Deadly Force Sets Off Investigation, Long Process of Second-Guessing

The decision to use deadly force is often made in a millisecond, but the investigations and legal reviews on the shooting can often run into years.

Although the process varies throughout the state, in Orange County it is standard practice that the district attorney’s office investigates each case in which a police officer fires his or her weapon in anger or in self-defense.

Officials defend this procedure as a way of avoiding criticism that comes when police agencies investigate their officers, hoping that the use of an independent, outside agency such as the district attorney’s office will put more faith into the outcome of the investigation.

“Law enforcement enjoys autonomy and traditionally is uneasy about other agencies coming in and looking at the use of force,” said Loren W. DuChesne, head of investigations for the district attorney’s office. “This way there is more credibility in the result. That is what everyone--the family, the police agency, everyone--is interested in. This offers less a chance for the appearance of bias and favoritism.”

According to DuChesne, 17 investigators are on 24-hour call to respond to any police shooting and often arrive just minutes after the incident. The investigators immediately begin questioning witnesses and gathering the evidence, calling in a mobile crime-scene van to help in the investigation, and set a time when the officer can be debriefed at length as to exactly what happened.

In the interim, the officer is often put with a support partner who comforts him during the initial stages of the investigation. When his gun is taken by DuChesne’s investigators as evidence, the police department replaces it with another weapon.

While DuChesne’s shooting team conducts its investigation, a number of other things are happening simultaneously. A parallel investigation by the police agency may be under way, not into the shooting itself but into other circumstances surrounding the incident, such as if the suspect had been dealing narcotics or was suspected of another crime.

In addition, some police unions and associations have standing policies that if an officer feels the need, he can call an association attorney to represent him immediately at the scene of the shooting.

“We only do it if we are asked,” said Don Blankenship, president of the Santa Ana Police Benevolent Assn. “Having the lawyer there doesn’t constitute an adversarial role. He is there to make sure all the officer’s rights are being afforded and he (the officer) is thinking clearly before he writes his report or gives any statements.”

After collecting evidence and interviewing the officer, DuChesne’s investigators then compile a report on the shooting, which is sent to a coroner’s review board consisting of a toxicologist, an investigator, a lawyer from the district attorney’s office, expert consultants and a representative of the police department.

The final report is sent to a deputy district attorney, who then rules on the case.

The investigation into the shooting can be a long one, taking four to five months before a case is finally resolved.

“There is probably no case more difficult than a serious injury or death at the hands of a police officer,” DuChesne said. “Every jail death and shooting can be expected to make the front page. That is the kind of media attention you can expect. There is a tremendous amount of pressure on the officers and this office.

“Nothing is second-guessed and scrutinized as much as a jail death or an officer-involved shooting. What we do is eventually opened to the most detailed, microscopic scrutiny. We take all these cases very seriously.”

Often, DuChesne said, the officer who fired the gun may be one of the last persons interviewed.

“You make sure the officer is capable of being interviewed,” he said. “Is he coherent? You allow him to call his family. You keep him busy. You give him a support partner. You have to remain cognizant that he is undergoing a very stressful situation.

“These are stressful interviews,” DuChesne said, “because perhaps for the first time the cop is on the other side. They are apprehensive. They are very uncomfortable.”

In his 11 years as head of investigations for the district attorney’s office, DuChesne said that only once was a law-enforcement officer prosecuted, and that was for the non-fatal beating of a jail inmate.

Two other times the cases were so difficult to decide that they went to a grand jury, and in both of those cases the officers were cleared of wrongdoing.

“Personally, I think it speaks well for Orange County law enforcement,” he said. “But there is never a simple cut-and-dried case of law enforcement’s use of force. At some point in time you are going to have an issue. Somewhere there is going to be a controversy about what happened.”