Use-of-force expert testifies on 6th day of Potter trial testimony

5 p.m.

Arbuey Wright

Arbuey Wright, Daunte Wright’s father, is then called by the state and Erin Eldridge questions him. Eldridge asks about Daunte’s relationship with his younger sisters. He notes he and Katie Bryant each had two kids from prior relationships before they met so they have seven kids in total. Arbuey then describes what they’d do for family events and Daunte’s activities. Arbuey explains working with Daunte for a bit. The state shows a picture of Arbuey and Daunte and Aubrey emotionally explains it for the jury. The state does the same with a picture of Daunte and his son, Daunte Jr. "I miss him a lot, every day," Arbuey says.

Arbuey is then excused at 4:30 p.m.

Chu then asks if the state has any more witnesses and a brief sidebar is called.

At 4:33 p.m., Chu tells the jury they’re going to stop for the day. She reminds them about the importance of not watching or reading anything about the case. She also tells jurors bad weather is expected Wednesday night and roads could be icy in the morning so she asks jurors to take that into consideration so they can start on time Thursday morning at 9 a.m.

After jurors leave, the state says they have a couple of things to put on the record. Prosecutor Joshua Larson says the state expects to rest its case Thursday and the state wants to stop needless cumulative evidence and character evidence. Engh tells Chu the defense had five pure character witnesses scheduled for Thursday and says the state’s case has been redundant so the defense should be able to do the same. Chu then tells Engh to choose three of the pure character witnesses.

Larson then asks the court to limit the opinions of Officer Fricke and former Brooklyn Center Police Chief Tim Gannon. Engh says Potter was Fricke’s coworker and mentor and should be able to describe what it was like to work with Potter. Chu says specific instances of good conduct won’t be admissible.

Eldridge then says the defense questioned Commander Flesland about the scope of Potter’s work in the police union and the state believes that opened the door for the state to cross-examine defense witnesses about union membership or affiliation. Gray says Potter just negotiating contracts and didn’t do much else and denies any bias. Chu says the state wants to ask if about witness bias because of Potter’s former position in the union. Eldridge agrees with Chu and reiterates the state’s point. Chu seems to agree and tells the defense they could point out a lack of relationship.

Larson then references a short video between Fricke and Potter and Chu says she won’t allow but adds that Fricke can talk about it.

Frank then asks about a state witness on deadly force, saying he doesn’t have anything in his report about deadly force. Engh says they asked the witness to review the testimony of Sgt. Johnson and Luckey as well as Stoughton and agree or disagree with them. The state reiterates it has nothing from the witness on deadly force and says it’s a discovery violation. Chu says she’ll think about it and let them know and tells Engh to make an immediate disclosure on the witness’s opinions.

Chu and the attorneys then hold a sidebar. After a minute, they finish up and adjourn for the day at 4:59 p.m.

Editor’s note: This section has been updated to reflect the correct spelling of Daunte Wright’s father’s name, Arbuey Wright.

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4:19 p.m.

Seth Stoughton

At 3:59 p.m., the jury returns and Gray continues his cross-examination of Stoughton. Gray starts by asking Stoughton about his CV and notes many of his consultations are on civil cases. Gray notes there are about 30 cases on Stoughton’s CV involving plaintiffs suing law enforcement officers, which Stoughton says sounds accurate. Gray notes that in at least 25 of those, Stoughton was an expert for the plaintiff and Stoughton agrees he’s hired by the plaintiff but shares his professional opinion and doesn’t work for the plaintiff. Stoughton also says not all cases are on his CV and, when asked by Gray, he confirms some cases that aren’t listed involve him being hired by the plaintiff.

Gray then reads a section Stoughton wrote in 2018 on body cameras. Stoughton confirms he wrote that and Gray says just like body-worn cameras have limitations, as do their users. Gray then notes Stoughton analyzed body-worn cameras for this case, which Stoughton confirms but notes was in addition to many other documents and dash-camera footage.

Gray wraps up at 4:07 p.m. and Frank asks a couple more questions. Frank asks if the part Gray read of Stoughton’s article on body cameras was overall about both the benefits and limitations of body cameras and Stoughton confirms that. Frank asks if Stoughton was careful to avoid any cognitive bias regarding the body cameras in this case and Stoughton says he was "to the maximum extent possible."

