The list of officers summoned to testify before a grand jury Tuesday indicates that Hennepin County Attorney Mike Freeman is trying to meet the legal standard to charge Minneapolis police officer Mohamed Noor in the shooting death of Justine Ruszczyk Damond, legal experts say.
Noor’s partner, Matthew Harrity, the sole witness, is among those who will be testifying. But the majority of the more than 30 officers subpoenaed are Noor’s trainers and academy educators, according to Bob Kroll, president of the Minneapolis Police Federation.
Those witnesses could provide Freeman with evidence to decide whether Noor acted unreasonably and outside of his training, which the prosecutor would need to charge Noor with a crime in Damond’s death.
Freeman formed the grand jury despite a previous pledge to no longer use the panels in police-civilian shooting cases. Freeman will ultimately make the decision on whether to charge Noor, his office has said.
If he pursues manslaughter charges under Minnesota law, it would require him to prove that Noor’s actions the night he shot and killed Ruszczyk Damond were, in legal terms, “culpably negligent.” And to prove that, Freeman needs to prove that Noor’s actions were, again in legal terms, “objectively unreasonable.”
And that’s a high bar for him to clear, said former Ramsey County Attorney Susan Gaertner.
“The law does not require that an officer’s decision was the best one, it just requires that it was a reasonable one,” Gaertner said. “Officers are given a great deal of latitude under the law to respond to danger that they perceive is present.”
That was a key hangup for jurors who ultimately acquitted former St. Anthony police officer Jeronimo Yanez in the 2016 fatal shooting of Philando Castile. Yanez said he feared for his life and thought Castile was reaching for a gun when he fired several times into Castile’s car during a traffic stop.
A 1989 Supreme Court decision requires that use of force be judged from the perspective of a “reasonable officer at the scene, rather than with the 20/20 vision of hindsight.” In the same case, the high court said it was reasonable for officers to use force if the suspect “poses an immediate threat to the safety of the officers or others.”
When prosecutors examine Noor’s trainers, “What you would want to explore is how was officer Noor trained in these types of situations? What was he supposed to be doing?” Ramsey County Attorney John Choi said. “And then you’re asking yourself what would a reasonable officer do under those circumstances with that training.”
Noor and Harrity responded to the alley behind Ruszczyk Damond’s home after she called 911 on July 15 to report a possible sexual assault in that area. After the officers heard a slap on the back of their squad car, Ruszczyk Damond approached the driver’s side window. Noor, sitting in the passenger seat, pulled his gun and fired, hitting her through the open driver’s side window, according to the Bureau of Criminal Apprehension.
“If he’s acting outside of his training, then the level of justification is diminishing,” Choi said. “If you get information that says he did exactly what they told him to do, then there’s more justification.”
But if Freeman is going for a manslaughter charge, Joe Kelly, the attorney representing the officers, said it’s puzzling because those testifying do not know exactly what Noor did that night.
“It would be hard to testify as to what Officer Noor did was consistent or inconsistent with the training provided,” Kelly said.
Neither officer’s body camera was on at the time of the shooting, and Noor has refused to speak with investigators.
Even if Freeman gathers the evidence to show that Noor’s actions were unreasonable, he still might not have enough to charge Noor with manslaughter under Minnesota law. The statute also requires that Freeman have the evidence to prove Noor “intentionally” took the risk of firing his gun.
If Noor took a reflexive action in fear for his life, said defense attorney Joe Friedberg, it wouldn’t meet Minnesota’s legal standards to convict.
“In this case, I’m not sure [Noor] intentionally took the risk of firing,” Friedberg said.
Even Freeman himself might fear that possibility. Though he declined to comment for this story, when he was caught on video in December answering why Noor hadn’t been charged yet, he responded: “Fair question. I have to prove beyond a reasonable doubt the moment he shot the gun [Noor] feared for his life.”