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LEARNING FROM THE GUYGER TRIAL AND VERDICT — 36 Comments

    • Let us beware of mental “zones,” and functioning “automatically.” I know somebody who has three times unconsciously entered, or tried to enter, neighbors’ houses in a “cookie-cutter” neighborhood within a large, gated community–ME! Each time I was bleary, a little weary from morning workout, and just not alert, in a neighborhood that I had recently moved into, where most of the houses are the same color and can otherwise appear identical. If you had told me beforehand that I could make such an entry mistake once, let alone repeatedly, I would not have believed it. We can get in big trouble just by going along in life with our minds on “automatic,” in a state of poor awareness. Take your time as you go along your path, and reflect and review.

      • Strategic Steve,

        Thanks for your admission of guilt. Sounds like people need to decorate their doors in that community. Tastefully, of course. I like Betsy Ross flags myself.

  1. Thx as always for your insights. The on problem I have, is that she was “Trained professional” and what might be considered reasonable for an untrained person just may not apply to a properly trained professional. So either she was not well trained or she was remiss in applying that training to the situation.

  2. When this case first hit the news, I commented on it (at the time) in this blog. This is what I said at that time:

    “This is a tragic and difficult case.

    The explanation provided in the manslaughter affidavit seems far-fetched. Parking on the wrong floor, walking to the wrong apartment, finding the door already unlocked when trying to use her electronic key card, mistaking the legal resident as an intruder and shooting him under this mistaken assumption. Then, not realizing that it is the wrong apartment until the lights go on and she goes back and looks at the number on the door. It is all a stretch but, given that she had just finished a 15-hour work-shift and was likely very fatigued, it is just possible that it is true.

    On the other hand, the case for deliberate murder is even more far-fetched. Are we supposed to believe that she comes home after a 15-hour shift, really wants some sleep, fears that she won’t get it because of her noisy neighbor and decides, on the spur of the moment, to just go to his apartment and shoot the SOB so that she can finally get the sleep that she needs? Or maybe she did it because she is a white-supremacist racist and, angry after a long hard day, decides to nail that non-white, noisy neighbor right now?

    Excuse me, but if I had just finished a 15-hour shift, shooting the neighbor would not be the first item on my agenda!

    This is one for a jury to figure out. I won’t pre-judge it. My inclination is to accept the final judgment of the jury whatever it may be. I certainly won’t leap to racism and murder like some of the left-wing media are doing. We had enough of that in the Zimmerman case.”

    I did not follow the trial, in depth, but I was rather expecting a Manslaughter conviction. I will admit that I was surprised by the Murder conviction. Given that there was no connection between the two people involved, I did not see how malice (required for murder) could be found. However, if the defendant admitted a “desire to kill” when pulling the trigger. If she made that kind of mistake on the stand, then I understand now the basis for the murder conviction.

    Nevertheless, the jury seems to have balanced the decision to apply the harshest verdict by also applying an unusually light sentence. A sentence of only 10-years in prison is very low for murder.

    In the end, I have circled back to the same point from which I started. In my previous comment (listed above), I said that “My inclination is to accept the final judgment of the jury whatever it may be.”

    I do accept the verdict of this jury. I believe they tried to balance justice with mercy.

  3. I agree the “shot to kill” statement (I performed as trained and shot to stop would have been a much better reply.) was most likely the direct cause of the murder conviction. However, there were also allegedly some issues with her statement of her actions in the aftermath and physical evidence. I believe there were mitigating circumstances.

    When I first read the news account of the incident, I noted, but don’t recall, the length of the work shift and cringed. I’ve done shift work a significant portion of my life in a related field. A good many of those years were on a 12 hour shift, with occasional overage. When you count in your time to prepare for work, travel time both directions, the time awake can be considerably extended. There are a number of studies (and personal experience) that show significant performance degradation while working long shifts. Obviously, this also includes perception and decision making. This might also have something to do with the inconsistencies between statement (wonder when done?) and physical evidence.

    Many states have exempted public service/emergency service workers from limitations on duty hours. That effectively sets those workers up for failure due to exhaustion, which could qualify as being “under the influence” due to possibly diminished perception and decision making skills. At the same time, a persistent pattern of long hours of service might constitute a failure to properly administer.

    The incident is a tragedy for all concerned. I rather doubt there will be much, if any, change in work scheduling.

  4. Like yourself and others, when I heard a radio news replay of her comments about her shooting to kill, I not only cringed but verbally said, “Noooo!”. Agreed there is more than enough tragedy on both sides to go around. Thanks to both you and Andrew for your great insights on this and other cases.

