When is a mistake a crime?

I’ve been having a cordial exhange with Bill Choslovsky about his column arguing that former officer Potter should not be charged with a crime. He asked a very good question.

At some point the question becomes do all mistakes – even innocent ones with good intent – subject you to criminal liability?

All mistakes should not incur criminal liability. But some do. I see it as a matter of intent, and the egregiousness of both the error and the outcome.

In Georgia law, involuntary manslaughter is a criminal offense, and it is based on those conditions.

A person commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner when he causes the death of another human being without any intention to do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm.

In Bill’s surgeon example, the doctor had no intent to cut an artery, and the error was relatively minor: mistaking a scalpel for a probe; something that could happen, especially with a scalpel covered in blood and seen edge-on.

In the Potter case, the officer did intend to shoot the suspect, but committed the errors of drawing the wrong weapon from the wrong position on her belt and failing to recognize that the Glock was not a Taser. Since Taser’s are designed not to be confused with firearms, I consider that error to be egregious. The vast majority of officers do not “accidentally” shoot suspects with sidearms they mistook for Tasers; I think the design is proven to be effective… if the officer is doing her job.

Potter did not intend to kill the suspect. If she had, then a murder charge would be appropriate. But the suspect’s death (outcome) was egregious.

Thus, involuntary manslaughter.

Now let’s look at a hypothetical case: Suppose the officer had correctly drawn and used the Taser (no lethal intent, no egregious error). But imagine the electrical shock occurred at just the right point in the cardiac sinus rhythm and stopped the heart. Out hypothetical suspect dies (egregious outcome).

No intent, no error, but death due to something beyond the officer’s control. Not a criminal offense.

Another example: Taser, but imaginary officer decides to teach suspect a lesson and makes him “ride the lightning” several times. Suspect dies.

No lethal intent, but outrageous misuse of the Taser, and egregious outcome. In Georgia, that would probably be upgraded to voluntary manslaughter, because while death was not intended, unlawful torture was.

Summary: Criminal liability depends upon intent, egregiousness of the error, and outcome.

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2A advocate, writer, firearms policy & law analyst, general observer of pre-apocalyptic American life.

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