Ed and I talked about this theory with Joel Rosenberg on the NARN show the other day – and since Joel mentioned it on his blog yesterday, I figured I’d elaborate. 

I’ve been talking with some lawyer friends of mine about the Treptow case. By no means can I take credit for all of the reasoning (or, heh heh, legal literacy) below. I will, however, claim to be the first person to consolidate all of this info and publish it.

Here are the facts as we know them, with some law-based asides interspersed:

1. Martin “Scott” Treptow, in an SUV with his pregnant wife and two small children, and Robbinsdale Police officer Landen Beard, in a sporty little red car, exchanged gestures, words, and aggressive maneuvering. Pesky Legal Point: By continuing to drive, he established that he was not a willing participant in the altercation.
2. Treptow pulls up to a stoplight – behind another car, in the right lane.
3. Beard pulls up next to him, on the right. Pesky Legal Point: At this point, Treptow was reasonably unable to disengage any further.
4. Words are exchanged. What words? Again, we’re not entirely sure, but more on that later.
5. Someone pulls a gun. Who drew first – Treptow, in his SUV full of kids, boxed in at a stoplight, or Landen Beard? We don’t know – not officially. More below. We do know that Martin Treptow’s story – that Beard boxed Treptow in at the stoplight, unable to move, threatened Treptow, and then drew a gun and pointed it at the pregnant Rebecca Treptow – has stayed consistent from the first 911 call. Pesky Legal Point: assuming Treptow’s version of the incident is correct, that would constitute a “threat of death or great bodily harm” that a jury would find compelling. – if they had to hear about it.  But they don’t.  Because Treptow won’t be defending himself against any sort of Assault or Attempted Murder charge, where he’d have to prove self-defense at all.
6. Martin Treptow fired three shots, wounding Beard about as superficially as is possible under the circumstances. Pesky Legal Point: Self-defense with lethal force requires that the force used be “reasonable”. You can’t spray fire indiscriminately; you can’t shoot your target when he’s down and incapacitated.   Again, irrelevant, since Treptow won’t need to defend his claim of self-defense.
7. Rebecca Treptow called 911 on her cell phone as her husband drove to a convenience store and reported the shooting, apparently not knowing that Beard was an undercover cop. Pesky Legal Point: this is necessary; one may not “shoot in self-defense” and then just let the chips fall. Indeed, the record shows that Rebecca Treptow was the first person to call 911 about the incident.
8. Police responded – told at first that Treptow was the “victim” defending himself against a road-rager, and then that Beard was a cop and Treptow was a suspect.
9. Treptow was arrested, and taken to the Anoka County jail, where…
10. …the next day, he was released. No arraignment, no charges. He didn’t even have his Concealed Carry permit revoked – which would have taken the Anoka sheriff five minutes, and is basically pro forma in cases when there’s the faintest doubt. Which – after a day of interviewing witnesses, there apparently was not. Inconvenient Legal Point: At this point, the Anoka County Attorney could have charged Treptow with whatever charges applied, had Treptow’s claim of self-defense not stood up (i.e, not met the four criteria for self-defense – that he was an unwilling participant, and that he reasonably feared death or great bodily harm, made reasonable efforts to disengage, and that he used reasonable force. The charge would have been something involving violence against a person; assault, aggravated assault, assault with a deadly weapon, attempted murder.
11. Months later, Anoka County convenes a Grand Jury. Legal Point: the Grand Jury only hears the prosecution’s side of the story; no defense is offered; Treptow didn’t even have an attorney available to him. And the Grand Jury refused to bring any of the big charges – the various flavors of assault or attempted murder, the kind one would expect from a wrongful claim of self-defense -against Treptow. Rather, they brought three charges that were…well, we’ll get to that below.

The Grand Jury, while refusing to indict Treptow for any type of Assault or Attempted Murder, did return three indictments:

• Drive by shooting. MS 609.66 subd 1e(b)
• Reckless discharge in municipality sub 1a(3)
• Terroristic threats. 609.713 sub (1)

Let’s look into these.

Remember – a defendant in the United States is innocent until proven guilty. And the prosecutor has to prove to a jury beyond a reasonable doubt every “element” of the offense to get the conviction. The defense has to provide one (or better yet, twelve) jurors a “reasonable doubt” of any of the elements of the charge to get the acquittal.

And – and this is important – as I understand it, none of the charges in the indictment has a “lesser included” charge; for example, if someone is charged with First Degree Murder, and a jury doesn’t find that the prosecution met the burden of proof for First Degree, but did for Second Degree murder, the jury can vote to acquit for First Degree, but convict for the “lesser included” charge of Second Degree Murder. But the jury may not vote to acquit Treptow of “Drive-By Shooting”, but convict for the lesser-included charge of, say, “Reckless Driving”, because it doesn’t exist; the “Drive By Shooting” indictment has no lesser included offenses. (Lawyers – so far, so good?). Ditto for the other two charges; the jury has to find Treptow guilty beyond a reasonable doubt of every element of the other charges, or…nothing. They can’t unilaterally ratchet the charges down to something else.