  5. I couldn’t believe she said “yes” when asked if she intended to kill. You never say that as the intent is to stop the threat, death not being the standard. Hard to believe her defense didn’t go over this and I wonder what the Dallas academy taught?

  6. Mas, I’ve taken your Mag-40 class and out of the class instructions you stated multiple times that the castle doctrine does not make your home an execution chamber. So I’ll ask did she have the right to shoot or should she questioned first being she could have exited the apartment if needed? So many variables

  7. Contrast this with no charges filed against Deputy Kevin Azzara, who shot a homeowner through the front door merely because he was holding a weapon. Then his department apparently lied about it to provide cover for the deputy, which fell apart when they released the body cam footage. And the state attorney still declined to press charges.

    Shameful.

    https://www.thetruthaboutguns.com/no-charges-for-deputy-who-shot-homeowner-from-outside-the-home/

    • Wood,

      That video shows every gun owner’s worst nightmare, being mistaken for a bad guy and getting shot for it. Couldn’t the deputy think, “I’m approaching a house at midnight. What might the homeowner be thinking?” But the deputy is probably thinking “the alarm rang because a bad guy entered the home. I have to be careful not to get shot by a cop-hating crook.”

      How sad to hear the homeowner say he doesn’t even have a home alarm. I guess that means a wrong address was involved, further adding to this tragedy. This is a case of “friendly fire.” It would make a perfect PSA for the anti-gun crowd.

      I just want to make a remark about the technology involved with this incident. The audio and video are both so clear I would guess this video was made by Hollywood, not a body cam. And I watched it on an older tablet, not a PC.

      Notice how even though we try to prevent these tragedies with moden training and technology, yet they still happen, even when the lighting is good! Think of all the tragedies awaiting us with self-driving cars, cameras watching us everywhere, and facial recognition like they have in Hong Kong, plus robots and software being trusted in implicitly by dingbats who walk around thumbing their phones all day and being educated by the government schools.

      This world is cursed. I think I’ll join the Amish.

  8. I appreciate your wisdom and ability to teach it Mas (I’m also a MAG 40 grad). Yes you do say and reiterate that we use deadly force only to stop the deadly threat. I also agree two victims here, one life ended and one life that will suffer pain and loss for a long time. Hopefully her life will be redeemed.

  9. This is a case where the good common sense of regular citizens prevailed over experts and lawyers, no offense to anyone here. Numerous SWAT incidents and now this LEO shot dead an innocent guy drinking coffee at his table. There were numerous options open to the defendant, one as noted above, backing out.

  10. Q:
    Why did they change the charge from manslaughter to murder?
    To satisfy/please who?
    Q:
    The poor judgement shown at the end of her fifteen hour shift bodes ill for the judgement of the cop still on the street at 14+ hours. Scary. Overworking people who carry guns for a living is not a good ideaa.

  11. Guyger was charged under this provision of the Texas Penal Code, i.e., murder, which is committed when the defendant:

    (1) intentionally or knowingly causes the death of an individual;

    (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual . . .

    I think she should not have testified, as she would have to (and did) honestly acknowledge (1) and/or (2). Deadly force is such that it is likely to cause death or great bodily harm, irrespective of the force user’s intent, and it is inconceivable that she did not know/intend at least great bodily harm by shooting. Saying the rote “I intended to stop the threat” is relatively meaningless, and rarely believed.

    The forensics suggested she took the first (missed) shot while the victim was seated on the couch with earbuds in and eating ice cream. He rose, but did not advance on her, and she shot a second time, killing him.

    Guyger received a specially written instruction on mistake about the apartment error and the nature of the threat, and also the “Castle” defense provision. I do not think she was entitled to either. Reasonable belief you are in your Castle is not in the statutory language of the Texas provision or any other I have seen. Neither of course, gained her an acquittal. Because the mistake she made was not reasonable.

    The defense “experts” who offered to testify that her mistake/shooting was objectively reasonable (I disagree) were properly excluded. They did proffer their testimony. Had they testified, I think the prosecution would have negated such far-fetched opinions.

    • @ Steve Harris – “Saying the rote ‘I intended to stop the threat’ is relatively meaningless, and rarely believed.”

      I disagree. Words are important. Especially words spoken, under oath, on a witness stand. By agreeing to the leading questions, from the prosecutor, that she intended to kill, the defendant introduced an element of “malice” into the case and supported the ultimate murder conviction.

      I don’t know if you are correct in your assertion that such a statement is “rarely believed”. However, it ought to be believed because the majority of people, shot with a handgun, survive.

      Handguns are not “Death Rays”. We have a long history of police-shooting statistics in the New York PD Firearm Discharge Reports. The NYPD has been keeping data on police shootings going back to the 1970’s.

