About 150 people gathered along Lamar Street—near the Dallas Police headquarters and the apartment complex where 26-year-old Botham Jean was shot dead inside his unit by a Dallas cop—to protest police brutality on September 10, 2018. (Photo Credit: Creagh Cross)

Local News

Botham Jean’s Family and Amber Guyger Now Agree on One Thing

A civil lawsuit from the family is a cut and paste from Guyger's criminal appeal.

In the many heartfelt observations of the recent two-year anniversary of the death of Botham Jean, one aspect of the full saga went largely untold. Scant if any mention was made of the fact that Jean’s family and Amber Guyger, the Dallas police officer who killed him, are now on the same page about the proximate cause of his death.

A lawsuit filed earlier this month by the Jean family against the apartment building where he was killed quotes directly — with quote marks — from many parts of a criminal appeal filed last month by Guyger. The family’s new lawsuit concludes, “Botham’s death occurred as direct result of the faulty poorly maintained door and locking mechanism and the confusion with the layout of the Southside Flats, which Defendants knew or in the exercise of ordinary care should have known to exist.”

Waterton Residential LLC, the property management company, issued a statement soon after the suit was filed denying responsibility and saying the Jean family had made contradictory claims elsewhere.

The Jean family suit against Waterton follows the family’s unsuccessful civil rights suit against the city, tossed out by a federal judge in December 2019, in which the family blamed his killing on what the suit claimed was a “practice or custom” within the Dallas Police Department of “shoot first and ask questions later.” That culture, the suit said, was “a major problem since the early ’80s, when the DPD was the subject of a Federal Investigation, that continue[s] to exist today.”

The federal suit didn’t get to first base. A magistrate judge, later affirmed by a circuit judge, ruled that the family’s lawyer, Daryl Washington, had failed to “state a claim,” meaning Washington had not presented enough evidence for the suit even to be tried.

In her finding that the Jean family’s federal civil suit against the city should not be allowed to go forward, U.S. Magistrate Judge Irma Carrillo Ramirez took the “shoot first” argument head-on. She found that the other cases Washington cited to prove a pattern were too unlike the Jean shooting to make a pattern.

Washington’s suit cited seven other police shootings in Dallas over a four-year period, claiming they were similar to the Jean shooting. Carrillo disagreed the incidents were parallel or even similar. “None of these cases involved an off-duty officer approaching what he or she believed to be a burglary taking place in his or her own home at the time of the shooting,” Carrillo wrote in her recommendation.

Carrillo went on to say that even if the seven incidents in the suit had been exactly like the Jean shooting, that number in a four-year period would fall far short of what federal appeals courts have found sufficient to prove a pattern. “The Fifth Circuit also requires that a pattern of violations be ‘sufficiently numerous,’” she wrote.

She said there is no hard and fast rule for how many incidents it takes, but she pointed out that the Fifth Circuit Federal Appeals Court found in a case involving another city that “27 prior incidents of excessive force over a three-year period … and 11 incidents offering ‘unequivocal evidence’ of unconstitutional searches over a three-year period … were not sufficiently numerous to constitute a pattern.”

There is an important underlying concept in what Carrillo wrote. Yes, we have to be fair to victims of police violence, but we also have to be fair to police. In a city the size of Dallas with 3,300 sworn officers and a significant ongoing crime problem, seven incidents of bad behavior in four years is remarkably few. Just because Washington only came up with seven doesn’t mean there may not have been more. But he needed to dig up a lot more for his lawsuit to pass muster in federal court.

This is a key point for this city to consider. Washington’s accusation is that the city of Dallas fosters in its police department a racist culture of “shoot first and ask questions later.” But according to Carrillo’s findings, upheld later by U.S. District Judge Barbara M. Lynn, Washington’s own numbers could be taken to prove exactly the opposite.

Washington’s new civil lawsuit takes a very different tack on the cause of Botham Jean’s death, now focusing on the role of sheer accident. Of course, Guyger tried unsuccessfully to make that same argument in her trial for murder a year ago.

The jury didn’t believe her. She was convicted of murder. Now serving a 10-year sentence, Guyger has appealed her conviction, arguing that she should either have been acquitted or convicted of the lesser offense of criminally negligent homicide.

Washington tells me two things. First, he says that the various legal actions, the federal suit and now this civil suit against the apartment building folks, are “mutually exclusive” of each other, which is true. It’s not a legal gotcha or a conflict for there to be inconsistencies in several different pleadings filed under different sets of law for different purposes.

