The State’s Attorney’s Office’s review of officer-involved shooting cases where a death has occurred is the subject of intense public interest. In the past, the manner that the State’s Attorney’s Office reviewed these cases, as well as the evidentiary and legal issues that impacted these cases was not made widely known to the public. In advancing our commitment to create safer, stronger communities by approaching each case with integrity and accountability, we are sharing the way we review officer-involved shooting cases where a death has occurred and the legal analysis undertaken in determining whether the filing of criminal charges is appropriate in a particular case.
ROLES OF INVESTIGATORS AND PROSECUTORS
As with any other criminal case, it is the primary responsibility of the investigating agency to collect all available evidence of a potential crime so that a determination of the facts can be made. Once the evidence is collected, it is submitted to the prosecutor who reviews the evidence to determine which facts may be proved beyond a reasonable doubt. The prosecutor then reviews the applicable laws, including laws which may make some evidence inadmissible at trial, to determine if the admissible evidence will establish all of the elements of a criminal offense beyond a reasonable doubt. As will be discussed below, this analysis includes a determination of whether the evidence also refutes beyond a reasonable doubt any available affirmative defense which is likely to be raised by the involved officer.
Beginning January 1, 2016, whenever an officer-involved death occurs in Illinois, the distinct roles of investigators and prosecutors are governed by statute. Pursuant to the Police and Community Relations Improvement Act “PCRIA” (50 ILCS 727), the investigation of any officer-involved death must be conducted by a team of investigators, at least one of whom is certified by the Illinois Law Enforcement Training Standards Board as a Lead Homicide Investigator, who are independent of the law enforcement agency that employs the officer(s) involved in the officer-involved death. The Police Community Relations Improvement Act states (PCRIA):
(b) Each officer-involved death investigation shall be conducted by at least 2 investigators, or an entity or agency comprised of at least 2 investigators, one of whom is the lead investigator. The lead investigator shall be a person certified by the Illinois Law Enforcement Training Standards Board as a Lead Homicide Investigator, or similar training approved by the Illinois Law Enforcement Training Standards Board or the Department of State Police, or similar training provided at an Illinois Law Enforcement Training Standards Board certified school. No investigator involved in the investigation may be employed by the law enforcement agency that employs the officer-involved in the officer-involved death, unless the investigator is employed by the Department of State Police and is not assigned to the same division or unit as the officer-involved in the death.
50 ILCS 727/1-10(b). Although PCRIA did not take effect until January 1, 2016, for many years prior to its existence, it was the practice to utilize independent agencies to investigate the officer's conduct in officer-involved deaths. In Chicago, the Civilian Office of Police Accountability “COPA” investigates allegations of excessive force by Chicago Police Officers, whether or not a death occurred. The Chicago Police Department investigates any criminal actions not involving the officer.
Outside of Chicago, each municipality is responsible for deciding which outside agency investigates officer-involved shootings, whether or not death occurred. Primarily, these are investigated by the Illinois State Police Public Integrity Task Force which is comprised of investigators from the Illinois State Police, Cook County Sheriff’s Police, and the Cook County State’s Attorney’s Office. The Federal Bureau of Investigation (“FBI”) has also been involved and provided investigatory assistance in the investigation of some police involved shootings.
In addition to mandating independence for the investigative team, PCRIA recognizes and codifies the distinct and separate roles of the team of investigators and the prosecutors. Specifically, the Act provides:
(d) The investigators conducting the investigation shall, in an expeditious manner, provide a complete report to the State's Attorney of the county in which the officer-involved death occurred.
As with other criminal investigations, the prosecutor assists the investigating team by procuring legal process like search warrants, subpoenas and other court orders, interviewing witnesses and providing legal advice. However, pursuant to the Act, the primary responsibility for conducting the investigation lies with the independent investigative team.
