When he campaigned for Los Angeles County district attorney, reform-minded George Gascon made clear he would be a different kind of top prosecutor.
A darling of the Black Lives Matter movement in the aftermath of the George Floyd killing by Minneapolis police, Gascon blasted incumbent D.A. Jackie Lacey for not prosecuting law enforcement officers in controversial fatal shootings. In eight years in office, Lacey filed one manslaughter case in more than 340 fatal police shootings.
Gascon assured police critics he would do better.
When he took office in December 2020, the progressive D.A. immediately vowed to reopen four fatal police shootings Lacey had declined to prosecute. More than a year later, no charges have been filed in the targeted cases.
And in the past week, Gascon has declined to charge officers in two controversial fatal shootings in Inglewood and Pasadena.
Gascon’s ambitious rhetoric, it seems, is colliding with reality. As most prosecutors know, absent some compelling evidence of wrongdoing or extreme negligence, it is difficult to win criminal cases against police officers in fatal shootings — even after recent changes in state law governing when deadly force can be employed.
Burden of proof
Murder charges against police are notoriously challenging to prove in court because juries and state law governing the use of deadly force give subjective leeway to officers, who sometimes have to react to violent encounters within a split second, said Robert Weisburg, a law professor and director of Stanford University’s Criminal Law Center.
“The jury has to get inside the mind of officers,” he added. “There is simply deference to the officer’s experience and reasonable need for self-protection. Officers will say they felt threatened, that there was no other alternative, and seem to be honestly describing the situation. It’s very hard to disprove.”
That was apparently the case last week when Gascon announced there was insufficient evidence to charge five Inglewood police officers in the shooting deaths of Kisha Michael and Marquintan Sandlin, who were found unconscious inside a car in February 2016.
Michael had a gun in her lap and officers told investigators they opened fire when Sandlin awoke and reached for the weapon. All five officers were removed from the police force the following year.
The D.A.’s Justice System Integrity Division also found that there was insufficient evidence to prove beyond a reasonable doubt that Pasadena Officer Edwin Dumaguindin did not act in lawful self-defense when he fatally shot Anthony McClain after a 2020 traffic stop in the northwest part of the city. McClain, a passenger in the car, fled on foot after the stop and was pursued by Dumaguindin. The officer believed he was reaching for a weapon, and fired two shots at him.
Gascón, a former LAPD officer who also served as district attorney in San Francisco, said on Twitter that while did does not support the officers’ actions in the shootings, he’s obligated to follow the law.
“We do want to be clear,” he said in a tweet. “The burden of proof for prosecution is high. Our decision does not mean that what happened is right.” Gascon also acknowledged that the decision not to prosecute was “excruciating and that the families are understandably devastated.”
We do want to be clear: the burden of proof for prosecution is high. Our decision does not mean that what happened is right.” -District Attorney George Gascón #LACounty #LADAOffice (3/3)
— George Gascón (@LADAOffice) April 7, 2022
https://platform.twitter.com/widgets.js
‘More of the same’
Raúl Ibáñez, chairman of Pasadena’s Community Police Oversight Commission, called the D.A. findings in the McClain shooting “disappointing.”
Black Lives Matter Los Angeles member Michael Williams echoed those sentiments.
“I think the feeling is it’s just more of the same; things that we thought would change haven’t changed, and it’s basically Gascón telling us what we already knew,” he said. “Which is that the law is not on our side. It protects those who violate our rights, violate our autonomy, and take away our loved ones.
“We’re still hopeful that Gascón will reconsider and, instead of finding ways that he can’t — look into ways that he can bring charges against officers who murder people unjustly.”
State law emphasizes deescalation
In California, the standard for police use of deadly force changed when Gov. Gavin Newsom signed Assembly Bill 392, also known as the California Act to Save Lives, in 2019. It took effect on Jan. 1, 2020.
The law, which represented a compromise between civil rights groups and law enforcement, redefined the circumstances under which lethal force by a police officer is justifiable, stating that it should be used only “when necessary in defense of human life.” Previously, the standard was when it is “reasonable.”
The legislation also prohibits police from firing on fleeing felons who don’t pose an immediate danger, a change from the 150-year-old code that previously was followed in California. AB 392 also encourages officers to employ alternative, less lethal methods and deescalation tactics.
Deescalation isn’t a new concept and is practiced by most law enforcement agencies, said retired El Segundo Police Chief Mitch Tavera, who now works as a defense expert witness for officers sued for excessive use of force.
“Deescalation has been around a long time,” he said. “They (police officers) don’t want to kill people. That’s not their goal.”
Police rarely prosecuted
According to the Washington Post, police shot and killed at least 1,055 people nationwide last year, the highest total since the newspaper began tracking officer-involved shootings in 2015.
Police have fatally shot about 1,000 people over each of the last seven years, ranging from 958 in 2016 to 2021’s record number, the Post reported.
From 2005 to 2021, 139 officers nationwide were charged with on-duty murder or manslaughter, with 44 convicted, 43 found not guilty and 42 cases pending, according to Phillip Stinton, a criminal justice professor at Bowling Green State University who tracks police misconduct and prosecution.
Former DA weighs in
Steve Cooley said Friday that when he served as L.A. County district attorney from 2000 to 2012 his office convicted just a single Los Angeles police officer for assault with a deadly weapon for a fatal shooting. The officer was sentenced to a decade in prison.
Many police shootings investigated by the District Attorney’s Office were “heroic and justified,” while others were “awful but lawful,” he said.
“The tactics used and decisions made by the officers could have been avoided,” Cooley said of the police shootings that were questionable but did not meet the legal burden for criminal charges.
Cooley noted that while he was in office he established the district attorney’s Rollout Team, also known as DART, enabling prosecutors to rapidly respond to police shootings to serve as observers at crime scenes. Law enforcement agencies didn’t seem to mind the scrutiny, he added.
“At the time, police were being unfairly and wrongly criticized by the public, so they welcomed the on-scene analysis by prosecutors,” Cooley said.
Cooley believes most residents understand that there is a high legal bar that must be met to file charges against officers who kill, while a small, but vocal minority would like nothing more than to see all law enforcement agencies defunded or even abolished.
“Some have so much hate against law enforcement that even heroics (by officers) are condemned,” he said.
Cooley, who is leading efforts to recall Gascon, said it’s morally wrong for the county’s top prosecutor to make political hay out deadly use-of-force cases by offering hollow campaign promises about scrutinizing specific police shootings without first evaluating the facts.
“What we really need,” he said, “is an intellectual, honest prosecutor with integrity who will apply the true facts to the law.”
Staff Writer Brennon Dixson contributed to this report.
Source: Orange County Register
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