27-CR-18-6859

Filed in District Court
State of Minnesota
9/12/2018 1:32 PM

STATE OF MINNESOTA

DISTRICT COURT

COUNTY OF HENNEPIN

FOURTH JUDICIAL DISTRICT

State of Minnesota,
Court File No.: 27-CR-18-6859
Plaintiff,
REPLY TO STATE’S RESPONSE
TO DEFENDANT’S MOTION TO
DISMISS FOR LACK OF
PROBABLE CAUSE

v.

Mohamed Mohamed Noor,
Defendant.

Defendant, Mohamed Noor, by and through his attorneys, hereby replies to the
State’s Response to Defendant’s Motion to Dismiss for Lack of Probable Cause. The
State’s response is gravely flawed in both law and fact. Their factual recitation fails to
exercise candor to this tribunal through omission and error. The State’s legal and factual
flaws shall each be addressed in turn.
I.

Factual Misstatements and Mischaracterizations:

As an initial matter, the defense disputes the admissibility of: the May 18, 2017
motor vehicle stop; the four referenced training days, and the misleading discussion of
Officer Noor’s MMPI-2-RF PCIR results. The defense asks that none of this information
be considered by the Court for probable cause.
a. Traffic Stop May 18, 2017
The State’s factual characterization of the May 18, 2017 traffic stop occurring at
6:03 PM is grossly misleading and factually incomplete. The State half-heartedly

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concedes that there was a valid stop for a traffic violation. The State chooses to exclude
important facts and mischaracterizes the facts they rely on. Review of the squad car
video shows that the driver traveled nearly 2 city blocks before stopping after officers
activated their red lights. Once stopped the driver made an exaggerated furtive movement
leaning abruptly to his right. The State did not mention this in their reply. The State also
failed to mention the officers discussion about this movement which they had during the
course of the stop. The officer’s discussed their suspicion that the driver hid contraband
under the passenger seat which explains their actions. Both of these facts are important
because a reasonable officer should be concerned when a subject unreasonably delays
stopping their car and makes furtive movements possibly to hide contraband or perhaps
retrieve a weapon.
The State inaccurately claims that the first thing Officer Noor did when he got to
the side of the car was point his gun at the driver’s head. This claim is not born out by the
squad video. The video shows Officer Noor at the driver’s side of the car with his gun in
“low carry” pointing down between himself and the driver and appearing calm. The
squad video shows that Officer Noor, having determined the driver was not a threat
holstered his gun about 23 or 24 seconds after arriving at the side of the car. The State
suggests that Officer Noor was aggressive compared to his partner by stating that his
partner had his gun out, but not pointed at the driver. The State does not tell the Court
that his partner was actively looking through the windows of the car to try to find the
contraband which the officers believed had been hastily stashed by the driver during his
exaggerated furtive movement to the right.

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Next the State says Officer Noor did not appear in court for a hearing on the
citation, thus suggesting he is irresponsible. The unreported truth is that he was not
informed of the hearing date. The State knew the truth on this minor point because on
December 28, 2017 the cited driver reported it to a BCA Agent who dutifully recorded
and transcribed the interview. During the interview the subject explains that the
prosecutor informed him that, “Officer Noor can’t be here he’s on leave so your case is
dismissed.” The subject’s interview suggests Officer Noor was the less aggressive officer
in this encounter. The subject notes that Officer Noor’s partner was yelling and saying
what are you doing and to shut up, while Officer Noor didn’t say anything other than
what are you doing with your hands. Interestingly the subject did not report that Officer
Noor pointed a gun at his head. The subject agreed that the gun was drawn because the
officers thought his initial movement was worrisome. The State makes much about the
officers not writing a report, but Minneapolis Police are not required to write a report for
minor traffic citations. Neither is there is a policy that requires a written report every time
an officer removes their pistol from its holster. Finally the cited subject never reported
his concerns about Officer Noor until he saw Mike Freeman on television, and thought
Mr. Freeman needed his help. These lies by omission and clear misstatements of fact
actively mislead the reader and obscure the truth. This portion of the State’s
Memorandum should be disregarded.
b. Four Duty Days (ROPEs)
The State points to four duty days during Officer Noor’s field training period to
support probable cause. The State references Recruit Officer Performance Evaluations

