Skip to main content
Markkula Center for Applied Ethics

Role of Prosecutors in Officer involved Shootings

LaDorris Cordell, San Jose independent police auditor, and Jeff Rosen, Santa Clara County district attorney, speaks at a panel discussion on race and justice.

Jeff Rosen, Santa Clara County District Attorney, speaks at a panel discussion on race and justice, along with San Jose Independent Police Auditor LaDoris Cordell.

Jeff Rosen

Better questions echo in this vacuum. Why do prosecutors rubber-stamp the police killings of innocent people, often innocent people of color? Why do prosecutors cover up police murders to protect the cops? Why can't someone else investigate? Why do prosecutors hide the evidence, so the public can’t figure out how prosecutors are covering up for the police? What happens if prosecutors get it wrong?

In a society roaring with anger and distrust, these are good questions, even if couched in the skeptical language of protest. Regardless of their tone, they deserve answers. These are my answers:

Why do prosecutors rubber-stamp police killings? The myth that prosecutors never prosecute police for illegal killings probably derives from the fact that such crimes rarely happen. This is a good thing. There are more than 1 million law enforcement officers in the United States. Official numbers are hard to come by, but some estimate there are about 500 police killings every year. That is thankfully low, but, as Richmond Police Chief Chris Magnus powerfully illustrated by holding a protest sign, black lives matter and every life matters.

In 2005, my office, the Santa Clara County District Attorney's Office, charged a law enforcement officer with manslaughter for shooting an unarmed and fleeing man in the back. After trial, the officer was acquitted. Our prosecutor said at the time that law enforcement has to know that they don't have free rein, and I agree.

We all agree that officers cannot stand by and let violent people hurt others. The law in California hinges upon the concept of protection from violent people for both the officer and the public.

Why do police officers have more rights or slightly different rights of self-defense than you or I? Our courts recognize rightly that police officers are frequently faced with situations fraught with chaos and peril. “Is that a gun? Is that a knife?” By the time that question registers in an officer's mind, it may be far too late. The officers' lives are not the only ones protected by the wide discretion they are given. An armed felon looking to escape the police can and often does go onto hurt or even kill innocent civilians. test

But the discretion that police officers have does not alleviate the ultimate responsibility that officers have to make sure they do not shoot innocent people and to make sure they try to safely capture even highly dangerous perpetrators as a first option. Almost all officers are highly trained and constantly trained. Their success stories are plentiful and inspiring.

Sometimes, however, that training fails. There’s a misunderstanding that prosecutors are looking at police policy and tactics beyond what they imply about the legality of the killing. Do we ever look at the deaths and wonder as public safety professionals if mistakes were made? We do. Yet our job in the wake of these tragedies is to look solely and dispassionately at the facts and not at the tactical “what if’s” that circle around many officer-involved shootings.

Why can't someone else investigate? Why does it have to be the District Attorney's Office? As far as any conflicts of interest between prosecutors and police, I can tell you that our business relationships with the law enforcement agencies in this county are collaborative but not cozy, and I would say that's particularly true in this county. I actually just came earlier this morning from a meeting with the county police chiefs. We meet once a month, but we don't agree on everything.  For instance, I supported Proposition 47, which reclassified a number of nonviolent felonies as misdemeanors. The California Police Chiefs Association, the police chiefs in this county oppose that.

In terms of rank-and-file police officers in this county and their police unions, sometimes the police unions support the district attorney, support me politically, and sometimes they don't. And when they don't support me politically, they make their views very widely known about that.

It's true that the vast majority of criminal cases come from law enforcement, come from police officers. It’s true that we often work with law enforcement officers to flesh out cases. It’s true that a lot of the investigators from the District Attorney's Office‑we have about 85 investigators—are former police officers. But we also charge police officers relatively frequently for crimes that they commit—for instance, fraud and sexual assault. This year we charged an officer with rape that was committed while he was on duty. Last November, we charged an officer with exchanging sexually explicit photographs with a minor. We charged another officer for writing fake traffic tickets. I wouldn't hesitate to criminally charge and fully prosecute any officer that evidence showed killed a suspect outside at the law.

I think what's also important to understand is that the pressures on an elected official, like the district attorney, when it comes to making decisions to charge people with crimes, don't just exist around relationships with the Police Department. Recently in our county I charged and we convicted the president of the Board of Supervisors. Now the president the Board of Supervisors is one of five people in the county who determine the budget of the District Attorney's Office, so that was an awkward several months.  But that's why you elect a district attorney: to be independent and to withstand political pressures whether that’s from other elected officials or particularly wealthy individuals, etc.

I won't abdicate my responsibility under the constitution of our state to determine if a violent crime has been committed in this county by a police officer or anyone else. That’s why I became district attorney four years ago after prosecuting serious crimes like homicide, rape, and gang violence for 15 years as a deputy district attorney.

Nor will I abdicate my responsibility for making a direct decision about officer-involved shootings. That’s my responsibility, and after a thorough investigation I make that decision. During the four years that I’ve been district attorney there have been 15 officer-involved shootings that I have reviewed to determine whether the officer committed a crime or not. When I say “I determine,” it’s with input from other prosecutors in the office, but I don't want to suggest that it’s someone else making the decision. When it comes to officer-involved shootings, I make the decisions. I review all the information and evidence myself. And in those 15 cases, the officers did not commit a crime and we don't send those to a grand jury in our county.

We work differently here. Like any other criminal case, we make the decision whether to file charges or not. We do not use the grand jury as sort of a mock jury or to get opinions about the case. When we take a case to a grand jury, we're taking it there to get an indictment. And we use a grand jury in our county predominately for multi-defendant cases or public integrity investigations where we want to get people's testimony under oath. But when it comes to officer-involved shootings, we review those like the other 40,000 criminal cases a year.

In those cases where the officer did not commit a crime, I issue a very detailed public report because I think that, in a democracy, people are, of course, entitled to disagree with their elected officials. People disagree with me from time to time, and they let me know about their disagreement. And that’s that's how it should be in a democracy. But I think everyone is entitled to this information. And the same information that I reviewed in deciding whether or not to file charges against an officer in a fatal shooting situation is the information that I then release to the public. They’re very detailed reports. They’re 25 to 30 pages, and we post them on the website.

In addition to that, the day before that information is made public, if we decided not to file charges against the officer, I contact not only the police officer in the Police Department, but I also contact the decedent's family to give them an opportunity to have a copy of this report before it becomes public and to personally express my condolences, because whatever the situation, whatever the circumstance, it's a tragedy when someone is killed.

Jeff Rosen is the District Attorney of Santa Clara County, California.  He made these remarks at a panel held at Santa Clara University on Race, Justice, and Ethics in January 2015.

Oct 21, 2015
Government Ethics Stories