Frank then circles back to the two Tasers Gray asked Stoughton about and has Stoughton explain the differences in the two as he holds a Taser for jurors to watch. Stoughton notes the X26P model had two different color patterns and explains the Taser 7. Asking about Wright’s compliance, Stoughton notes Wright complied before pulling away from Luckey, leading to the struggle. Stoughton also said Wright was resisting after that point but never assaulted the officers.

Frank asks about Gray stating nothing would’ve happened if Wright wouldn’t have pulled away from Luckey and Stoughton explains resisting can justify force but doesn’t allow officers to use any amount of force. Frank then shifts to adrenaline running through officers and asks if officers still have to use reasonable force in those situations, which Stoughton confirms.

Gray takes over again at 4:16 p.m. and asks Stoughton if he agrees that Wright tried to get back in the car and would’ve driven away if officers let him, and Stoughton says that’s a logical conclusion. However, he doesn’t agree with Gray that Wright would’ve necessarily sped off at a high rate of speed. Gray then asks if it’s reasonable to flee for someone who is "stoned on marijuana." The state objects but Chu lets Stoughton says he was aware Wright had smoked marijuana but it didn’t factor into his analysis.

At 4:19 p.m., Stoughton is excused.

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3:38 p.m.

Seth Stoughton

Chu returns at 3 p.m. and tells attorneys that Wright’s past attempts to flee "would only be (admissible) if Officer Potter was aware." She then calls for the jury to return.

At 3:02 p.m., Gray starts questioning Stoughton, starting with his testimony about officers letting Wright go. Stoughton says that mischaracterizes his opinion and clarifies that officers knew Wright and where he lived so that was a relevant consideration in balancing the threat of escape. He adds that using reasonable force to prevent his escape would otherwise be allowed. Gray then circles back to go over Stoughton’s past work. Stoughton confirms he hasn’t been a police officer for 15 years and says he was involved in maybe a dozen critical incidents when he was an officer. Gray asks him to explain one. Stoughton says he never fired the gun or was the person shot at but was involved in traffic stops where the subject tried to flee. Stoughton adds they didn’t result in an officer-involved shooting.

Gray asks again, clarifying if the person fleeing had a warrant, no license or insurance and a restraining order against a woman possibly in the vehicle. Stoughton says he didn’t have that collection of facts. Gray then asks if Stoughton ever trained someone and as Stoughton lists what he trained officers on, Gray cuts him off and asks if he trained officers on use of force as an officer, and Stoughton says no. Gray then asks if Stoughton didn’t participate in a SPEAR training session. Stoughton says he doesn’t recall and asks for clarification. Gray then gives him the file to review. Stoughton says he doesn’t remember it.

Gray then shifts to his work for this case and asks again about the rate he charges for working. Gray asks about the cap on his contract. After Stoughton doesn’t remember, Gray hands him the contract to find it and Stoughton says the cap is $95,000. Gray then asks about Wright’s traffic stop and Stoughton confirms it was legal. Gray then asks about Wright’s protection order, noting officers didn’t know if it was involving the female in the car. Gray then asks Stoughton about weapons and Stoughton says he doesn’t have any statistical evidence showing there are more weapons in cars now than 15 years ago. Gray then asks if the weapons violation would raise his concerns about a weapon being in the car, telling Stoughton to reply "yes" or "no" and Stoughton says he can’t answer fairly in one word.

Gray moves on to handcuffing Wright and Stoughton confirms that was legal. He also confirms breaking away from the handcuffing and trying to get back in his car was illegal. Gray asks if the video of the incident showed "chaos" and was "very fast-acting," and walks Stoughton through the video in small time segments. Stoughton responds that each time segment sounds correct. Gray notes the statement, "I’ll tase you" is a warning to gain compliance from Wright and Stoughton agrees.

Gray then asks Stoughton if it would raise his concerns that Wright was trying to flee from three officers and he might be wanted for something else but Stoughton says he wouldn’t be more concerned he’s wanted for something else if that didn’t show up in the police system. Gray repeats the question and says it raises officers’ suspicion that Wright’s being investigated for a serious felony, which prompts an objection from the state and Chu orders the jury to disregard Gray’s statement.