But I find the second thing he tells me more problematic. Washington says that in the land of simple logic, not law, it’s still not inconsistent for him to blame Jean’s death both on cop culture and a bad building: “I will tell you the fact that Amber Guyger is a police officer and received the training, and this apartment complex presented a very dangerous and foreseeable situation, she still could have prevented [killing Jean]. He could have been hurt, but I think she still could have prevented killing him.”

As in her murder trial, Guyger claims again in her appeal that she thought she had entered her own third-floor apartment, directly beneath Jean’s apartment. Seeing Jean in the apartment, she thought she was confronting an intruder. Her appeal claims that under a principle in Texas law called “mistake of fact,” Guyger would have been acting reasonably and within the law in shooting an intruder if she believed she was in her own apartment. “Despite the tragic consequences,” the appeal says, “considering all the evidence … Guyger acted reasonably.”

Washington strongly disagrees that Guyger acted reasonably by shooting Jean: “I think the training that we have alleged all along in Dallas and many major departments, the policy is to shoot first and ask questions later. You don’t always have to kill somebody.”

But that argument — that Guyger shot because of a gunslinger culture in DPD — is one Washington already tried to make but struck out on. In fact he failed even to get to first base with it in his federal suit against the city. It also is an argument that appears nowhere in his new lawsuit against the building.

Instead, Washington’s lawsuit against the building is literally a cut-and-paste agreement with the arguments Guyger makes for her own innocence in her appeal. The appeal cites a series of factors that contributed to what she says was her terrible mistake, including poor signage and a door-locking system that didn’t work. The Jean family’s new lawsuit against the building doesn’t just cite the same factors generally, it quotes directly from Guyger’s appeal.

Without going too far into the weeds, I can tell you as one example that a particular part of the locking system on Jean’s door called a striker plate is singled out for blame in both Guyger’s appeal and the family’s lawsuit against the building. Because Jean’s door lock did not work as designed, both briefs claim that Guyger gained entry to Jean’s apartment with her own key fob, giving her the false impression she was entering her own apartment.

Both Guyger’s appeal and the new lawsuit claim that many other residents of the building walked into wrong apartments almost commonly. In the murder trial, a man testified that he made it all the way to the back of the wrong apartment before seeing a woman he did not recognize in the next room and figuring out his mistake.

During the murder trial, police racism and police corruption were issues raised in public statements outside the courtroom by both Washington and the Jean family. Washington appeared on TV saying, “I always hesitate to say things are racial, but I think what happened is she saw an African-American male and she responded and she shot him.”

Allison Jean, Botham’s mother, insisted that the 10-year sentence given to Guyger didn’t excuse the city from its own culpability. In the courthouse corridor after the verdict was read, she told reporters, “There is much more to be done by the city of Dallas. The corruption that we saw during this process must stop.” Allison didn’t give specifics of her charge of corruption.

Prosecutors introduced evidence that Guyger had an affair with a married cop. When the prosecution called that police officer to testify, he told the truth about the affair.

Media coverage revealed that Guyger had made racist comments on social media in the past, which were allowed in during the penalty portion of the trial but not during the portion that determined her guilt. I tend to see a line between truly racist comments and stupid White cop comments, but maybe I’ve worked on too many cop stories. What I saw of her comments was right on the line, but I thought it fell just to the side of dumb macho cop talk, not aggressive racism. During the penalty phase of the trial, the defense called minority witnesses who described Guyger as a deeply caring person. One said Guyger had helped her turn her life around.

Another issue in terms of public opinion was an interview Guyger had with her union representative on the night of the shooting, in which the rep asked that a recording device be turned off to preserve the confidentiality of their conversation. Calls for the union rep to be fired for suppressing evidence went nowhere because, in fact, he was within his rights to keep his conversation with a union member confidential.

Perhaps most painfully for the community, the story of Botham Jean, an upstanding citizen killed in his own home when he had done no wrong, fell into place in the larger narrative of outrageous police shootings of Black men. In that same courthouse corridor after the verdict, Dee Crane, mother of a young man shot to death by suburban police in 2017, wept for what most people in the hall that day took as a wrist-slap sentence.

“How many of us does it take to get justice?” she asked. “What about my son? What about Botham Jean? How many of us is it going to take before you understand that our lives matter?”

The fact that Botham Jean’s family and Guyger now make the same arguments and cite the same evidence in separate legal actions doesn’t make anybody a liar or a hypocrite. But it does call into question the simplicity of blaming this awful event on racist or poorly trained White cops. In fact, what better evidence could there be than this new lawsuit from the family that the real cause of Botham Jean’s death and the real issues in this case were always awful but never simple?

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