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Is Amber Guyger's shooting an OIS?

Dallas officer Amber Guyger had just finished a 15-hour shift when she entered an apartment she mistook as her own and shot a man she thought was an intruder


Write the story of an average citizen, perhaps a female attorney who has a concealed-carry permit after being a crime victim, entering an apartment she thinks is her own to find the door ajar and an apparent intruder in the dark that she shoots dead. It is a tragic mistake with serious legal consequences, but there are no protests or cries of racism and probably not front-page news for more than a day.

Add a uniform and the fuse is lit.

The 24/7 theory

This photo provided by the Kaufman County Sheriff's Office shows Amber Renee Guyger. (Kaufman County Sheriff's Office via AP)
This photo provided by the Kaufman County Sheriff's Office shows Amber Renee Guyger. (Kaufman County Sheriff's Office via AP)

Perhaps no one is thinking that when off-duty Dallas police officer Amber Guyger encountered resident Botham Jean in his own apartment, killing him with her duty weapon, that it is anything other than an officer-involved shooting, but a discussion on where the lines are drawn is worth having.

Guyger was clearly off duty, although the long-held tradition (or law or policy) holds that there is no such thing as truly “off duty.” Certainly she was in uniform, but other professions wear uniforms and many cops do not. She had a gun, but so do many civilians. She reportedly gave authoritative commands and took immediate action, but a lot of civilians are ex-military or have had some training in dealing with tense confrontations. She shot a black man, but lots of races and genders die by accident or murder at the hands of all kinds of races and genders.

Criminal, internal, civil

Whenever there is alleged criminal behavior on the part of a police officer there are multiple kinds of hell to pay. Officers face state criminal charges, federal criminal charges of civil rights violation, lawsuits in state courts and federal courts, department discipline, and the highly personal ramifications of dealing with the stresses of guilt or persecution in innocence.

Although no one knows where this case will go – and it will go for years after most people stop paying attention – we can be certain that the Dallas police department will hold Guyger accountable internally and criminally, while distancing her from their responsibility civilly.

It is in the civil arena that police agencies and their governing bodies claim that an officer’s off-duty conduct was so disconnected from their official responsibilities that the liability should be shouldered only by the officer. Lawsuit questions will be centered on whether the officer was acting under color of law or within the scope of their duties. Although it may be likely that the City of Dallas will be writing a substantial check with no civil trial, there are cases where even an on-duty officer’s actions were so out-of-bounds that the employing agency bore no liability for their egregious conduct.

The nexus of Jean’s death to the City of Dallas may not be too hard to find for the attorneys who are sure to be circling. City gun, city uniform, city training, city policy, decisions on hiring, decisions related to dealing with Guyger’s previous on-duty OIS and more will be arguments to link this off-duty act to her employer’s deep pockets.

Cops held to a higher standard

The trial of concern in the media is the trial of public opinion. There she has been declared not only guilty of murder, but of being a racist, privileged liar. She has been painted with the broad brush of the police brutality narrative, cited as just another officer involved in a long list of perceived injustice. But Amber Guyger will never be seen as a tired woman coming home from work and making a tragic and deadly mistake. And maybe she doesn’t deserve that latitude, depending on how the facts of the case present themselves.

The “police need to be held to a higher standard” mantra is one I have heard myself say when teaching ethics in the academy. But I also taught Constitutional law, which ensures equal justice under the law. And this is the mind-bending conflict that police professionals and civilians contend with. If justice is blind, it will be defendant Amber at the table. If we adjust the system differently – for better or for worse – then Officer Guyger is before the bench.

Professional vs. personal identity

In my years in policing I’ve seen efforts by the profession to paint ourselves as superheroes, and efforts to remind everyone of our humanness. We accept a 24/7 life of responsibility but ask to have our private lives. We expect professional courtesy but realize that we are as accountable as the ordinary citizen. The public will not allow us – we ex-cops included – to have it all ways.

As for this case, destined to be relegated to footnotes and old news, the best we can do is sympathize with everyone touched by the tragedy and hope that truth will prevail.

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