      If you study these reports, you will see that most people, shot by the NYPD, survived. Back in the days when the NYPD used 38 special revolvers, loaded with plain lead round-nose ammo, the fatality rate was around 29 to 30 percent. To put it another way, around 7 out of 10 people, shot by the NYPD, lived after receiving medical care.

      When the NYPD switched to 9mm handguns and expanding ammo, the fatality rate increased by about 9 to 10 percentage points. Or, one could say that the survival rate dropped to about 6 our of 10 people surviving. So, while the 9mm pistol with hollowpoint ammo proved more lethal, still (when all is said and done) the majority of people that are shot, live.

      I know that the claim is made that hollowpoint ammo can be more humane because it “stops felons faster” thereby necessitating fewer shots. I expect that this is true if the same type of firearm is used in both cases. However, when the NYPD switched to hollowpoint ammo, they also switched from the revolver to a faster shooting 9mm pistol. As a result of switching pistol types, the number of rounds fired per officer, per shooting incident, actually went up. So, the combination did become more lethal whereas (I suspect), if they had kept their revolvers and simply switched to a good 38 Special +P hollowpoint load, the rate might well have went down further.

      Anyway, the point here is that handguns, when used by the police or in self-defense, generally do not kill the offender. The majority of the time, they do STOP the offender WITHOUT killing him or her. Therefore, it is quite valid and appropriate to make the claim that one is shooting to STOP an attacker rather then to KILL the attacker. The misconception that handguns are “Death Rays” is a total fabrication of Hollywood films and the media. If juries believe that handguns are “Death Rays” and that claims of “shooting to STOP” are total B.S, then expert testimony is needed to educate them, during the trial, as to the truth.

      • Thanks for the statistics about survival from handgun shots. Knowing all that (and more) is why I wrote “at least great bodily harm by shooting.” I would suggest it is a small minority of shots from an LEO’s handgun that are not likely to or do cause great bodily harm. And that there is almost no LEO who isn’t aware that shooting someone with a handgun (two or more times, the usual fact pattern) is likely to cause great bodily harm.

        Note the Texas law (above) says “intends to cause serious bodily injury.” “Serious” might be interpreted as something less than “great.”

        You wrote that the defendant’s admission she intended to kill : ” . . . “introduced an element of “malice” into the case and supported the ultimate murder conviction. . .” That is not so and legally irrelevant. Again, see the Texas Penal Code provision I quoted, above. I believe malice as an element of murder hasn’t been in Texas law for many decades. Maybe it is read into Texas “capital murder.” I have not looked at that.

        I would enjoy very much taking the deposition of an “expert” who says that shot(s) to the chest of a human being were not likely to cause “serious bodily injury.” I say deposition, because such testimony is highly unlikely to be admitted at trial.

      • @ Steve Harris – “And that there is almost no LEO who isn’t aware that shooting someone with a handgun (two or more times, the usual fact pattern) is likely to cause great bodily harm.”

        What you say is certainly true but it is non-applicable to a murder charge. You are conflating one of the elements of lethal force (to cause great bodily harm) with the legal grounds for murder.

        Certainly, shooting someone with a handgun will injure them. In the case of hits to the center of mass, great bodily harm is almost certain to happen. However, if the person shot survives, then the criminal charge would likely be assault with a deadly weapon. A murder charge would apply ONLY if the victim dies which, as I pointed out above, does not happen in the majority of handgun shootings.

        It seems to me that, as a practical matter, malice (or an intention to kill) must be an essential element in murder. It goes directly to Mens rea (the state of having a “Guilty Mind”). If there was no intent to kill, then the death is something else (manslaughter, an accident, etc.).

        The replacement of the intent to kill with an intent to stop, motivated by a reasonable desire to protect oneself (or other innocent parties) from lethal aggression, is what makes the homicide justifiable under self-defense.

        Therefore, I again must disagree. By allowing herself to be lead into an admission of a desire to KILL, rather than a desire to STOP, the defendant (in this case) undercut her own claim of self-defense and (probably) undercut the basis for a manslaughter conviction as well. If the jury accepted her statement (with no mitigation due to the leading questions of the prosecutor), then they were left with little choice but to either convict on murder or else engage in jury nullification.

        They convicted on murder but then balanced the result by being merciful on the sentence. I can see how the jury reached their decision and I do believe that the defendant’s statements on the stand, regarding an admission of an “intent to kill”, was a factor. Whatever you think Texas law says, I believe this jury WAS GUIDED by what the defendant said. Her statements were not irrelevant.

