Hennepin County Attorney Mike Freeman recently announced two charges against former Minneapolis police officer Mohamed Noor, relating to the late-night shooting last summer of Justine Damond. The charges generated a flash of attention around the world, much of it concerning the racial context of the Noor case and two other recent police killing cases in Minnesota.
The complaint filed by Freeman asserts two charges: third-degree murder and second-degree manslaughter. It is significant but understandable that Freeman did not elect to charge first- or second-degree murder. Either would have required the government to prove that Noor intended to kill Damond with his literal “shot in the dark.”
The complaint included, intriguingly, the observations of Noor’s partner, Michael Harrity, who was driving down an alley with Noor in the passenger seat immediately before the shooting: “Officer Harrity heard a voice, a thump somewhere behind him on the squad car, and caught a glimpse of a person’s head and shoulders outside his window. … He could not see the person’s hands from the driver’s seat and estimated that the person was two feet away from him. He saw no weapons.” At that point Harrity “perceived that his life was in danger” and unholstered his own gun right before Noor fired the fatal shot from the passenger seat, across Harrity’s body.
Harrity’s perception that his life was in danger telegraphs the anticipated defense in this case — that Noor acted out of self-defense. In a situation like this one, Minnesota law sets out that the use of deadly force by a police officer is justified only if necessary “to protect the peace officer or another from apparent death or great bodily harm.” Harrity seems to be claiming that he did perceive apparent danger.
The question then becomes whether or not the shooting was necessary to protect the officers from “apparent death or great bodily harm.” The government’s take on that is hinted at in the complaint, which describes the officers’ training: “Officers Noor and Harrity were trained in numerous scenarios intended to teach them to identify a target and its threat, if any, before shooting at it.” This sets up a trial situation in which Harrity supports Noor in claiming that their lives seemed in danger, while prosecutors argue that their training taught them to first evaluate a situation before shooting. Since the justified-use-of-deadly-force rule would apply to both charges, it could be a principal focus of the defense.
So what about the charges Freeman did select?
One of the charges is significantly more serious than the other. Third-degree murder carries a maximum sentence of 25 years, while second-degree manslaughter is capped at 10. The Minnesota Sentencing Guidelines, which set a more realistic baseline for sentences, peg a first-time offender without enhancements at about four years of prison and parole for second-degree manslaughter, as opposed to 12½ years for third-degree murder. That’s a big gap — perhaps big enough to entice Noor into a plea to the lesser charge, if that deal is offered.
Going to trial, even on the less serious second-degree manslaughter charge, would be a calculated risk for Noor. That charge requires that the government prove “culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.” Yes, that is the exact charge that Jeronimo Yanez, the St. Anthony police officer who shot Philando Castile, was acquitted of last year, after he successfully argued that he feared for his life during the encounter.
The different facts should give Noor pause, though. In the Yanez case, the officer knew that there was a gun in the citizen’s possession because Castile had divulged that fact. No such factor currently is known to exist in the police encounter with Justine Damond.
While the strategies of the prosecution and defense in the Noor case will hold our interest for months, a larger question is being addressed in the background. The police killings of Justine Damond, Philando Castile and (in 2015) Jamar Clark all involved deaths that were probably needless. While it is important to seek truth and justice after the fact, it is also crucial to improve police practices and prevent a continuing parade of these cases. To that end, the Minnesota Advisory Group to the U.S. Commission on Civil Rights issued a report last week titled “Civil Rights and Policing Practices in Minnesota.”
Embracing the recommendations of that group — including greater transparency, better community policing, improved interactions between the police and communities of color, and enhanced training in crisis intervention — should be an imperative. Even as we sort out the tragedies of the past, we must also do what we can to avoid them in the future.
Mark Osler is the Robert and Marion Short Professor of Law at the University of St. Thomas.