Botham Jean, a 26-year-old unarmed black Caribbean man, was shot to death in his Dallas apartment on September 6, 2018, by a white female off-duty Dallas Police Officer named Amber Guyger. Mr. Jean was in his apartment doing nothing wrong. The case has gained national attention because of the unusual explanation by Ms. Guyger. She claims that she mistakenly thought Mr. Jean’s apartment was hers, and she mistakenly believed he was a burglar in her apartment.
There is no question that Mr. Jean’s death was horribly tragic and never should have happened. Everyone agrees about that. There is extreme disagreement, however, about the facts of the case and what should happen to the officer. Much of the disagreement has been fueled by rumors circulating on social media. Escalating the disagreement are well-meaning, but uninformed people, offering their opinions on social media, plus the emotions and distrust that have culminated because of other incidents around the country involving the shootings of unarmed black men.
I believe that the responses of law enforcement so far have been appropriate. Ms. Guyger has been arrested for manslaughter, but she has not been formally charged by indictment yet. A formal charge is likely in the coming weeks. The charge will be based on the evidence available to the Dallas County District Attorney’s Office and their view of what is appropriate in light of the evidence.
At this point, investigators with the Texas Rangers are collecting evidence and presenting it to the DA’s Office for review. There is a lot to collect and review, including physical evidence from Mr. Jean’s apartment, physical evidence from Ms. Guyger’s car and apartment, blood and toxicology evidence from both Mr. Jean and Ms. Guyger, their cell phone records and data, their text messages, their emails, their Internet searches, and interviewing and possibly re-interviewing, numerous witnesses who may have seen or heard something relevant. Collecting and carefully analyzing all of this evidence will take time.
This article will discuss the facts we know, the investigation, and the possible charges.
During the night of September 6, 2018, Ms. Guyger finished her shift at the Dallas Police Department and went home, still dressed in her uniform. Ms. Guyger lived on the third floor of the apartment building. People who live in the apartments park on the parking garage floor that corresponds to the floor on which they live.
What follows is a summary of the arrest warrant affidavit by the Texas Rangers. Ms. Guyger parked her car on the fourth floor instead of the third floor. She then went to the apartment that would have been hers if she had been on the right floor. Believing that apartment to be hers, she inserted a key into the lock. The keys for these apartments have an electronic chip that unlocks the doors. Therefore, she was able to insert her key into the lock of Mr. Jean’s apartment. Normally, her key would not have unlocked his door, but the door was not completely closed, so the door opened when she pushed the key into the lock. This would have aroused her suspicions. The inside of the apartment was dark. According to the affidavit, the interior layout of the apartments is very similar. Mr. Jean apparently heard her opening the door, and he came out toward the door. Ms. Guyger claims that she saw only a silhouette of a man. She claims she believed it was a burglar who had broken into her apartment. She took out her gun, pointed it at the person, and she claims, she ordered him to stop. She says that he kept coming forward toward her, so she shot him.
There has been a lot of misinformation in the public about this case. I have seen it. On social media, for example, people claimed that Mr. Jean and Ms. Guyger were dating or knew each other. Before Ms. Guyger was identified by name, there were even photos of Mr. Jean and, supposedly Ms. Guyger, that were circulated as alleged proof that Ms. Guyger killed him because she was a jilted lover. It turned out that these were just rumors. Ms. Guyger was not the woman in the photo. Mr. Jean’s family has publicly said that they did not know each other. Law enforcement has found no evidence, so far, that they knew each other. Nevertheless, the rumors have fueled a degree of public suspicion about whether the shooting was really an accident.
Before the Texas Ranger affidavit became public, there were also alleged details about the facts that were circulating on social media. Many of those details were simply not accurate, but a lot of people seem to continue to believe that the things they heard before the affidavit became public were correct. Some of these inaccurate details are inconsistent with the affidavit, which has led people to believe that Ms. Guyger’s explanation is not accurate because it conflicts with the rumors they had heard and now assume to be true.
