After fatal shooting by state troopers, former Ramsey County attorney weighs in on law surrounding use of force

[MUSIC PLAYING] CATHY WURZER: Our top story. An investigation is underway into what happened in the wee hours of Monday morning that led a state trooper to shoot and kill a man during a traffic stop and attempted arrest on I-94 in Minneapolis. Ricky Cobb, a 33-year-old Black man, died of multiple gunshot wounds during a confrontation that escalated very quickly and was captured on body camera video released yesterday.

[AUDIO PLAYBACK]

- How are you doing, my man?

- [INAUDIBLE]

- I'm going to need you to step out of the car. We have some stuff to talk about, OK?

- What?

- We just have some stuff to talk about.

- Every time y'all talk about--

- All right. Come on.

- --we have some stuff to talk about, y'all [INAUDIBLE] take me to jail, but for what, man?

[END PLAYBACK]

CATHY WURZER: This was some of the interaction of state troopers as they attempt to arrest Cobb for allegedly violating an order for protection. It started out calmly. Cobb keeps asking troopers why they pulled him over. One of the troopers repeatedly asks Cobb to hand him the car keys. And about 30 seconds after that, another trooper opens the passenger door. And the trooper who had been speaking to Cobb opens the driver's door. And one of them shouts at Cobb to get out. Things move quickly at that point. With both doors open, Cobb speeds away. The troopers fall to the ground. But the trooper on the passenger side fires his handgun, hitting Cobb.

Following the release of this video, there are now calls to charge the trooper who shot Cobb. So what are the next steps? Former Ramsey County attorney Susan Gaertner is on the line right now to possibly answer that question. Good to hear your voice again.

SUSAN GAERTNER: Well, good to be on your show again, Cathy. How are you doing?

CATHY WURZER: I'm great. Thank you so much. You know, in Minnesota, as you know, if you're facing a threat of imminent bodily harm or injury in certain circumstances, you have the right to use force to defend yourself. That's generally what the law says. The State Patrol defends the actions of the troopers saying they were justifiable. Is there a difference when a citizen uses force and a peace officer?

SUSAN GAERTNER: There is an important difference. And that is that the police officers are authorized to use deadly force in circumstances where they reasonably believe that if they don't that either they, the officer, or fellow officers, or citizens will be harmed. And that is a carefully developed statute and body of law because that is a very extreme circumstance and a very difficult circumstance for all concerned. So again, the law takes great pains to set out the kinds of situations where it is authorized to use deadly force.

CATHY WURZER: But the decision making is just a split second. I wonder what the officers are weighing in those moments.

SUSAN GAERTNER: Well, that is another part of what the law has made clear. And that is that you do need to take into account that that decision to use deadly force is made in a split second, reacting to sometimes conflicting information or rapidly developing information. And so that has to be taken into account in any decision as to whether they'll be held criminally liable for, for example, a shooting.

CATHY WURZER: Many times a weapon is a clear sign for justification. Is there anything else that happened that could be considered justifiable under the law? The State Patrol didn't say that Mr. Cobb had a gun. It wouldn't confirm or deny if he was armed.

SUSAN GAERTNER: Well, I'm going to go back to how you introduced this whole topic, Cathy. And that was saying that we'll talk to a former county attorney about whether or not there will be charges. I would have to say I don't know. And the reason that I don't know is, number one, because I'm not making that decision. And number two and, very importantly, I don't have all the information.

We have an extraordinary amount of information that we wouldn't have had, say, 10 years ago when something like this happened because we've all have access to at least significant portions of three body cam videos and a squad video. And that's been put out for the public to view. And again, that's a very recent I would say luxury that we have as a public to take a look at what's happened and inform ourselves in that way. But again, there's a big difference between me sitting down and watching each of these five minute videos and coming to a conclusion as to whether or not the force was justified. That's very different than the decision that the county attorney will have to make. And those body cam videos, that squad video will be scrutinized.

They'll be reviewed over and over frame by frame to decide what happened as best you can determine that after the fact. And there will be many different aspects that will go into that decision. You're right. If there is a weapon displayed by the citizen who is shot in this instance, that's an important fact but it's not the only fact. Officers sometimes believe that someone is reaching for a gun even if there isn't a gun. And that belief may be reasonable.

There are situations, and perhaps this is one of them, I don't know, where the car was seen as a weapon in and of itself, the person driving away perhaps putting officers in harm's way by doing so. Again, each of these decisions are very, very fact-specific because, at the end of the day, you have to decide based on the totality of all the circumstances was it objectively reasonable to use deadly force in this instance. And that's a tough call.

CATHY WURZER: This case draws some parallels to Daunte Wright. At least it feels like there are some parallels here. Black man pulled over, got shot by law enforcement, drove away, or am I just making parallels where there shouldn't be here?

SUSAN GAERTNER: Well, I think there's a tendency to put various officer-involved shootings side by side and say, are they same? Are they different? Is this one worse? Was this one clearer? Those kinds of things, it's natural to do that. It's a way for us as a community to look at the bigger picture of how are these situations happening. Is there a pattern?

Are we seeing less of the more egregious uses of force that we've experienced in recent years? So I think it is understandable that you would put these side by side. OK. In this instance, the officer may or may not have been reasonably fearing for their life. How does that compare to this next incident? Does that tell us anything about whether this officer should be afraid? So I think it's a natural tendency.

CATHY WURZER: You mentioned that, of course, body camera and dash cam footage has changed just in the past few years the makeup of some of these cases that we have this evidence in front of us. What's also, of course, changed are people can weigh in at any given time on social media. And I don't know if you saw the tweet from Representative Dean Phillips who says shootings like this are unjustifiable and more must be done to prevent them. Of course, politicians weigh in on a lot of subjects. What did you make of Representative Phillips's statement on this?

SUSAN GAERTNER: Well, I wasn't aware of that statement. And politicians are people. And sometimes they can weigh in based on emotion. And again, I think that other elected officials who have not been in the seat of being a county attorney and needing to make that decision, it's hard for them to understand the weight of the law, the parameters of the law, the expectations of the community to check their own biases at the door when they are making these decisions. And again, I can't emphasize enough that those are tough calls to make. And it's easy to Monday morning quarterback. It's easy to say this is clearly wrong or this is clearly right. And I think it's a rare circumstance where that can be said.

CATHY WURZER: Final question here. As you know, only a handful of officers in Minnesota history have been charged criminally in connection with on duty shootings. You want to make a guess as to what might happen?

SUSAN GAERTNER: I certainly do not. I certainly do not want to make a guess what will happen. What I will say will happen is that County Attorney Moriarty and her staff will have a tough decision to make. They will work hard at it. Again, as I say, I expect they'll look at those videos frame by frame. They'll read statements. They'll review the law again and again. And ultimately, it will be County Attorney Moriarty's decision.

But I guarantee you that will be thoughtfully made. I also guarantee you that no matter what decision is made, some people will object. Some people will disagree. But I do want to say one more thing quick, Cathy. And that is how far we've come in another way on these kinds of very, very difficult situations. And that is that this decision won't be made by a grand jury.

Mike Freeman a number of years ago moved away from the longstanding policies of most county attorneys, if not all, that a grand jury would make this decision. And so because of Mike Freeman's initiative to make those decisions himself, we now have so much more access to how the decision is made, what the thinking is one way or the other. And so that's another boon to the community in terms of these very difficult situations.

CATHY WURZER: Point taken. Susan Gaertner, always a pleasure. Thank you so much.

SUSAN GAERTNER: Thank you. Take care.

CATHY WURZER: You too. Susan Gaertner, special counsel for the law firm Lathrop GPM and a former Ramsey County attorney.