  12. For me a prime lesson from this mess is to keep your front door locked, particularly in an apartment building and particularly at night.

    If Guyger’s key hadn’t been able to open the door, the situation would have ended.

    • Guyger’s card was not “able to open the door.” The victim had failed to close the door to engage the latch bolt. She failed to see (when she held the card to the disengaged lock) the red light come on (since the lock did not recognize her card).

      • Steve, that’s what larryarnold is saying.

        Guyger held her keycard up and the door opened. If that’s all a reasonable person perceived (especially under the impairment of fatigue), it’s reasonable they would assume they were in the right apartment.

        Some might call it “victim blaming”, but it’s reasonable to say that if Jean’s door had been closed and locked, Guyger wouldn’t have been able to get inside and would have looked closer to realize it’s not her apartment. I don’t blame him, though; the whole mess is a perfect storm of unfortunate events, and any one of them being different could have been avoided/prevented the shooting. Like you said, if she had noticed the red “fail” light, that might have avoided the shooting.

        If she hadn’t pulled a 15-hour shift and come home dead tired, she might have been more awake and aware.

        I’m having a hard time finding fault for either party. I’m seeing two victims, both of circumstance and human failures.

  13. The defense of “She was tired” brings into question every arrest she, and ever other officer made – or did NOT make – after a long shift. I would think if the department does not re-examine every action by it’s officers on these “long shifts” they could be found civilly liable, and many good arrest might get overturned.
    During my almost 3 decades in Law Enforcement, there were many times I went to work on Monday, and returned home Wednesday evening.But I was younger then, and never so tired as to make anything like such a bad call.

    • If you did not get regular sleep during that period, you are either mistaken about your judgement or you are a superhero.

      People are notoriously bad at determining how impaired they are by sleep deprivation. Many subjects will claim they did not fall asleep even after being shown video of them doing so.

      For a typical person, 17 hours awake is roughly equivalent to a BAC of .075, which is close to legally drunk in some places. Twenty-four hours (an “all-nighter”) is closer to .1 BAC.

      Interns on long shifts in LA hospitals have been recorded as having six times as many accidents or near accidents on the way home from a shift as on the way to a shift.

      Working 30+ hours should be considered malpractice.

  14. Mas’ analysis hits the bulls-eye as usual. I thought the officer might have been drunk, but I guess she wouldn’t be drinking while wearing her uniform.

    This is just a terrible tragedy where a bunch of things went wrong, just like a lineup of dominoes falling. The same misalignment of circumstances happened the night the Titanic sunk in 1912. The only solace is these types of tragedies are rare.

  15. Unless your name is Jeff Cooper you probably cannot maintain perfect situational awareness 100% of the time but holy moly she was so far into condition white she was a one woman blizzard. I graduated LFI 1, 2 and 3 and I cannot tell you how many times you stressed the best deadly encounter is the one you didn’t have and the best way to avoid one was situational awareness.

  16. I don’t personally think former officer Guyger shot her victim out of malice. However she did exercise poor tactical judgement at her apartment building. When noticing the door to the residence ajar without seeing any signs of forced entry, she should have announced loudly that she was a police officer before entering the apartment with drawn weapon and a flashlight. If there were signs of burglary, she should have sought cover in the hallway and covered the open door, then call on her radio for backup before trying to enter. A 15 hour shift is not uncommon, especially with overtime. My longest workday was 30 hours, a normal 10 hour night shift in the worst part of town on New Year’s Eve, followed by 14 1/2 hours at a department store for it’s New Year’s Day sale, and a 5 hour stint at an apartment complex, with 30 minutes of traveling time between jobs. I was tired but still alert and ready for anything bad to happen. To be a proper LEO, one needs to stay in good physical condition, train constantly, and be mentally prepared for anything at anytime. To do less is to put oneself and others at unnecessary risk.

    • Bravo. At no time in her testimony did I hear anything which would make a reasonable person (LEO or non-LEO) believe they he/she was about to suffer great bodily harm or death.

  17. One point that I have not seen discussed about the case. Under Texas law, I think she had a duty to retreat before using deadly force. See Texas Penal Code 9.32. I believe that was given as a jury instruction. She never asserted that she considered or made an attempt to retreat before she first the first shot.

  18. One. Myself anyway, would hope that politics and or race had zero to do with the charging and conviction of this police officer.

    All to often in post Furgison “hands up don’t shoot” America, cops are thrown under the bus by their administration or elected leaders.

    Regardless, it would seem, the facts of guilt or innocent in many police involved shootings. Especially when the officer is white and the deceased is black.

    No one wants to see their city sat on fire by an angry mob. The press, the politicans, the cop hating public are quick to call for the cuppord head.

