By David M. Greenwald
As the defense wraps up in the Derek Chauvin trial and the news emerges first about Daunte Wright and now about young Adam Toledo, we return to the vexing problem of how do we police the police.
While things like body-worn cameras are helpful, it is also worth noting that those tools have not succeeded in preventing police misconduct—in part because we are still stuck in the same place as before, namely what is the mechanism for holding them accountable?
Right now, police officers face firing or, in the case of Kim Potter who killed Daunte Wright, she resigned. There are lawsuits, but because of qualified immunity, police officers generally cannot be held personally civilly liable for their actions. New Mexico this week became the second state to do away with qualified immunity, but the Supreme Court has thus far not taken it up.
That has left criminal proceedings. But there are two problems with criminal proceedings. First, the state laws, with few exceptions, give police officers broad discretion on the use of even deadly force. And for the most part, jurors have given officers the benefit of the doubt. There are some notable exceptions, but those are rare.
In the Daunte Wright case, it has been interesting reading the comments. While not everyone buys into the notion that mistaking a gun for a taser was legitimate, for the most we will accept her version of events.
It is important to understand the difference between an accident and negligence. If you are carefully walking down the street and slip on a piece of ice and fall, that’s a clear accident. On the other hand, if you are running down the sidewalk under hazardous conditions and fall, that’s negligence.
Under the law, there are various forms of murders and while, under Minnesota law, first or second degree murder involves an intentional act, there is a reason why they have second degree manslaughter, also known as involuntary manslaughter.
“This charge covers situations where a person’s negligence created an unreasonable risk or where a person consciously took a chance resulting in the death of a person. If convicted, you can face up to 10 years in prison and not more than a $20,000 fine.”
Officers are trained to put a taser and their service weapon on opposite sides, among other things, in order to avoid the mistake made. Moreover, grabbing a weapon and firing without knowing which one they are firing is, in fact, negligence. Furthermore, this wasn’t harmless error. Someone died.
From the standpoint of the law, therefore, this seems to fit the legal definition of negligent homicide or second degree manslaughter (manslaughter is a specific form of homicide). The prosecution will have to prove beyond a reasonable doubt that she acted negligently and the defense will have an opportunity to put on an affirmative defense.
Someone asked how long she deserved to go to prison for this action. It’s a fair question.
But, increasingly, I do not support the notion that prison is an appropriate punishment for people unless there is a clear danger to society. There is a caveat to this notion, because embedded within the notion of danger to society is a whole bunch of unconscious and conscious racial bias that we would have to work through to get to a workable system.
Nevertheless, I think locking people in a cage is antiquated except for those in society who represent a true danger—there are some, but they are the exception rather than the rule.
Creating a true system of rehabilitation. Job training. Education. Mental health treatment. Drug treatment. We spend $85,000 a year to lock someone in a cage and we have a recidivism rate that sees nearly two-thirds of them released only to commit another offense. Why not spend that money affirmatively?
But in the case of Kim Potter, the answer here seems to be something along the lines of a restorative process. I have been involved in one such process and they can be very powerful.
Instead of having her on trial, where she and her attorneys attempt to minimize her responsibility and defend her, imagine Potter sitting around the table with Daunte Wright’s family and having a discussion where she has to listen to the harm her decision caused and, at the same time, she can express the harm that she has suffered.
At the end of the discussion or series of discussions, the participants can outline the harms suffered and come to an agreement about what can be done.
I see this as an opportunity. Kim Potter could become—if she wanted to—an agent for change. She could go around and talk about her experience.
I am reminded of another situation, the case of Ronald Cotton and Jennifer Thompson. Thompson was brutally raped as a young woman. She ultimately identified Ronald Cotton as her perpetrator. She was certain she was right—but it turned out she misidentified Cotton as her rapist.
Cotton spent 10 years in prison for a crime he didn’t do before being exonerated.
The amazing thing about their story is that they ended up meeting, Cotton forgave Thompson and they now go around the country talking about the danger of wrongful convictions and eyewitness misidentification, from the vantage points of a victim of a crime and the victim of a wrongful conviction. It’s a powerful story and it’s difficult to leave their talk with a dry eye.
Imagine if, instead of trying to find new ways to extract a pound of flesh, we empower people—victims and perpetrators—to become the agent of change themselves.
There are all sorts of opportunities here that can be born from horrible tragedies.
—David M. Greenwald reporting
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