Article by Christian McPhate, originally published in Dallas Observer, Sept. 10, 2018
Three days passed before Texas Rangers sought a manslaughter charge against Amber Guyger, the off-duty Dallas police officer who police say mistakenly shot and killed her 26-year-old neighbor. Commenters on social media, however, started asking why the officer wasn’t arrested immediately as soon as the news broke.
“If I shoot someone in the wrong house, I’m arrested on site,” wrote one Twitter user. “Rightfully so. She was off duty, therefore civilian rules should apply.”
Is that true? The Observer reached out to the Frisco-based Whalen Law Office, where owner James Whalen and associate Ryne Sandel defend people across Texas who have been charged with federal or state criminal charges, to find out.
Dallas police officials say Guyger, 30, had just finished working a full shift around 10 p.m. Thursday, when she arrived at her South Side Flats apartment complex in the 1200 block of S. Lamar Street, a few blocks from Dallas police headquarters in the Cedars.
Still dressed in her Dallas police uniform, she entered Botham Shem Jean’s apartment, thinking it was her home. Shortly aftteward she shot Jean at least once. Four minutes later, Dallas police officers responded to the shooting but were unable to save Jean’s life.
A native of Saint Lucia in the Caribbean and graduate of Harding University in Arkansas, Jean had been working for PricewaterhouseCoopers in Dallas.
“If she thought she was in her home and found an intruder, she would have the right to use deadly force.” – defense attorney James Whalen
Authorities didn’t divulge much information at their Friday afternoon press conference. Dallas Police Chief U. Renee Hall did say she planned to seek a manslaughter warrant for the officer since she was off duty at the time of the shooting.
The Texas Rangers postponed Chief Hall’s plans until they had a chance to investigate, Dallas police said Saturday.
By Sunday, Guyger, a DPD officer four four years, had been arrested and charged with manslaughter.
At this point in the investigation, it’s unclear if the officer thought Jean was an intruder since she claims she thought she was in her apartment. If she did, Whalen says she might have a good “mistake of fact defense.” According to the Texas Penal Code, a defendant is allowed to use the defense if the mistake forms a reasonable belief that negates the culpable mental state required to obtain a conviction.
In other words, if an honest mistake led to a terrible accident, that’s not necessarily a crime.
“If she thought she was in her home and found an intruder, she would have the right to use deadly force,” Whalen says.
As for Chief Hall not arresting the officer as soon as investigators learned she was off duty, Whalen says they would do the same if a civilian shot an intruder in her home: wait until they collect all the facts before they take her to jail. “It’s good police work to wait to get the facts,” he says. “Just because she’s off duty, she still has the right to defend herself.”
Whalen’s associate attorney Sandel compares it to the case of former NFL running back Joe McKnight, who was shot and killed in a road rage dispute near New Orleans in December 2016. Two months passed before a grand jury charged 55-year-old Ronald Gasser with second-degree murder. Thirteen months later, Gasser received 30 years in prison sentence for killing McKnight.
But Whalen said the fact the killer was a cop probably factored into Hall’s decision not to arrest her immediately.
Read original article on Dallas Observer.com website: https://www.dallasobserver.com/news/botham-shem-jeans-neighbors-describe-scene-at-south-side-flats-11116899