Let’s look at the first charge, “Drive By Shooting”, (MS 609.66 sub 1e). The ordinance says (with emphasis added):

Subd. 1e. Felony; drive-by shooting. (a) Whoever, while in or having just exited from a motor vehicle, recklessly discharges a firearm at or toward another motor vehicle or a building is guilty of a felony and may be sentenced to imprisonment for not more than three years or to payment of a fine of not more than $6,000, or both.

(b) Any person who violates this subdivision by firing at or toward a person, or an occupied building or motor vehicle, may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.

The prosecutor needs to prove each of the following beyond a reasonable doubt:

1. That Treptow was in a motor vehicle. Nobody argues this: Treptow’s admitted as much.
2. That while in the motor vehicle Treptow discharged a firearm. Again, no argument.
3. That the discharge of the firearm was reckless. Fussy Pointillistic Legal Point: And there’s your reasonable doubt. Treptow was responding to a legitimate fear of death or great bodily harm, while an unwilling participant in the incident, while using force that was apparently reasonable enough that the Grand Jury refused to indict for assault. Under those conditions, self-defense is a right – and had Treptow acted “recklessly”, there’d be no legitimate claim to self-defense.  Had there been the faintest hint of “recklessness”, Treptow would have been charged with some flavor of Assault or Attempted Murder, probably before being released from jail last June.  He would not  have been released uncharged, without bail, and with his carry permit un-suspended.
4. That the reckless discharge of the firearm from the motor vehicle was towards an occupied motor vehicle. Hypothetical Legal Point: Although the defense counsel can argue in the alternative – sort of a legal, rhetorical “I’m not saying, but…what if” defense – that Treptow wasn’t trying to shoot toward an occupied car, in theory…well, you see how this works, right?

So – how about “Reckless Discharge of a Firearm”? Again – if the prosecutor can’t prove “reckless” behavior for the Drive-By Shooting charge, the same should go for this count. In State v. Richardson, 670 N.W.2d 267, 283 (Minn. 2003) , the Minnesota Supreme Court has said “reckless discharge of a firearm . . . requires proof that the defendant intentionally discharged a weapon in a municipality in a manner that the defendant should have known created an unreasonable risk of harm to others.” Legal Point: Self-defense – especially the whole “force used was reasonable” bit – should take care of that “unreasonable risk of harm to others” bit.  Remember – had the force Treptow used not been “reasonable”, he’d have been charged for it months ago.

Onward to the Terroristic Threat charge.

Subdivision 1. Threaten violence; intent to terrorize. Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly, vehicle or facility of public transportation or otherwise to cause serious public inconvenience, or in a reckless disregard of the risk of causing such terror or inconvenience may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both. As used in this subdivision, “crime of violence” has the meaning given “violent crime” in section 609.1095, subdivision 1, paragraph (d).

Let’s break it down:

• A person threatens directly or indirectly to commit a crime of violence
• The threat has the purpose of terrorizing another

This one boils down to one question; can the prosecutor prove beyond a reasonable doubt that Treptow threatened, directly or indirectly, to commit a crime of violence, for the purposes of terrorizing Landen Beard?

Before you answer that, remember – self-defense is not a crime. (Assault is – but Treptow isn’t on trial for that. The Grand Jury refused to return that indictment).  And then there’s the little matter of “what will the eyewitnesses say?”.  And while nothing official (beyond the 911 transcripts) is known about the eyewitness accounts, rumor has it that one or more eyewitnesses pretty completely corroborate Treptow, and impugn Officer Beard.

Now, the Anoka DA knows this. They KNOW they have a crappy case against Treptow.

So why bring it?

So here’s a theory for you; the Anoka County Attorney brought the three indictments against Treptow as a dog and pony show to cover the county’s ass from:

1. the civil action that Martin Treptow will bring against (at least) the Robbinsdale PD when he’s acquitted on all charges.
2. the administrative action that Robbinsdale might eventually bring against Officer Beard – which, procedurally, it can not bring until all court action is resolved (because the administrative action against Beard depends in part on the outcome of the court cases).

As to Officer Beard’s indictment for Terroristic Threats – well, there’s some other info out there that’ll come out at trial, assuming the case isn’t dismissed. Stay tuned; the legal maneuvering could get REALLY interesting.

Anoka County’s actions so far – the Grand Jury, the (arguably) potemkin indictments combined with the Grand Jury’s *refusal* to indict for any type of assault or attempted murder – might tend to indicate that the county is punching its procedural tickets, to…:

• keep the county attorney from looking like he’s selling a cop down the river
• help shield Anoka County (and, maybe, Robbinsdale) from civil litigation after the criminal cases are resolved.

So to sum up: Anoka County, under pressure to do something about the case, brings three indictments against Treptow that pretty much any lawyer can see will be relative cakewalks to win in court. It’s a CYA exercise, whose denouement won’t take place in a courtroom.

At least, not a criminal one.

PS:  Again, the Treptow Defense Fund:

Martin and Rebecca Treptow
Anoka Hennepin Credit Union,
3505 Northdale Blvd. N.W.
Coon Rapids, MN 55448.