When asked by a local activist what is so complicated about the case of Justine Damond, the Australian woman who was shot by police officer Mohamed Noor shortly after placing a 911 call, county attorney Mike Freeman said this:

“I have to prove, beyond a reasonable doubt, the moment he shot the gun he feared for his life, and he used force because he thought he was going to be killed. But he won’t answer my questions, because he doesn’t have to, OK? We all have Fifth Amendment rights, and I respect that.”

His answer should perplex most people with even a minimal understanding of criminal law because it is actually the exact opposite of what he would have to prove at trial.  But, the prosecutor’s blunder was not just an honest mistake.  While it might be said that a good prosecutor will spend a lot of time imagining defenses (and in these cases the defense is not complicated) and therefore the cop’s defense has been uppermost in his mind and hence the slip up, we should not for one second believe that is why he said what he did.

The reason the prosecutor said that his burden is to prove that the cop reasonably feared for his life, a ridiculous claim, is because his brain in this particular case isn’t preoccupied with prosecuting the cop.  Far from it.  His mind is concerned and has been concerned for the past several months of how to avoid prosecuting the cop.  One can almost hear the relief in his voice when he references the 5th amendment, a thing prosecutors typically don’t like because it frustrates their cause, and cops not only don’t like but don’t understand.  “Whew, thank my lucky stars for that darned ol’ 5th amendment! Normally my boys would get a really juicy statement out of the poor sucker, but thanks to the protections of the inner sanctum and us telling the cop NOT to talk to us until he has a lawyer, I don’t have to worry about that!”

Last week a former Mesa, Arizona police officer was acquitted by a jury of both murder and manslaughter. The Mesa jury did not believe that firing five rounds from an assault rifle at a man begging for his life while trying to pull up his gym shorts and having had committed no crime whatsoever warranted any sort of punishment.  Even taking into account the high burden of proof the prosecution has to meet in a criminal case, it should astound and infuriate us that police officers are routinely given a pass after engaging in reprehensible conduct.

The fact is that police officers as criminal defendants are simply unique. Police officers do not face the same risks by going to trial that other criminal defendants face due to the nature of the system to which they belong because the law is designed to protect them in a way that none of us others is protected. Imagine shooting your neighbor as he’s watering the grass and then later explaining to the jury that the sprayer he was holding looked a lot like a gun.

If that sounds like an oversimplification, consider looking at the circumstances surrounding Daniel Shaver’s death a few more times.  In my lawn-watering scenario, imagine now that cop was called to the neighborhood based on information that someone was standing outside his house wielding a handgun.  The officer arrives and sees what looks like a man watering the grass, but, it’s getting dark and while the officer does say that the man was holding a garden hose, it also looked like he might have been holding a small caliber pistol in the same hand.

Enter now an “expert” law enforcement officer to testify that the particular watering device does resemble a small-caliber handgun and it wouldn’t be entirely out of bounds for a police officer to believe the man had been holding a gun.  Next, the jury gets an instruction from the judge that says, basically, “If you believe that the officer was reasonable in his belief that the dead guy was holding a gun, you must find him not guilty”

What “expert” cops know under the law based upon their “training and experience” will never be available to non-cops facing prosecution under similar circumstances, and it shouldn’t be.  Reasonableness is not something that should be cleverly defined in such a way that the result is cops being permitted to abuse or kill innocent civilians.  And we should should reject all talk about cops having to make “split-second decisions without the benefit of hindsight”, a phrase which is meaningless when time after time it’s obvious that officers had an abundance of time to consider alternatives to shooting to kill. Daniel Shaver could easily have been handcuffed (though he scarcely needed to have been!)

Is it time to consider dismantling and then rebuilding the criminal justice system when it comes to these deadly police/citizen encounters? Is it time for white people to consider that movements like Black Lives Matter have advanced goals that will save the lives of people of all races?

Todd Morten is a deputy public defender at the El Paso County Public Defender’s Office in El Paso, Texas. He lives with his wife and five children, on the east side.

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