Minnesota is once more reeling from an all too familiar pattern of a police shooting leading to protests and riots. The shooting of Daunte Wright in Brooklyn Center on Sunday was a horror shown in a continual slow motion loop on every news channel. Much remains unknown about this seemingly senseless killing. Finding those answers takes faith and fealty to the legal system that is based on fairness and due process. However, many political leaders have again decided that due process is a liability.
When Brooklyn Center City Manager Curt Boganey said a full investigation would be conducted and due process afforded to any accused officers, he was fired. Soon after the shooting, and before any underlying facts were established, Minnesota Governor Tim Walz denounced “another life of a Black man taken by law enforcement” and made a connection to the trial of police officer Derek Chauvin, occurring a few miles away.
Due process is not a dirty word or a dog whistle. Boganey was trying to do what Walz was unwilling to do and respect the rule of law. When reporters asked Boganey if he would fire the officers involved with the shooting, he stated, “If I were to answer that question, I would be contradicting what I said a moment ago, which is to say that all employees are entitled to due process and, after due process, discipline will be determined. If I were to say anything else, I would be contradicting the very idea of due process.” Officials showed this contradiction he feared by firing him.
It is possible that the shooting was accidental. In the video, the officer is heard yelling “taser, taser, taser” before she swears and says “I just shot him.” We have seen many cases of officers confusing tasers with service weapons in struggles. There have been design and training changes to address these tragedies. The shape and color of tasers were changed to reduce the “weapon confusion” incidents. Although some departments have experimented with different tasers, most still believe tasers shaped like guns offer the best tactical use. They have tried training, utility belt placement, and other means to avoid weapon confusion.
But in dangerous adrenaline driven encounters, split second mistakes still occur. One of the most infamous cases of weapon confusion occurred in 2009. Oscar Grant was on the ground in a prone position when Bay Area Rapid Transit officer Johannes Mehserle told colleagues he was going to taser him. Mehserle then shot Grant in the back with his service weapon, and he was later found guilty of involuntary manslaughter.
Weapon confusion research often discusses the work of the psychologist Alphonse Chapanis, who was called by the military to look at the problem of pilots retracting their landing gear after landing their bombers. Despite pilots being court martialed for the mistake, he found that the levers for the landing gear and flaps were not only identical but located near each other. The shooting of Grant marks the same problem. The video showed Mehserle moving his thumb over his weapon. His service weapon did not have a thumb safety but his taser did. This was evidence that Mehserle thought he pulled the taser before firing the fatal round.
These weapon confusion cases are all tragic and involve all races and genders. In many cases, the use of the tasers would have been deemed reasonable. The same may be true in the incident with Wright, who was shown resisting arrest and attempting to flee. Most jurisdictions would consider use of a taser to be warranted, although doing that would be dangerous in a situation with someone who is driving a vehicle or who might be deemed excessive during a minor traffic stop.
That brings us back to due process. We do not know yet if use of a taser could be viewed as reasonable or if weapon confusion was involved with Brooklyn Center. Police chief Tim Gannon denied news reports that Wright was stopped for having too many air fresheners hanging from his rearview mirror. Gannon insisted the stop was based on expired license plates, but concerns remain about the possibility of racial profiling.
The impact could also be felt in Minneapolis. Some of us voiced concerns over the trial court decision to try Chauvin in the same city where George Floyd was killed and riots raged. So today new riots are happening after another death of an African American under dubious circumstances, and the trial judge has refused to move and protect the jury from prejudicial news coverage of the Brooklyn Center shooting incident.
Political leaders in Minneapolis have acted in ways which could prejudice the Chauvin trial. They have referred to the death of Flloyd as murder and awarded his family a national record settlement of $27 million. Rather than waiting to do so until after a verdict, the city almost derailed the trial with potential prejudicial news of the settlement. Further, the comments that Walz made about Chauvin were considered so prejudicial that nine police groups recently asked him to stop talking about the trial.
Now with the shooting of Wright, politicians again are discarding restraint. Representative Rashida Tlaib declared that this “was not an accident” and decried “policing in our country” as “intentionally racist” and “government funded murder.” Saint Paul Mayor Melvin Carter said, “It comes at a hard time because we are still mourning George Floyd, and we are still waiting for justice for George Floyd.” Minneapolis Mayor Jacob Frey denounced the “cruelty” of an “officer involved shooting while we are simultaneously adjudicating at a trial yet another officer involved killing.”
Boganey shows that defending due process is now a precarious choice in these times, one few politicians are willing to make. The contradictions he sought to avoid are the rallying cries of those in power. Unfortunately, just as due process once defined us before, the disregard of due process now may define us in these tragedies. We can grieve such losses and demand answers without presuming facts or prejudicing cases.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.