David French is a national treasure and when he speaks I listen very carefully but he goes a bit awry in his evaluation of the deplorable 'mistaken apartment' police shooting in Dallas.
I completely agree that the police have treated Officer Amber Guyger in a far different manner from they would a civilian in similar circumstances. That treatment is not appropriate. However, I dispute this (my emphasis):
First, police sources are reportedly indicating that Guyger may actually try to raise the fact that Jean didn’t obey her commands as a defense. It’s not a defense. The moment she opened the door to an apartment that wasn’t her own, she wasn’t operating as a police officer clothed with the authority of the law. She was instead a criminal. She was breaking into another person’s home. She was an armed home invader, and the person clothed with the authority of law to defend himself was Botham Shem Jean.
First of all, as a matter of life advice, please look past the point that Botham Shem Jean had the legal right to defend himself [A modified right; see MORE LAW below] that and listen to me: EVEN THOUGH Mr. French is correct that the officer had no legal presence there, don't be dead right about this - if a cop in uniform starts giving orders, comply first and let the lawyers sort it out later. My goodness - maybe the cop got a bad tip from a neighbor. Who can forget (try as we might) when Obama announced the police had acted stupidly in arresting Henry Gates, then hosted a beer summit to attempt amends?
Or maybe the police got a malicious tip and the occupant is being "Swatted". Maybe officers are serving a warrant with the wrong address. Maybe the officer is confused and at the wrong building. Figure it out later, if you live that long.
Secondly, as a lawyer Mr. French ought to know that despite Ms. Guyger's lack of legal authority "She was an armed home invader" is not how the law works. Most states do not have a specific statute for home invasion. As an example, Connecticut does and criminal intent is a requirement. I don't think anyone is ready to argue that Ms. Guyger was entering the wrong apartment with criminal intent.
2011 Connecticut Code
Title 53a Penal Code
Chapter 952 Penal Code: Offenses
Sec. 53a-100aa Home invasion: Class A felony.
Sec. 53a-100aa Home invasion: Class A felony. (a) A person is guilty of home invasion when such person enters or remains unlawfully in a dwelling, while a person other than a participant in the crime is actually present in such dwelling, with intent to commit a crime therein, and, in the course of committing the offense: (1) Acting either alone or with one or more persons, such person or another participant in the crime commits or attempts to commit a felony against the person of another person other than a participant in the crime who is actually present in such dwelling, or (2) such person is armed with explosives or a deadly weapon or dangerous instrument.
Down in Texas, home invasions are covered under burglary. Again, intent is a requirement of the law:
TITLE 7. OFFENSES AGAINST PROPERTY
...
CHAPTER 30. BURGLARY AND CRIMINAL TRESPASS
Sec. 30.02. BURGLARY. (a) A person commits an offense if, without the effective consent of the owner, the person:
(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or...
This question of intent, which is important, appears a bit later as well:
Which brings us to the second troubling element of the story. So far, Guyger is only charged with manslaughter. But all the available evidence indicates that she intentionally shot Jean. This wasn’t a warning shot gone awry. The pistol didn’t discharge during a struggle. She committed a crime by forcing open Jean’s door, deliberately took aim, and killed him.
We may never establish the circumstances under which she entered the apartment. Per the arrest affidavit, which seems to be her version of events, the door was slightly ajar. When she pushed her key into the lock, the door opened. If - IF - that is true, where was the "forcing open" and where was the criminal intent?
Now, apparently there are witnesses who tell a different tale:
These statements, however, don’t square with other testimony. One witness reported hearing a woman yelling, “Let me in! Let me in!” before the gunshots and a man’s voice saying, “Oh my God. Why did you do that?” after them.
Oh, brother. That comes from Lee Merritt, a young Al Sharpton wannabe who has had credibility problems in the past. From the Dallas News:
One attorney, Lee Merritt, said two independent witnesses had come forward to say they heard knocking on the door in the hallway before the shooting. Merritt said one witness reported hearing a woman's voice saying, "Let me in, let me in." Then they heard gunshots, he said.
After the gunshots, one of the witnesses reported hearing what she thought was a man's voice saying, "Oh my God, why did you do that," Merritt said.
He said he believes those were Jean's last words.
One witness said she didn't report what she had heard to law enforcement, Merritt said, but did reach out to Jean's family because she thought what she heard contradicted the prevailing theory.
So at least one of these two witnesses didn't talk to the Texas Rangers. Did the other? And sad to say, finding witnesses to support the target narrative is sometimes easy, as many of us learned with the "hands up, don't shoot" Michael Brown debacle. Do let me note - "hands up" is described as a hoax by Mr. French in a fascinating follow-up, where he describes a change in his own thinking on these police shootings.
MORE LAW: It turns out that my life-extending advice is also the law in Texas - when a peace officer is involved, comply first, let the lawyers hash it out later. Or at least, don't use force unless the officer is using undue force.
Texas Penal Code - PENAL § 9.31. Self-Defense
...
(b) The use of force against another is not justified:
(1) in response to verbal provocation alone;
(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);
...
c) The use of force to resist an arrest or search is justified:
(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.
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