What are the 'best practices' for investigating an officer-involved shooting?

CEDAR RAPIDS — What happens after the gun goes off?

With the heightened awareness of officer-involved shootings around the country, the debates surrounding police departments' policies on use of force only have increased as more incidents grab headlines. But law enforcement and other legal experts around the nation also have been looking at the follow-up.

What role should the local police department play in the investigations? What should the public be told? Should a grand jury be convened in every case?

Criminal justice experts attributed the heightened awareness of these incidents to the so-called Ferguson Effect, the idea that there is an increased — some would say undue and unfair — scrutiny and vilifying of police across the country that was sparked by the fatal police shooting of Michael Brown, an unarmed black teen, in Ferguson, Mo.

Subsequent investigations after officer-involved shootings have been studied by researchers across the country, each with differing thoughts on what the best practice should be.

INVESTIGATORS

The Stanford Criminal Justice Center, connected with the Stanford Law School, published a study in October assessing criminal investigations of officer-involved shootings in California's San Joaquin County.

The study says that allowing the agency employing the officer involved in the incident to also lead the investigation can cause distrust among some members of the public, and that these investigations 'cannot meet its goals of independence and accountability.'

The study pointed to policy in place in the state of Wisconsin as an ideal model for avoiding this conflict. Statute section 175.47 requires at least two independent investigators from an unassociated law enforcement agency to led the case.

'I think there are a lot of things affecting the accountability of law enforcement in this country right now,' said Jason Smith, deputy administrator with the Wisconsin Department of Justice Division of Criminal Investigation. 'Body cameras, squad cameras, recorded interviews, changes in the state and federal laws have impacted the way business is done in law enforcement, Like anything else, it continues to evolve.

'There are higher levels of accountability around public service, and this is just another measure of it.'

The Cedar Rapids Police Department in the past has called in the Iowa Division of Criminal Investigation (DCI) to conduct the investigation on officer-involved shootings, said Greg Buelow, CRPD public safety communications coordinator.

DCI was brought in for the shooting of Jerime Mitchell by Cedar Rapids police officer Lucas Jones that occurred in Cedar Rapids on Nov. 1, 2016. A grand jury called in to preside over the case cleared Jones of all charges, though he remains on paid administrative leave as of this past week.

According to Iowa Code, DCI only can work at the request of another law enforcement agency that has jurisdiction, explained DCI Assistant Director Mitch Mortvedt.

'There is no state statute in Iowa that requires any law enforcement agency to contact us if they have an officer-involved shooting,' Mortvedt said. 'That being said, about 99.9 percent of every agency in the state of Iowa calls us if they have an officer-involved shooting.'

In 2016, DCI assisted in a total of 16 investigations across the state, he said. So far this year, investigators have been called to five scenes, the most recent of which was the May 1 death of Pottawattamie County Sheriff's Deputy Mark Burbridge.

PROSECUTORS

After all the evidence and facts have been gathered, Mortvedt said DCI investigators then turn over the findings to the county attorney.

The county attorney then has three choices when determining if charges should be brought to the officer:

1 Make a ruling

2 Call in a grand jury

3 Call in the assistance of the state Attorney General's Office to review the case.

It's common for county attorneys to take on an officer-involved shooting case, even outside Iowa. The Denver District Attorney — a state agency that also works in a federal capacity — handles the cases in which a peace officer wounds or kills an individual.

'It is not unusual for the District Attorney to personally respond and participate in the investigation,' according to the protocol on the Denver office's website.

'I think having the employing agency investigate the case and then the decision made by the local district attorney's office — the way most of these cases are handled in the United States — gives too little attention to the serious concerns about independence that kind of system produces."

- David Sklansky

Faculty co-director, Stanford Criminal Justice Center in California

In the 26 years John Sarcone has been Polk county attorney, he said he always has called a grand jury when an officer-involved shooting results in a fatality. In a grand jury case, his office presents the evidence — but the ultimate verdict is left to the jurors.

'I think it's important to have this independent review by citizens, and the grand jury process is a very, very fair process,' Sarcone said.

The Stanford study says that the county attorney's involvement in the investigation is 'suboptimal' as it has potential for conflicts of interest that could undermine the public's trust in the eventual verdict.

'I think having the employing agency investigate the case and then the decision made by the local district attorney's office — the way most of these cases are handled in the United States — gives too little attention to the serious concerns about independence that kind of system produces,' said David Sklansky, faculty co-director at the Stanford Criminal Justice Center in California.

But Polk County's Sarcone disagrees with the Stanford study, saying judicial officials don't throw integrity out the window while working these cases.

'There's no right or wrong way to do this,' Sarcone said. 'County attorneys are elected, they can decide to make that decision on their own and that's perfectly fine. Or they can use the grand jury process.'

