Law and Error: Should Mistakes Be Adjudicated in Criminal Courts?

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Republished with Permission from InsiderAdvantage Georgia© | January 11, 2022

American law provides two distinct avenues, civil and criminal courts, to address culpable conduct, so when should a human error -an equivocal mistake- lead to a prison sentence? Weapon confusion cases turn the line between civil and criminal culpability into a chasm where lives hang in the balance while courts, law enforcement agencies, media outlets, and the public spiral down the rabbit hole.

Criminal negligence resulting in a death, codified as manslaughter, occurs when a person disregards a known and unjustifiable risk of injury. Manslaughter cases require juries to probe into the subjective mind of the accused whereas intent is typically demonstrated by looking solely at the outcome. For example, an armed robber who stabbed his victim to death intended to commit a crime. However, if the attendant circumstances unequivocally indicate that an officer did not intend to use deadly force, does the death of another due to weapon confusion fit the requirements of criminal negligence?

Manslaughter charges reflect societal accountability principles because the criminal defendant was in control of the mechanism, conditions, and circumstances that led to the death, like a target shooter who kills another because he failed to ensure a safe backstop for his bullets. In stark contrast, Kim Potter’s agency chose the weapons she carried, the holsters in which she carried them, the location of the weapons, the training required to carry them, and the level of proficiency required to possess them on duty. Further, the emergency that required her to act under extreme stress in time-compressed circumstances was unequivocally created by Duante Wright. Unlike the typical manslaughter defendant, Kim Potter did not have control over the mechanism and circumstances that led to her weapon confusion. So, how did she “disregard the known, unjustifiable risk” that led to Duante Wright’s death?

Efforts to understand human error started in 1890 when William James, the father of American Psychology, wrote in The Principles of Psychology, Volume 1, p.243, “not only is it the right thing at the right time that we thus involuntarily do, but the wrong thing also, if it be habitual.” James noted that “rehearsal” is insufficient in preventing these errors because the action is performed automatically. Errors usually occur when operating automatically or with little thought to the action such as when an officer, surgeon, or pilot is attempting to solve a critical problem in time-compressed and consequential circumstances while their attention is focused on the solution and not the process.

Researchers in medicine, engineering, the aerospace industry, and nuclear energy have created a growing, robust body of research on errors – how people and systems have failed. That research, as well as everyday experiences, demonstrate that many of these errors are part of skilled behavior and they occur because they are part of skilled behavior. A person learning a new skill pays a great deal of attention to that skill but diligent, appropriate practice reduces vigilance as the behavior becomes automatic. Professionals rely on automatic behavior to focus on decisions or solve problems and therefore rely heavily on automated behavior under time-compressed, stressful circumstances. This sets the stage for performance errors.

One type of performance error is categorized as a “slip.”  Norman, D. A. (1981). Categorization of action slips, Psychological Review, 88(1), 1., provided a very comprehensive categorization of action slip errors noting, as did William James, that action slips occur when a well-formed habit is performed in inappropriate circumstances. Another type of “slip” is called a “capture” error where a more frequently or better-learned sequence captures control. James Reason (1990) labeled this a “slip” and also a “capture” performance error. Reason, J., Human Error, 1990 Cambridge University Press. Wickens also noted that the action sequence that leads to capture errors is automated and not monitored closely by attention. Wickens, C., Helton, W., Hollands, J., Barbury, S. (2021) Engineering Psychology and Human Performance 5th Edition, Routledge.

Most, like Norman and Reason, take a cognitive psychological approach to errors. Others take a more comprehensive approach focusing on ergonomics or systems errors as a result of a system or design factors. The former focuses on training and perception under stress. The latter would examine whether the “L- shaped” pistol-grip design of the Taser, the position of it on the belt, or the similarity of action performance between drawing a Taser and a firearm that led to weapon confusion-the “slip”- and drawing the firearm-the “capture.” Both approaches may be necessary to solve the weapon confusion problem.

An interesting aspect of slip errors is an inability to detect them until they are complete. A person intently focused on a threat may be completely inattentive to finer elements of the weight, shape, and color of the instrument they have in hand while focused on a rapidly evolving threat. The concept of “Brain Filtering” or “Sensory Gating” where important information is ignored or even suppressed as the brain focuses on more critical cues, was introduced by D. E. Broadbent, (1958) in his classical text, Perception and Communication, Pergamon Press.  Human performance researchers and neuroscientists have since explained that once we conclude, even erroneously, that we are executing correct action, we disregard feedback indicating that we may have selected the wrong tool or weapon. Heald, J., Lengyel, M., & Wolpert, D. (2021), Contextual Inference underlies the learning of Sensorimotor Repertoires, Nature, 600, 489-493. Bourne and Yaroush, (2003), in a working document for NASA, noted the effects of distraction, cognitive overload, stress, and multitasking as contributing to the inattention factor in action errors. Stress and cognition: A cognitive Psychological Perspective, IH-045, NASA/CR-2003-212282. Apply these principles to a police officer facing an escalating and perceived deadly threat who decides to draw her Taser and instead draws her firearm that she has drawn in training thousands of times.

Humans make errors. Surgeons perform “wrong site” surgeries, engineers disregard stop signals driving into loaded passenger trains, and pilots have landed planes on top of other aircraft. The law addresses these mistakes in civil courts, and these professions recognize such errors as reflections of the fallibility of human perception and performance under stress. These tragedies drive more training, process management, and research. If the bona fide errors of law enforcement officers are to be labeled criminal acts, perhaps the only way for officers to escape indictment and prison is to avoid any action under stress.

