Prosecuting Police Difficult at Best

Over the past two years, this community has had to confront the subject of whether police officers should be criminally prosecuted for civilian deaths resulting from their decisions to open fire while subduing a suspect. In 1990, 13 people were shot and killed by police or sheriff’s deputies in San Diego County. This year, another has died.

Some of those killed had no weapons, while others held objects not normally associated with violent criminal behavior (a trowel, a garden stake, a baseball bat). In each case, the officer involved claimed that the fear of personal injury or death motivated the shooting.

None of the officers has been prosecuted by Dist. Atty. Edwin Miller’s office for criminal violations, although Miller has severely criticized a number of the shootings.

Relatives of the deceased and some activists have voiced anger at the district attorney’s failure to prosecute. They accuse him of being historically unwilling to charge an officer with homicide, regardless of the circumstances.

Critics point to the circumstances of the shootings and large judgments awarded to victims in civil jury trials as proof that criminal charges would have been appropriate.

In some killings, it has been clear that, in retrospect, the dead civilian did not pose any risk to the officer and, in at least one case, the civilian probably did not even know officers were in the vicinity.

Public sentiment has motivated voters to create civilian review boards to monitor claims of law enforcement misbehavior. San Diego Police Chief Bob Burgreen has also voluntarily submitted officer shootings to a city review panel regardless of whether there is a civilian complaint.

Despite these measures, accusations have been made that more needs to be done. But the public does not understand the formidable obstacles to the prosecution of officers who kill in the line of duty and the significant legal and practical reasons why they are seldom even charged. As a prosecutor reviewing cases both here and in New York City, I confronted these obstacles time and again.

Civil cases require only that the plaintiff prove the case by a “preponderance” of the evidence. The criminal standard of proof, which requires that the district attorney prove a defendant’s guilt “beyond a reasonable doubt” is much more difficult to meet.

It cannot be assumed that jurors who have decided cases against police officers in civil trials, and have awarded large verdicts on behalf of the families of dead victims, would have reached the same conclusion against a police officer in a criminal case.

Although civil trials generally determine whether an officer behaved negligently, jurors in a murder case must unanimously agree that an officer acted maliciously, with a deliberate intent to unlawfully take the life of another, or acted with an “abandoned and malignant heart.” Recent killings have involved questions of judgment rather than malice.

The least serious homicide charge available to prosecutors, involuntary manslaughter, requires proof beyond a reasonable doubt that an officer killed someone during the commission of a lawful act but, “without due caution and circumspection.” This is the charge that is most commonly suggested for prosecution. But even this charge is not likely to win favor with criminal juries.

It is a defense to any homicide charge that the killer, whether police officer or civilian, acted in self-defense. Our Penal Code states that a homicide is justifiable when it is committed to protect a person from “great bodily injury.” That phrase is defined as any “significant or substantial” physical injury.

Therefore, to obtain a conviction, the district attorney must prove that the officer was not threatened with any significant injury. Since many of these killings have involved persons wielding some implement, satisfying this proof is almost impossible.

Virtually any competent defense attorney can vividly demonstrate to jurors the potential serious injury that can be caused by bats, cars, wooden stakes or trowels. They can introduce evidence of the police officer’s training, showing how officers are taught that these types of objects have killed other police officers. Jurors who hear of instances of these deaths are hard-pressed to rule out the possibility that the officer might have been injured.

The most troublesome cases are those in which an officer shoots in response to a “furtive movement,” upon the mistaken assumption that the suspect is reaching for a weapon. The defense in those cases will present statistical evidence that many officers have been killed because they did not react until it was too late. If jurors reach the conclusion that the officer reasonably feared serious injury, they are instructed by the judge that the only proper verdict is acquittal.

Our sense of outrage is magnified by the number of questionable shootings that have occurred in a relatively short time. Juries, however, cannot consider whether officers in other cases acted inappropriately. The only issue before them is whether the officer in that case acted in what he reasonably believed to be self-defense.

An officer usually makes a good appearance in court. His friends and family will be present throughout the trial. His career of public service will be highlighted, and prior instances of courage and heroism will undoubtedly be described in detail.

The jurors will hear of past circumstances in which the officer was threatened with harm and did not shoot. The officer also will discuss the devastating emotional impact the killing has had on him. The admission of this evidence has an extraordinarily powerful effect on a group of people who are judging the future of a man who has dedicated his life to community service and who, on a particular day, may have exercised tremendously bad judgment.

Interviews with jurors after some trials of these cases have uniformly shown that an officer’s bad judgment, however tragic, is not something that they believe constitutes a criminal event or merits imprisonment.

The frustration generated by the recent string of police shootings cannot substitute for evidence of police officers’ guilt. The individual merits of each of these cases make successful criminal prosecution most unlikely.