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Supreme Court ponders third-degree murder’s difference from manslaughter


Wednesday’s virtual Supreme Court arguments. (Screen grab courtesy Minnesota Judicial Branch)

Wednesday’s virtual Supreme Court arguments. (Screen grab courtesy Minnesota Judicial Branch)

Attorneys for both sides in State v. Noor have one thing in common—they want the state Supreme Court to clarify what third-degree murder means and how it is different from manslaughter.

On Wednesday, the court heard arguments in the case State v. Noor, where the defendant, a former police officer, shot and killed a woman who approached the driver’s side of a squad car. He shot from the passenger side across the body of another officer and hit Justine Ruszczyk Damond in the abdomen. He was convicted of third-degree murder and second-degree manslaughter.

The third-degree murder charge is per Minn. Stat. § 609.195(a). It states:

“Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life,” is guilty of third-degree murder.

The argument is what “depraved mind” means after more than a century of conflicting caselaw in the state. In some cases, it has been interpreted to mean that the act resulting in death was indiscriminate and not aimed at a particular victim—what is known as the “particular person prohibition.”

The effect of this interpretation was stated succinctly by Justice Margaret Chutich. It may be “that this court has put a gloss on depraved mind that we cannot escape even if we want to,” she commented to Assistant Hennepin County Attorney Jean Burdorf.

Burdorf replied the court can escape that gloss by overruling or distinguishing previous decisions or taking other steps. “And that is what I’m asking you to do,” she said. “…We have this confusion and we have to acknowledge it.”

The Court of Appeals in Noor said that a third-degree conviction may be based on a singular action directed at a person.


Caitlinrose Fisher, Noor’s attorney

Caitlinrose Fisher, Noor’s attorney

‘Split second’

Former Minneapolis Police Officer Mohamed Noor’s attorney, Caitlinrose Fisher, argued that her client made a split-second decision in reaction to a perceived threat, and that the evidence backs that up. The police testified that they thought they were being ambushed.

She also said that “indifference” to the risk of death was relevant, but not enough to support a third-degree conviction.

It’s very difficult to define a depraved mind, which is appropriate given that the crime requires no proof of intent, Fisher said. The court should examine what federal common law would find equates to a depraved mind, she said, and a split-second decision likely didn’t meet the test.

“Maybe this case should be for manslaughter. We just don’t think it’s murder,” Fisher said.

Returning to the subject on rebuttal, she said, “we don’t punish depraved-mind murder based on unreasonable behavior.”

Burdorf countered that the state’s proposed rule is simple and tracks the statute. It also tracks State v. Coleman, a case involving a child killed by a drunken snowmobiler, which was decided by the Supreme Court last March.

“If you view Noor in the light most favorable to the verdict, and apply the statutory definition, the conviction must be affirmed,” Burdorf said. This means the requirement that the criminal act be “indiscriminate” should be eliminated: “The language simply isn’t there,” she said.

In Coleman, the Supreme Court said that a “depraved mind” is similar to a standard of recklessness, which the court said meant that the defendant disregarded the risk of death. That ruling states:

“[T]he mental-state element for third-degree depraved mind murder requires a showing that the eminently dangerous act was committed with a mental state of reckless disregard of human life.” (Emphasis in original.)

The Court of Appeals ruled that Noor’s act, in and of itself, may demonstrate a depraved mind. But Burdorf told the court, “Depraved mind is a term of art, not an element of a crime.”

Burdorf said that Noor fired the gun at a “silhouette,” and has tried to shift the focus off of Damond and onto his concern for his partner, to show he was not indifferent to life. But he was indifferent to Damond‘s life and that’s where the focus should be, she said.

As a police officer, Burdorf said, Noor certainly understood the danger that he could cause her death by discharging his weapon. “That was, without question, an eminently dangerous act,” she said.

Justice Natalie Hudson’s response may have indicated disagreement on the bench.

“You seem to be taking the incident out of context,” she told Burdorf. “[Both officers] were startled and thought they were under attack. … It was midnight in an alley and there was a thump on the car,” Hudson said. “None of us have been in their shoes. We’re doing some Monday-morning quarterbacking here.”


Session/Law logo by Kirk Anderson