The shoot was bad. Worse than bad. Incomprehensibly bad. But when you’re a cop, a bad shoot doesn’t necessarily make it a crime. That this feeds into the narrative that cops can get away with anything, that cops shoot black people because they’re racist, that all cops are bastards, is understandable. After all, this was one truly bad, horrific, and from almost any rational perspective, wrongful shoot.

The shooting cop, Jonathan Aledda, was charged with two felony counts of attempted
manslaughter with a deadly weapon, one misdemeanor count of culpable
negligence for inflicting injury upon Kinsey, the mental health therapist, and one misdemeanor count of culpable negligence for endangering Rios-Soto, the austistic man sitting in the road.

At a first trial, the jury acquitted Aledda of the Rios-Soto culpable negligence count and hung on the others. At a second trial, the jury acquitted Aledda of the two felony counts, leaving only the misdemeanor of culpable negligence as to Kinsey. Aledda sought to call as a witness Assistant Police Chief Angel Rivera, who was Aledda’s SWAT trainer. The prosecution objected, arguing that the standard for culpable negligence was objective, so it didn’t matter whether Aledda thought he was conducting himself in accordance with his training as to threat assessment and action. The trial court refused to allow the defense to put on the witness. The appellate court reversed.

Therefore, to sustain a conviction for the crime of culpable negligence, the State must establish that the defendant acted with “a gross and flagrant character, evincing reckless disregard for human life” or an “entire want of care which would raise the presumption of indifference to consequences; or such wantonness or recklessness or grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others, which is equivalent to an intentional violation of them.”

That Aledda was negligent was insufficient to sustain a conviction. Rather, it required a fairly extreme degree of recklessness to be a crime. And there is good reason to find, from the video, that Aledda was more than sufficiently reckless to sustain a conviction for the misdemeanor, if not the felony. But even a cop prosecuted for such outrageous conduct gets to present his defense.

While the State was allowed to present evidence as to how other officers on the scene responded to the situation, and how “shocked” those officers were that Aledda fired his weapon, the trial court’s challenged evidentiary ruling precluded Aledda from presenting a key ingredient of his defense. Under the facts and circumstances of this case, we conclude that precluding Rivera’s testimony constituted reversible error, and that Aledda should be afforded a new trial.

While the snarky reaction is to question what possible “training” a cop might have gotten to justify his shooting at an autistic man holding a truck, that begs the question of what Aledda perceived to be the threat to which he reacted by shooting, and hitting the wrong person because his aim stunk.

How Aledda was trained, and the extent to which his actions were consistent with his training, directly relate to whether Aledda properly or negligently responded to the circumstances with which he was confronted.

Aledda did not offer the testimony regarding his training to establish a standard different from one created by the criminal statute; he offered the testimony to show how he was trained to react to the precise situation with which he was confronted. Thus, the introduction of Rivera’s testimony regarding Aledda’s training would assist – rather than confuse – the jury in determining whether Aledda’s response to the circumstances he encountered was criminally negligent.

This is the “Reasonably Scared Cop Rule,” a rule developed for civil actions under § 1983, as applied to a police officer prosecuted for a reckless shooting. The crime is grounded in the objective standard of reasonableness, not whether the defendant felt it was a good idea, and so the training he received, and whatever influence that had on either his perception of the threat or reaction to it, would not be relevant to whether his conduct was objectively reasonable.

The appellate court, however, seized upon the rationale behind Graham v. Connor because the defendant here was not a “lay defendant” but a “trained professional.”

Indeed, almost by definition, many culpable negligence cases – where the State must prove that the lay defendant acted with a wanton or reckless disregard for the public – do not involve a trained professional charged with failing to exercise that degree of skill, care or judgment as is ordinary and reasonable for one engaged in the given profession. Here, though, such a scenario is presented. The training undertaken by the professional would be relevant for the jury to consider in determining how and why the professional assessed and responded to the situation, and whether, under the circumstances surrounding the particular case, such assessment and response was objectively reasonable.

Should objective reasonableness be any different for a “trained professional” than a “lay defendant”? Do the bullets feel any different entering the body a person shot? This is a significant bone of contention, as police argue that they see things differently as a result of their training, and consequently can’t be judged by a lay jury without the testimony of an “expert” to put their perception of the situation into cop perspective.

This is not a view I share, as putting a shield on a guy doesn’t entitle him to his own flavor of reasonableness, wrapped up in cop jargon, junk expertise and facile rationalizations.

That said, the appellate court was highly protective of Aledda’s right to present his defense, which is a critical right to every criminal defendant, even a cop. The question unanswered is whether the appellate court would have been as accommodating to a criminal defendant who wasn’t a police officer who sought to present a witness that the defense thought critical to the case, even if the witness’ relevance was marginal under any standard other than the Reasonably Scared Cop Rule.