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(ROPE forms) and other information gathered by their investigation to portray Officer
Noor in a dim light, but fail to tell the Court the complete story. This is again a lie by
omission.
All Minneapolis Police Recruits begin their careers working side by side with a
Field Training Officer (FTO). The FTO prepares a ROPE form to evaluate the
performance for that shift. Each ROPE has 26 individual performance categories. The
ROPE also asks the FTO to comment on the recruits “Most Acceptable Performance of
the Day” and “Least Acceptable Performance of the Day.” The ROPE also allows for
additional comments about the training day. The ROPEs are numbered 0 through 85 with
the first 3 to 5 shifts being 0 ROPEs. Each shift is 10 hours long so a Minneapolis Police
Recruit has about 880 hours with an FTO which are documented in the ROPEs and 2
other forms. Some recruits receive more FTO time or are sent back to the academy due
to training deficiencies. Officer Noor did not receive any extra training because he had
no training deficiencies during his 880 hours. Officer Noor NEVER had an unsatisfactory
day during his FTO time. The ROPE is designed to give both positive and negative
feedback regarding each training day. Again at no time was Officer Noor ever found to
be not acceptable on any task. He was not perfect. His most frequent criticism was
geographic orientation which is very common. In addition to ROPEs a recruit receives a
weekly Supervisor's Evaluation Report. This report is filled out by a Field Training
Supervisor (FTS) and aggregates the weeks training. Each recruit has a monthly sit down
meeting which is also documented. Minneapolis Police Training is rigorous and highly
documented and Officer Noor was always satisfactory.

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The State has selected 4 ROPEs (none of which show a “not acceptable” rating) to
boot strap their argument for probable cause. This aspect of their memorandum lacks
candor. Each training day must now be examined to bring a cleansing light to the State’s
memorandum.
i.

April 8, 2016

On April 8, 2016 (ROPE 83) Officer Noor worked with an FTO who noted as his
least acceptable performance of the day that he did not want to take calls at times and
drove around in circles ignoring calls when he could have self-assigned them. The State
points to this and claims that Officer Noor did not act with care toward or concern for the
safety of the public he served. (Response at Pg. 23) This claim is a disgraceful. A full
and honest examination of ROPE 83 shows that Officer Noor received acceptable or
better marks for his work in all 26 rated areas. This FTO commented that “Recruit did
good with answering calls and assisting other Squads. A somewhat steady night of calls
and recruit seemed to want to stay busy.” The FTO also qualified his comment by noting
that Officer Noor was working as an “able” car meaning a car with 1 Officer which is not
well suited for all calls, which puts some context on the reported failure to take some of
the calls. Overall Officer Noor had a good day on April 8, 2016. This FTO simply
pointed out something he thought could be done better. In fact when this FTO was later
asked if this specific conduct was something that he was concerned about in a recruit’s
last few days of training he said he did not know that it was a “concern” but it was just
his observation for that particular night.

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April 8, 2016 was part of Officer Noor’s 10 day, which is the final week of an
officer’s FTO period. The 10 day is summed up in a report known as “Supervisor's
Evaluation Report (10 day).” A Field Training Supervisor (FTS) completed this report.
On April 12, 2016 Officer Noor’s FTS wrote:
*Strongest Area(s) of performance during the 10 Day Evaluation:
FTO Officer noted that Recruit has made great improvements from
phase 3 to phase 5.
*Weakest Areas of performance during the 10 Day Evaluation:
Nothing to note.
*Is the Recruit ready to work outside the FTO program?:
Yes
ii.

