In the last entry we discussed some elements of this controversial case. Some comments, a few here but mostly elsewhere, seem to indicate some misunderstandings about how these things work in court.

Objective Reasonableness is the standard for use of force established thirty years ago by the US Supreme Court in Graham v. Connor. It is essentially the police officer’s version of the Doctrine of the Reasonable Person which guides a private citizen’s use of force.  In essence, instead of “What would a reasonable and prudent person have done, in the same situation, knowing what the defendant knew,” it’s “What would a reasonable, prudent, trained and experienced police officer have done in the same situation, knowing what the involved officer knew?”

Many felt that Officer Amber Guyger was unreasonable and imprudent in mistaking Botham Jean’s apartment for her own. It was directly above hers, but she had inadvertently wound up on the wrong floor of an apartment building with cookie cutter architecture. There was testimony that an amazingly high percentage of residents in that building had told investigators that at some time they had made the same mistake.  I was surprised that the jury didn’t take from this that a resident unintentionally going to the wrong door was neither unreasonable, nor imprudent, nor culpably negligent.  The gist of Guyger’s testimony was that as she entered the dimly-lit apartment she saw a large man coming toward her yelling “Hey, hey, hey” and that he did not obey her command to show her his hands, in the very brief period of time before she fired.  There was some testimony as to the tunnel vision that occurs more often than not in such situations, which would have explained why she didn’t recognize that the furniture and layout were different from those in her own apartment. This supported the defense’s contention that her mistake was a reasonable one.

Many observers were outraged that the defense got a jury instruction on Castle Doctrine, which says one is not required to retreat when attacked in a place where one has a right to be. Assuming that Guyger did reasonably believe the apartment was hers and Botham Jean was an intruder coming at her, I believe Judge Tammy Kemp was correct in putting the Castle Doctrine instruction to the jury.  And Castle Doctrine was a somewhat moot point, since even in states which demand retreat before resorting to deadly defensive force, retreat is not demanded unless it can be accomplished in complete safety.  With Botham Jean within a second of reaching her, she could not possibly have backed up faster than he could continue moving forward; she had been disarmed (of her TASER) by a strong man a year or so before; and she entered encumbered with the police gear she was holding in one hand, which also accounts for why she described firing with one hand only.

Yes, we all know NOW that Botham Jean was an innocent man in his own home. There is no reason to believe that Guyger knew that at the time she fired the two shots. The law does not demand that the shooter’s assessment and belief be correct, only that the belief was sincere and reasonable.  The shorthand version, for cop or armed citizen, is: “You don’t have to be right, you have to be REASONABLE.”

One thing I didn’t see addressed in the trial was whether, like most cops, she had other guns in her home and feared the intruder was armed with one of them if he didn’t have a weapon of his own.

Those who identified with Guyger were angry that while the Texas Ranger who led the investigation testified that he thought her actions was reasonable, as did a retired very senior commander of her police department said the same, the jury was not allowed to hear that testimony.  The judge was correct in ruling it out, since only the jury can determine what was reasonable.  However, the jury has a right to know what the parameters of reasonableness ARE in the matter at issue, in this case, the proper use of defensive lethal force.  Had the defense simply asked those witnesses what the training standards were in that regard, as many defense lawyers have done when I was the expert witness on the stand, it has generally been allowed in and probably would have been in this case. The groundwork for that critical testimony simply wasn’t laid correctly, in my opinion.

Finally, Judge Kemp was criticized as everything from a race traitor to a violator of the separation of church and state because after it was over, she came down from the bench and hugged the defendant and gave her a Bible. I don’t have a problem with it. The verdict was already in, so that act in no way prejudiced the outcome.  Judge Tammy Kemp is clearly a compassionate person, who unashamedly was seen to shed tears in the courtroom for victim and defendant alike, realizing that the incident had destroyed both their lives. 

Anyone who wants to complain about a judge showing compassion, in my opinion, does not understand the meaning of the word Justice.

34 COMMENTS

  1. A number of self-defense cases have been discussed on the blog. The main impression that I have received is that IT IS CRITICAL for the defendant and his or her Defense Team to avoid making mistakes when dealing with the police investigation and, especially, during the trial.