While not exhaustive of the steps that a particular investigation may entail, prior to completion of the investigation, the investigative agency should:
- Canvass the area surrounding the scene for any and all witnesses, interview the witnesses individually, and either record or document the witness statements including a refusal of the witness to cooperate;
- Photograph and collect all relevant physical evidence and make a diagram of the scene with measurements;
- Collect all available audio and video recordings from body cameras, police vehicles, pod cameras, security cameras, red light cameras etc.;
- If warranted, send any video to the Regional Computer Forensic Laboratory for processing in order to obtain the highest quality picture or audio;
- Obtain recordings of all related 911 phone calls and police and fire department radio traffic;
- Where appropriate, submit the physical evidence to the Illinois State Police Forensics Center for forensic testing. If appropriate conduct a “Major Case Evidence Review” with the Illinois State Police Forensics Center to determine the course of scientific testing;
- Obtain a complete copy of the Medical Examiner’s protocol and request any applicable specialized testing, including toxicology tests;
- Compile a complete list of all police and fire department personnel on scene as well as their units of assignment and assigned vehicles;
- Obtain any police reports generated by the police agency employing the involved officer and any assisting police departments;
- Obtain medical records of the victim and/or involved officer related to the incident;
- Obtain copies of all relevant court filings if a civil complaint has been filed including depositions of witnesses;
- Obtain criminal histories of all witnesses including the victim;
- Obtain disciplinary histories of all police officers involved, including prior complaints of excessive force and use of deadly force;
- When possible, sync the available video and audio recordings to provide better context to each recording;
- Trace all recovered guns through NIBIS, LEADS and ATF;
- Obtain the Use of Force model for the agency that employs the officer, including the training materials for Use of Force.
During the course of its investigation, the investigating agency or the agency employing the involved officer may interview the officer(s) involved in the matter. As with all citizens, the officer has a constitutional right against being compelled to incriminate himself. However, as a condition of employment, the officer may be terminated from employment if he refuses to answer questions. In Garrity v. New Jersey 385 U.S. 493 (1967) and its progeny, the United States Supreme Court ruled that statements made under these conditions, and any evidence derived as a result of these statements, may not be used in a criminal trial of the officer. For this reason, the investigators assigned to the criminal investigation must not be informed of the contents of any such compelled statement.
The Law Enforcement Accountability Division (LEAD) of the Cook County State’s Attorney’s Office is a unit of veteran prosecutors who review officer-involved deaths occurring in Cook County as well as other officer-involved shootings. The unit determines whether the filing of criminal charges is appropriate. The unit does not determine the existence of administrative or department policy violations or civil liability. The LEAD reports directly to the Chief Ethics Officer of the Cook County State’s Attorney’s Office.
At least one Assistant State’s Attorney (ASA) from the LEAD is available on call 24 hours a day, 365 days a year to respond to officer-involved death cases. By agreement with the investigative agencies, when an agency is notified of an officer-involved death, the agency notifies the ASA on call from the LEAD. When the LEAD ASA receives a notification of an officer-involved death, the ASA coordinates their response with the Cook County State’s Attorney’s Office’s Felony Review Unit. An ASA may go to the police station or other location to assist in the interviews of witnesses and officers. Approximately 72 hours after the officer-involved death, an ASA from the LEAD will meet with the investigative agencies to discuss the status of the investigation, evidence testing, and further investigative steps to be taken. Beginning with the initial notification and continuing throughout the entire investigation, ASAs from the LEAD are available to assist the investigating agency obtain any legal process that is appropriate (i.e. search warrants, arrest warrants, grand jury subpoenas), to interview witnesses and to provide legal advice to the investigators.
Initially, upon receipt of materials from the investigative agency, if the materials contain any references to statements taken pursuant to Garrity v. New Jersey, an ASA not assigned to the case will review the file to identify and isolate those materials. If any such references are in the file, they will be redacted and sealed before the material is turned over to the ASA assigned to review the investigation. Although this process is time consuming, it is necessary to protect the integrity of the prosecution against a motion to suppress evidence which the officer may file.
Upon receiving the complete investigative file, the ASA assigned to the case will ensure that all of the appropriate investigative steps have been completed by the investigating agency, and may recommend additional investigative steps. Possible examples of additional steps may include obtaining the opinion of an independent expert on a police officer’s use of force; conducting follow-up interviews of witnesses; or subpoenaing a witness who has refused to be interviewed to testify before a grand jury.
With these principles in mind, the ASA will review all of the available, admissible evidence to determine whether the officer was legally justified in the use of force. If the ASA believes that the admissible evidence is sufficient to prove beyond a reasonable doubt that the officer’s use of force was not reasonable, then the appropriate charges will be filed. On the other hand, no criminal charges will be filed if the evidence is not sufficient to prove beyond a reasonable doubt that the officer did not reasonably believe that the type and amount of force used was justified under the circumstances presented to him.
Every case is then reviewed by multiple supervisors to determine whether charges against an involved officer would be appropriate.
Cook County State’s Attorney Kimberly M. Foxx recognized the necessity that charging decisions arising out of these cases needed to be viewed as credible and legitimate by the parties involved and the public. Thus, the State’s Attorney advocated for legislation to provide for an independent review of these determinations for all fatal police involved shootings.
State’s Attorney Foxx’s initiative provided for an independent agency, the Illinois State’s Attorneys Appellate Prosecutor “ILSAAP,” to review the investigation and make its own determination of whether charges are appropriate. This legislation provided a second layer of review when decisions are made that charges are not warranted.
