Should Special Prosecutors Handle Officer-Involved Shootings?

Wednesday, July 08, 2015

Kevin Sali, GoLocalPDX MINDSETTER™

The past few weeks have seen a series of officer-involved shootings in Oregon. Against the backdrop of an ongoing national debate over police officers’ use of force, these events may provide an opportunity to review our system for addressing such incidents.

I should start by emphasizing that I have no reason to believe that any of the recent shootings were improper. Although in my practice I often find myself aligned against police officers, I have tremendous respect for the work that they do and I’m under no illusions regarding the difficulty of their use-of-force decisions. I deeply appreciate the risks they accept on our behalf, and I certainly don’t believe every use of force by an officer—even deadly force—should be presumptively viewed as suspicious.

At the same time, it’s clear that officer-involved shootings in Oregon tend to ignite serious dissension within the community, based in part on complaints that these incidents aren’t taken seriously enough by the authorities. One aspect of the system that’s worth examining is the determination of who will conduct the investigation and any ensuing prosecution. Typically, that process is led by the same career prosecutors who handle other types of cases, but there are reasons to question whether those are the best choices for this job.

A prosecutor in a criminal case makes a series of decisions—including, at the outset, how to investigate the case, whether (in some counties) to take it to a grand jury, and what evidence to present to the grand jurors. These decisions will inevitably be influenced by a prosecutor’s personal affinities.

And a typical prosecutor will naturally feel a close affiliation with law enforcement. Prosecutors and police officers rely on each other extensively. Individual cases can be professionally and emotionally intense, with long hours of shared preparation time. Over time, prosecutors and officers will understandably develop special appreciations for each other’s roles. The result is that, when called upon to review or prosecute an officer’s conduct, a typical prosecutor may be inclined to give that officer the benefit of the doubt.

That’s not in itself a bad thing; indeed, leavening the justice system with that type of understanding could be good for all of us. But that type of sympathy appears to be disproportionately applied to police officers, and this perception may be contributing to the unrest surrounding recent cases.

In Ferguson, for example, where a grand jury declined to indict officer Darren Wilson for fatally shooting Michael Brown, a common criticism was that the prosecutor went out of his way to provide the grand jurors with evidence favorable to the officer. The perceived problem presumably wasn’t the fairness of this approach in itself—arguably, all grand jury presentations should proceed this way—but the selective application of that fairness in favor of a law enforcement officer.

One possible solution with growing support is the use of “special prosecutors” or “independent counsels” to review and prosecute cases against officers. The concept is well-established, with historical precedents including the Watergate investigation and other high-profile cases. The theory is that a prosecutor lacking any affiliation with the target of an investigation will be more likely to act in the public interest when making charging decisions and prosecuting any resulting case. There have been recent calls for special prosecutors to handle individual cases involving officers’ use of force, and federal legislation requiring such a process has been proposed.

The law enforcement community will vigorously oppose any such proposal. One argument will likely be that the instinctive sympathy of a regular prosecutor is actually a good thing, as police officers should be judged by those who understand the unique situations they face. Another will be that the special or independent counsel procedure will inevitably carry a bias towards prosecution.

These concerns are undeniably valid. Were I a police officer, I would want any review of my actions to be conducted by a fair, objective prosecutor—preferably one who understands what an officer faces on the job. I wouldn’t want decisions made by a lawyer who doesn’t work closely with officers and doesn’t appear to understand what law enforcement requires. And I definitely wouldn’t want them made by the type of person would probably end up in that role—someone with an inherent bias towards finding something wrong with what I did.

But that situation—understandably, a nightmare scenario for a police officer—is what many civilian targets face as a matter of course. Although many prosecutors work hard to be fair, those who focus on particular types of cases may have implicit biases towards the targeted subjects in the first place, and years of exposure to crimes and their consequences are unlikely to have a softening effect. The result is a significant likelihood that a prosecutor in any field—from sex offenses to environmental crimes—will review and prosecute cases with the same harsh eye that police officers would fear from independent prosecutors.

In short, the criminal justice system in general is not populated by sympathetic actors who have walked in the accused person’s shoes and are inclined to give the benefit of the doubt. The question, then, is whether police officers are entitled to demand a kinder, gentler enforcement framework—particularly when the fruits of that two-tiered system can lead to public distrust and frustration.

What might happen if these cases were regularly handled by specially appointed, truly independent prosecutors? If in fact there has been systematic underenforcement, there may indeed be a shift towards greater accountability. Conversely, if independent prosecutors tend to make the same decisions as regular prosecutors, this will demonstrate that the latter have been properly discharging their duties all along. And if being at the mercy of an unsympathetic prosecutor proves to be too great a risk for police officers, that may be a sign that the system as a whole needs adjustment—because, after all, that’s the scenario the rest of us face.

