Close to Home: Who should investigate police shootings?

On Sunday, this newspaper provided an editorial addressing this thorny dilemma (“When the police are investigated”). Its intent was not to provide an answer but simply to promote dialogue and healthy debate.

Well, here goes. I concede the question is straightforward, but the answer may be less elusive, if we have an end result in mind.

If the goal of the investigation is to determine criminal culpability, then local district attorney offices continue to be the most suitable for this task. These government agencies are entrusted by the public to carry out justice on the public’s behalf. They should continue to do so barring any constitutional or legislative changes.

Though societal frustration can serve as impetus for change, we should refrain from simplifying this issue by using statistics (number of shootings vs. prosecution or black vs. white encounters) to prove bias in favor of law enforcement as the basis for change. Most often the issue with finding success in this model has to do with proving criminal intent beyond a reasonable doubt, a requisite element in proving criminal negligence. The pivotal question is always “did Erick Gelhaus or Darren Wilson form criminal intent before their respective encounters with Andy Lopez and Michael Brown?”

Two district attorneys investigating these cases have already said no. Society is certainly entitled to challenge these decisions by demanding explanations and reform. Change can take place through public protests and legislative proposals. AB 86 by Assemblyman Kevin McCarty, which would shift authority for officer-involved shooting cases from local district attorneys to the state Department of Justice, is an example. Nevertheless, the end result continues to be criminal culpability.

If the goal is one of creating social change through reform of law enforcement practices then the civil justice system, a cornerstone of our democracy, is the end result. So much positive change has been effectuated in our society through the civil court system. The examples are countless.

There are court rulings concerning the installation of seat belts and airbags in vehicles, the manufacture and provision of safe medications and consumer products, clean air, clean water and health care to name a few.

Let us not forget about civil rights lawsuits and the courts’ expansion of them in the areas of equal rights regardless of race, creed, gender, sexual orientation and ethnicity.

In fact, Andy Lopez’s family is well aware of this option and quickly hired an attorney to represent their interest in a federal suit. Cynics will argue the primary objective of lawsuits is to extract money from a wrongdoer. That, my fellow citizens, is one of the premises of our capitalist democracy and justice system - whether we like it or not.

Nothing will ever bring Andy back, but maybe the Lopez family can secure a sizeable settlement or be awarded the same through a verdict from their peers. If, and when, that time comes, you better believe the Sonoma County Board of Supervisors, the Sheriff’s Office and other government and law enforcement agencies will take notice and institute change. It has happened in this county in the past.

However, if the goal is one of healing, then collaborative community-based review boards appear most suitable. Such is the case locally with the creation of the Community and Law Enforcement Task Force created by the Sonoma County Sheriff’s Office and Board of Supervisors following the Lopez tragedy. However, these boards are severely limited in power and scope, and despite their noble purpose, the intended change is not always quickly evident.

The present discussion of “who should investigate” also turns on such principles as transparency, conflicts of interests and the myriad biases inherent in human behavior. However, these principles should only shape the process and not the end result. For example, if transparency is questioned then detailed disclosures by district attorneys should be demanded.

If conflicts of interest or the appearance thereof exist between district attorneys and the investigated police officer, then an independent state review board may be the solution.

Are there processes to investigate police shootings? Yes.

Is it perfect? No.

Have we in our society participated in making the process better? Yes.

Nevertheless, if society’s intent is to establish one investigative process that prevents these tragedies, satisfies the most fervent protester, provides unanimous criminal and legal outcomes and promotes community healing, then the answer to this question will forever be elusive.

Oscar Pardo, a Santa Rosa resident, is an attorney with the law firm of Perry, Johnson, Anderson, Miller & Moskowitz. He currently serves as a community member of The Press Democrat Editorial Board.