Tags
a reasonable police officer, Graham v Connor (1989), Justine Damond, Matthew Harrity, Minneapolis Police Department, Mohamed Noor, Peter Wold, Robert Bennett, Thomas Plunkett
The impending trial of former Minneapolis Police Office Mohamed Noor appears to be winding its way through the Minneapolis court system in a leisurely manner. This from an April 26, 2018 Minneapolis Star Tribune article:
Former Minneapolis police officer Mohamed Noor will plead not guilty in the death of Justine Ruszczyk Damond, arguing that he acted in self-defense when he fired the fatal shot from inside his police SUV.
According to a Wednesday court filing signed by his attorneys Thomas Plunkett and Peter Wold, Noor intends to claim that he used ‘reasonable force’ when he shot Damond should the case goes to trial.
The document did not elaborate further on his defense strategy but mentions that Noor’s attorneys may call private investigator William O’Keefe to testify at trial. Noor’s next hearing is scheduled for May 8.
Noor’s lawyers also filed a normal and expected discovery motion. How Mike freeman, the prosecutor, responds to this motion will reveal a great deal about his case. Competent prosecutors who file strong cases are pleased to fulfill all discovery obligations. That only demonstrates to the defense how overwhelming the case against their client is. If, however, Freeman resists discovery, that sort of resistance is commonly a sign of incompetence and a very weak prosecution case that should never have been filed.
Noor made his initial court appearance late last month and shortly afterward was released after posting $500,000 for conditional bail. He has been ordered to turn over his passport, surrender his firearms and ammunition and refrain from contacting his former partner, Matthew Harrity.
A police spokeswoman said Wednesday that department leaders would not be commenting on the case.
No kidding. They’re anticipating the wrongful death civil suit. As I’ve previously noted, I’d be surprised if Robert Bennett, the Damond family attorney, has not begun negotiations already. The only likely issue is how much Minneapolis is going to have to pay. One may safely assume Justine’s survivors are willing to take the matter to trial.
Local attorneys say it will be difficult for Freeman to secure a guilty verdict on the murder charge, given the lack of body camera footage and the fact that Noor has declined to speak with state investigators or a grand jury probing Damond’s death. Noor is the second Minnesota officer in recent memory to be charged with an on-duty death and the first to be charged with murder.
That’s an interesting standard. No body camera footage and no confession, no conviction. How, one wonders, has any criminal ever been convicted of any crime before the advent of body cameras, particularly when they have chosen not to confess?
Noor’s legal team…will likely ask a jury to consider the facts from the perspective of a reasonable officer, a legal standard established in the 1989 Supreme Court case Graham v. Connor, and a common defense in police shooting cases.
‘Police officers get an extra layer of defense, beyond self-defense — they have a statute that provides them with another additional defense, that they can use an appropriate level of defense to protect themselves,’ said Applebaum.
I’m sure that’s the approach they’ll use,but Applebaum’s suggestion there is a statue that “provides them with another additional defense,” is nonsense. Graham v. Connor (1989) is not a statute, but a Supreme Court decision. The case merely outlines a reasonableness standard for the constitutional police use of force, based on the unique circumstances leading to the use of force. A good discussion of the case is available here. The ultimate issue in this case is whether it was reasonable, under the circumstances, for Noor to shoot Justine Damond. He may have seen movement, perhaps a shadow, or heard a noise, so he fired across the face of his partner. His tactics and situational awareness were so poor, a completely non-threatening woman in her pajamas, a woman reporting a potential crime, who was demonstrably doing nothing more threatening than trying to talk to him, scared him so badly he shot and killed her. As I’ve previously written, every citizen of Minneapolis had better hope Noor’s actions were not reasonable, or officers can shoot and kill citizens based on nothing more than unjustified blind panic or whim.
Minneapolis attorney Mike Padden said that based on the available evidence, the shooting was a case of accidental discharge, making Noor’s claim of self-defense mystifying.
‘The problem is that they didn’t have their body cameras activated, and they didn’t have their dashcam activated, which then it creates the opportunity for creating a false narrative,’ he said. ‘I don’t think for a minute that his gun going off was an intentional act — if he were shooting to kill, then he would’ve shot more than one round.’
He added that observers might wonder: ‘If he accidentally shot her, then why he didn’t say that?’
‘Well, if he says that, then he’s guilty of some derivative of manslaughter,” Padden said.