Gray then asks about Stoughton’s report and Stoughton confirms he concluded Sgt. Johnson wasn’t in the car. Chu then has to tell Gray and Stoughton to not talk over each other. Stoughton agrees, "Taser, Taser, Taser" is a warning for officers to get out of the target area and also so they don’t confuse the Taser discharge for gunfire. Stoughton adds the warning isn’t for officers to stop restraining a subject entirely, just to get out of the target area.

Stoughton confirms Wright wasn’t ever compliant during the struggle. Gray then asks if Stoughton knew Potter had a different model Taser that was different from the Taser 7 about a month before Wright’s shooting. Stoughton asks for clarification on the differences and agrees with Gray’s description of the Taser.

Gray then circles back to Johnson’s testimony of him being in the car. Gray again tries to get Stoughton to answer his questions "yes" or "no" and not explain and Stoughton clarifies that after Potter said, "Taser, Taser, Taser" it was about one second or less until the shot was fired. As Gray continues questioning, Chu says they’re overdue for an afternoon break and dismisses jurors for 20 minutes.

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2:55 p.m.

Seth Stoughton

At 2:03 p.m., jurors are called back in and Chu apologizes to the jury for lunch being late, the likely reason for the extra 30-minute delay. Frank then continues questioning Stoughton, who apologizes for misspeaking before lunch and says Sgt. Johnson testified he didn’t know where Luckey was at one point. He notes if Potter wasn’t aware of Johnson’s actions and him entering the vehicle and stopping it from moving, there would’ve been no conclusion there was an imminent threat of death or great bodily harm. If Potter did know Johnson was in the vehicle but didn’t know he was stopping the vehicle from moving and then got out, deadly force "still would have been inappropriate because of the proximity of two other officers and the passenger," Stoughton said.

Stoughton adds that Wright’s positioning to make the vehicle move "without a whole lot of trouble" is important because of guidance to officers to not use deadly force against vehicle operators, noting it can create "a potential unguided hazard." He adds, "If you believe that the vehicle is not in a position to be put into motion, then there is no imminent threat. If you believe that the vehicle is going to be put into motion, then you really don’t want to use deadly force against that individual because you’re liable to make the situation worse, not better."

Frank asks Stoughton how it could affect her reasonableness if she saw a scared look on Sgt. Johnson’s face, Stoughton says it wouldn’t because a scared look could be confused for frustration or something else in a high-stress environment and his expression doesn’t inform on the reasonableness of needing force.

The state then displays a screenshot of Potter’s bodycam right after she fired the shot and Stoughton notes Sgt. Johnson isn’t visible. He then adds, "The available evidence leads me to conclude that a reasonable officer or in Officer Potter’s position would not have concluded that there was an imminent threat of death or great bodily harm and also the use of deadly force was excessive that is disproportionate to the threat presented. And, regardless of whether the reasonable officer would have perceived an imminent threat of death or great bodily harm, the use of deadly force under the circumstances, when appropriate, because of the danger that it created to the other two officers and the passenger and Mr. Wright’s vehicle."

Stoughton also says Wright presented a threat of escape and he wanted to flee, meaning officers had the right to detain him. However, officers knew who Wright was and could’ve been captured at a later time by officers.

On using a Taser, Stoughton says a reasonable officer in Potter’s position wouldn’t have identified an imminent threat of harm from Wright, as he wasn’t assaultive but was just trying to flee. He noted that factors in Sgt. Johnson’s positioning.

He continues with foreseeable threats, saying, "Taser use is inappropriate under those circumstances for very similar reasons is why using deadly force against the operator of a motor vehicle is inappropriate. It’s really dangerous to incapacitate the way that a Taser can incapacitate someone who is in a position to get a vehicle moving, you can create an unguided hazard." Stoughton added that if the Taser wasn’t effective and just caused pain but not incapacitation, it’s actually "providing an incentive for someone to flee in that circumstance."