Is it worth a try?

Kevin Sali is a Lake Oswego attorney representing individuals and businesses in a broad range of criminal, civil and regulatory matters. Kevin spent four years as a high school science teacher in Miami, Florida before earning his law degree from Duke University. He is the author of Scientific Evidence: A Manual for Oregon Defense Attorneys and numerous other writings on a variety of topics in the legal field, and is a contributor to Huffington Post Crime. For more information visit salilaw.com.

Related Slideshow: 5 Oregon Gun Facts That Might Surprise You

Oregon is the 28th best state in the union for gun owners, according to an analysis by Guns & Ammo magazine that describes Oregon as being, overall, a friendly place for gun owners with relatively few restrictions on firearms. These facts give some insight as to why.

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1. Mental Health Issues

In Oregon, people who've lost their gun rights because of mental health issues can petition to get them back. After the 2007 Virginia Tech Shooting, Congress passed legislation that changed how background checks are conducted. It also contained a provision that required states to have a mechanism to allow people who had been barred from firearm ownership because of a mental health issue to petition to have this right restored.

In Oregon, the Psychiatric Security Review Board (PSRB)conducts relief hearings to determine if someone should again be permitted to own guns.

However, the number of people who've had their rights restored is pretty small.

Juliet Follansbee, the executive director of the PSRB, says only three people have applied to have their gun rights restored, all of which were successful.

Penny Okamoto, a board member and spokesperson for gun-control advocate Ceasefire Oregon, says this is a sensible and fair process.

“I think it's a terrible mechanism,” says Kevin Starrett, director of the Oregon Firearms Federation. Starrett says diagnoses of mental illness are too broadly applied and cover individuals who've recovered from drug problems.

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2. Background Checks

If you want to buy a gun from a friend or relative, you don't need to undergo a background check. The same applies if you want to buy a gun from your neighbor down the block or even someone you encounter randomly on the street. Once you have that gun, you don't need to get a permit or register it.

Photo Credit: Svadilfari via Compfight cc

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3. Concealed Carry

If you want a concealed handgun, you apply at your local sheriff's office, pass a background check, prove you're at least 21, demonstrate that you're competent with the weapon and you're good to walk around strapped. Oregon is a “shall-issue” state, meaning that if you pass these requirements, your local sheriff shall issue you a permit. “May-issue” states, like California, are different in that applicants need to provide a compelling reason to have a permit.

However, if you're wondering if someone you know owns a concealed weapon permit, there's no way to find out. In 2011, the Oregon Legislature passed a law with bipartisan support that exempted concealed weapon permits from Oregon's public records law.

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4. Loaded Guns in Public

Earlier this year, Georgia lawmakers passed legislation, referred to as the “guns everywhere” bill, that allowed guns just about everywhere, including bars and churches. Oregon has been way ahead of Georgia on this for years. In Oregon, it was already totally legal to take a gun into a bar or a church (if the property owner didn't object).

According to a description of Oregon gun laws on the National Rifle Association's (NRA) website, it is unlawful to possess a loaded firearm in a public building, which includes hospitals, capitol buildings, schools, colleges, courthouses or city hall. Exceptions are made if you have a concealed carry permit.

“The irony is that you can't carry a sign into the Oregon State Capitol building, but you can carry a loaded AR-15,” says Okamoto, who notes that having a concealed carry permit also allows people to openly carry large, loaded weapons.

Portland, however, differs from the rest of the state. Last year, the Oregon Supreme Court upheld a Portland ordinance that banned loaded weapons in public, except for police officers and those with concealed weapons permits.

“In lots of places no one would give it a second glance,” says Starrett, noting that guns are openly carried in Switzerland and Israel. “It's all a matter of perceptions, and open carry has really offended people in Portland, but in Portland a lot of fat ugly people can ride around on bicycles.”

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5. Guns and Suicide

If you own a gun, you're more likely to kill yourself than someone else. According to Ceasefire Oregon, which cited data from the Oregon Health Authority, 417 Oregonians were killed by guns in 2011, slightly down from 458 in 2010 and up from 413 in 2009. For each of those years, more than 80 percent of those individuals killed by a gun committed suicide.

“When people decide to commit suicide, it's an impulsive act,” says Okamoto. She says that having more background checks in place could save lives because someone considering suicide might have second thoughts while going through the process.

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