The Kim Potter trial examined the frailty of human abilities under pressure. Commentators and “experts” who dismiss weapon confusion as lacking scientific support or assign malicious motives for Potter’s clear error expose their anti-law enforcement bias. Those who ignore Duante Wright’s role pour accelerant on a societal inferno. Today they condemn a life-long public servant whose error was writ large on the national stage. Tomorrow they may pray for a rapid law enforcement response followed by decisive action under stress. 

About the Authors

Dr. William Lewinski is the Executive Director of Force Science. He is one of the nation’s foremost researchers on the use of force by law enforcement. Dr. Lewinski will be hosting the 3rd Annual Force Science Conference in Orlando Florida, June 21-23, 2022. 

Mr. Lance LoRusso is the Principle Attorney at LoRusso Law Firm. He is licensed to practice in Georgia, Tennessee, & Arkansas and is considered to be one of the nation’s leading attorneys specializing in the defense of law enforcement officers. Mr. LoRusso will be a Keynote Speaker at the 3rd Annual Force Science Conference.

14 Responses
  1. Don Black

    Well said. I wish that logic could have been applied to prevent this miscarriage. Officers are being charged around the country for mistakes that should have been addressed with remedial training or minor discipline. The leaders in law enforcement are not standing up and educating the public. That long standing lack of leadership is responsible for much of the failures we see in law enforcement.

    1. Dr. William Lewinski

      The Police Chief refused to fire her and he in turn was fired. He stood up and paid the price!!

      The lead DA publicly stated he could not stand the hypocrisy of the Attorney General and the plaintiff’s attorney Krump, as he often met both of them together over this case, and he resigned and went into private practice.

      There are a lot of interesting political machinations in this case.

  2. J. C. Paez

    Excellent article!! Thank you for everything you do for the law enforcement profession!! You are making a positive difference!!

  3. Dr. Martin D. Topper

    I have not read the transcript of the trial, but I wonder if there was any defense testimony about automaticity under stress, especially in light of the recent research at Michigan Medicine by Huang and Hudetz indicating that the anterior cortex of the insula appears to be a gatekeeper between information input and conscious (focal) awareness. This type of information would be vital in understanding when under severe stress, pre-conscious sensory inputs that would have been necessary for the officer to see her mistake were blocked form conscious awareness, especially in light of the fact that she was required to use the the same hand is routine to perform two similar functions like pulling a trigger which involved very different levels of force with fatal consequences.

    To adequately understand what happened, it would have been important to know why the same hand was chosen by the senior management of the officer’s department to implement both less-lethal and deadly force. And, it would also be important to know how much training and qualification time was devoted to the use of both the taser and the handgun. And I would especially like to know how much, if any, of that training involved force-on-force scenarios which required the officer to choose between the taser and handgun. Finally, I’d like to know why the taser body was painted bright yellow instead of the bright orange of most less-lethal “guns”, and why the grip and other sections of the taser are colored black like the handgun, making it more difficult to recognize the taser from the handgun when looking at it from the rear. Information of this type would be very necessary to understand the officer’s confusion at the time of the incident and really determine if mens rea or any other criteria for a criminal charge were truly present. At present, I have too many questions to agree that the officer was criminally culpable as opposed to being a defendant in a civil action.

  4. Excellent article and so very true. It is all political, she made a mistake, she is not a criminal by any means. I just wonder if the verdict would of been different, if her attorney had all of this information, at time of trial. Keep up the good work.

  5. Nick

    This article was extremely informative. It clearly discusses the issue that was ignored in this event. Officer Potter was not a criminal looking to kill Duante Wright. She was dealing with a criminal who was resisting a legal attempt to arrest him. It was his actions that dictated her response. He is the one who prompted the shooting. It was a mistake under extreme circumstances. Most people do not dully understand how these situations can quickly unfold and literally get out of control. Thank you for publishing this article. Hopefully, the self-appointed experts and those seeking monitary settlements for a mistake would learn from this and adjust their views of how things can happen.

  6. Mike Stone

    Very well written and stated. I’m left to continue to pray for Kim Potter. Thank you for representing public safety personnel who are required to perform under the worst of circumstances.

  7. I find Don Black’s comment about leaders not standing up to be true more often than not. It all comes back to the individual, but public pressure comes into play and frequently ends with the leader throwing his officer(s) under the bus to avoid being fired themselves. A recent Texas criminal case involving two highly trained SWAT officers using a TASER in a stressful situation resulted in a not guilty verdict after an expert testified about some of the human factors identified by the Force Science research. After the trial the police chief commented that he did not believe in that “hocus-pocus” crap. After 20+ years of doing expert witness work (mostly UOF issues) I tend to agree with Don.

  8. Greg Malcolm

    Excellent article. The defense expert did a credible job of explaining the slip and capture error. The defense attorney Mr. Gray was absolutely incompetent in his closing arguments. He stated to the jury,” I didn’t understand my own expert’s testimony and I don’t expect you to have understood it as well .” The rest of it was rambling and non sensical. The defense was a did and pony show at best!

  9. James

    I never heard the Defense Expert give an opinion on the ultimate issue: Was Kim Potter in a ‘slip’ at the time of the shooting? If so, she would not have know the difference. He talked around this issue.

    This article was more informative. Because this issue was not in the juror’s faces, they thought as a Juror after said Kim should have known.

    Most people have never been in adrenal dump and cannot for the life of them understand how a person cannot distinguish between a gun and taser.

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