Stoughton notes he’s not a Taser expert but explains generally how it shocks a subject. He then says Wright was "was in a position to operate the vehicle immediately" so it was "unreasonable, inconsistent with generally accepted practices" for Potter to use a Taser on Wright. He explains if the Taser was successful in incapacitating Wright, it still created the potential to turn the vehicle into an unguided hazard and if the Taser was unsuccessful it incentivized Wright to flee.

Moving on to weapon confusion, Stoughton says, since 2001, there have been less than 20 incidents of weapon confusion where an officer uses a firearm thinking it’s a Taser. He notes 9-12 involved cases where the Taser and firearm were carried on the same side of an officer. Now, Tasers are carried on the opposite side of a firearm. Stoughton says a couple of the weapon confusion incidents involved cross-draw pulls (Potter used a reaction draw). Stoughton then moves into training and education materials officers get about weapon confusion and the defense objects.

Frank and Stoughton work back around to officer training on weapon confusion before moving on to the differences between a Taser and the firearm officers carry. Stoughton says Tasers have a manual thumb safety, and Gray quickly objects. When overruled by Chu, Gray calls for a sidebar. After a couple of minutes, Chu says her ruling stands and Frank continues.

Stoughton again notes the manual thumb safety on Tasers, which typical firearms used by police don’t. Tasers have laser points, they’re brightly colored and have a different feel in a hand compared to a firearm, Stoughton says. The defense objects a few more times before objecting when Frank asks Stoughton what the small number of weapon confusion cases tells him. That prompts another sidebar. After a few minutes, Chu says the objection is sustained and Frank says he has no additional questions for Stoughton. Engh then calls for another sidebar. After six minutes, Chu announces a 10-minute break, the jurors leave and Chu and the attorneys continue working.

Chu says the defense believes Stoughton’s testimony opened up the door to evidence concerning Wright’s prior fleeing incidents. Chu then gives Frank an opportunity to explain why that door hasn’t been opened. Frank explains evidence still has to be relevant the defense just wants to introduce unrelated character evidence. Engh says Stoughton’s opinion that officers can later find and arrest Wright is false because Wright has previously escaped and skipped his court appearances.

Engh then animatedly says, "You either have to correct it or, if your ruling is that we can’t ask about it, I have to move for a mistrial and we will come in after the break with a thick packet and I’ll make an offer proof on every time this kid has run away and not been found."

Frank again states his side and Chu says she’s going to take a five-minute break to review the matter.

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Court is now set to reconvene at 2 p.m. No immediate reason was given for the extra 30-minute break.

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12:34 p.m.

Seth Stoughton

Jurors return at 10:51 a.m. and the state calls Seth Stoughton, an associated professor at the University of South Carolina School of Law. He notes he researches police culture, regulation and behaviors. He also notes he worked as a Tallahassee, Fla. police officer for five years. He previously testified the trial of former Minneapolis police officer Derek Chauvin. After leaving the police department, he worked as an investigator for the Florida Department of Education for nearly three years before finishing his undergraduate degree and going to law school. Stoughton briefly explains the scholarly articles and the book he’s written. He notes he’s a lawyer, although he doesn’t practice law, and does presentations and trainings for law enforcement agencies on things from body cameras, use-of-force reviews, etc. He notes he’s been retained as a police expert, as he is in this case, over 80 times.

Before shifting to this case, Frank asks how Stoughton arrives at his opinions. He notes he was provided with several thousand pages of police documents, police body and squad cameras, interviews and pictures of the scene, etc. in this case. He notes one of his most frequent trainings is teaching attorneys how to review body camera footage for use-of-force investigations. He also goes through the law on uses of force and reasonableness factors for officers. He also explains foreseeable effects of deadly force and hindsight.

After going through how Stoughton analyzes cases and comes to his opinions, Frank shifts to this case at 11:38 a.m. Stoughton confirms Potter used deadly force and says the evidence he’s reviewed indicates she intended to use a Taser instead of her firearm. In this case, Stoughton says "the use of deadly force was not appropriate and the evidence suggests that a reasonable officer in Officer Potter’s position could not have believed that it was proportional to the threat at the time. In other words, the use of force was apparently excessive and inappropriate."

