Metropolitan News-Enterprise


Thursday, January 12, 2017


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Legislature Can’t Bar Grand Jury Probes Into Fatal Police Shootings—C.A.


By a MetNews Staff Writer


The Third District Court of Appeal has invalidated a year-old provision of Penal Code §917 that bars grand juries from inquiring into a police officer’s use of lethal force.

The legislation amending the section, Acting Presiding Justice M. Kathleen Butz noted, is “the first legislative effort in 167 years to constrict the grand jury’s power under the Constitution to exercise its power of indictment.”

Sec. 917 now provides that “the grand jury shall not inquire into an offense that involves a shooting or use of excessive force by a peace officer…that led to the death of a person being detained or arrested by the peace officer.”

That language was created by a 2015 amendment to the statute that went into effect Jan. 1, 2016. In order to set up a test case, El Dorado District Attorney Vern Pierson waited until 2016 to institute grand jury proceedings in connection with a South Lake Tahoe police officer’s fatal shooting of a suspect.

When Pierson began subpoenaing witnesses, including the officer and the police chief, the South Lake Tahoe Police Officers’ Association and Police Supervisors’ Association filed motions to quash the subpoenas and dismiss the grand jury.

El Dorado Superior Court Judge James R. Wagoner granted the motions, and Pierson sought a writ. Butz’s opinion, handed down Tuesday, directs the trial court to vacate its orders.

The jurist said:

“[W[e cannot reach a conclusion other than to find that the Legislature does not have the power to enact a statute that limits the constitutional power of a criminal grand jury to indict any adult accused of a criminal offense. To allow the Legislature to restrict this constitutional role in part would be to concede the power to restrict it in its entirety, a position that has never been endorsed in any precedent in the entire history of our jurisprudence, and which was specifically withheld from the Legislature in the enactment of the Constitution of 1879. We therefore must find that the amendments to section 917 are unconstitutional on this basis.”

She commented that “[i]t is self-evident that the public has an interest in the investigation of a peace officer’s use of lethal force,” that the Legislature had this in mind in amending §917, and that its objective was “salutary.” The jurist said that while it cannot accomplish its goal through a statute, “[t]he Legislature instead must seek a constitutional amendment to accomplish the same end as section 917, or otherwise act to amend grand jury procedures in lethal force cases to achieve its objective of greater ‘transparency’ and accountability.”

The case is People v. Superior Court, 2017 S.O.S. 137.


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