Many people say they do not believe her account. For some, there may be one or more specific details of her account that they doubt, such as whether she commanded the person to stop before firing. Others believe, perhaps based on other instances of police officers shooting unarmed black men, that the shooting was racially motivated. Because they have already assumed that the shooting was racially-motivated, they may refuse to believe that she saw only a silhouette, because that would imply that she didn’t know his race.
Here is the problem with the theories of the skeptics: If Mr. Jean and Ms. Guyger did not know each other, and there is no evidence that they did, a mistake is the only explanation that makes sense based on the facts we know. Maybe she embellished some of the details to make her story sound better, but no one believes that she just went looking for a random black man to shoot. No one believes that she realized she was in his apartment and that he was not an intruder, but she just shot him anyway.
Of course, there were indications she should have seen that she was in the wrong apartment. Of course, she should have known it was not her apartment. Reasonable people can debate how bad of a mistake she made. People can certainly feel that they would not have made the same mistake. But without some other facts pointing to another explanation, it looks for all the world like she made a horrible and tragic mistake and believed, incorrectly, that Mr. Jean was an intruder in her apartment.
The Dallas Police Department quickly called the Texas Rangers to take over the investigation. I think this was absolutely the right call. Ms. Guyger is a Dallas Police Officer. Even though she was off-duty at the time, the public could easily believe that the Dallas Police Department would not fairly investigate one of their own. To avoid this possible perception of bias, they brought in the Texas Rangers, who have no connection to the case and no bias.
I have personally worked closely with the Rangers before, both as a federal prosecutor and as a special prosecutor in a state criminal case. They are excellent investigators. They are very well-trained, and they have all of the resources they need. In one joint FBI and Texas Rangers investigation I remember, there was a witness in Omaha who needed to be interviewed. The lead FBI agent offered to do the interview, but he said it would take a few days to process the paperwork to get approval for the travel expenses. The lead Ranger said, “Don’t worry about that. I can have one of our planes ready to take all of us up there in about an hour.”
The Rangers have been processing the crime scene and interviewing the witnesses, and they have access to any interviews done in the immediate aftermath of the shooting. The Rangers were the ones who sought an arrest warrant for manslaughter, based on their belief, at that time, that the shooting had been a mistake.
Their decision to arrest Ms. Guyger for manslaughter does not mean that she will ultimately be charged with manslaughter. The Dallas County District Attorney’s Office may decide that the facts warrant a different charge, so they may ask a grand jury to indict and formally charge Ms. Guyger for another crime besides manslaughter. The arrest warrant is just a reason to arrest Ms. Guyger. Her actual charge will be something that the Dallas County DA’s Office decides to present to a grand jury in the form of a proposed indictment. The grand jury will then vote on the proposed indictment. Only if the grand jury votes in favor of the proposed indictment will it be the formal charge in Ms. Guyger’s criminal case.
As we will see in the next section, reasonable legal minds can and do differ on the right charge, even assuming the shooting was based on the mistaken, but incorrect, belief that Mr. Jean was a burglar. The point here, though, is that some very experienced, very good, and unbiased investigators, who have access to way more evidence than the public, believe at this point that the shooting was a mistake.
What Is the Right Charge?
If the facts continue to show that Ms. Guyger shot Mr. Jean because she mistakenly believed he was a burglar in her apartment, the decision about what charge to pursue will be difficult and is guaranteed to be controversial. Already, experienced criminal lawyers have weighed in on social media and in the press. Some believe the right charge is murder because she meant to pull the trigger and meant to kill him. Some believe manslaughter is the right charge because manslaughter is basically a reckless killing. Some believe the right charge is negligent homicide. They feel that she made a mistake in good faith, but that she failed to use ordinary care to make sure she understood where she was and what was happening. Some believe there should be no charge at all, or that she will be found not guilty of all criminal charges.
