November 29, 2016
For the first time in the United States, the Pennsylvania District Attorneys Association has issued guidelines for best practices in police-involved shootings, including a recommendation that investigations of such incidents should be carried out by an independent agency.
Led by Chester County District Attorney Tom Hogan, the PDAA's Best Practices Committee spent several months developing 16 guidelines that deal with processing, investigating and communicating determinations made in officer-involved shootings.
“As we reviewed the responses to officer-involved shootings across the United States, we saw wide disparities in responses by prosecutors,” said Hogan. “Pennsylvania’s law enforcement agencies have the skills and ethics to do these investigations, but engaging an independent agency in the investigation removes any questions or negative perceptions that may come from the community. Having clear procedures based on best practices will not only improve investigations, but enhance community relationships.”
The new policy recommendations define an "officer-involved shooting" as "any discharge of a firearm by an on-duty law enforcement officer which results in death, any bodily injury to another person or where another person was the target of the firearm discharge," whether the target was struck or not.
Among the most significant recommendations — already followed in many Pennsylvania jurisdictions — is a formal call for investigations to be handled by an independent agency under the direction of the district attorney. Wherever a district attorney's office includes county detectives, they may be designated as the independent agency. In counties without these resources, departments are advised to call on state police or a separate municipal department to lead the investigation.
Another guideline calls for the district attorney to issue a preliminary report to the public following an initial investigation of an officer-involved shooting. Once the investigation is complete, a final report should be provided to the community.
“Officer-involved shootings are traumatic, complex, and highly publicized events,” said PDAA president and Lebanon County District Attorney David Arnold. “As prosecutors, it is our duty to ensure than any police-related shooting is thoroughly reviewed in a manner that is objective and fair for everyone involved. In making these recommendations, our goals are to help law enforcement use best practices to make good decisions, even under incredibly difficult circumstances, and help the public better understand and have greater confidence in the process.”
The handling of police shootings has emerged in recent years as one of the most contentious issues in American law enforcement and politics. High-profile cases in Ferguson, New York City, Cleveland, Baton Rouge and Charlotte have all centered on issues of racial justice that have since propelled a nationwide protest movement fronted by Black Lives Matter and affiliated activist groups.
Pennsylvania has seen a handful of controversial cases in recent years, most prominently the fatal shooting of 26-year-old Brandon Tate-Brown during a December 2014 traffic stop in the Mayfair section of Philadelphia. Both of the responding officers were cleared of any wrongdoing in the incident. Six months later, when evidence from surveillance video and interview transcripts was made public for the first time, the case remained closed despite a glaring contradiction and change in the department's story.
Other cases become complicated for different reasons.
"We really wanted to focus on this issue because if you look at some the national circumstances, we understood that this is an intense area." — Kevin Steele, Montgomery County District Attorney
Philadelphia police Officer Jesse Hartnett was ambushed by an armed suspect last January while sitting in his patrol car at a West Philadelphia traffic light. Miraculously, Hartnett survived three close-range gunshot wounds before exiting his vehicle, pursuing the suspect on foot and firing and hitting his attacker three times. The suspect, Edward Archer, initially claimed his attack was motivated by his allegiance to Islamic State. Later, the FBI determined that Archer most likely acted alone.
Terry Battle's son, Lawrence Allen, was paralyzed in a shooting by two off-duty Philadelphia police officers in 2008. Allen, who was not involved in the crime that prompted police action, died a year later at 20 years old. The Philadelphia D.A.'s office eventually reversed its decision not to charge the officers, who were fired in 2010 and convicted of reckless endangerment in Allen's death. (See video of her PDAA interview below.)
Elsewhere, Harrisburg erupted in protests last August after the fatal shooting of Earl Shaleek Pinckney, who was allegedly threatening relatives with a knife when police responded to the scene. Three months later, Dauphin County District Attorney Ed Marisco announced no charges would be filed against Harrisburg police Officer Tony Elliot. Marisco called the incident a "mental health tragedy," yet protesters insist Pinckney should have been subdued with nonlethal force.
The best practices issued by the PDAA do not address the use of force protocols established for law enforcement by Pennsylvania statute and U.S. Supreme Court precedent. They focus instead on the immediate aftermath of such shootings and were developed with the input of community groups, police organizations and prosecutors.
"We really wanted to focus on this issue because if you look at some the national circumstances, we understood that this is an intense area," Montgomery County District Attorney Kevin Steele told PhillyVoice. "It needs to be done right and independently. Our hope is to give a roadmap for other jurisdictions that may have to deal with these situations."
With 57 police departments in Montgomery County, Steele said there have inevitably been officer-involved shootings over the years. To highlight his office's investigative role, he described a relatively recent case in Abington in which an officer was shot during a response to a domestic disturbance call. Police returned fire and struck the victim multiple times taking him to the hospital, where he survived.
"At that point in time, our homicide and county detectives go out and do a thorough investigation of what has occurred," Steele said. "Detectives and police officers for Abington were interviewed by our detectives. Our forensic unit and homicide unit goes out, whether or not the person has died. It's important for us to be out there and involved right from the beginning."
Pennsylvania's leadership in establishing a set of best practices for officer-involved shootings comes at the same time Gov. Tom Wolf fends off criticism for vetoing a bill that would protect the identity of officers in these incidents.
John McNesby, president of Philadelphia's Fraternal Order of Police Lodge 5, called Wolf's veto an "act of abject political cowardice" that will expose officers to deadly assaults like the shooting in Dallas.
Wolf, whose decision overrode the Republican-backed legislature, rejected the measure as an "anti-transparency" bill whose premise jeopardizes the trust between citizens and government.
"I cannot allow local police department policies to be superseded and transparency to be criminalized," Wolf said. "Local departments are best equipped to decide what information is appropriate to release to the public.”
But under the new policy urged by the PDAA, parts of which were adopted earlier this month by Philadelphia District Attorney Seth Williams, the county would begin to assume a greater role in decisions about when and how to identify police officers involved in shootings.
“These new procedures strike an important balance between protecting our community, protecting police, and protecting the public," Williams said. “By having an open, transparent and accountable process of review whenever an officer uses their weapon, the people of Philadelphia can be assured that we remain accountable to the people we serve.”
Steele said the PDAA's review revealed there are a lot of different procedures currently employed by dapartments around the country. An important goal of these policies, he said, is to help with advancing the good will and assurance that has been provided to the public on this issue.
How far and fast these recommendations are adopted elsewhere in the United States will take some time to evaluate. For the moment, they appear to be a move toward the type of suggestion made by former Philadelphia Police Commissioner Charles Ramsey in the wake of September's police shootings in Charlotte and Tulsa.
"We need to focus on developing a national standard for how information such as police videos is released, and how prosecutors, politicians and law enforcement work together in a consistent and fair way," Ramsey wrote in an op-ed for The New York Times. "No one can be seen to be hiding information, or to try to cover up unflattering truth."