The jury’s conviction of Minnesota police officer Kim Potter for the death of Daunte Wright, coupled with the judge’s denial of bail pending her appeal, is a double injustice with dangerous implications for policing in America.
Officer Potter, a decorated policewoman with more than two decades of service, simply did not commit a crime. The prosecution conceded that she did not intend to shoot Wright and that she made a mistake by pulling out and firing a gun instead of a Taser.
Under American law, honest mistakes are not crimes — even if they result in tragic deaths. For example, an elderly driver accidentally putting a foot on the gas instead of the brake and killing a child is not necessarily a crime. It becomes a crime only if the action was reckless, involving a conscious decision to engage in conduct which the defendant knows poses a high risk of serious injury or death.
In this case, there was no evidence that Potter consciously made the decision to deploy and fire a gun as distinguished from a Taser. Nor was there sufficient evidence to demonstrate that Potter’s conscious decision to stun Wright was criminal. Wright had an outstanding warrant for an armed crime, and his conscious decision to resist arrest and get back in his car constituted a direct threat to the life of Potter’s fellow officer and others. She was right to stun him, but she made a mistake by firing the wrong weapon.
Even worse than the jury’s verdict was the judge’s decision to deny Potter bail pending appeal. There is a substantial likelihood that Potter’s conviction will be reversed by an appellate court. Potter is not a flight risk nor a danger to the community. The judge’s decision to throw her into prison seems lawless and calculated to appease the public lust for holding police accountable, even in cases where the fact and the law do not justify imprisonment.
The conviction and imprisonment of Officer Potter represents a dangerous trend in American law. Prior to the racial “reckoning” that followed the unjustified killing of George Floyd by Minneapolis police officer Derek Chauvin in May 2020, a once-respected officer like Potter would never have been charged with criminal conduct for her tragic mistake. But the public demanded that she be charged. Indeed, some called for her to be accused of murder.
Elected prosecutors — and we are the only country in the world that elects prosecutors — often are more interested in pleasing the voters than in doing justice. This certainly seems to be the case here.
Every American, regardless of race or political persuasion, should be concerned when a decent police officer is indecently charged and convicted for making the kind of honest mistake that any person could make when confronted with the pressures of a life-or-death immediate decision. Police officers will be disincentivized by this decision to take actions which may be necessary to protect innocent life.
Only rarely do police officers actually fire their guns or their Tasers, but sometimes such action is necessary. When action is taken under circumstances such as those faced by Officer Potter, occasional honest mistakes are inevitable — and such mistakes could go both ways. What if Potter had failed to stop Wright and he had gotten back behind the driver’s wheel and killed another officer as well as several pedestrians? That, too, would have been an honest mistake.
Criminal law is supposed to apply to bad people consciously making bad decisions, that they know or should know are in violation of the law. It should not apply to good police officers who make honest decisions that turn out to be wrong.
Potter should appeal her conviction and denial of bail. Not only should police organizations file briefs in her support, so should civil liberties groups like the American Civil Liberties Union, which should be concerned about the misapplication of the criminal law to satisfy voters.
The Minnesota appellate courts should carefully review the record in this case, including the evidence and the judge’s instructions. The function of appellate courts is to be a step removed from the passions of the crowd and to apply the law neutrally and fairly. Such an application of the law to Officer Potter should result in an immediate decision to free her on bail, and then a subsequent decision to reverse her conviction, with instructions to dismiss the indictment.
Officer Potter is not a criminal. She did not commit a crime. She appeared devastated by her mistake, both at the time of the incident and when she testified in her own defense. Both justice and the rule of law require that she be set free.
Alan Dershowitz, professor emeritus for Harvard Law School, is the author of numerous books, including “The Case Against the New Censorship,” and “The Case for Vaccine Mandates.” Follow him on Twitter @AlanDersh.