Note: The following Op-Ed appeared on page A-11 of the February 5, 2011 edition of the Salt Lake Tribune.
Prosecutors don’t just rubber-stamp police decisions
By Ken K. Gourdin
I recently wrote in defense of law enforcement officers’ use of deadly force. In doing so, I explained proper police procedure and critiqued the alternatives offered in on-line comments to Tribune coverage of the recent shooting of the armed suspect outside the Oquirrh Mountain LDS temple (“Officers sometimes forced to shoot armed suspects,” Tribune, January 1, 2011 A11).
The Salt Lake County District Attorney’s office recently determined that deadly force was justified in the Oquirrh Mountain temple incident. Another criticism that sometimes surfaces in response to coverage of such incidents is that prosecutors merely “rubber stamp” law enforcement’s decisions to fire on armed suspects.
The relationship between law enforcement and prosecutors is not as close as critics claim. Many officers I know wish they had such a cozy relationship with prosecutors, as the officers scratch their heads in puzzlement when prosecutors refuse to prosecute on seeming technicalities after officers’ “good arrests.”
Municipal attorneys defend municipalities and officers against suits arising from law enforcement actions which are justified. In rare cases, they also prosecute law enforcement actions which are unjustified. They could not do the latter effectively if their first instinct were merely to “rubber stamp” law enforcement decisions.
While it is difficult for law enforcement officers to lose the camaraderie of fellow officers who are prosecuted for wrongdoing, good officers know that looking the other way when such acts occur only undermines public trust, both in law enforcement and in the legal system. Officers are sworn to uphold the law, and prosecutors are sworn to go where the evidence takes them.
Contrary to the persistent, prevalent public perception, the reason that prosecutors so often find officers’ use of firearms (and other actions) justified is not just because prosecutors merely “rubber stamp” law enforcement decisions; rather, it’s because officers almost invariably know the law and follow it, even when faced with the prospect of making split-second life-or-death decisions.
What do prosecutors look for when determining whether officers’ use of deadly force is justified? The Fourth Amendment to the U.S. Constitution says that seizures of people must be reasonable. The 1985 U.S. Supreme Court case Tennessee v. Garner is a landmark case which governs when officers are allowed to use deadly force. The court in Garner affirmed that use of deadly force to apprehend suspects is a seizure which must be reasonable.
The court ruled that officers are justified in using deadly force if it is necessary to prevent an escape and officers have probable cause to believe a suspect poses a significant threat of death or serious bodily injury to officers or to others. Utah law has codified the Garner decision’s rule. Utah Code 76-2-404(1)(c) states that an officer is justified in using deadly force if it “is necessary to prevent death or serious bodily injury to the officer or to another person.”
We should demand that officers follow the laws applicable to them as they enforce the laws applicable to everyone. In the vast majority of cases when prosecutors go where the evidence takes them as they review officers’ actions, they find that officers have done exactly that. Most all prosecutors and officers deserve our highest respect rather than endless criticism and unfair, ill-informed judgment.
Ken K. Gourdin received a degree in Criminal Justice with a law enforcement emphasis from Weber State University in 1995, and was recently certified as a paralegal by the National Association of Legal Assistants. He lives in Tooele. This commentary does not constitute legal advice; anyone needing such advice should contact a licensed attorney.