In November, in the height of the tension surrounding the Mitchell case in Cedar Rapids, Linn County Supervisor Stacey Walker called for the Linn County attorney to step aside for a special prosecutor in the grand jury that was to be called the following month 'in the interest of impartiality, of transparency and the spirit of justice.'

Linn County Attorney Jerry Vander Sanden did not call in a special prosecutor, but presented evidence to the jurors.

Vander Sanden said county attorneys in Iowa don't have the authority to call for the assistance of outside prosecutors, unless there is a legal conflict of interest. Moreover, an outside prosecutor may not necessarily answer to members of the community following the verdict, he said.

'I think (these cases) are best done at the local level by elected officials who are held to account by the people they serve,' he said.

COMMUNITY TRANSPARENCY

What experts agree on above all else is transparency with the community helps create a perception of justice among the public.

A document released by the Office of Community Oriented Policing Services, within the U.S. Department of Justice, offers a series of suggested protocols for informing the community that includes swift updates to the media as well as a public meeting when all facts are known.

In the previous five officer-involved shooting incidents over which he has presided, Vander Sanden said he has made a point to release facts of the case at its conclusion.

In Wisconsin, if the prosecutor renders a no charge decision on the involved officer, law mandates a report that details the investigation findings 'be made available to the public for inspection,' said Special Investigations Bureau Director Tina Virgil in the Wisconsin Department of Justice Division of Criminal Investigation.

'I think the public feels better informed about the enforcement efforts by reading the reports and reading what has happened and taken place,' Virgil said.

Smith said it comes down to procedural justice — people feel better about being governed when they understand the process.

'IN THE EYE OF THE BEHOLDER'

Many experts and law enforcement officials agree the best policy for a particular office depends on the individual agency and based on a variety of factors. While police protocols evolve continuously, Vander Sanden said there are still limitations.

'Talking about best practices in officer-involved shootings is always easy in theory, but difficult in practice because the law limits your choices and the resources are limited as well,' Vander Sanden said.

Added Sklansky at the Stanford Criminal Justice Center, 'I would say that there is no established set of best practices for investigating officer involved shootings ...

. I think jurisdictions around the country are continuing to experiment with different approaches to see what works.'

OFFICER-INVOLVED SHOOTINGS IN CEDAR RAPIDS SINCE 2013

There have been five officer-involved shootings in Cedar Rapids over the past four years, according to reporting by The Gazette.

Jerime Mitchell, 37, was shot in the early morning hours of Nov. 1, 2016. Authorities said Mitchell got into a physical altercation with Cedar Rapids police officer Lucas Jones, who shot Mitchell in the neck, paralyzing him.

Markell L. Bivins, 25, died from injuries suffered in an officer-involved shooting on Sept. 12, 2016. Authorities said Bivins attacked an ex-girlfriend with a knife and refused officers' orders to stop.

Jonathan T. Gossman, 21, was fatally shot by police on Oct. 20, 2015, after authorities said Gossman was running from police and pointed a gun at them. Officers — including Jones, who shot Mitchell a little more than a year later — returned fire, killing him.

Kyle Orth, 28, was shot and injured by police on March 29, 2015. Orth, who was intoxicated at the time, failed to pull his vehicle over for police during a high-speed chase, hit a utility pole in an alley and then accelerated toward two police officers. Officers fired at Orth, striking him in the shoulder, biceps and knee.

Matthew T. Johnson, then 17, was shot by an officer on Sept. 21, 2013. According to authorities, Johnson forced his way into Advance Auto Parts in northeast Cedar Rapids with the intent to commit a burglary or theft, and was shot by a responding officer.

All incidents but one were investigated by the DCI and determined to be justifiable uses of force. The Bivins case, which was ruled justified, was ruled on by the Iowa Attorney General's Office due to a conflict of interest within the Linn County Attorney's Office.

DCI-INVOLVED INVESTIGATIONS OF OFFICER-INVOLVED SHOOTINGS

Although there is no state law mandating the practice, a law enforcement agency can call in the Iowa Division of Criminal Investigation in the event of an officer-involved shooting incident to assist with the investigation.

Iowa DCI Assistant Director Mitch Mortvedt said his office often is called to help in these incidents, even if the bullet never hit the suspect or the officer. This has been the case for at least the past 20 years, he said.

Here are the number of officer-involved shooting investigations DCI has been involved in across the state since 2010:

2010 — 7

2011 — 11

2012 — 7

2013 — 11

2014 — 15

2015 — 12

2016 — 16

2017 — 5 (Total as of the May 1 death of Pottawattamie County Deputy Sheriff Mark Burbridge in Council Bluffs)

l Comments: (319) 368-8536; michaela.ramm@thegazette.com