By Jordan C. Loeb
Cullen Weston Pines & Bach LLP
Jordan C. Loeb
An inquest is a popular tool utilized by a District Attorney when an officer is involved in a fatal shooting. Some DAs have a de facto policy that whenever family members of the individual killed asks for an inquest they will conduct one. This automatic response by the prosecutor puts the involved officers in a difficult position. This article will explain the competing interests at play in an inquest and some new legal developments.
A critical incident can unfold in many ways, but imagine this straightforward scenario. Officers are dispatched to a residence. Neighbors report that the occupant has been screaming and throwing things for over an hour and appears drunk. One neighbor reports that the occupant has brandished a 9 mm handgun in the past. Officers respond to the scene and observe the man pacing inside his garage. As the officers exit their vehicles, the man fires a shot and rushes them. Two officers return fire, striking him in the chest and leg. The coroner determines the shot to the chest is the cause of death.
The subsequent internal investigation is by the book. The officers’ weapons are collected at the scene and a debriefing begins. (Of course, the officers have contacted the WPPA and have legal representation throughout.) All officers are given Garrity protection and cooperate fully with the investigation. The investigation concludes that the officers had a privilege to use lethal force in this situation and their actions were justified.
The officers believe the case is closed but soon learn otherwise. A month goes by and the Chief announces that the District Attorney has called for an inquest into the death. The Chief explains that the DA has scheduled a meeting to speak with each of the officers involved and that each will receive a subpoena to testify at the inquest. The District Attorney has told the press that the family has asked for an inquest. The family has told reporters that they believe the shooting was not justified and the officers should be prosecuted. The officers now find themselves between competing interests.
The problem is that the law does not authorize the DA to call an inquest just to appease the family. In fact, in order for a DA to call an inquest he or she must have reason to believe from the circumstances surrounding the death that a crime has been committed. The statute lists a number of familiar crimes including felony murder, first degree intentional homicide, and reckless homicide, to name a few.i A DA is also authorized to call an inquest if the death may have been due to suicide or unexplained or suspicious circumstances. In short, before a DA calls an inquest they must believe that a crime was committed or the death was the result of unexplained or suspicious circumstances.
When a District Attorney uses an inquest for public relations or to appease the family, it puts police officers in a difficult position. They get caught between the politics of the District Attorney’s office, the politics of their department and their own legal rights. The scenario described above highlights the situation. The death of the person was not caused by unexplained or suspicious circumstances. The individual fired at police officers and charged them. There are no unexplained or suspicious circumstances. The only unknown is the individual’s motivation for firing at police officers. An inquest cannot answer that question.
If there are no unexplained or suspicious circumstances, the only other purpose authorized by the statute for calling an inquest is if the DA believes a crime was committed. One possible outcome of an inquest is a finding that the officers involved were not justified in the shooting and their actions constituted homicide. The inquest findings are not binding on the District Attorney. However, if the District Attorney convened the inquest for public relations purposes, they will be under significant pressure to act upon the findings and bring criminal charges against the officer. A predicament for officers involved in an inquest is whether to cooperate with the District Attorney or to protect their own legal rights. Nobody can be compelled to be a witness against himself or herself.
The usual scenario is that officers want to cooperate with the District Attorney. After all, the police officers are familiar with the local District Attorneys and have worked with them on other cases. Many have met with the District Attorney to prepare testimony on previous cases. On the surface, testifying at an inquest seems no different. However, an inquest can put the officer in jeopardy.
There are several steps an officer should take when facing an inquest. First and foremost, contact the WPPA for representation. The union representative, business agent and legal counsel will assist in sorting through the competing interests at play. At the very least, legal counsel will clarify what rights the officer has and can help identify potential ramifications for exercising the rights or choosing to waive them.
Thanks to the WPPA, the Legislature and the Governor appear to appreciate the gravity of when a law enforcement officer is the target of an inquest. On December 21, 2005, Act 73 was signed into law which requires employers to reimburse law enforcement officers and public safety employees for reasonable attorneys’ fees when they are exonerated after an inquest into their on-duty conduct. Passage of this law makes two important statements. First, it recognizes the need for legal counsel and the associated expense. Second, it may cause a public employer to re-evaluate whether they believe an inquest is justified.
When a District Attorney calls an inquest into an officer’s on-duty conduct, it is important for that officer to know his or her rights. Contact your co-workers, your WPPA business agent and the WPPA office in Madison with any questions.
i 979.04(1) Inquests: when called: (1) If the district attorney has notice of the death of any person and there is reason to believe from the circumstances surrounding the death that felony murder, first-degree or 2nd-degree intentional homicide, first-degree or 2nd-degree reckless homicide, homicide by negligent handling of dangerous weapon, explosives or fire, homicide by negligent operation of vehicle, homicide resulting from negligent control of a vicious animal or homicide by intoxicated user of a vehicle or firearm may have been committed, or that death may have been due to suicide or unexplained or suspicious circumstances, the district attorney may order that an inquest be conducted for the purpose of inquiring how the person died. The district attorney shall appear in any such inquest representing the state in presenting all evidence which may be relevant or material to the inquiry of the inquest. The inquest may be held in any county in this state in which venue would lie for the trial of any offense charged as the result of or involving the death. An inquest may only be ordered by the district attorney under this subsection or by the circuit judge under sub. (2).