PLW: Pa. Prosecutors Out In Front on Police Shootings

Matthew T. Mangino

The Legal Intelligencer-PA Law Weekly

December 16, 2016

As of a week ago, 896 people have been shot and killed this year by police officers across the country. Only last year, The Washington Post began keeping track of officer-involved shooting deaths nationwide. This year's number is slightly off pace with last year's total of 991 deaths.

The high-profile police killings of Michael Brown in Missouri; Laquan McDonald in Illinois; Tamir Rice in Ohio; and Walter Scott in South Carolina have brought intense scrutiny to police use of force protocols and the resulting investigations.

Recently the Pennsylvania District Attorneys Association (PDAA) got out in front of the curve with regard to officer-involved shootings. The PDAA's Best Practices Committee established 16 guidelines dealing with processing, investigating and public communications in officer-involved shootings.

According to a PDAA press release, the 16 recommendations include, but are not limited to, the following:

• Investigations should be independent.

To ensure the integrity of the investigation of an officer-involved shooting, investigations should be conducted by an agency separate and independent from the law enforcement agency involved in the shooting.

• District attorneys should direct investigations.

Under the Commonwealth Attorneys Act, the district attorney is charged with determining if any shooting is justified or if charges should be filed.

• On-site safety and security is essential.

The first issue at every officer-involved shooting scene is the safety and security of all those involved and the community.

• Utilize best-available technology to process the scene.

Officer-involved shooting scenes are often large and confusing. Detailed evidentiary review and documentation of the scene is the first and essential step to determining the facts.

• Communicate with the public.

The district attorney may give a preliminary report on the status of the event after it happens, understanding that the detailed investigation may uncover more evidence.

A potentially controversial portion of the recommended policies provides that an officer involved in a shooting who is not criminally charged "will not be named."

"There really is not a blanket policy," Dave Arnold, Lebanon County district attorney and president of the PDAA told the Pittsburgh Post-Gazette.

"There are times when, even if no one is charged, it would make sense for the community, the officer, the department, to let that officer's name be known," he said.

Allegheny County district attorney Stephen A. Zappala Jr. recently told the Pittsburgh Tribune-Review that his practice has always been to release names of officers involved in shootings. "It is a recommendation—it's not binding," he said of the guidelines. "I don't see what reason that would not be something of interest to the public."

The PDAA's recommendation comes on the heels of Gov. Tom Wolf's veto of a bill that would protect the identity of officers involved in shootings.

Wolf, whose decision overrode the Republican-backed legislature, rejected the measure as an "anti-transparency" bill whose premise jeopardizes the trust between citizens and government.

"I cannot allow local police department policies to be superseded and transparency to be criminalized," Wolf said. "Local departments are best equipped to decide what information is appropriate to release to the public."

According to the Washington Post, of the 896 deaths caused by police shootings so far this year, officers have been identified in only 268 cases.

Releasing the identity of police officers involved in shootings has been dealt with inconsistently by jurisdictions across the country and can be attributed to the lack of national standards.

In an attempt to address the lack of national standards governing police use of force, Chuck Wexler, director of the Police Executive Research Forum, has proposed 30 "guiding principles" for police use of force.

During the "Taking Policing to a Higher Standard" forum earlier this year, Wexler proposed prioritizing the preservation of human life, adopting de-escalation as a formal agency policy, quickly releasing information about any use of force incident, and training officers that it is their duty to intervene to prevent another officer from using excessive force.

The state of the law has made it difficult to indict police officers, not to mention effectively prosecute them for inappropriate use of deadly force.

In 1985, the U.S. Supreme Court in Tennessee v. Garner, 471 U.S. 1 (1985), held that, under the Fourth Amendment, when a law enforcement officer is pursuing a fleeing suspect, the officer may not use deadly force to prevent escape unless the officer believes that the suspect poses a significant threat of death or serious physical injury to the officer or others.

Justice Byron White wrote, "It is not better that all felony suspects die than that they escape." He continued, "The fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect."

The Garner decision established that a police officer's use of force be "objectively reasonable."

Reasonableness would be determined four years later by the high court in Graham v. Connor, 490 U.S. 386 (1989). The court ruled that a police officer who perceives a threat in the same manner as an objectionably reasonable officer would perceive it, is justified in using deadly force even if the shooting itself violates department policy or the threat turns out not to exist.

Courts have universally deferred to the law enforcement officer's own personal assessment of the threat at the time. The Graham analysis essentially prohibits any second-guessing of the officer's decision to use deadly force.

Although the PDAA has touted their efforts as a first-of-its-kind for prosecutors nationwide there are other states and jurisdictions taking on this issue. After an officer-involved shooting inMassachusetts, a team of local and state police officers and officials from the district attorney's office descends on the scene of the shooting to conduct a multifaceted investigation.

Like Pennsylvania, Massachusetts law requires the district attorney's office be involved in the investigation. In Massachusetts, the district attorney's office, by statute, has the duty and authority to direct all death investigation.

The International Association of Chiefs of Police has also established an officer-involved shootings investigative protocol. Some of the suggested protocols are not consistent with evolving protocols in other jurisdictions including Pennsylvania. For instance, delaying the interview of the involved officer has been widely rejected as an effective practice.

In October, Attorney General Loretta E. Lynch announced several steps by the Department of Justice to enable nationwide collection of data related to the use of force by law enforcement officers.

Lynch noted that President Barack Obama's Task Force on 21st century policing called on law enforcement agencies to "collect, maintain and report data ... on all officer-involved shootings, whether fatal or nonfatal, as well as any in-custody death."

Special to the Law Weekly Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book "The Executioner's Toll, 2010" was released by McFarland Publishing.