Opinion - District Attorneys have a duty to protect victims; even those shot by law enforcement

By Amar Shergill |  

The Press Conference

Sacramento County District Attorney Anne Marie Schubert held a press conference explaining her long-expected and unsurprising determination that Sacramento Police Department officers would not be prosecuted for shooting and killing unarmed Stephon Clark in his grandparents’ back yard. There is simply no reason that Stephon Clark needed to die that night. It is a failure of law enforcement that leads to so many African American men to die at the hand of officers, it is a failure of our judicial system that officers are not held accountable, and it is a failure of our elected officials that de-escalation training is not prioritized.

District Attorney Schubert is a talented politician, but her skills failed her in the press conference. In describing the legal standard of review for her decision, she also made a persuasive case against her own unacceptably tone-deaf treatment of the deceased and his family.

The Facts and The Law

DA Schubert correctly stated the shooting death of Stephon was lawful “if the officer honestly and reasonably believes that he or another person is in imminent danger of death or great bodily injury.” Under this standard, the only facts that matter are those that tell us what the officer ‘believed,’ i.e. his state of mind. This means that facts relied upon by the officer are relevant in analyzing his decision to pull the trigger but everything else is irrelevant.

When DA Schubert expounded at length regarding the content of Stephon Clark’s cell phone, she knew that it had nothing to do with the state of mind of the officers and that the case was never going in front of a jury. When she detailed his troubled mind, disturbing behavior, and fraught family relationships, she knew that those things could not possibly have motivated the officers to shoot him. All of these facts made her decision more palatable to voters, however, they had no place in a press conference from the Office of the District Attorney of Sacramento County.

The detailed examination of Stephon Clark’s history is particularly troubling in comparison to the lack of examination of the officers’ state of mind. The District Attorney failed to use any of the ample resources available to review the phones of the officers or to interview witnesses regarding the states of mind of the shooters.

There are many details which warrant analysis and criticism regarding the night in question, the events leading up to it, the shooting, and the press conference. The discussion I submit here is significant because the shooting victim is unable to defend himself post-mortem, and his family, dealing with their own sorrow, is in no position to counter the savvy of the District Attorney’s office and the omnipresent media.

The Solution 

The controversial standard of review relied upon by DA Schubert is under debate in the California legislature. AB 392, proposed by Assemblymembers Shirley Weber and Kevin McCarty, will allow law enforcement to use deadly force only when necessary; essentially moving from a subjective standard to an objective standard. The goal of the bill is to encourage de-escalation and discourage the ‘shoot-first absolve-later’ mindset that is pervasive in law enforcement agencies across the state and supported by D.A. Schubert.

Not being discussed, however, is how to protect victims of law enforcement use of deadly force. D.A. Schubert explained coldly that she revealed the details of Stephon Clark’s life because the jury may also be presented with those facts at trial. But why is the jury entitled to those facts? In rape cases, there are protections for the victim from having their sexual history revealed because it has no value in assisting the jury in evaluating the state of mind of the rapist. Similarly, we should protect shooting victims from having their personal history revealed if those facts are not relevant to the state of mind of the law enforcement officer that shot them. If we are unable to protect shooting victims from unlawful violence while they are alive, we must, at least, protect them from being assailed in death. 

Amar Shergill Attorney is a father three, and Executive Board Member of the California Democratic Party