March 31, 2016 (ROPE 79)

The State references comments in ROPE 79 from March 31, 2016 and the FTO’s
testimony at a later proceeding regarding “tunnel vision” while driving in their
memorandum. The State argues that one instance of tunnel vision shows that Officer
Noor failed to look, scan, and observe in the manner required for a police officer to
ensure personal and public safety on the evening Ms. Ruszczyk was shot. (Reply at pg.
23) ROPE 79 actually says “Noor had some trouble with code 3 driving the second half.
He got a little tunnel vision and I had to snap (yell) him out of it.” What the State does
not tell the Court is that ROPE 79 also says, “Noor had a slow first half of the shift. He
kept busy taking calls out of sector and assisting other squads when he could. Noor and
other recruits searched an open business and showed great teamwork.” On training day

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79 Officer Noor, in addition to showing acceptable or better work in all 26 rated
categories, also displayed his ability to work well with other officers and his diligence
even when things are slow by taking calls that were out of his sector. Importantly this
FTO later testified that he recalled working as Officer Noor’s FTO. He remembered
Officer Noor as, “A kind gentleman. He was proficient at his job for being a beginner.”
The FTO further explained that Officer Noor was a very genial person, nice when he
would interact with the public and an overall average recruit.
This FTO worked with Officer Noor several times. In ROPE 68 from March 12,
2016 he noted “Very busy night right from the start. Noor was call to call all the way up
to OTL [out to lunch]. Handled everything very well.” In ROPE 69 from March 15, 2016
he commented, “Very busy first half of the shift. He did a good job driving in the rain.
Noor is making his on [sic] decisions and being more independent.” On ROPE 71 from
March 18, 2016 and ROPE 73 from March 21, 2016 Officer Noor’s Least Acceptable
Performance of the Day was, “Nothing to Report” according to this FTO. On March 30,
2016 Officers Noor’s Field Training Supervisor (FTS) did a Supervisor's Evaluation
Report (Weekly). The weekly report noted his “Weakest Area(s) of performance for this
reporting period” as “Nothing noteworthy at this time.” The same report also said the
“Officer Noor is doing very well.” The following week Officer Noor continued with the
same FTO who characterized his “Most Acceptable Performance of the Day” as:
Noor is progressing well. Noor is always very eager to do police work and
jumps on calls when he sees them come out. He always does a thorough job
all calls no matter what they are. Today he showed great patience and
professionalism during a door dinging incident and waited for one of the
parties involved to provide proof of insurance. ROPE 74 March 22, 2016

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On the same day Officer Noor’s Least Acceptable Performance of the Day was “Nothing
notable for this section.” In ROPE 75 March 23, 2016 this FTO noted that Noor
responded to an EDP (Emotionally Disturbed Person). While on scene Noor was able to
gain a rapport with the party when others could not.
The State chose to ignore ROPE 84 from April 9, 2016 which is noteworthy as it
rebuts the State’s claim that Officer Noor has an indifference to human life, is dangerous
and reckless as a police officer and has a disregard for citizens. In ROPE 84 this FTO
noted:
*Most Acceptable Performance of the Day:
Noor gave a mother and small baby a ride home to the north side.
*Least Acceptable Performance of the Day:
nothing to note.
ROPE 85 April 10, 2016 is Officer Noor’s Final Day with this FTO and his final
day working under the supervisor of an FTO. On this day his FTO noted in additional
comments:
Noor has built a strong foundation to begin his law enforcement career. His
greatest assets are his eagerness to learn and enthusiasm. If he continues to
come to work with the same enthusiasm and eagerness he will do very well
at this job.
iii.

