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As a general matter, Potter could be convicted of the charge each of the following was proven by evidence beyond a reasonable doubt:
- Her conduct in withdrawing her service weapon was “culpably negligent”.
- That negligence created an unreasonable risk, and
- In doing so she CONSCIOUSLY took the chance of causing death or great bodily harm.
Maybe because of my capitalization and emphasis you might detect a hint of where I think there might be a problem in the case against her. //
A Glock and a Taser do not feel the same in your hand — and in some respects, the design of the Taser is purposely so.
But I want to give a H/T here to my friend Jazz Shaw over at Hotair who was the first I saw to raise the issue of “slips and capture” and how it might play into the analysis of Potter’s mistake.
What is “slips and capture”? I’m guessing that is a very common question, and one we will hear more about in the weeks and months ahead. //
“Capture” is the term used for when the officer’s attention is “captured” by an outside distraction. In the same moment, a high level of discernment is necessary to engage in a specific and precise form of conduct — in this case, making an intentional move to grab the Taser rather than their handgun. But the distraction takes away from the ability to engage in the higher-ordered thinking at a specific moment in time when needed, and the actor — in this case Potter — “slips” in the processing of what she needs to do and instead follows a well-practiced course of activity without the brain making an appropriate “attention check” before an action takes place that cannot be recalled. The action which is unintentionally taken is normally that which is the most habitually reinforced by practice — i.e., drawing her handgun.
