The headline Wednesday blared “Culpable Negligence” in reporting third-degree murder and second-degree manslaughter charges for ex-cop Mohamed Noor. County Attorney Mike Freeman will pursue the case at trial.

When I saw that term “culpable negligence,” the term “discretionary judgment” flashed in my mind. I then thought of Melissa Johnson, a 22-year-old student in St. Cloud who was raped and murdered 27 years ago by Scott Edward Stewart, a twice-convicted sexual predator.

Stewart had apparently told the officers at his prison that if he was paroled he would offend again. He was released anyway. And instead of being established in a halfway house, as planned, he was left without supervision. He raped and killed Melissa five days after his release.

I also thought of Katie Poirier, Jolene Stuedemann, Kari Koskinen, Dru Sjodin, Pamela Sweeney, Carin Streufert, Jamie Cooksey and many others who died at the hands of paroled men known to have violent histories, a pattern of vicious rapes and even murder. I flashed back on Mary Foley, who was brutally beaten and killed decades ago in the Honeywell parking ramp by a man who had already been convicted of nine previous rapes and had just been released.

In all those cases and many others, where agents of the state make terrible decisions, the state indemnifies itself and the agents involved through a legal “get out of any responsibility pass” — what is known as discretionary judgment or discretionary duty.

In Melissa Johnson’s case, her family sued the state both for releasing Stewart and for failing to provide close supervision. But as described in a 1995 ruling at the Minnesota Court of Appeals, the trial court had found that “no relief could be granted on appellants’ claims because the respondent state and county and their agents, officers and employees were immune from suit.” That is, in a nutshell, governmental discretionary immunity. “The state is immune from tort liability when its alleged duty is ‘discretionary.’ Minn. Stat. § 3.736, subd. 3(b) (1990). The county enjoys like immunity.”

The Court of Appeals overturned the trial court and ruled against sweeping government immunity. But the state Supreme Court in 1996 reaffirmed immunity for “discretionary” duties.

It doesn’t matter how bad a judgment is by a parole board, or how poorly done is a psychiatric assessment, or how blind a judge is in ignoring evidence of danger to the community before suspending a sentence, etc. These people, government employees, are simply “immune from tort liability” (and, it follows, from criminal liability).

One can drown in the legal morass of verbiage that surrounds this concept. It is speciously and self-servingly argued as necessary for the smooth functioning of government decisionmaking. Hard to imagine almost any other enterprise where egregious errors of judgment are “immune from tort liability.”

Noor is being prosecuted for murder. He made, over a few seconds in a tense scenario, what turned out to be an awful decision. He isn’t protected like those government officials who make their decisions not in a few seconds and under duress, but with plenty of time for careful analysis. The latter, unlike Noor, have ironclad “discretionary judgment” immunity as the buffer against bearing responsibility for their decisions. The Supreme Court says so.

I don’t know what needs to change to create some balance in all this. But seeing the high-pitched umbrage displayed by various officials who know that they themselves can never be held responsible for reckless decisionmaking of their own while in office leaves a bad taste.

And for Noor, it leaves a lengthy trial ahead.


Paul Bearmon lives in Edina.