March 5, 2016 (ROPE 64)

The State asks the Court to put focus on March 5, 2016 when an FTO filled out
ROPE 64. (Reply at page 10). On that day Officer Noor met with a caller about a

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suspicious person knocking on doors and claiming to be a Century Link employee. The
State neglects to inform the Court that Officer Noor’s FTO also wrote:
The recruit did a good job today. He took many calls out of the sector
without prompt from the FTO. The recruit has excellent divided attention
skills. He was able to run the MDC, radio and look up items with ease. The
recruit is ready for his 8 and 10 day. FTO has confidence that recruit will
do very well.
Focusing on this comment takes ROPE 64 out of context. The ROPE actually
shows that Officer Noor’s performance in all 26 areas of evaluation was acceptable on
March 5, 2016.
Records show that Officer Noor was a diligent and dedicated public servant from
his first day. On October 26, 2015 Officer Noor’s FTO characterized his “Least
Acceptable Performance” as “None. First day on street and seems very willing to learn.”
and made an Additional Comment “Recruit had a good attitude and is positive towards
FTO feedback.” On October 29, 2015 Officer Noor’s FTO noted, “Looks good, great
attitude, enjoyable to work with. He was looking for things to do. He asks questions and
has a willingness to learn” and made the “Additional Comment”, “Very smart recruit. He
will do well. Hope I have an opportunity to work with him again.” On November 26,
2015 Officer Noor received a Supervisor's Evaluation Report (Weekly). Officer Noor’s
FSO commented that:
Recruit Noor responded to a PERGUN [Person with a Gun] call at Lunds
grocery store. [FTO] stated recruit used good officer safety while drawing
his gun.
This comment is important as it shows Officer Noor practiced good gun safety from the
early stages of his work as a Minneapolis Police Officer.

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The State leaves out many other important observations of Officer Noor’s work
during his initial 850 plus hours of work. On January 1, 2016 in ROPE 30 Officer Noor’s
FTO wrote:
New Years Eve was hectic and stressful but Noor handled the stress
appropriately. In one night it was his first time being involved in setting up
a perimeter where the suspect was constantly on the move, being on a crime
scene and canvassing the neighborhood, as well being one of the first
squads to arrive on a shooting. I never saw him freeze up and his first
priority was officer safety at all times.
Emphasis added
On January 31, 2016 Officer Noor’s FTO’s completed a Recruit Monthly
Interview Form. Under the category “Control of Conflict: Voice Command and Physical
Skill” the FTO noted “Does not hesitate to step in when needed. Doesn't freeze up. Very
eager to do something on any call he is on.” Under the category: “Overall Performance
(Best quality, what needs improvement)” the FTO wrote “Super eager and enthusiastic.
Always asking questions, great attitude. Work on orientation.” Another example of
Officer Noor’s calm in the presence of danger is found in ROPE 59 from his shift on
February 25, 2016 when his FTO wrote:
Recruit Noor's officer safety was spot on this evening. He searched several
AP's thoroughly. One of the AP's had 4 pairs of pants on and Recruit Noor
was able to find items concealed in the pants. Recruit Noor also had great
officer safety when dealing with a sleeping suspect who had a shotgun
within arms reach. Recruit Noor assisted officers in securing the shotgun
and then taking AP into custody.
Officer Noor’s ROPEs show his history of being a kind and gentle person. In
addition to giving a mother and small baby a ride home to the North side on April 9, 2016
as noted in ROPE 84, on February 19, 2016 in ROPE 57 Officer Noor “Handled a DOA

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call well showing empathy and sympathy to the family.” On January 16, 2016 in ROPE
39 the FTO documented that Officer Noor “[h]anded out some hand warmers to a few
people that had no place to go after sending them from a restaurant. Noor is very
accepting of criticism and is eager to learn the job.”
iv.

