ND Supreme Court to decide whether police officers can be fired for use of force in self-defense

The North Dakota Supreme Court will consider whether police officers who use force in self-defense should be protected from termination under the state's at-will employment doctrine.

If the court decides to create such an exemption, North Dakota would be the first state in the United States to grant police officers job protection of that kind.

The state's highest court heard oral arguments in the case on Tuesday, Sept. 8.

The case stems from a claim by a former Devils Lake detective that the police department fired him for using lethal force on a subject in 2018.

Brandon Potts and his partner responded to a report of a male subject stealing packages and attempting to break into a home in Devils Lake on July 5, 2018. A second report identified the subject as Daniel Fuller, 26, who Potts knew from previous encounters and believed to be potentially armed, according to court documents.

The two officers found Fuller lying on his back in a grassy field. The officers identified themselves and approached Fuller, who rose to his knees, grabbed Potts around his knees and pulled him to the ground, documents said. Dash cam footage of the incident shows that Potts had his service weapon in his right hand at the time and used it as a blunt instrument to strike Fuller several times in the head. The footage also shows the gun go off shortly after the last strike.

The bullet struck Fuller in the back of the head, killing him instantly. Fuller's autopsy was ruled a homicide, but Ramsey County State's Attorney Kari Agotness declined to press charges, stating that Potts did not intend to pull the trigger and had an involuntary muscle contraction.

Potts' attorney, Leo Wilking, also noted that two independent investigations determined that the former detective acted appropriately during the altercation.

But the public outcry following Fuller's death was swift. Devils Lake residents protested Potts' actions, and Fuller's family members addressed the county commission, requesting that they hold Potts responsible for Fuller's death and pushed for an FBI investigation into the incident.

Potts was placed on paid administrative leave for the duration of the four-month investigation. He was ultimately fired from the police department in February, after Fuller's family addressed the county commission. A letter from Devils Lake Police Chief Joseph Knowski notifying Potts of his termination took into account the public's reaction to the incident.

“The situation has eroded so much that it is now evident that there is simply no set of circumstances in which you can effectively perform your duties as a police officer within the community of the city of Devils Lake,” the letter said. “Doing so may lead to further problems for other officers to effectively perform their duties and may tarnish the reputation and standing of the police department within this small North Dakota community.”

Potts argued that his dismissal amounted to a wrongful termination because it violates public policy, which favors self defense. He formally filed a wrongful termination lawsuit against the city of Devils Lake and its police department in September 2019.

In Tuesday's oral arguments, Wilking was asking the court to define a very narrow exception for law enforcement officers acting in self-defense in the state's at-will employment doctrine. The exception would protect officers who act in self-defense from retaliation from their police departments.

"We're not asking you to protect convenience store clerks, or Wal-Mart clerks," he said. "Only law enforcement officers, and law enforcement officers acting in self defense."

Mark Allan Friese, the attorney representing the North Dakota Fraternal Order of Police, also argued in favor of the exception. He noted that law enforcement officers are required to make critical, split-second decisions that could potentially put themselves or others at risk. Officers should not have to consider whether or not they will be fired in those life-or-death situations, Friese argued.

But Scott Kenneth Porsborg, representing Devils Lake, said that the issue is much more complicated than Wilking and Friese claimed and argued that, if the exemption was granted, it would put the court in uncharted territory.

"This court will be first in the nation to immunize police officers from termination based on justifiable use of deadly force," Porsborg said. "Finding an exemption here would not be recognizing public policy, but would in fact be creating one."

A ruling in Potts' favor would require the court to determine the standard by which an officer could qualify for the exemption, which would have to be imposed in a way that police departments and district courts across the state would be able to clearly follow, Porsborg said.

The justices raised a number of other concerns, including whether the case was a judicial question or a legislative one, and whether the exemption would have been applicable in the case of Potts, who was terminated less for his use of force against Fuller and more because of seemingly broad public support of his dismissal.

While no other state court has addressed this issue for law enforcement officers, Wilking pointed out that Utah and West Virginia courts have established a relevant legal framework to create a self-defense exemption to their respective states' at-will employment doctrines. The Utah case involved Wal-Mart employees who confronted shoplifters, and the West Virginia case involved a 7-11 clerk who disarmed a would-be robber.

Wilking argued that, ultimately, North Dakota state law favors self-defense, too.

"These are fraught times for the law enforcement community in the United States," Wilking said. "It may not be politically correct for me to say so, but Black lives matter, but also blue lives matter, and I think the police community in North Dakota deserve some protection of their employment."

The next date in the case is scheduled for Wednesday, Sept. 16.