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Orlando Criminal Attorney > Blog > Criminal Defense > Is Kim Potter Of guilty … Of Implicit Bias?

Is Kim Potter Of guilty … Of Implicit Bias?

Mark O'Mara

Well, that’s not a crime, although it can lead to criminal behavior.   Implicit bias, as we are just learning in the past decade or two, had significant effect on how we perceive situations and each other. We are only now identifying the length and depth of the insidious negative effect it has on certain segments of our population.

So, what is implicit bias? It is the subconscious predisposition for or against something or somebody.  The Harvard implicit bias study (, which has been around for over 20 years, suggests that implicit bias or the subtle, subconscious predisposition of biases against certain people, particularly young, black males is alive and well and thriving in our culture. According to the study, all of us, including members of the black community, carry these predispositions and fears about young black males.  These prejudices cause subtle but sometimes significant responses to these perceived threats and fears.

There are some of us who will decide to walk across the street when a group of young, black men are walking towards us on the sidewalk. That decision is probably an explicit, cognitive bias which we think about intentionally and plan.  If we were asked a question about that decision to cross the street, we would probably know why we did it and could come up with an explanation or justification.

But it’s the much more subtle biases, those we call implicit biases, that are not only more dangerous but are truly below the surface of our cognitive understanding.  That same person might have a slight touch of sweat in her palms, her pupils may dilate a bit, and she might squeeze down just a touch on her purse.  Those she would never be aware of, but they are reactions just the same.  Neurologists and behavioral psychologists who study this phenomenon believe that it stems from the primitive part of our brain stem which houses the limbic system.  We know that to be the ‘fight, flight or freeze’ reaction; it sees no shades of gray. It is there for survival.  It determines in a millisecond whether something is dangerous and must be avoided or contested aggressively:  fight or flight.

So, the question again:  is Kim Potter guilty of implicit bias?  Well, a quick answer is yes, because we all are.  The suggestion that she’s not influenced, or that anyone is not influenced by their life experiences and these implicit biases that exist in the primitive part of our brain, is absurd.  We also know that in times of heightened stress such as where a traffic stop turns into an active warrant, along with confusion about a domestic violence injunction, those biases rear their subconscious heads and inform our reaction, oft times more than our cognitive thought processing.

So, yes, Kim Potter is guilty of implicit bias.  So am I.  So are you.  And the question is what do we do about it in a case where a 26-year veteran police officer with seemingly no cognitive or conscious biases against young, black males ends up shooting one?  What do we do with her?  What do we do with any of us who act poorly, tragically, based upon a subconscious firing of a few hundred neurons that we’re not even aware of?

Fifty years from now, Kim Potter’s granddaughter will be a police officer in Minneapolis.  All police officers will be outfitted with a Smart Gun. Basically it means that only the person who is supposed to handle the weapon can actually activate and shoot with it.  Today’s first generation of those guns simply require a connection between a safety device on the gun and a Bluetooth transmitter on the owner’s wrist or on a belt buckle, allowing only her to fire the weapon.

Of course, in the fifty years since Duante Wright’s tragic death, the safety device has now been miniaturized and perfected, so that the gun cannot fire unless the DNA on the trigger finger has been authorized.  But more importantly for Kim Potter’s granddaughter, is we have also perfected a’ neurotransmission headset’.  In order for the gun to be activated, the frontal lobe areas of the brain, where high-level reasoning and cognitive thought reside, must be in primary use.  If so, the gun will activate.

However, if her granddaughter is reacting to a set of circumstances which activate the limbic, primitive fight-flight part of her brain, the gun is deactivated and cannot fire.  The reasoning is quite simple; we do not want our police officers, or anybody, whether it’s a road-rage event (our cars will have these sensors as well), lashing out at a child (yes, moms and dads will have them as well) or a well-trained police officer pulling over a black kid for a traffic stop (and realizing there’s a warrant out; there’s a domestic violence injunction; and trying to train a rookie officer the right way to do all of this), so suffering from divided attention that allows auto-reactions to occur, that the kid gets  shot without justification.  See, that’s the problem: the limbic part of your brain doesn’t wait for calm thought or reflection. The saber tooth tiger will have already pounced.

In the same exact set of circumstances that led to Daunte’s death, Ms. Potter’s granddaughter may pull her service revolver believing it was her NeuroTaser (an updated version of the archaic Taser that used electrical shock on somebody, rather than just neuro-interference signals), but her gun wouldn’t work… giving her a second or two to realize she pulled the wrong weapon, and Daunte Wright’s grandson won’t be shot.

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