Former Officer Kim Potter Charged With Second Degree Manslaughter : by jonathanturley

The former Minnesota police officer Kim Potter has been arrested and charged with second degree manslaughter in the shooting of Daunte Wright.  The charge allows for up to ten years in prison but it also has a standard that could prove challenging in the prosecution.

There is evidence that the shooting of Wright was a case of “weapon confusion” in Potter firing what she thought was her taser. The case is very similar to Oscar Grant shooting discussed in my earlier column.  That case of weapon confusion led to an involuntary manslaughter conviction.

Here is the Minnesota 609.205 provision:

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

(3) by setting a spring gun, pit fall, deadfall, snare, or other like dangerous weapon or device; or

(4) by negligently or intentionally permitting any animal, known by the person to have vicious propensities or to have caused great or substantial bodily harm in the past, to run uncontrolled off the owner’s premises, or negligently failing to keep it properly confined; or

(5) by committing or attempting to commit a violation of section 609.378 (neglect or endangerment of a child), and murder in the first, second, or third degree is not committed thereby.

If proven by a preponderance of the evidence, it shall be an affirmative defense to criminal liability under clause (4) that the victim provoked the animal to cause the victim’s death.

Obviously, this case will turn on the first provision and whether Potter “creat[ed] an unreasonable risk, and consciously [took] chances of causing death or great bodily harm to another.”

In the video, Potter is heard yelling “taser, taser, taser” before she swears and says “Holy S**t I just shot him.” We have seen many cases of officers confusing tasers with service weapons in struggles.

The question is whether such a split second error constitutes consciously taking chances of causing death. In the Grant case, the jury rejected more serious charges in favor of the involuntary manslaughter charge.

The Minnesota Supreme Court previously ruled in State v. Frost (1983):

“[S]econd-degree manslaughter under section 609.205(1) involves an element of awareness of the risk by the defendant. Stated differently, the statute requires proof of an objective element and a subjective element, the objective element being gross negligence and the subjective element being recklessness in the form of an actual conscious disregard of the risk created by the conduct. This interpretation is based on the wording of the statute itself and, further, is in accord with the view espoused by the drafters of the Model Penal Code that liability for manslaughter should not be premised on “inadvertence to risk” (that is, disregarding of a risk of which one should be aware) but on a conscious disregarding of a substantial and unjustifiable risk of which one actually is aware. Model Penal Code §§ 210.3, Comment 4 and 210.4 Comment 1 (1980).”

That type of instruction could cause difficulty for the prosecution in light of the body cam video.  They will have to show in those brief seconds Potter made a conscious choice rather than an inadvertent act. That could lead to an acquittal and the risk of the resumption of rioting.  That is why it is important for the media to fully inform the public of the countervailing facts and standards (a problem previously discussed in the George Floyd case).