February 20, 2016 ROPE 58

The State points to one call during a 10 hour shift where Officer Noor focused
more on driving than radio traffic. Officer Noor did not receive any “not acceptable”
ratings on this day, which is true for every single day and every single task of his entire
880 hour FTO period. This FTO testified at a later proceeding about Officer Noor’s day
58. The FTO testified that narrowly focusing and missing some information is not
uncommon for a recruit. When this FTO was asked how Officer Noor was doing as a
recruit he testified, “He was doing pretty well.” This FTO worked with Officer Noor
several times during the FTO period and several times noted there were no “Least
Acceptable Performance of the Day” items.
c. MMPI-2-RF PCIR
The State’s reliance on Officer Noor’s February 17, 2015 MMPI 2-RF is a
breathtaking breach of their duty to exercise candor with the tribunal. (Reply at pg. 11
and 24) The State’s memorandum is misleading to the Court. The State knowingly asks
this Court to accept uncorrelated test results which they know is not permitted by the test
user manual and experts they interviewed and fails to disclose information they possessed
showing a racial bias of 20 to 40% against the minority test takers. The State essentially
asks the Court to find probable cause, based in part, on Officer Noor’s race and cultural

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heritage by using a tool in a way that is expressly outside any acceptable method. The
State’s claim that the MMPI test illustrates his indifference for human life which led to
his action on July 15, 2017 is asking to have Officer Noor convicted because of his race.
(Reply at pg. 24).
As a matter of background the MMPI-2-RF relies on normative samples. A
normative sample is a sample of test takers who are representative of the population for
whom the test is intended. A normative group is supposed to stand for a hypothetical
"typical" test taker, one who represents the group that's being tested. See DiMaria,
Lauren, ‘How a Normative Group Works in Psychology’, Very Well Mind Updated July
02, 2018. The MMPI-2-RF normative sample and consists of 2,276 men and women
between the ages 18 and 80 from several regions and diverse communities in the U.S. See
Yossef S. Ben-Porath, PhD, Auke Tellegen, PhD, ‘Minnesota Multiphasic Personality
Inventory-2-Restructured Form®(MMPI-2-RF)’ Pearson Clinical, 2018. The MMPI 2RF has several sample groups beyond the general normative sample. This means a test
taker can be compared to the general population or a specific subset of the general
population. One of the sample groups is Police Candidate Interpretive Report (PCIR).
The PCIR comparison group is made of Police Officers in North American Region. The
region and gender of this sample group breaks down as follows:

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GENDER

North American Region
MALE

TOTAL
FEMALE

Pacific

136

136

272

West
Midwest
South
Northeast US and
Canada
Total

381
131
224
165

381
131
224
165

762
262
448
330

1037

1037

2074

See Yossef S. Ben-Porath, Kent State University, David M. Corey, Cory & Stewart
(October 26, 2014) ‘The MMPI-2-RF Police Candidate Interpretive Report (PCIR)’
[PowerPoint] IACP Police Psychological Services Section Meeting, Orlando FL.
The racial makeup of the PCIR comparison group is: 92.3% Caucasian, 4.6%
African American, 2.3% Hispanic, 0.8% Asian. id.
With this understanding of the foundations of the MMPI-2-RF and PCIR in place,
it is clear that the State has engaged in, at best, willful ignorance in their reply and
knowingly encourages this Court to rely on a racially questionable test interpretation – a
serious claim to be sure.
Officer Noor took the MMPI-2-RF as part of his application process. His test was
administered by Dr. Logel who is a Ph.D. psychologist. This was sent to Dr. Gratzer, a
board certified psychiatrist M.D., to be correlated with clinical findings. This process of
testing and correlation of results is crucial. The MMPI 2 RF and PCIR are not valid in
the absence of a clinical interview and review of personal history. See MMPI-2-RF
(Minnesota Multiphasic Personality Inventory-2-Restructured Form) ‘User’s Guide for