    In the George Zimmerman trial, the Defense Team played things just right. They did not make mistakes and, since Zimmerman happened to give a good video account to the police, right after the shooting, they were able to rely on the video instead of putting Zimmerman on the stand. Therefore, George Zimmerman was spared the effort of the prosecutor to trip him up. It was the prosecution team that made all the mistakes in this trial. The result: The jury found the homicide justifiable by reason of self-defense.

    In the Drejka case, the video evidence was not helpful and the Defense Team made mistakes. In particular, they let an expert witness, for the prosecution, distort the meaning of Dennis Tueller’s research. The Defense Team “dropped the ball” while the prosecution team played “hard ball”. The result: Drejka was found guilt of manslaughter.

    Now, we have the Amber Guyger case. Again, we see mistakes by the defendant and her Defense Team. Guyger made a serious mistake when she allowed the prosecutor to lead her into saying that she intended to kill Mr. Jean. This was a Defense Team mistake, as well, since she should have been briefed and prepared, by her team, for that kind of question. In addition, Mas points out (above) another mistake that the Defense Team made. The result: Guyger was found guilt of murder.

    It is an old joke that the purpose of a trial is not to determine guilt or innocence. Rather, it is to find out which side has the best lawyers. Sadly, there is a good deal of truth in this old saw!

    Clearly, if a citizen is charged with a homicide and claims self-defense, then he or she needs to look sharp to avoid even the tiniest mistake that the prosecution can exploit. The defendant also needs to bring the best legal team, that they can possibly afford, to fight for them. The prosecutor has all the “Power of the State” on his side and he will crush you otherwise.

    • Good analysis. I fear that far too many gun owners’ – especially carriers – knowledge’ of the law of self-defense and self-defense trials is limited to: “rather be judged by 12 than carried by 6”.

      And then, there is a vastly larger number of gun owners who will defend to the death the God-given right of ignorant and foolish fellows to remain ignorant and foolish.

      Each time there is a self-defense scenario that goes badly for the self-defending-defendant right to use lethal force in self defence suffers. What does that mean to us?

      We can watch and silently shrug our shoulders as the main-stream media beats the drum of self-defence cases gone wrong. The gun-controllers will use these stories in the media to support their arguments that no ordinary civilian can possibly exercise the judgement to use lethal force. The ONLY-ONES are the sole sub-class of society that has the required skills; and even these few must never go armed in predominantly minority precincts.

      We would do ourselves a lot of good by promoting:
      1.) training in the LAW of self-defense
      2) “self-defence insurance”

      The more gun carriers who are – at least trained in the law of self-defense – the fewer bad cases will wind up in court.
      The more self-defenders who shoot who do wind up in court with the best defense insurance can by, the fewer edge cases will be lost.

      • @ MarkPA

        We already have the next case in this series! See this report from Andrew Branca:

        https://lawofselfdefense.com/murder-man-returns-to-bed-after-killing-thief/

        We can already see the mistakes piling up in this one. A homeowner shoots at a thief who was advancing toward him with a pick-ax. The homeowner fires two or three shots (its disputed). Some are fired as the guy runs off. We can’t be sure what was in the homeowner’s mind but it seem likely that he was shooting just to “scare” the thief off.

        Apparently under the mistaken belief that he hit nothing and that the incident was over, the homeowner cleans up the spent shell-casings and goes back to bed. He does not contact the police until the next morning when he finds the dead body of the thief on his property.

        The media, of course, are milking it for everything it is worth. They are portraying the homeowner as a “cold-blooded killer” who “guns a man down” and then goes back to bed and “sleeps like a baby”.

        We see all kinds of mistakes here. Number 1 – shooting after the attacker has fled just to “hurry him along”. Number 2 – Tampering with evidence (cleaning up the shell-casings). Number 3 – in violation of what Mas preaches, he did not call the police right away DESPITE firing his handgun in a self-defense incident.

        The result: Mistakes = murder charge and a $150,000 bail bond.