In the event that the ILSAAP reaches a different conclusion than the CCSAO in a fatal police involved shooting, the CCSAO would recuse itself from the prosecution of any criminal charges in the case.
PROSECUTORIAL STANDARD FOR FILING CRIMINAL CHARGES
In making a charging decision, the ASA makes a determination of whether there is sufficient admissible evidence to prove each element of an offense beyond a reasonable doubt. This analysis is consistent with the American Bar Association Criminal Justice Standard 3-4.3 which provides:
“(a) A prosecutor should seek or file criminal charges only if the prosecutor reasonably believes that the charges are supported by probable cause, that admissible evidence will be sufficient to support conviction beyond a reasonable doubt, and that the decision to charge is in the interests of justice.”
This is the same standard that the Cook County State’s Attorney’s Office applies to all criminal prosecutions. As discussed below, this analysis also requires the ASA to evaluate whether there is sufficient evidence to overcome any affirmative defense that the accused is likely to raise.
In most cases involving an officer’s use of force, whether lethal or not, the primary question to be decided is whether the officer was justified in the use of the force employed. As with any citizen, an officer may use force in defense of himself or another from bodily harm. The Illinois Use of Force in Defense of Person statute provides in relevant part:
(a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.
720 ILCS 5/7-1 (a). The elements justifying the use of force in defense of person are that (1) force is threatened against a person; (2) that the person threatened is not the aggressor; (3) that the danger of harm is imminent; (4) that the force threatened is unlawful; (5) that the person threatened must actually believe that a danger exists; (6) that the use of force is necessary to avert the danger; (7) that the kind and amount of force which he uses is necessary; and (8) that such beliefs are reasonable. People v. Everette, 141 Ill. 2d 147, 152 Ill. Dec. 377, 565 N.E.2d 1295 (1990); People v. Belpedio, 212 Ill. App. 3d 155, 155 Ill. Dec. 761, 569 N.E.2d 1372 (2 Dist. 1991); People v. Swanson, 211 Ill. App. 3d 510, 156 Ill. Dec. 27, 570 N.E.2d 503 (1 Dist. 1991).
If some evidence of each necessary element of self-defense is introduced at trial, the burden shifts to the prosecution to prove beyond a reasonable doubt that the defendant did not act in self-defense. This is true even if the evidence is introduced during the prosecution’s case in chief. If the prosecution negates any one of the elements beyond a reasonable doubt, it has met its burden and the defense must be rejected. People v. Murillo, 225 Ill. App. 3d 286, 167 Ill. Dec. 584, 587 N.E.2d 1199 (1 Dist.), cert. denied, 145 Ill. 2d 641, 173 Ill. Dec. 10, 596 N.E.2d 634 (1992).
In the context of defense of person, Illinois law is well-established that “[j]ustifiable use of force is a defense in a murder prosecution when the person’s belief is reasonable even if it is mistaken.” People v. Lockett, 82 Ill. 2d 546, 550 (1980). “Consequently, the law does not charge a person, when he has reasonable grounds to believe himself in apparent danger of losing his life or suffering great bodily injury, to use inerrable judgment. It would be unreasonable to require such an exacting decision to be made in the space of a few seconds while one is fearful and under great stress.” People v. White, 87 Ill. App. 3d 321, 323 (1st Dist. 1980) (citing People v. Motuzas, 352 Ill. 340, 346 (1933)). See also People v. Keefe, 209 Ill. App. 3d 744, 751 (1st Dist. 1991) (“The privilege of using deadly force to protect oneself from another, if one reasonably believes he is in imminent danger of death or great bodily harm, exists even where one is mistaken or the danger is only apparent.”).
Accordingly, “it is the [person]’s perception of the danger, and not the actual danger, which is dispositive” (People v. Sawyer, 115 Ill. 2d 184, 193 (1986) (citing People v. Johnson, 2 Ill. 2d 165, 171 (1954)), and the“test is what the defendant, as a reasonable man, believed under the circumstances.” People v. Willis, 217 Ill. App. 3d 909, 922 (1st Dist. 1991); see also People v. Rodriguez, 187 Ill. App. 3d 484, 489 (1st Dist. 1989).
