Legal cases: High bar for charges in fatal use of force

The decision to take no action against the police officers involved in the deadly shootings of Mario Woods and Luis Góngora Pat underscores what legal experts said is the inherently high bar prosecutors face in weighing criminal charges in fatal use-of-force episodes.

Following separate investigations, District Attorney George Gascón announced Thursday that his office wouldn’t file criminal charges against the officers involved in the shooting deaths of Woods in 2015 and Góngora Pat in 2016. In both cases, it was determined that there was insufficient evidence to prove that the officers had violated the law.

The families of the two men and many community members had called for charges to be filed against the officers, whom some accused of executing the two men.

Some people are sharply critical of what they see as a failure of police and political accountability. Others say officers are responding to harrowing and potentially deadly situations — not instigating them — and that it’s untenable to prosecute them for doing the toughest parts of their jobs.

There were 80 police officers arrested for murder or manslaughter between 2005 and mid-April of 2017 nationwide, according to research from Bowling Green State University criminologist Philip Stinson. There were 28 convictions stemming from those arrests, only five of which were for murder charges.

“We have a serious problem with police excessive force, especially against men of color,” said Erwin Chemerinsky, dean of UC Berkeley School of Law, who has advocated for more restrictive use-of-force standards. “The question is, how do we hold the police accountable and prevent excessive use of force, while respecting the fact that police have an incredibly difficult job?”

Woods was African American and Góngora Pat was Latino. Their deaths, along with a series of police shootings across the country in recent years, have shaken the confidence of minority communities in public-safety officials.

Both Chemerinsky and Gascón support a bill currently before the state Senate Public Safety Committee that would toughen the standards for when police officers may shoot at a suspect.

The bill, AB931, was introduced by Assembly members Shirley Weber, D-San Diego, and Kevin McCarty, D-Sacramento, following the death of Stephon Clark, who was killed by Sacramento police in March. Clark was unarmed, and his death sparked widespread protests and renewed calls for changes to police procedure. Separately, an Assembly budget subcommittee on Thursday authorized spending $9.7 million to create a new unit in the state’s Department of Justice to investigate police shootings.

“Police officers shouldn’t be charged with a crime unless there’s sufficient evidence,” said Alan Schlosser, senior counsel with the American Civil Liberties Union of Northern California. “But the system doesn’t seem like it works fairly, and people are going to be upset about that.”

Criminal justice experts and legal scholars say Gascón’s decision not to bring charges in the two San Francisco shooting deaths is emblematic of the wide latitude reserved for police officers in determining whether deadly use of force is justified. When officers are faced with split seconds to make life-or-death decisions, the law is highly deferential to an officer’s judgment in the moment, said Robert Weisberg , a Stanford law professor and co-director of the school’s Criminal Justice Center.

“It’s always about the reasonable perception of a threat of deadly force. That’s 99 percent of the action in these cases,” Weisberg said. Prosecutors and the public, Weisberg said, “simply have a lot of faith in the reasonableness of officers,” who are trained in when and how to use deadly force.

“So you’re going to get a fair amount of the benefit of the doubt given to the police when it comes to reasonableness,” Weisberg said. “It obviously looks especially awful when the victim of a (police) shooting did not have a weapon. But the fact is — in some ways, it’s harsh to say, but that almost doesn’t matter,” he said. “What matters is if (the suspect) reasonably appeared to have a weapon.”

Both Woods and Góngora Pat allegedly refused police demands to drop the knives they were carrying.

District attorneys can also be reluctant to bring criminal charges against police departments, Chemerinsky said, because of the “close relationship” that often exists between prosecutors and police leadership. “Prosecutors depend on the police for evidence in all their cases,” he said.

Apart from criminal charges brought by prosecutors, the U.S. Supreme Court has made it challenging for individuals to bring civil suits against police departments and individual officers. Generally, a lawsuit would have to demonstrate that a city’s police policies are unconstitutional — written in a way that invites the use of excessive force, rather than permitting it in situations where an officer perceives a reasonable threat of harm.

Anthony Ribera, director of the International Institute of Criminal Justice Leadership and a former chief of the San Francisco Police Department, said officers make the decision to use deadly force “primarily based on self-defense and the defense of the community.”

But “by no means am I saying that in all use-of-force incidents are the officers correct,” Ribera added. “The situation dictates that they make a split-second decision, and they don’t always make the correct decision. But they’re not making that decision based on animosity for the subject or some sort of criminal intent.”

Weber and McCarty’s bill seeks to curb the unnecessary use of deadly force by implementing stricter rules for when officers are permitted to shoot suspects. Instead of assessing whether an officer acted “reasonably” in a deadly use-of-force incident, the bill would permit officers to shoot a suspect only when “necessary.”

The bill, experts said, would be likely to result in greater scrutiny of police shootings, particularly of whether deadly force was truly used as a last resort. Under current law, whether an officer had an alternative is irrelevant, and it’s not part of the legal standard. AB931, proponents say, would put an emphasis on training for alternatives to deadly force, like de-escalation, for police departments.

Gascón is believed to be the only district attorney in the state to support the bill.

“That would be a shift from the current law that talks about police being able to use force under a ‘reasonable officer’ and a ‘reasonable person’ standard, which basically puts deadly force in a toolbox with other alternatives, and even if deadly force is not a last resort, if it is reasonable under the circumstances, they get to use it, and that’s taken us to where we are today,” Gascón said.

“If AB931 was law, it would give us the opportunity to do a different legal analysis of these cases,” he said. “It’s not the law today, so it plays no role in hypothetical cases of what we would have done or not done.”