        Your points about training and insurance are right on the money. I took the MAG-40 back in 2011 but, this weekend, I will be taking the MAG-20 – Rules of Engagement to refresh myself on these legal issues. I also just renewed by membership in the Armed Citizens’ Legal Defense Network.

        I really don’t ever want to walk in the shoes of this poor, dumb, 72-year old Dallas man!

  3. I have read what you have stated and liked most of it; however I have not seen much of the trial so I ask if in all fairness…… My father was a police officer and retired and now passed so I have much love for all in that profession. But I would like to ask did she know it was not her apartment since she did not have a key to it? If it was open then she should have noticed it was broken into? If not then she failed to either lock it or notice the factor that it was not broken into… Seems to me that either she was not good at her job of noticing things or well ???

    • Kristin, it was determined she inserted her key and the door opened, being ajar and pushed forward by the key.

      • That’s why I still have mechanical locks on all three doors of my house, Schlage double deadbolts, in addition to the spring locks in the handles. I know my house is locked when I leave it. Same with my 25+ year old car.

  5. Mas, I think you’re wrong. As it happens, I just sent an email to a law professor who shared your view. I’ll paste here for your consideration.
    ===
    Dr. Rose,

    I read your column, “Amber Guyger’s actions were murderous, but also a terrible error. Her jury understood.” It appears that you may have missed a few facts about the Guyger case.

    Guyger’s story changed several times before she settled on the trial version. That final version was proven false by witness testimony and forensic evidence.

    To “reasonably” believe she was at her own apartment when she fired, she had to miss 22 visual cues indicating that she at the wrong apartment.

    Her version given in the arrest warrant included a 23rd cue: that the door lock red lighted when she inserted the key. She eliminated that in the final version by claiming the door was ajar.

    She claimed the door freely swung open under the mere force of an inserted key. But it was a fire door held shut by an automatic closer.

    She claimed she fired, and *then* entered. But placement of the empty casings inside the apartment makes that virtually impossible. (I found a formal forensic study of casing ejection that happened to include the model series with which Guyger was armed; it doesn’t eject that way. My personal experience strongly suggested that, but it was nice to find scientifically tested confirmation.)

    Responding officer BWC video shows furnishings placement that may have made it impossible to see the victim from where she claimed to fire.

    She claimed she gave verbal orders to Jean. Earwitnesses said otherwise.

    Guyger claimed she didn’t know she was at the wrong apartment until the 911 operator asked for the address, but the 911 recording shows she already knew when she placed the call.

    During the 911 call, Guyger appeared to be speaking encouragingly to the dying Jean. But eyewitnesses and video show she was outside the apartment.

    Guyger claimed she gave CPR. But forensic testing found no trace of Jean’s blood on her hands, uniform, nor the the unused gloves that she carried. Nor did she make use of the wound dressing she carried, to try to slow blood loss.

    Responding officer BWC video shows that, far from giving CPR, Guyger obstructed officers trying to reach Jean, and had to be — gently — physically moved out of the way when she failed to comply with verbal orders.

    Additionally, phone record evidence shows that when she claimed she was assisting Jean, she was actually texting her partner/boyfriend.

    Both of them attempted to delete that evidence.

    Prosecution doesn’t seem to have entered apartment management testimony of multiple noise complaints from the occupant of Guyger’s apartment regarding Jean’s apartment, nor the “marijuana smell” complaint the day of the shooting. I would have, but the prosecution may have — correctly — figured they already had a slam dunk case. Guyger’s actions before, during, and after the shooting do not support a “mistake.”

    I would have entered the testimony to show a possible motive for Guyger deliberately going to Jean’s apartment: I hypothesize that, tired, she wanted to complain to his face so that his alleged noise wouldn’t disturb her rest. Testimony did touch on her anger management issues and racism, so I further hypothesize that she lost it and decided to teach Jean a lesson. The verbal altercation reported in testimony would support this hypothesis.

    Personally, as a military veteran, former peace officer, former private security officer, and currently civilian licensed to carry, in the scenario Guyger painted — not unlike situations I *have* been in, including shifts far longer than 13.5 hours — my actions definitely would have been different. Upon observing the ajar door and determining that an “intruder” was inside, and having uniformed backup a radio call away, I would have placed that call, waited, and laughed my ass off as the “intruder” walked out the door to awaiting officers with guns and handcuffs.