I do not think murder is the right charge based on the facts we know. I understand that her conduct might meet the definition of murder, in the sense that she intended to pull the trigger and intended to kill the person in the apartment. An obvious case of self-defense would also meet the definition of murder, though. It would be murder, but it would be excused by self-defense. If prosecutors believe that there is a valid defense to a charge, I do not believe they should charge it. I do not think, they should charge someone with murder if they believe the person acted in self-defense.
In this case, Texas has a defense called the “mistake of fact.” The defense of “mistake of fact” means that someone is not guilty of a crime if the person genuinely acted under a reasonable but mistaken belief in facts, that if true, would mean that their conduct was not a crime. I acknowledge that there can be a dispute over whether Ms. Guyger’s alleged belief that Mr. Jean was a burglar in her apartment was “reasonable.” It strikes me, though, that she did not have the kind of intent that murder normally requires. If she really believed he was a burglar, she did not know his intentions or whether he was armed with a gun, a knife, or another weapon. If she had come home to her own apartment and encountered a real intruder under these circumstances, no jury would convict her of murder. Therefore, if her belief was genuine, she did not have the kind of evil motive we normally associate with murder.
I also do not think it would be appropriate not to charge her with a crime, even if she was mistaken. If she was, her mistake was so bad that I believe it was criminal. A driver who fails to keep eyes on the road and who runs over and kills a pedestrian makes a horrible mistake, but is probably guilty of at least negligent homicide, which means killing someone because of a failure to use ordinary care during an activity.
The line between negligent homicide and manslaughter, which basically means reckless homicide, is difficult, even for experienced lawyers. Was her mistake negligent or reckless? I believe a reasonable prosecutor could conclude that she was reckless, although other reasonable prosecutors might disagree. If there is a good faith basis to charge manslaughter, that might be the right charge in these circumstances. At trial, a jury might believe that the State had not proven recklessness beyond a reasonable doubt, but they could still convict her of the lesser charge of negligent homicide.
Race As A Factor
For many people, this case is about race. They see this as another example of a white cop killing an unarmed black man, which to them, means that it was racially motivated.
To me, the fact that there have been cases of white police officers killing unarmed black men that were racially motivated does not mean that every such case is racially motivated. Individual cases involve unique facts and unique individuals, and I believe we should look carefully at all of the facts before we reach a conclusion about whether and, to what extent, race was a factor.
In this case, it is possible that Ms. Guyger could not even identify Mr. Jean’s race at the time she shot. If she did know he was black, was she more willing to shoot him than she would have been if he was white? If she had come home to her own dark apartment and encountered a real male intruder who was white, again not knowing his intentions or whether he had a weapon, would she have shot him? It is possible that she would not have, but we really don’t know. We can guess, and we may have strong feelings about it, but we do not have enough evidence to know for sure, at least at this point. I don’t think it is far fetched to say, though, that if the occupant of Mr. Jean’s apartment had been a woman, Ms. Guyger probably would have felt less immediately threatened and would have been less likely to shoot.
If her case goes to trial, absent evidence of some sort of racial motivation that we do not have now, when the jury is deciding whether she is guilty or not guilty, the jury will not be asked to decide whether race played a role in her actions. They will simply be asked about whether she committed the crime charged.
In this article, I have not even tried to address issues such as whether there should be greater oversight or training of police officers, whether police departments should do more to make sure that officers treat all races equally, or whether there is generally racial injustice in policing. Those are all very important issues, but they are beyond the scope of this article.
Botham Jean was an innocent victim who did not, in any way, deserve to die. His life matters. I believe that Ms. Guyger will be charged and convicted of a crime for killing him. Absent significant new evidence, she will probably be charged with manslaughter. She will probably be convicted of manslaughter or negligent homicide. What her punishment will be is impossible to say at this point.
Dallas Criminal Defense Attorney John Helms