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the Police Candidate Interpretive Report (PCIR)’ at pg. 1 and 2. This test was scored
against both the normative sample group and the PCIR. The State fails to disclose that
Officer Noor’s results against the normative group showed no deviations. The State
relies on a blind interpretation of their own PCIR results to say Officer Noor is not fit to
be a police officer. The user’s manual and 2 separate medical providers told Ms. Sweasy
that a blind interpretation of a test is calculated to give an inaccurate picture of a person.
Ms. Sweasy interviewed the medical providers who informed her that historically the
PCIR had resulted in a cultural bias toward minority test takers. She knew this and hid it
from the Court.
Ms. Sweasy met with Dr. Gratzer on December 15, 2017 and Dr. Logel on January
26, 2018. Both tried to educate her on the need to correlate a test result through a clinical
interview and background information. She was also informed that the MMPI-2-RF
PCIR had historically shown a “blip” in 20 to 40 percent of minority test takers and the
information reported by the PCIR was likely inaccurate in Officer Noor’s case as it did
not correlate with his background information and clinical interview. They tried to
explain the PCIR results were likely a result of his race and cultural background and not a
result of a personality disorder.
Dr. Gratzer explained that he did not see any reason to question Officer Noor’s
ability to perform as a police officer based on a properly administered and correlated
MMPI-2-RF in this case. Dr. Gratzer told Ms. Sweasy: First, Officer Noor had no
elevated scales in the normative group and second, the elevated scales in the PCIR group
were not supported by an extensive background check and clinical interview. Dr. Gratzer

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explained the foundational problems he had observed with the PCIR. He explained that
the PCIR likely compares candidates to officers that are primarily white. Information on
the PCIR sample group puts this at 92.3% Caucasian. Dr. Gratzer explained that he had
spoken to the City of Minneapolis and “told them that the MMPI is fairly valid but the
comparison to the other police officers, uh, is not as valid among other reasons for
cultural issues.” The City instructed him to keep using the test. Dr. Gratzer explained to
Ms. Sweasy that the PCIR elevations were not accurate as applied to Officer Noor. He
told Ms. Sweasy that the suggestion that Officer Noor would become impatient with
others over minor infractions was unsupportable. Dr. Gratzer explained that “[n]umber
one, there’s absolutely no evidence to support any of these things. Either based on my
interview, my interaction with him. The investigatory materials of the clinical interview.
And secondly, I was, I also was aware of the fact that an explanation could be cultural.”
Dr. Gratzer candidly explained that the PCIR could not by itself support her hope that
Officer Noor had poor coping skills. On this point he explained that if you have poor
coping skills:
You’re gonna have poor coping skills that cross a wide variety of areas. It’s very
unlikely that someone’s poor coping skills is gonna have a perfect work history.
Academic history. Credit history. And all of those other things, uh, so, the
language [from the PCIR] is much stronger than anything that would suggest
[Inaudible] clinical history. And it says specifically at the bottom of the testing,
that the interpretation of the test should be used as an edge onto clinical
evaluation.
Dr. Gratzer was very clear about his conclusions of Officer Noor based on the test and
additional information used to correlate the test. He said:

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[Y]ou just do not see someone with personality issues who has that solid a social
history, work history, academic history, credit history, legal history. So, there was
absolutely nothing to support that testing. Had there been something to support the
testing, then I may well have failed him. If I saw any evidence of that in his
history, I would’ve failed him, but this wasn’t gray because the testing specifically
says correlate it.
Dr. Logel further explained this to Ms. Sweasy during their meeting. He
explained that while the MMPI-2-RF claimed to be geographically and culturally
balanced, the manual did not specifically designate ethnic representation and confirmed
for Ms. Sweasy that the manual she was relying on just made a general statement about
diversity. Dr. Logel explained that if twenty to forty percent of the minority candidates
are getting, elevated scores in the comparison group. It suggests that you have to modify
the way you look at the comparison group. Ms. Sweasy pressed on arguing if the trait is
there, if a trait is elevated, showing a person is incompatible or with public safety
requirements, or may become impatient with others or can have difficulty confronting
subjects in circumstances in which an officer would normally approach or intervene how, can that be explained culturally? Dr. Logel told her this is easy, If Officer Noor’s
understanding of the item is different than a person with a normative background he’s
going to answer the question in ways that may not reflect what his actual behavior is. Dr.
Logel’s answer underscores the importance of correlating a test before drawing a
conclusion.
Unsatiated by the truth, the State proceeded with a blind test reading of Officer
Noor’s test data and then placed portions of that blind reading in their memorandum.
Blind readings of this test are inherently inaccurate. The State’s evaluator carefully noted

