Don’t Confuse an Accident with a Crime

For those who think now-former Brooklyn Center police officer Kim Potter should be charged with a crime – let alone murder – I have a simple question: if a surgeon accidentally nicks an artery and kills a patient when she mistakes the scalpel in her hand for a prober, should she be charged with murder, or even manslaughter? 

Answer: no.  

After all, the surgeon did this thing we all do: she made a mistake.  She had no ill intent, let alone malice.

Despite the best intentions and protocols, it sadly happens on occasion, and especially in the heat of the moment during a pressure filled situation like surgery.  

The question is, what should happen when it does?

Answer: perhaps the surgeon should lose her job.  Perhaps she should be sued civilly for money damages for her negligence.

But what should not happen?

Answer: the surgeon should not go to jail.  She is not a criminal.  She is, at most, negligent.

Yet that is what our blood thirsty society is now doing with Kim Potter, the veteran Brooklyn Center police officer who accidentally shot Daunte Wright when trying to make an otherwise lawful arrest that quickly went awry when Wright broke the law by forcibly resisting.

Because there is a body camera, the facts are pretty clear.   

It was just before 2:00 pm on an otherwise boring Sunday afternoon in Brooklyn Center, a Minneapolis suburb that is about as diverse and middle class as anywhere in America.

Brooklyn Center has 32,000 residents who are roughly 38% white, 27% Black, 18% Asian, and 13% Hispanic.  Its Black mayor, Mike Elliott, emigrated from Liberia as a child, and the town has many immigrants from Laos, Vietnam, and West Africa.  

In short, Brooklyn Center is, in many respects, the modern face of America, and it is a good face, a pretty face.

On that Sunday, Potter was actually field training a rookie officer, who along with his partner, pulled Wright over for expired tags.  Like thousands of stops made every day by good, hard-working officers in America, it was a “routine” traffic stop.

Until it wasn’t.

The officers ran Wright’s information and discovered a warrant for his arrest for a gun charge.  Obviously, that is no small deal, and equally obvious, normal protocol – no matter Wright’s color – requires that the officers arrest him.

As the video clearly shows, the officers did just that.  They calmly explained to Wright that he was under arrest, and then professionally instructed him to exit his vehicle.  And Wright initially did just that.  

So far so good.

But then things quickly – in less than five seconds – went awry.  While being handcuffed, Wright resisted, scuffled, and squirmed back into his car.  With Wright’s car door opened, the rookie officer tried to get Wright back out of the car.  But Wright resisted and pushed back.

During these few, adrenalin-rushed, intense seconds, Potter – a veteran – sprang into action and did what the book requires: she came to her partner’s aide and announced to Wright: “Taser, taser.”

The goal, of course, was to detain Wright, who by now had committed additional felonies, including forcibly resisting arrest and battering an officer.

And then it happened.  Potter discharged her taser.  But sadly, it was not her taser.  It was her other weapon, the one she was trained long ago to use, her gun.

She fired once and immediately yelled out, “Holy shit!  I shot him.”  Wright then fled in his car but died from the fatal wound shortly thereafter.

There’s a word for all this, and as upset and blood thirsty as we all are, it is not murder.  Instead, the proper word is accident.  A terrible, tragic, and sad accident.

“Yes,” sometimes even for “accidents,” people can be – and should be – charged with the lesser criminal offense of manslaughter.

KIm Potter booking photos (Hennepin County Sheriff)

The classic example is drunk driving.  You drink and drive and kill someone, you go to jail for manslaughter.  You rightly lose your liberty and are a criminal.  In short, for what some call “gross negligence,” there is a criminal penalty.

Another example would be if you accidentally leave a loaded gun on your kitchen table while babysitting and a kid tragically kills herself.

In that instance, you not only lose your baby-sitting job, and you not only get sued for money damages, but you also rightly lose your liberty.  You are, in two words, also criminally culpable and will go to jail and lose your liberty.

In those instances, actions don’t just have consequences, they also have criminal consequences.

But as sad as it is, what happened with Officer Potter and Wright’s death is not that.  

Look at the video.  It is clear.  In the heat of the moment, she made a mistake, a tragic fatal mistake, discharging her gun when she thought it was her taser.

Again, should she lose her job for such a terrible mistake?  Yes.  Should she be sued civilly for money?  Sure.  But should she lose her liberty and wear an orange jump suit?  No.

If you disagree, then let’s get back to where we started: should the surgeon go to jail for her mistake when nicking the artery with the scalpel that she thought was a probe?

Philosophically, morally, and for consistency's sake, whatever your answer, it should be the same answer for both Potter and the surgeon.

In both instances, Wright and the patient are indeed victims.  Both die when they shouldn’t.

But they are victims of a sworn and trusted person’s negligence, not victims of a crime.

By prosecuting the surgeon and Potter as criminals, they arguably also become victims, and we all suffer.

After all, in such a society, who would ever want to be a surgeon or a cop, when after a decorated career doing everything right, you can instantly become a criminal and go to jail based on a momentary mistake made in good faith?

Let’s be clear: prosecuting Potter or the surgeon are more political actions done in response to much larger societal issues than they are the dispassionate administration of justice.

Anyone who says otherwise is either naïve, trying to sell you something, or using tragic cases to settle other scores.

Born and first bred in Gary, Indiana, William Choslovsky is a Harvard Law School graduate and lawyer in Chicago.

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