat-controlled American cities, the deaths of young black men–almost always at the hands of other young black men are so common, many go unreported, unless they die at the hands of the police, which is far rarer than hyperbolic news reports would indicate. It’s, tragically, such a common occurrence, it’s unremarkable.
Nor should anyone think a white life worth more than a black life. In the Freddy Gray case in Baltimore, Gray’s survivors were given 6.4 million dollars–a record–by the city before a lawsuit was filed and before any of the six officers were tried. All of the officers were either acquitted or their charges were dropped. They did nothing wrong, yet Gray’s survivors were given a massive payout primarily because Gray, petty criminal and drug dealer high at the time of his arrest, was black.
The Damond case has received such attention because it is rare for the police to shoot any woman of any race. It’s also noteworthy because Damond was not shot in some ambiguous situation where officers might reasonably have believed their lives were in danger. She is perhaps the most innocent, non-threatening victim of police stupidity I’ve seen outside the Erik Scott case.
The SMM Damond case archive is available here.