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that they had no information to correlate their blind reading. Blind readings were
cautioned against in the MMPI-2-RF User’s Guide for the Police Candidate Interpretive
Report and by Dr. Gratzer and Dr. Logel. Ms. Sweasy was well informed about cultural
concerns. She not only ignored this information, she failed to tell the Court about it when
she presented her MMPI to the Court to support her claim that probable cause exists for a
charge of Murder in the Third Degree. The State, knowing that this would be widely
covered by media all over the world, failed to inform the Court of crucial information.
We respectfully submit that it is improper for the Court to consider a blind reading of
Officer Noor’s MMPI-2-RF PCIR because the conclusions of the State’s blind reading
are based on cultural bias and make no reflection of Officer Noor as a person.
II.

The Law:
The State asks this Court to disregard established Minnesota case law and relies

instead on a law school treatise and an unpublished case that self identifies as a legal
outlier. The State’s inability to cite to controlling law to support probable cause in and of
itself demonstrates the fundamental defect of the complaint in this case. In this reply,
Officer Noor addresses two of the State’s most egregious assertions.
a.

The State’s interpretation of the danger to others requirement for
third degree murder is wrong and not supported by the law.

The State asserts that the element of third degree murder that Officer Noor’s
action not be directed at a specific person is met because Officer Harrity was in the squad
and a bicyclist was in the area when Officer Noor fired the single shot from his firearm at
a specific person. (Response at p. 17). The State offers no evidence that Officer Harrity

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was in actual danger as a result of Officer Noor's actions. In fact to the contrary Officer
Harrity has never expressed any concern for his safety from Officer Noor's actions.
Similarly, the State has not offered any specific evidence that the bicyclist was in any
actual danger and in fact the bicyclist reported that he was not traumatized by the
situation. Instead the evidence suggests that the bicyclist was not concerned for his
safety because his response was to retrieve his cell phone and begin a digital recording.
While the State spends a good deal of time arguing that Officer Noor's decision to
fire one shot created danger to others sufficient to meet the elements of third degree
murder is State v. Lowe, 68 N.W. 1094, 1095 (Minn. 1896). The State's Response
misrepresents the holding in Lowe and ignores the next 100 years of Minnesota case law
on the subject. The State writes, "Officer Harrity was clearly in danger, and was
therefore a person "in the way at the time of the act" as described in State v. Lowe, 68
N.W. 1094, 1095 (Minn. 1896).” (Response at p. 17). The State makes a similar
misrepresentation of Lowe, in relation to the bicyclist. (Response at p. 17). Lowe, is
about a person who agreed to help deliver a child, but failed to provide adequate medical
care to a Clara Bergh the mother, whom Lowe was engage to care for. In determining
Lowe's failure to provide care to Bergh was incompatible with the elements of third
degree murder the supreme court stated,
It is, however, necessary that the act was committed without special
design upon the particular person or persons with whose murder the
accused is charged. The acts and omissions here in question are not of that
character. They had special reference to Clara Bergh. It was not a case
where the act or omission did or could affect any person or persons who
happened to come along, or be in the way, at the time of the act or
omission.

