Why the Dallas officer who killed her neighbor might have trouble with a "deadly force" defense

Amber Guyger, the off-duty Dallas officer who shot and killed a man in his apartment last week, may be treated as a civilian, not police, under the law, First Assistant District Attorney Mike Snipes of the Dallas County District Attorney’s Office told The Washington Post on Wednesday.

The death of Botham Shem Jean, which the National Review called the “worst police shooting yet,” introduced several legal decisions for the prosecutor’s office, including whether Guyger was acting under the authority of the law during Thursday’s fatal shooting.

In the days that followed Jean’s death, Guyger said the shooting was rooted in her mistaken belief that she had opened the door to her own downtown Dallas apartment.

At the time, the officer claimed, she thought there was a burglar inside her unlit unit, according to the arrest warrant affidavit. Before unholstering her service weapon and pulling the trigger, Guyger said she gave Jean verbal orders, which he ignored.

These details matter for several reasons:

In Texas, a police officer has the right to use deadly force when making an arrest if she reasonably believes it’s either “immediately necessary” or that not doing so would create a substantial risk that the person kills or seriously injures another. An officer has no duty to retreat first.

Texas also has stand-your-ground laws, permitting a civilian to defend herself against a threat — whether real or perceived — with the level of force reasonably believed necessary. Texas law similarly permits the use of deadly force to protect one’s property in select situations, such as preventing a burglary.

Used by law enforcement and civilians alike, these defenses are applied broadly at trial and hinge on whether a person’s actions are reasonable. A trial jury makes the final determination.

“Juries show a lot of deference to officers for the use of deadly force. They’re typically sympathetic to police,” said Kenneth Williams, a law professor at South Texas College of Law Houston.

But this is not a “traditional” police officer shooting, according to Williams, despite having a police officer shooter who claims she was in danger. Because Guyger was not making an arrest or pursuing a perpetrator, the facts fail to fall under laws permitting officer use of deadly force, he said.

Based on the information the Dallas District Attorney’s Office has, Snipes, who is ramping up for the upcoming grand jury presentation, said Guyger will probably be treated as a civilian.

At such an early posture in the case, this matters little, practically speaking — it will neither alter the charges presented to the grand jury nor how the prosecution proceeds.

Down the road, though, Guyger faces a more challenging legal battle.

Although her reported belief that she was inside her own apartment was mistaken, the law does consider what an officer believed at the time of an offense and whether it was reasonable. A trial jury would probably find that Guyger was legally justified as a police officer in her use of deadly force, Williams said.

Before deliberations, a court will instruct jurors on the definition of “reasonable,” usually explaining it as what a reasonable person in the shoes of the defendant would do, according to Amber Baylor, associate professor and criminal defense clinic director at Texas A&M University School of Law.

In cases involving on-duty police officers, the definition is expanded to a reasonable person in the shoes of an officer, who is required to make split-second decisions.

“The reasonable officer standard is broader. It may provide more space for a jury to believe an officer feared for his life and acted in self-defense,” Baylor said.

A similar argument was used successfully in the 2016 prosecution and acquittal of a Minnesota policeman who fatally shot Philando Castile during a traffic stop. It could also cut the other way, leading jurors to hold a law enforcement officer to higher standards based on training and position.

If Guyger is prosecuted as a civilian, certain defenses will no longer be available to her. She would effectively be precluded from hiding behind the “use of deadly force” protections afforded police officers.

As a non-officer, Guyger could — and undoubtedly would, based on the arrest warrant affidavit that all but says she intended to shoot and kill Jean — still claim she acted in self-defense. However, the caveat for defense statutes is that they’re only available to those who have a “right to be present at the location where the deadly force is used.”

The case, then, comes down to the trial jury’s analysis of whether she acted reasonably: a civilian breaking into a neighbor’s apartment, intentionally aiming and firing a gun and killing him.

“Was intruding into the apartment a reasonable mistake?” Williams said. “The young man was not engaged in criminal activity, he was just basically in the wrong place at the wrong time, even though it was his apartment. He was the victim of bad circumstances.”

Any jury sympathy, he added, would tend toward the unarmed man killed at home by an officer who erred in using deadly force.