Research offers best practices for criminal investigations of police shootings

New Stanford research on how law enforcement agencies and district attorneys handle officer-involved shootings finds real and perceived conflicts of interest that the researchers say should be addressed through both short- and long-term changes to current practices.

A report by the Stanford Criminal Justice Center (SCJC), “At Arm’s Length: Improving Criminal Investigations of Police Shootings,” highlights the challenges of current practices across the country and offers recommendations to both minimize conflicts of interests and maximize accountability in these sensitive investigations.

“The way that these shootings normally are handled is that officers are investigated by their own employing agencies and the decision whether to file charges is made by local prosecutors who work day in and day out with the officers’ agency,” said David Sklansky, Stanley Morrison Professor of Law at Stanford and faculty co-director of SCJC. “That raises issues of bias that the public is finding less and less acceptable.”

The practice may be all the more unacceptable to the public given the data around police shootings in the last decade.

“Close to a thousand police shootings of civilians occur each year in the United States and the victims are disproportionately young men of color,” noted Debbie Mukamal, executive director of SCJC. But criminal charges rarely result from those fatalities. “Since 2005, only 77 officers have been charged with murder or manslaughter for killing civilians,” she said.

The project grew out of a request by District Attorney Tori Verber Salazar of San Joaquin County, California, for SCJC to examine how Verber Salazar’s office handles officer-involved shootings and to make recommendations for improving the process.

“We were impressed that the DA reached out to us about this and excited by the service opportunity this provided our students,” Sklansky said.

“We had the advantage of the full cooperation of her office and of law enforcement agencies working with her, and that was incredibly valuable,” Mukamal added.

Sklansky and Mukamal put together a policy research project in the 2016 spring quarter and had the four students who enrolled operate as a task force. The team examined current practices both in San Joaquin County and elsewhere and spoke with experts across the country. In June, the students made a preliminary report to Verber Salazar and her team.

The key recommendations to San Joaquin County: Law enforcement agencies should stop investigating their own officer-involved shooting (OIS) criminal cases and, eventually, district attorneys across the state should develop a system for overseeing each other’s investigations, recognizing the challenges of navigating the close working relationship of law enforcement and prosecutors.

“Both short-term and long-term recommendations were guided by a philosophy of trying to minimize conflict of interest, both real and apparent, while not compromising the competency of the investigation or the political accountability of the people who make the ultimate decision to charge and prosecute,” Sklansky said.

The report’s short-term recommendations focus on law enforcement. “The agency employing the officer under criminal investigation should not be the lead in the investigation, and their role should be minimized,” said Sklansky, noting that the report acknowledges that because of the timely nature of some aspects of evidence gathering there would likely be some involvement, but another law enforcement agency should lead the investigation.

The SCJC team’s recommendation for the role of the prosecutor’s office is more complicated, and so long term.

“Our proposal is to have outside prosecutors handle the investigation and to make a recommendation, which would be public, about whether to charge, but to leave the decision to charge with the sitting DA, who is politically accountable,” Sklansky said. “We also suggest an option of turning the investigation and decision-making over to the California attorney general. Both of these options will require discussion and negotiation.”

The research, which was conducted over the course of three months, was thorough, with students reaching out across the country for information.

“We zeroed in on Wisconsin as a best practice pretty quickly,” said Katherine Moy, now a second-year student at Stanford Law School. In 2014, the Wisconsin State Legislature passed a law requiring all OIS investigations be led by either an outside law enforcement agency or a state-run, independent OIS investigation unit made up of experienced law enforcement staff, she noted.

Moy called the executive director of a Wisconsin police union, a professor at the University of Wisconsin and officials at the Wisconsin Department of Justice. “They all were so open to sharing what they’ve learned and how they implemented their system,” she said.

Midway through the project, the team spent a day in Stockton, California, meeting with the San Joaquin County DA’s staff and law enforcement officers to gather information but also to gauge their reaction to preliminary recommendations.

“We met with an officer who had been under investigation for an OIS and the way he described it hit us,” said Cameron Vanderwall, also a second-year student at Stanford Law School. “He talked about not knowing if it was the right decision, about how it had affected him, and the trauma he felt. It’s a perspective we don’t often hear.”

Students shared with the officer their recommendation to bring in an outside agency to lead the investigation. “He agreed that his department shouldn’t be involved in the investigation, which was encouraging,” Vanderwall said.

“We had been considering recommending civilian review but heard concern about someone with no experience of law enforcement being equipped to understand the complexity of the situation,” Moy said. “These are complex issues. It was so helpful to hear from him and from the DA’s team and others there. It also brought it close to home. It’s valuable to connect this national issue with a local constituency.”

“Law enforcement is a technical and difficult job where you have to make tough choices so you want someone involved in the investigation who understands the stresses of the job. That made sense to us,” Vanderwall said.

The team is optimistic that its report will have an impact.

“Whatever steps San Joaquin County takes to help minimize real and apparent conflicts of interest in the way that these investigations are carried out are going to be something that other DAs look to,” Sklansky said. “This is a problem that lots of district attorneys are trying to figure out. I think San Joaquin County could offer a role model.”

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