    In Seattle several years ago an “Indian wood carver” (native American, but was referred by the media as an Indian wood Carver)
    Was shot and killed by a police officer after refusing to throw down his knife or stop his forward approach on the officer.

    The officer was cleared by the department investigation, the regional law enforcement team investigation, the prosecutors investigation, the state attorney’s investigation and the Justice Department’s investigation.

    Yet the media, some politicians, the mayors office, pro liberal minority groups continued to demand the officer be fired and charged.

    The officer eventually quit and left law enforcement. The mayor’s office wrote the deceased native Americans family a check for about $13,000,000.00 . THE FAMILY OF THE DECEASED NEVER FILED A LAW SUIT OR CLAIMED WRONGFUL DEATH AGHAST THE OFFICER OR THE CITY.

    What message does that send or officer’s? What message does it send the next family whos had a loved one killed by an officer on self defense?

    This Dallas officer made a mistake and should be held accountable. In her mind she thought she was in her own home, had a intruder in her home. Am intruder with some object in his hands that made the officer feel her life was in jeopardy. The man who died failed to show his hands and follow orders of the officer.

    Why did the DA charge manslaughter yet the grand jury return a indictment of murder 1?

    Why have the courts upheld for years that its the mind set of the person who used deadly force that counts, not the mind set of the Monday morning quarter backs that determined the elements of the crime, but not in this case?

    In a state with a liberal castle law that allowes the use of deadly force in protecting one’s property… and this officer thought and had good reason to think it was her home.. how was she convicted?

    We hear about her sexting with a married officer. We might agree that’s wrong, a violation of policy, and against since morals code… but how did that become an element of the crime and contribute to the guilty finding.

    Fire her for poor judgement in making the mistake of wrong door, wrong apartment. If that’s what the department wants to do.

    But charging and murder conviction when you take in all the circumstances of the crime if murder… leaves me asking, race or politics, did they play a part in this? If so, I trust she well appeal to a higher court and find justice.

    I’m a retired cop. I want all officers held accountable when they use deadly force. But accountability does not mean hung out to dry because it’s the politically easy thing to do.

  19. Maybe the best frame of mind is to break contact, period… There is no malice or intent to do anything but get away from a threat…

  20. “To stop the threat” from an “immediate and otherwise unavoidable danger of death or grave bodily harm to the innocent.
    I keep your teachings squarely in front of my daily mindset.
    Thank you Mas.

  21. Guyger’s defense boiled down to “I was sooooo tired I didn’t notice I was in the wrong apartment.”

    She was a police officer on duty just before that. And what kind of decisions would she have made had anything noteworthy happened?

    If she was too tired to know she was in the wrong apartment, she was too tired to be wandering around with a badge and a gun.

    It was the 21st century version of the Twinkie Defense; “I was so tired I didn’t know any better when I [insert crime here].”

  22. Thanks for the insight Mas. I agree that she should have said she shot to stop the threat. I believe based on what I know about the case that she legitimately entered his apartment thinking it was hers and shot quickly based on training and fear. She looked bad not trying to give him CPR. It’s also scary thinking how prosecutors will dig up anything you said or liked on social media. In the end, we had two victims.

  23. The officer entered “her own apartment”, taken totally by surprise when a stranger stands up in front of her she draws and fires her weapon.
    Murder? Not even close to it.
    I hope the former police officer gets a fair trial when the conviction is appealed.

    • @ Lew – “…gets a fair trial when the conviction is appealed.”

      Andrew Branca also had some thoughts about her appeal. He said:

      “I don’t know that they’d want to [appeal]. I’m no expert on Texas sentencing law, but in many states it’s possible she could do a third or less of the nominal sentence. If she’s going to end up doing ~3 years, she might do that long waiting on an appeal. And if she appeals and gets retried, she’s not guaranteed a manslaughter-like sentence if she’s convicted of murder again.

      Indeed, if serving as little as three years is a possible outcome, one wonders if she would have accepted a 3-year plea deal had it been offered at the start.

      Update: I’m being told media outlets are reporting that she could end up serving as little as 5 years.”

      So, as a practical matter, she may be better off just accepting the 10-year sentence. To use a mixed metaphor, maybe it is better to “let sleeping dogs lie” rather than “rock the boat” with an appeal. She might be a free woman again in as little as 5-years with her “debt to society” all “paid in full”. (Sorry, metaphors are like potato chips, you can’t be satisfied with just one. 🙂 )

      Mr. Branca’s blog on this topic can be found here:

      https://lawofselfdefense.com/amber-guyger-sentenced-to-10-years/

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