The defense objects a few times as Frank asks Stoughton if he saw evidence that Potter had reason to believe there was an imminent threat of death or great bodily harm. A sidebar is eventually called. After nine minutes, Chu calls for a 10-minute break and the jurors and Stoughton leave. Chu and the attorneys then discuss what Stoughton can give his opinion on. Frank says the defense has asked several witnesses and will "obviously" argue Potter’s force was justified due to an imminent threat to Sgt. Johnson. Defense attorney Earl Gray says "I don’t see anything subjective" in what Stoughton will testify to. "I think the problem we’re having is the word ‘subjective,’" Chu says. She explains and then says the state can have Stoughton testify as to the facts that would pose a serious threat as long as he doesn’t speculate on Potter’s state of mind. She also points out Gray can cross-examine Stoughton about not considering everything.

Stoughton and the jurors are brought back into the courtroom at 12:05 p.m. and Frank continues his questioning. Stoughton says Sgt. Johnson leaned into Wright’s vehicle for about eight seconds and put himself at risk of being dragged, ejected, seriously injured or killed. Frank asks if that was a risk or an actual imminent threat and Stoughton walks through the shooting, noting she immediately said she made a mistake and said there were additional behaviors indicating the threat a reasonable officer in her position would’ve perceived wasn’t an imminent threat of great bodily harm or death.

Stoughton adds that Luckey and Johnson were close to Wright and officers have to be very aware of those surroundings of their target. "Those actions are certainly not consistent with the actions of reasonable officer who perceived an imminent threat of death or great bodily harm," Stoughton says. Frank then asks him about hollow-point bullets and Stoughton explains them. He adds that there are still over-penetration issues with hollow-point bullets so those alone aren’t reducing the risk to the other around Wright.

Frank then asks about a reasonable officer in Potter’s position knowing that Sgt. Johnson was partially in the vehicle. The state also displays a screenshot of Johnson’s bodycam video as he’s leaning into Wright’s car. Stoughton notes Johnson is stopping Wright from grabbing the shift knob. The state plays the next couple seconds when Potter can be heard yelling "Taser" and Stoughton notes Johnson’s torso moves out of the passenger’s side door with his feet on the ground. Stoughton notes Wright couldn’t drive the vehicle while Sgt. Johnson was preventing him from doing so. Frank asks, with that in mind, if a reasonable officer should’ve used deadly force on Wright and Stoughton says, "No, not at this point," adding that there was risk but Johnson then backed out of the vehicle and wasn’t any longer at risk of being dragged.

Another second later in the video, Stoughton notes Johnson is outside the vehicle, except for his hands and he’s therefore not reasonable for Potter to use deadly force. When asked by Frank, Stoughton notes a reasonable officer in Potter’s position would’ve had to fail to perceive Johnson’s position. He explains there’s evidence that an officer in Potter’s position wouldn’t have been aware of Johnson’s position. He notes a reasonable officer wouldn’t assume Johnson entered the vehicle like he did and reached for the shifter because they’re trained not to, generally. He later says, on Potter’s body camera footage, you can’t really make out that Johnson is in the car. He adds that Potter’s behavior afterward — including saying she’s going to prison — indicates a reasonable officer in her position wouldn’t believe deadly force was justified.

A brief sidebar is called after the defense objects to Stoughton saying Potter didn’t know what Luckey was doing. Chu then dismisses juror for lunch. After the jurors are out of the courtroom, Chu says she’s sustaining the objection because Stoughton can’t testify as to what Potter was or wasn’t aware of, only what a reasonable officer in her position would’ve done. Frank explains he was trying to note that Sgt. Johnson testified he didn’t know what Luckey was doing and Stoughton may have misspoke.

They also break for lunch at 12:33 p.m. Court is set to reconvene at 1:30 p.m.

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10:30 a.m.

Sgt. Mike Peterson

Court reconvened Wednesday at 9:15 a.m. and defense attorney Paul Engh started questioning Sgt. Mike Peterson. Peterson confirms police work can be risky and the subjects they deal with can be unpredictable. He also confirms Potter attended and fully participated in all of the training scenarios at the department. Engh then moves on to the field training officer program and Peterson confirms FTOs have more responsibilities, such as a supervisory role.

