Across the United States, every day, in every state, city, and town, hundreds of thousands of law enforcement officers patrol the streets, carrying out a service that is vital, stressful, and often dangerous. As recent high-profile cases illustrate, officers sometimes make decisions with deadly consequences, putting their job performance under scrutiny. But how criminal investigations of police shootings are carried out is varied and, some experts say, problematic—tainted by real and apparent conflict of interests.
“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. That raises issues of bias that the public is finding less and less acceptable,” says David Sklansky, Stanley Morrison Professor of Law at Stanford and faculty co-director of the Stanford Criminal Justice Center (SCJC).
The practice may be all the more unacceptable to the public given the data around police shootings in the last decade.
Debbie Mukamal, the executive director of SCJC, notes that “close to a thousand police shootings of civilians occur each year in the United States and the victims are disproportionately young men of color.” But criminal charges rarely result from those fatalities. “Since 2005, only 77 officers have been charged with murder or manslaughter for killing civilians,” Mukamal says.
A new report by 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 request made of SCJC by District Attorney Tori Verber Salazar of San Joaquin County, California, late last year was intriguing: Examine how Verber Salazar’s office handles criminal investigations of officer-involved shootings (OIS) and make recommendations for improving the process. Sklansky and Mukamal had gotten to know DA Verber Salazar on an earlier project researching the diversity of California prosecutors’ offices. They quickly agreed to help.
“We were impressed that the DA reached out to us about this and excited by the service opportunity this provided our students,” says Sklansky. “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 adds.
Sklansky and Mukamal put together a policy practicum in the spring 2016 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: Law enforcement agencies should stop investigating their own 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 interests, 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,”
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 its role should be minimized,” says 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,” says Sklansky. “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 project, 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 and I called the executive director of a Wisconsin police union, a professor at the University of Wisconsin, and officials at the Wisconsin DOJ. They all were so open to sharing what they’ve learned and how they implemented their systems,” says Katherine Moy, now a second-year student at Stanford Law School. She explains that 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.
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 both gather information but also to get feedback on the preliminary recommendations.
“We met with an officer who had been under investigation for an OIS and the way he described it hit us. 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,” says Cameron Vanderwall, JD ’18. 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.”
“We had been considering recommending civilian review and he expressed concern about someone with no experience of law enforcement being equipped to understand the complexity of the situation, which was good to hear,” says Moy. “These are complex issues. It was so helpful to hear from him and from the DA’s team and others there. It also brings 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,” adds Vanderwall.
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. This is a problem that lots of district attorneys are trying to figure out. I think San Joaquin County could offer a role model,” says Sklansky.