    Compared even to non-police shootings, Guyger’s sentence was not really out of line. Heck, if she’d been a Chicago gangbanger, she could expect to be out on parole by this time next year.

    I might have gone with a longer sentence, but I would have weighed that against the cost of confinement to taxpayers, as well as the likelihood of Guyger’s survival unless she’s segregated from the general prison population. Five years (with parole), ten, or twenty-eight; she’s not going to enjoy it.

    Thank you for your time.

    Sincerely,

    • I believe you are correct.

      One other point: she was in Condition White the entire time. She didn’t see those visual cues (red welcome mat and plants) because she was focused on her phone: she and her married partner/lover were planning a hookup later, which is why they fought so hard to have her phone history excluded.

    • Welcome, Carl. You have long been a strong voice for gun owners’ civil rights, and I am happy to see you here.

      We do respectfully disagree on some points.

      No matter how many cues she might have missed, she was a person on auto pilot going over a path essentially identical to her routine return from parking garage to apartment, and wouldn’t be expected to be consciously looking for cues like numbers, etc.

      She described a brief, weak attempt to do CPR one-handed. With the wound on the side of his chest and her hand in the center, it is plausible that this might not have left blood on her hand. Given the relative futility of CPR with a heart shot, it may be a moot point in any case.

      The deletion of embarrassing texts actually has nothing relevant to do with the shooting itself.

      Police develop a strong tendency toward “sighted suspect, arrested same.” That may or may not have been in play here insofar as her not retreating. A police officer is exempt from retreat requirement when they reasonably (even if, in this case, incorrectly) believe they are facing a felon. And, as I noted earlier, retreat may not have been successful in that close range, fast-breaking set of circumstances.

      The theory that she threw her life away by intentionally confronting a man known to live in that apartment and killing him because she was angry has absolutely nothing to support it.

      Respectfully,
      Mas

      • “The theory that she threw…”

        Hypothesis, Mas. Which is why I wish there had been testimony on that angle, so we could get more information one way or the other.

        As for entering the apartment and possibly not being able to retreat: she testified that she entered after shooting Jean (but those pesky casing inside…).

        As for Condition White, let me tell you a story about “Officer Smith.”
        https://bearbussjaeger.wordpress.com/2019/10/09/the-ajar-door/

      • Carl, presuming an inward-opening door and having seen her demonstration at trial of her one-handed firing position, I would presume the gun would have been well inside the door, which would account for the casings being inside. In any case, after emergency personnel had been rushing through the scene (which could have moved the spent casings), I see their placement as pretty much a non-issue.

  6. Weren’t there any Apartment numbers on the door?
    Anyway, they say that when neither side is happy with the outcome then the jury probably did it correctly.
    I guess when in doubt, and you can do it safely, retreat and wait for backup.

      • Wow! Those are some huge numbers. I have lived in three apartment complexes before buying my house and the numbers on those doors were only 3 inches high about eye level and none were illuminated. I guess apartments are a lot more fancy nowadays.

  7. Mas,
    Thanks for a great article and analysis. A keen review as usual. I wonder how much “political correctness” weighed in how this was played in court and the conviction? Certainly, the incident was a tragedy for all.

  9. Mas—Really appreciate your write-ups on this case. Its been very enlightening, which we all needed to hear. Thanks again for your time in putting this together for us. Bob

  10. Unfortunately out of the only 2 people who know exactly what happened, 1 is dead and the other is going yo prison. Like they say there is this sides version, that sides version, and then the truth

  11. No one had addressed the race card.

    As a retired police officer I along with the rest of the world has seen the race card played over and over when a white cop shoots a person of color.

    The officer was charged with manslaughter by the DAs office. The grand jury changed it to murder.
    Did race come into play?
    Was this officer thrown under the bus by her city to prevent another Furgison incident?

    Im not saying yes. Im asking the question.

    With my limited knowledge of the case it seems likely am appeal will result in a different outcome.

    The courts, as the above article points out. It’s what’s in the mind of the shooter at the time of the shooting. What did they perceive and was that reasonable?