The idea that Noor would have necessarily fired more rounds if his shot were intentional is nonsense. It’s a far too black and white view of reality. Noor’s actions are accidental only in the sense he should not have shot Damond. Given the circumstances, no reasonable, professional police officer should have. It is entirely possible he fired wildly and without justification—no accident—and immediately after firing the shot, didn’t fire again because Damond immediately fell out of his line of sight below the door sill of the vehicle, or he suddenly got that “oh shit” feeling a police officer gets when he knows he has done something incredibly stupid, and had just enough sense not to continue to dig that particular hole. Firing a handgun in the front seat of a car is also a physical shock–very loud and concussive–perhaps sufficient to have stunned him, leaving him unable to fire additional shots. Noor obviously recovered sufficiently to immediately shut, and lawyer, up.
The union that represents the city’s nearly 900 rank-and-file officers has said it is weighing whether to appeal his termination. A message left for its president, Lt. Bob Kroll, went unreturned Wednesday.
Noor can petition a third-party arbitrator to get his job back, as other officers fired for on-the-job conduct have done. But that path got more difficult last month, after the state appeals court ruled in favor of the city of Richfield in its efforts to fire a police officer after a video of him slapping a teenager went viral online.
The decision was hailed as a major victory in the movement to overhaul the state’s decades-old arbitration system that the Minnesota Chiefs of Police Association deemed ‘broken.
It is not at all unreasonable to interpret the police union’s consistent silence on this case as an admission of Noor’s guilt. Even police unions are reluctant to defend officers that clearly screwed up, particularly when citizens are killed. Were I them, I’d realize there was nothing to defend.
The case took another turn at Noor’s second appearance in court, according to a May 8thStar Tribune story:
Mohamed Noor, the fired Minneapolis police officer charged in the shooting death last summer of Justine Ruszczyk Damond, made his second court appearance Tuesday morning without entering a plea. [skip]
Assistant Hennepin County attorney Amy Sweasy told the court Tuesday that the discovery process, during which both sides share documents and information that they may present at trial, is ‘largely complete.’ She added that no plea negotiations have taken place.
Noor’s St. Paul-based attorney Thomas Plunkett asked district court Judge Kathryn Quaintance for a meeting with prosecutors to discuss scheduling matters and establish a timeline of future hearings. In a filing last month, Plunkett indicated that his client intends to plead not guilty to both charges, arguing that the former officer was acting in self-defense and used ‘reasonable force’ when he shot Damond.
I’m unsure why Noor has entered no plea, and why the judge has allowed that. That’s normally done at arraignment—the defendant’s first appearance before a judge, where the charges are read and bond is set. After all, A guilty plea sets an entirely different course for the court process than a not guilty plea. I suspect, however, that won’t be the last odd thing about this trial.
He made his initial court appearance last month and shortly afterward was released after posting $400,000 bail, while agreeing to certain conditions: that he turn over his passport, surrender his firearms and ammunition and refrain from contacting his former partner, Matthew Harrity, who was present the night of the shooting.
Harrity was among the dozens of Noor’s former colleagues who were called before a grand jury investigating the case, but it’s unclear whether he offered testimony.
The Police Department and Hennepin County Attorney’s Office each declined to comment on the case Tuesday. It wasn’t immediately clear whether an Internal Affairs investigation into the shooting had been completed.
Any contact with Harrity would be witness tampering. Regarding Harrity’s testimony, he gave a statement to the BCA, so it’s likely he continued to cooperate. Having done that initial statement, a later refusal to cooperate would tend to indicate Harrity lied in his initial statement, or believes he’s in criminal trouble. Since Noor has been fired, the only reason an internal affairs probe would continue was if the Department suspected someone else—Harrity?—did something wrong, or to tie up all possible loose ends if Noor tries to get his job back, and to help with the inevitable wrongful death civil suit. Surely they’re smart enough to understand the only civil issue is how much they’re going to have to pay?
More as it develops.
Maybe he’s trying to set up a diminished capacity defense?
This is a good post Andrew Branca made regarding Graham v Connor – this is a Patreon page but it did look like this post was public: https://www.patreon.com/posts/bonus-graham-v-18565857
Dear Tim Landers:
Thanks for the Link. Branca is state of the art in these issues.
Mike, very informative, thanks. I do enjoy your missives.
Umm, I don’t suppose you want to go over statue versus statute?
:-)
Again, thanks.
Dear Tom Dillion:
Thank you!
You’re welcome. I’ve been reviewing a large report for the last few weeks and I just can’t turn it off!
Tom
Enjoy your columns about this case.
I do have two questions which I would be curious to read your observations about.
Noor never spoke to investigators and if he had I presume he would have invoked his 5A rights against self incrimination.
What if the other officer decided not to speak with investigators, invoking his 5A right. Would the prosecutor be able to file charges and what might they be?
