Officer-Involved Killings Test Legal System’s Mettle : Courts: Two fatal shootings in which no charges were filed later resulted in large awards to slain men’s families after civil suits.

While trying to break up a fight during a raucous party one day in 1988, a Westminster police officer shot and killed an 18-year-old who was rushing straight for him.

Police said the officer shot in self-defense. Other witnesses argued that Frank Martinez was weaponless and non-threatening. The Orange County Grand Jury and later the district attorney’s office announced that there was not enough evidence for prosecution.

Two years after that killing, an officer of the Orange Police Department responding to a domestic dispute fatally shot unarmed Ramon Ibarra, 27, who was slinging parts of a broken fan at him. As in Martinez’s shooting, the district attorney’s office again concluded that it had no foundation on which to file criminal charges.

But in both of those shooting deaths, families of the victims filed civil lawsuits against the officers--and won substantial damages.

A federal court jury last week awarded nearly $190,000 to Martinez’s family, finding that his civil rights had been violated by the officer. In the Ibarra case, a state court judge last month ordered that $250,000 be paid to his children after a jury found that the officer used excessive force.

How is it that in both cases prosecutors could determine that they did not have sufficient evidence to hold police criminally culpable only to have civil juries decide that the officers bear some responsibility for the two deaths?

The answer, the victims’ lawyers, prosecutors and criminologists replied, lies in the different criteria required for proving a criminal case and a civil one.

“What we’re looking at in a review in a shooting is whether or not there is sufficient evidence so that we can convince a jury that someone is guilty beyond a reasonable doubt,” said Guy N. Ormes, supervising deputy district attorney. “A civil jury is not required to have that ‘beyond a reasonable doubt’ element. They just need to have a preponderance of evidence, or more than 50% leaning one way or the other, to make their decision.”

“We have a higher standard of proof for criminal” trials, Ormes said.

In a criminal trial, prosecutors must prove that the officer involved--without a defensible excuse--”intentionally” wanted to hurt his victim. Civil juries are not asked to consider the question of intent, but rather whether the officer acted irresponsibly.

Also, if an officer can prove that he feared for his life at the time of the shooting, prosecutors would be unlikely to file charges because of the slim chances of winning a conviction.

In separate civil trials, the juries concluded that Westminster Police Officer Steve Phillips and Orange Officer Jeffrey Mundt used excessive force and acted rashly. However, jurors also noted that both victims were partly responsible for events leading to their deaths. (In a criminal trial, such a conclusion would be enough to acquit a police officer, lawyers for the victims’ families note.)

In the Westminster shooting, Martinez and others at his home had challenged police officers before he was shot. After the trial, jurors said Martinez should have been aware of the risk involved in confronting armed officers.

Similarly, when police arrived at Ibarra’s home, he taunted them and threw two pieces of a broken fan at Mundt before he was shot. A week earlier, when Mundt had been called to the Ibarra home because of a domestic dispute, Ibarra had threatened to kill him the next time the two met.

Because the investigations into both shootings did not find sufficient evidence of the intent required for criminal charges, prosecutors said, they are “ethically bound” not to file charges.

“Ethically, I can’t just charge every case that I see without making that determination,” Ormes said. “If we charge everyone, we would obviously have a lot of people who are found not guilty and who should not have been charged in the first place.”

Lawyers for the families of Martinez and Ibarra agreed that prosecutors did a thorough job of investigating at the shooting scenes, but they questioned the presence of potential conflicts of interest between the parties involved in those investigations.

“In an investigation like this, you have police basically investigating themselves and handing over their report to prosecutors,” said Christopher B. Mears, co-counsel in Martinez’s civil-rights trial.

“Or, you have prosecutors’ investigators, who are former police officers, (examining the actions of) one of their own.”

To ensure fairness, an independent investigating team should be assigned to those shootings, lawyers for the victims’ families said. An investigation by prosecutors into a police-involved shooting “doesn’t lend itself to a fair and impartial decision,” said Gregory J. Owen, the Encino lawyer who represented Ibarra’s family.

“The relationships (between their investigators and police) intertwine. Often, it’s not an independent investigation, but a joint (one) by the police department with the D.A.’s office.”

Ormes said he doesn’t see any conflict of interest in his investigators, all of whom are former police officers.

He added that Orange County is one of only a handful of counties in the state where the district attorney’s office investigates all police shootings. In most other counties, he said, it’s the police departments that look into their own shootings.”

“We obviously have a lot at stake, and we work very hard to avoid any conflict of interest,” he said. “People who make those claims are very unenlightened.”

One other difference between a civil and criminal case against an officer, lawyers and criminologists said, is that jurors in civil cases are asked to take into account the suffering of the victim or his family.

In a criminal trial, jurors are instructed to deliberate only on the officer’s action or what he was thinking at the time.

“In a civil case, a jury looks at a family with a dead son and their hearts go out to the family,” said Bryan Vila, an assistant professor of criminology at UC Irvine.

Whatever the legal possibilities in a police shooting resulting in injuries, the bottom line is that it’s easier for jurors to find for a family than it is to convict a police officer.

“It may not be right, but it’s reality,” said Julian Bailey, co-counsel for the Martinez family and himself a former prosecutor.

“Juries don’t like to convict or even find that officers did something wrong.

“As a culture, we want to trust our police officers.”