    It’s not important what the Monday morning QBs think was reasonable.

    If this officer truly thought she was in her own home, that she was in danger, she had the right to use deadly force.

    Think of the kids who point a toy gun at an officer, the officer kills them, not knowing it was a toy. The officer I’d not charged and convicted. *(yes the example is not exactly the same.. but clearly speaks to the question of what was in the officer’s mind. )

  12. Seems to me, baxed on HER testimony and evidence, as soon as she felt the door swing open as if it were ajar (HER description, never mind the fire door auto closure system in place) she SHOULD have been on high alert..’SOMETHING SMELLS BAD HERE, WATCH YOURSELF’. Next, a couple steps inside and seeing an “intruder” should have heightened that level of high alert. AS she was drawing her weapon, she SHOULD have been backing straight back out that door and making certain it was closed. THEN call for backup, leave the immediate area but cover the door in case he comes out shooting….. yeah morning after quarterbacking, for sure.

    I had read about the evening’s prolonged exchange with the Blue Boyfriend on shift that night, and the exchanges after the “incident”, and that they both tried to delete these. I believe HE should also be sanctioned for his part in trying to delete them.. dirty pool, and HE should know that. Trying to cover for his fellow officer/squeeze. Not cricket. I am firmly convinced she was seriously distrated by her mental/emotional state with regard to boyfriend and their exchanges. I believe these factors had her so “out of it” emotionally she put herself on the wrong floor in the car park, which led directly to the wrong floor in the residence stack. I’m also more than mildly convinced she had the mindset “I am COP, I am RIGHT, I WILL have what I want”. Her hot temper regarding settling the score with the “noisey one” on the corner adds to this assessment.

    • “Oh what a tangled web we weave/When first we practice to deceive” Consistently during my security guard training the head instructor told the class that “The police do not have to tell the truth.” Recently I observed a veteran police officer recalling past days when an officer’s word was accepted unquestioningly, while today things like video corroboration are required for statement verification. Could be that peace officers in general actually need to be better trained to tell the truth, the whole truth, and nothing but the truth, in order to make a perceptively truthful attitude a more normal habit. This all seems like a very important, central issue to me.

  13. Thanks, Mas, for bringing up the issue of “separationi of church and state” that was trotted out.

    This claim is entirely bogus.. go and READ that First Article of Ammendment, anyone who believes the judge’s conduct after the trial was “wrong”.

    That Article starts out
    CONGRESS shall make no law establishing a religioin or prohibiting the free exercise thereof.

    Now, anyone who believes the judge acted wrongly, please tell me precisely what law CONGRESS made that governed or failed to govern this judge’s conduct.

    The sound of crickets should be deafening.

    No, CONGRESS made no law that in any way was operative here. To say otherwise would be to put a serious crimp on the judge’s libety to speak and act as SHE pleases when no longer acting in her official capacotu which was the case once the jury had spoken.

  14. From what I’ve read, my strong suspicion is that the verdict was decided before the jury was sworn in. No city wants ‘civil’ unrest and this incident had all the makings, depending only on the outcome. What looked like incompetence was probably an attempt to follow what would otherwise be classified as a scripted procedure to a planned result, which the defendant may or may not have been aware of.
    Does anyone really believe that a riot would not have resulted should she have been declared innocent?

  15. Mas,

    One thing that has been left out of the discussion, Texas justifiable homicide statutes. In Texas, the act of burglary, in of itself, falls under legal use of deadly force, even if it’s a third party’s home or business. A threat to your own well being is not required.

    Granted, Guyger was mistaken in her belief that the victim was a burglar, but the belief that a burglar was “bought and paid for” may have clouded her judgement in not giving him a chance to confront her with the fact she had entered his residence by mistake.

    Not trying to lessen the severity of her actions, just offering possible insight into her state of mind.

  17. Wouldn’t it be great if media outlets could be sued for getting the facts wrong in a published story? What if we could sue them for deliberately lying?