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Lowe, 68 N.W. at 1095.
Contrary to the State’s misleading use of Lowe, the supreme court's language does not
represent a well analyzed framework of what constitutes actions directed at a specific
person for third degree murder.
The reason the State cannot cite to any law to support the assertion that Officer
Noor’s action was not directed at a specific person is because the supreme court has
found on a number of occasions that actions like Officer Noor’s, while done in close
proximity to others, does not meet the standard. As cited in Officer Noor’s Motion to
Dismiss, in State v. Fox, 340 N.W.2d 332, 334 (Minn. 1983), the supreme court
examined a fact pattern where Fox held at gunpoint in a kitchen his aunt and his young
son. When a deputy arrived to negotiate, Fox directed his aunt to move to the other side
of the refrigerator in the kitchen with his son. Fox, 340 N.W.2d at 334. He then ordered
the deputy to lay on the floor. Fox, 340 N.W.2d at 334. After counting to three he fired a
single bullet into the head of the deputy. Fox, 340 N.W.2d at 334. On appeal Fox
claimed the trial court erred by not instructing the jury on third degree murder. Fox, 340
N.W.2d at 335. The supreme court disagreed with Fox, stating,
Defendant's contention that the evidence supports a conviction of thirddegree murder is without merit. The facts in the instant case support the
trial court's refusal to submit a third-degree murder instruction. All of
defendant's acts were directed against Lawson. Defendant knew he was
shooting Lawson when he fired one shot into the back of Lawson's head.
No other bullets were fired at the scene. There were only two others in the
room at the time of the shooting-defendant's aunt and son. Both of them
went behind the refrigerator when defendant shot Lawson. Defendant's aunt
testified that she took Andy behind the refrigerator and covered his ears,
because she did not want him to see or hear the shooting. There was no

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testimony that she was afraid for her own life.
A depraved mind instruction would therefore have been inappropriate,
since the depraved mind statute “was intended to cover cases where the
reckless or wanton acts of the accused were committed without special
regard to their effect on any particular person or persons; the act must be
committed without a special design upon the particular person or persons
with whose murder the accused is charged.” State v. Carlson, 328 N.W.2d
at 694.
Fox, 340 N.W.2d at 335.
Like Fox, Officer Noor's actions were directed a specific person. Officer Noor
aimed and fired once at the specific person standing in the squad window. Officer
Harrity has never indicated he was afraid of Officer Noor's actions. Nor has the State
offered any evidence that Officer Harrity was in danger from Officer Noor's actions.
Fox, is not the only case that supports a finding that there is insufficient evidence to
establish probable cause for third degree murder in this case.
In State v. Hanson, 176 N.W.2d 607, 612-15 (Minn. 1970), the supreme court
found that the "essential element" of the third degree murder that the death be caused by
an act dangerous to others was not present where a defendant shoots an individual with a
single shot in the presence of another. Similarly in State v. Zumberge, 888 N.W.2d 688,
698 (Minn. 2017), the supreme court found that even when a second person is in the way
and shot, if the shooting was directed at a specific person, third degree murder is
precluded.
b.

The State’s reliance on Officer Noor’s police training records and past
policing practices are not relevant to the elements of third degree
murder and grossly misrepresent the facts.

The State argues that a defendant's prior bad acts can be used to prove the

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defendant's state of mind in relation to third degree murder. (Response at p. 16). In
support the State relies on a single unpublished case. This Court is fully aware,
"unpublished opinions of the Court of Appeals are not precedential". MINN.STAT.
§480A.08, subd. 3. The non precedential value of State v. Padden, is particularly true in
this case, because as the Padden, court noted in the context of third degree murder
analysis Padden is "an atypical case." 2000 WL 54240 at p. 3.
On behalf of Officer Noor we respectfully request this Court dismiss Counts 1 and
2.

Respectfully submitted,

Dated: September 12, 2018

s/ Thomas C. Plunkett
Thomas C. Plunkett
Attorney No. 260162
Attorneys for Defendant
Suite 1500
101 East Fifth Street
St. Paul, MN 55101
Phone:

s/ Peter B. Wold
Peter B. Wold, ID #118382
Wold Morrison Law
247 Third Avenue South
Minneapolis, MN 55415
Phone:
Fax:

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