That sounds odd, and I know there’s circumstantial evidence, but without testimony they wouldn’t know who did what or what the victim did leading up to the shooting.
Dear Roger Lake:
Thanks for your kind comment. If Harrity refused to cooperate, he could not be prosecuted–the 5th Amendment is pretty much absolute–but the Minneapolis PD, if it chose, could demand he cooperate, and if he did not, fire him. Actually, forensic evidence could piece a great deal together, but without the cooperation of at least Harrity, things would be much more difficult, and would surely have given Freeman an excuse not to file charges. I remain unconvinced that he will to throw the case in one way of another, but we’ll see.
Thank you for your reply.
Your comment, ” would surely have given Freeman an excuse not to file charges.” validates my feeling that’s what Freeman wanted all along.
Please continue your updates.
I would speculate that Noor was armed with a semiautomatic double action pistol. While I am no fan of DAO pistols because they have no manual safety, they generally do NOT have light, short trigger pulls. The need to apply enough force and trigger travel to cock a striker or hammer makes it difficult to fire such pistols without a concious effort. A Glock with a New York trigger would be particularly difficult to discharge without making a concious decision.
The decision to argue self defense when it is so obviously not justified might be an acknowledgement that it would be difficult to get a jury to believe that this was an accident.
Then again, juries are normally comprised of imbeciles.
Dear James W Crawford:
I’ve always wanted to serve on a jury, but when they find out my police background–and they always ask–that’s the end of that.
I googled “Minneapolis Police Department standard issue sidearm.” Evidently, MPD officers buy their own handguns, and may choose from an approved list: Glock 17, 19, or 21; Sig-Sauer P320; or S&W M&P. Additionally, officers who have been on active duty more than one year may carry a Beretta 92 or Sig-Sauer P226 or P227.
The compact or sub-compact versions of those weapons (e.g., Glock model 26, S&W Shield) are allowed for off-duty, as are Colt, Ruger, or Smith & Wesson snub nose .38 revolvers.
So, presumably, Noor had a striker-fired (in effect, DAO) pistol, or a conventional DA/SA automatic. Either way, the trigger pull would have been pretty heavy, and it would have been unlikely that the gun could be fired unintentionally.
I suppose it’s possible that Noor manually cocked the hammer of a P226/227 or M-92, making the trigger pull lighter. Which, in itself, would defeat the purpose of carrying a DA handgun in the first place. And a competent prosecutor (or a plaintiff’s lawyer) could make a case that cocking the hammer indicates gross negligence or recklessness. (Which, IIUC, is why so many police departments are adopting striker-fired or DAO handguns.)
And, if Noor admits that he intentionally fired, then I don’t see how he can claim to have used “reasonable force” against an obviously unarmed person who was standing around and not making any threatening moves.
I usually give cops the benefit of any reasonable doubt in questionable shootings. They are forced to make life-or-death decisions in a split second, so even a competent, conscientious officer can make a tragic mistake. But, even in cases where unarmed and/or innocent people were shot (and those two can overlap, but are not always the same thing), there was usually more to it than just, “Duh, I heard a noise and saw a shadow, so I fired,” or “He reached in his pocket and I thought he might be drawing a gun, so I shot him.”
Dillon Taylor reached toward his waistband after being told not to move. Philando Castile’s case was similar. Tamir Rice drew a realistic-looking toy gun. Stephon Clark drew an object and went into a combat crouch as if aiming a gun. None of those factors appears to have been present in the Damond case.
And. yeah, we’ve all heard that old joke about the definition of a jury: twelve people who were too stupid to avoid jury duty.
Dear Tom:
Thanks for the info. I haven’t been able to find any information positively identifying Noor’s choice of handgun.
Thanks for this blog and the updates on Justine’s case. I am from Australia where fatal police shooting citizens is really rare. So to me, this case is so very shocking and inexplicable. I don’t believe that Noor is innocent, but I do believe there is the possibility that the shot was accidental, which makes Noor guilty on at least one count of manslaughter??? This is a guess, as I am only familiar with criminal law in Australia. I do believe that Justine’s family will win a civil suit and that the civil case won’t go to trial. As everything would need to be made public, Noor poor record on the police force for example. He already had three complaints against him, one of which was closed. And it is has already been asked by reporters why he was still on active duty?
Dear Jel Writes:
Thanks for taking the time to read this scruffy little blog. I don’t think Noor intended to kill anyone that night, but if, as I suspect, he was the beneficiary of politically correct hiring and retention, he–and others like him–was going to be involved in harming others. It was only a matter of time, and Justine Damond’s time ran out when she had the misfortune to meet him.