Grand Jury Discharged and Sb 227 Upheld In Ois Case

JUDITH A. ODBERT
Senior Associate
Mastagni Holstedt, APC

In a degree of scrutiny unparalleled in our nation’s history, the second-guessing of officers’ split-second decisions over self-preservation has expanded from fringe groups to some district attorneys. Prosecuting an officer has become a political feather in the cap to some. Judith A. Odbert, Joshua A. Olander and Tashayla D. Billington of Mastagni Holstedt, APC, have been fighting tirelessly against a district attorney to uphold the law for a Northern California police officer following an officer-involved shooting.

In June 2015, during the early morning hours, officers were dispatched to a domestic violence call in a well-known narcotics and high-crime area. During the contact, officers became aware that the suspect was attempting to flee through a window leading to a back alley. After responding to the dark alleyway, the officer saw the suspect exiting a window. The suspect refused to comply with the officer’s commands. The officer knew the suspect from previous arrests for narcotics and firearms, and believed he might be armed again. The suspect stared menacingly at the officer before raising his hand in a pistol-grip manner. The officer believed the suspect did have a firearm and was moving to use it against the officer. Fearing for his life, the officer discharged his weapon once, striking the suspect, who later died from the shot. Upon further investigation, it was determined that the suspect was actually unarmed.

PORAC LDF authorized Mastagni Holstedt to retain a force expert to evaluate the officer’s actions that morning. After reviewing the entire investigation, including information provided by the District Attorney’s Office, the expert issued an opinion finding without reservation that the shooting was justified. The written opinion was provided to the DA. The officer also provided a voluntary statement explaining the justification for his use of force.

By all accounts, including the opinions of the experts, the officer’s actions were justified under the circumstances. Nevertheless, the DA requested that the officer voluntarily submit to a videotaped re-enactment of the shooting. Of course, at this point, the officer declined. The assistant district attorney then notified Odbert that their office intended to present this case to a grand jury for an indictment after January 1, 2016. Although the DA’s motives in this case are not fully known, sometimes prosecutors prefer to submit a case to the grand jury in order to avoid a preliminary hearing.

A new law, known as Senate Bill 227, was approved to amend Penal Code sections 917(b) and 919 (c), effective January 1, 2016. The bill was designed to preclude district attorneys from presenting officer-involved shootings that resulted in a fatality to a grand jury. It was intended to address perceptions by members of the public that grand juries are lacking in transparency because they are confidential. Legislators felt that preliminary hearings, which are generally public and thus more transparent, should be used in such cases. 

The DA acknowledged that his intended action of presenting the subject officer-involved shooting to a grand jury would be in violation of SB 227, and would exceed the jurisdiction of the grand jury. Nevertheless, the District Attorney’s Office issued subpoenas for several officers, including the chief of police and the officer who discharged his firearm, to appear before the grand jury. The DA specifically convened the grand jury in knowing violation of the law, with a stated intention of challenging the constitutionality of SB 227.

With LDF support, Mastagni Holstedt filed motions to discharge the grand jury and enforce SB 227 by seeking an order of the court that the grand jury could not lawfully hear this matter. Ironically, the DA argued that SB 227 should not be enforced, in part because the amendment was not intended to “advantage” officers involved in a shooting. The presiding judge held in favor of the officer and discharged the grand jury, quashing all subpoenas associated with the case. The judge noted that the officer presented an overwhelming case for the constitutionality of SB 227.

As the grand jury operates in secrecy, motions to discharge a grand jury are extremely rare. This case also presented the court with an issue of first impression — i.e., the constitutionality of SB 227. Stay tuned, as the DA has vowed to appeal the judge’s decision to the Third District Court of Appeals.

About the Author

Judith A. Odbert, senior associate in the Labor Department of Mastagni Holstedt, APC, manages the criminal defense division of the firm and as a LDF panel attorney represents labor associations and their members in disciplinary matters, grievances and criminal proceedings. She was previously the supervising assistant public defender for the Sacramento County Public Defender’s Office.