In addition to defense of person, a determination must also be made as to whether the officer’s actions were justified under 720 ILCS 5/7-5. That statute provides in pertinent part:
“A peace officer, or any person whom he has summoned or directed to assist him, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force which he reasonably believes to be necessary to affect the arrest and of any force which he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest. However, he is justified in using force likely to cause death or great bodily harm only when he reasonably believes that such force is necessary to prevent death or great bodily harm to himself or such other person, or when he reasonably believes both that: (1) Such force is necessary to prevent the arrest from being defeated by resistance or escape; and (2)The person to be arrested has committed or attempted a forcible felony which involves the infliction or threatened infliction of great bodily harm or is attempting to escape by use of a deadly weapon, or otherwise indicates that he will endanger human life or inflict great bodily harm unless arrested without delay.”
720 ILCS 5/7-5 (a). See also, Tennessee v. Garner, 471 U.S. 1, 11, 85 S.Ct. 1694, 1701 (1985) (“[I]f the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”); Scott v. Harris, 550 U.S. 372, 382 n.9, 127 S.Ct. 1769, 1777 n.9 (2007) (noting that “Garner hypothesized that deadly force may be used if ‘necessary to prevent escape’ when the suspect is known to have ‘committed a crime involving the infliction or threatened infliction of serious physical harm,’ so that his mere being at large poses an inherent danger to society.”)
Moreover, “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 396-7, 109 S.Ct. 1865, 1872 (1989). In evaluating whether an officer’s actions were reasonable, the Supreme Court has stated courts must pay “careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396.
If an officer is justified in using deadly force, the amount and manner of such force that is justified is dependent upon the circumstances presented. The Supreme Court has stated “it stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2022 (2014). Further, if deadly force is justified under the circumstances, officers are also justified in shooting a suspect as he attempts to flee the scene. See e.g. Ford v. Childers, 855 F. 2d 1271 (7th Cir. 1988)(Officer justified in shooting an armed bank robber in back as robber attempted to flee and refused warnings to halt.)
PUBLIC RELEASE OF INFORMATION
The public has a strong interest in learning the facts surrounding an officer-involved death. As with any investigation that may lead to a criminal prosecution, the Illinois Rules of Professional Conduct and the Illinois Code of Criminal Procedure place restrictions on the information that the Cook County State’s Attorney’s Office may release to the public. Illinois Rule of Professional Conduct 3.6 (a) prohibits an attorney from making “an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an adjudicative proceeding in the matter.” Further, Illinois Rule of Professional Conduct 3.8 (f)applies specifically to prosecutors and provides:
The prosecutor in a criminal case shall,
. . .
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that pose a serious and imminent threat of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
These rules are designed to protect an accused person’s constitutional right to a fair trial. Rule 3.6 (b) explicitly sets forth certain types of subjects which create a “serious and imminent threat to the fairness” of an adjudicative proceeding in the matter. These subjects include:
(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;
(2) in a criminal case, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person’s failure to make a statement;
(3) the performance or results of any examination or test or the failure of a person to submit to an examination or test, or the nature of physical evidence expected to be presented;
(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case;
(5) information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial; or
(6) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent unless proven guilty.
In addition to the Rules of Professional Conduct, there may be other factors which restrict or prohibit the release of information to the public. The Illinois Code of Criminal Procedure mandates the secrecy of grand jury proceedings (725 ILCS 5/112-6). As a result, evidence, witnesses and testimony before the grand jury cannot be publicly disclosed, and disclosure of matters occurring before the Grand Jury would subject the State’s Attorney of Cook County or any of her Assistants to being held in contempt of court.
When this Office conducts joint investigations with the Federal Bureau of Investigations and/or the United States Attorney’s Office, this Office is bound by additional rules of confidentiality. With limited exceptions, Rule 6 of Federal Rules of Criminal Procedure prohibits the disclosure of matters which occur before a federal grand jury. Under those circumstances, the mandatory compliance with the Federal Rules of Criminal Procedure will further limit the amount of information that this Office may legally disseminate to the public. In fact, even in cases in which the federal agencies acknowledge that they are investigating a particular matter, the Federal Rules of Criminal Procedure prohibit the federal agencies and this Office from acknowledging that a federal grand jury is involved in the investigation of that matter.
In an effort to balance the competing interests of the public’s right to information and the need to protect the integrity of a possible criminal investigation, and consistent with its ethical and legal obligations, the Cook County State’s Attorney’s Office will post information on its website regarding officer-involved deaths. The preliminary information will list the date of incident, law enforcement agency involved, the investigative agency, and the date the investigative agency completed its investigation. At the conclusion of the investigation, if no criminal charges are brought, the Cook County State’s Attorney’s Office will post a memorandum on its website explaining the facts of the case, the legal principles involved, and the reasons for the decision. If criminal charges are brought, the Cook County State’s Attorney’s Office will post a copy of the proffer of facts filed with the court at the defendant’s bond hearing.