Engh then moves on to questions about the Taser 7. Peterson confirms Potter’s last training on the Taser 7 was on March 2 and she was one of the first officers to carry the Taser 7 in the field later in March. Engh contrasts that to Potter’s handgun, which she’d had for nearly 10 years. On training, Engh notes the department can’t make it exactly like real life and can’t replicate a car taking off, which Peterson confirms that saying the department "never will be able to (make it exactly like in real life)." Engh also says COVID-19 has made it difficult to have in-person trainings and Peterson responds that they’re "getting a little more back to normal but still not where we were two years ago." Engh then notes the officers in training knew him, knew he wasn’t under the influence of anything and wasn’t going to harm them, which Peterson confirms.

Moving on to spark tests, Engh says other officers have skipped spark tests too and Peterson says yes and confirms Potter was never reprimanded or talked to for not doing a spark test. Engh also notes the warning for a Taser is to warn others and try to get the subject to comply, and Peterson confirms. Engh walks through the factors for using a Taser on a subject and Peterson adds "any use of force has to be made in a very short amount of time." On using a Taser on someone in a car, Peterson notes officers have used a Taser on many people in vehicles when the vehicles aren’t moving. Engh also points out the Taser company’s form has a warning that a Taser could be confused with a handgun and notes it’s happened other times across the country, which Peterson confirms. When Engh says mistaking the two "can be an innocent mistake," the state objects and Judge Chu orders the jurors to disregard the question.

Engh then shifts to the danger of fleeing in a vehicle and says it could kill someone, to which Peterson responds, "It can." Peterson confirms deadly force can be used to effectuate an arrest in dangerous situations. Engh talks about officers making a decision and says, right or wrong, failing to make any decision could be deadly, and Peterson replies, "for multiple people." Peterson also confirms traffic stops are dangerous and the department trains officers to be vigilant in watching for guns. Engh says just because a gun isn’t found, that doesn’t mean an officer’s suspicion a gun could’ve been in a vehicle is unfounded and Peterson agrees.

Engh asks if a Taser is a form of de-escalation and Peterson thinks for a few seconds before saying "yes." He then confirms they train that a Taser can help de-escalate situations by incapacitating subjects. Engh then starts a hypothetical situation for Peterson, outlining most of the details in the Wright traffic stop. He then asks if it’s reasonable for an officer to use a Taser in that situation and Peterson says it would be. The state has objected several times but Chu has overruled almost all of them. Engh also says accidents can happen and Peterson agrees.

Engh then asks Peterson about Potter, noting they’ve known each other for a long time. Peterson agrees Potter has been peaceful and law-abiding.

At 9:54 a.m., Assistant Attorney General Matthew Frank takes over questioning again and asks about officers making mistakes. Peterson said mistakes aren’t trained but they do address them in training. Frank asks if anyone drew their gun mistakenly instead of their Taser in the March 2 training session and Peterson says he doesn’t remember. Frank asks how many times Peterson has stopped drivers that didn’t have a license or insurance and Peterson says "hundreds." Frank asks what it is about not having insurance that makes someone an unsafe driver and Peterson says he believes those drivers don’t follow the rules of the road the same as drivers who do have a license and insurance but adds he doesn’t know that before the stop and noting having insurance by itself isn’t an unsafe act.

Frank then asks about incapacitating people in vehicles and Peterson confirms it’s not something officers want to do if the vehicle is moving. In a not-moving vehicle, Peterson says it depends on the circumstances. When using force, an officer has to take into account the safety of others in the vehicle, Frank asks. Peterson responds, "yes." Frank then asks if warrants require immediate arrests and using force when making those arrests. He also notes officers have some discretion on making that arrest and Peterson says, "some." Asking about the difference between moving and non-moving vehicles, Frank asks if officers have to take into consideration whether the person has the ability to put a non-moving vehicle into motion and Peterson says "in a fraction of a second."

Frank asks Peterson if he’s ever drawn his gun when he meant to draw his Taser and Peterson says, "not that I recall." Frank recalls Peterson saying officers have to make split-second decisions and asks if that’s part of the training they go through, which Peterson confirms. Frank then contrasts the Taser 7 to the Taser that preceded it at the Brooklyn Center Police Department and Peterson confirms there weren’t many differences. Frank then asks about the<