  18. On Castle Doctrine/duty to retreat. I’ve no clue on Texas law, but in Virginia there is no duty to retreat within the dwelling/home, and, by extension, the curtilage thereof. Fortune v Commonwealth, 1922 and upheld in several later cases. [I’d have to check my LFI notes, but at least 30 odd years ago this seemed to be generally accepted doctrine in most states. Did something change?] There’s also another ruling (didn’t record citation) where the duty doesn’t exist when “the speed and ferocity of the attack” makes it impossible.

    About statements: it’s generally suggested that one should wait 24-48 hours after an incident to make formal statements to allow full memory recovery. If nothing else, it eliminates any later need to amend statements, possibly several times as additional information is recalled.

  19. This is somewhat related. Drejka was sentenced to 20-years today for his manslaughter conviction. See this story:

    https://www.tampabay.com/news/crime/2019/10/10/michael-drejka-sentenced-to-20-years-in-manslaughter-case/

    I don’t know if Amber Guyger will want to appeal her case or not. She was lucky to only get 10-years for a murder conviction so there is a case to be made against doing an appeal. She might be better off to just do her sentence (could be only 5-years or so if she is a good girl) and then just move on with her life post-prison.

    However, Drejka’s lawyers (according to the linked story above) are clearly wanting to appeal. If they do, who knows what will happen?

  20. This story is off-topic but I think that it will be of interest to readers of this blog. Please follow the link below:

    https://freebeacon.com/issues/survey-americans-think-most-gun-deaths-are-murders-theyre-not/

    It just goes to show how effective the anti-America media has been with their dis-information and anti-gun propaganda. They have brainwashed most people into believing in fantasies that are contrary to reality. That is a left-wing specialty as evidenced by some of their other work such as Russia, Russia, Russia and climate change.

    The Washington Post (ironically) uses the motto that “Democracy dies in Darkness”. I use the term “ironically” because the Washington Post is a cornerstone of the anti-America media and they are experts at suppressing certain facts while spreading falsehoods to support the left-wing narrative du jour. In other words, they live by growing darkness and ignorance.

    On second thought, maybe they are not being ironic. Maybe they are being truthful after a fashion. The goal of left-wing ideology is to replace America as a Representative Republic (a form of democracy) with a Socialist / Communist State. So, by spreading darkness, they are killing democracy so that it can be replaced by Marxism. Therefore, in a weird way, the phrase “Democracy dies in Darkness” may be their Mission Statement rather than their motto!

    I would propose a new motto for them to consider and then change their ways. It is: “Tyranny grows in ignorance”. However, I guess they already know that one since they spread ignorance constantly in an effort to grow their Marxist tyranny.

  21. Imagine 25% (one out of four) people believing that mass shootings are the majority of gun deaths! The media sure is effective!

    Before the Reformation (1517) and the Gutenberg printing press (1450), the Bible was hand-written, in Latin, in Europe. I’m sure the Reformers thought people would be enlightened if the Bible was in modern, spoken European languages. Later there was a push for mandatory schooling, so everyone could learn to read, and not live in ignorance. Now, not only do we have a lot of readers, but those readers have the world’s knowledge available to them at their fingertips. They even carry around this knowledge with them on their smart phones. Yet we still have ignorance and superstition. The superstitions just change with the times.

    Smart machines, stupid people.

  22. Here is another one! Once again we are seeing the wild “Media Rush-to-Judgment” meme at work.

    https://www.shreveporttimes.com/story/news/2019/10/14/fort-worth-shooting-police-release-video-family-demands-justice/3973283002/

    No doubt, the political pressure to throw this officer “to the wolves” will only increase.

    God, I’d hate to be a law-enforcement officer in these days and times. It is reaching the point where the officer needs to let the suspect shoot first, and hope that the body armor works, before daring to return fire.

    Note that I am not pre-judging this case. Perhaps the officer did make mistakes and trigger off a shot too soon. Perhaps it was a “Good Shooting”. Who knows at this point? The facts are all still Sub Judice.

    All I know is that the full force of the “Media Narrative du Jour” will be brought to bear against this officer and emotion, instead of reason, may likely rule the day.

    God help him. Especially since he was unlucky enough to be born with a white skin and the person shot was in the protected classes of “black” and “female”.

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