The following article is an opinion piece and reflects the views of only the author and not those of The Georgia Virtue.
In an era when there are near-daily calls for reforms in policing and the justice system as a whole, we don’t give nearly enough attention to the role the Georgia Bureau of Investigation has in what happens after an officer involved shooting. The agency has full discretion to decide whether or not – and to what degree – an officer is held accountable in use of force investigations, yet hardly anyone considers that the GBI has assumed a duty that was never delegated.
It used to be that the GBI was brought in after a shooting to conduct an independent investigation, process the scene, and collect evidence. Agents would produce a report detailing the findings, but did not draw their own conclusions or make recommendations to the District Attorney about which charges to bring. The agency was not in the business of making arrests in officer-involved shootings, either. The DA would take the facts and findings to a grand jury and a grand jury would decide whether or not an officer should be indicted – and for which offenses.
More recently, however, the GBI has morphed into the de facto arbiter of whether or not an officer involved shooting (OIS) is justified, due process and thorough examination of evidence need not be considered. The reason for the change can only be attributed to the national conversation on policing and politics generally, but if the agent in charge personally believes the use of force was justified, the case file all but notates that. If he thinks it was not justified, the officer is arrested quickly (often within a week or two) and charged with felony murder and, usually, violation of oath of office. But then it all falls apart.
Why is this problematic? Let’s count the ways.
First, most investigations are not complete within a week. An agent seeks the signature on arrest warrants by a judge based on preliminary information and, as noted previously, the agent’s determination. An early arrest compromises the integrity of the process as well as the agency because it gives the perception that an arrest was made due to public pressure, not evidence. If the agency is independent, it should not cave to outcries from activists or pro-police advocacy organizations.
Second, felony murder is almost always the wrong charge, even when there is wrongdoing. It’s what I like to call a “lazy charge” because it seems to be the default these days. Felony murder is not “really bad murder,” but rather when the death of another is not the intent, but is the result of the commission of another felony. You don’t have to mean to kill, but you have to mean to commit the underlying felony. An officer may be deliberate in shooting an individual, but it only rises to the level of aggravated assault (a felony) if the state can prove the officer did not fear for his/her life. If the state can prove the officer did not fear for his/her life when he/she fired a gun, then felony murder is on the table because the assault was intentional and death was a result. But how often do we hear of sufficient evidence for that?
The problem with overcharging is that it sets a narrative for the public that something really awful happened, which may be true, but that the system is either flawed or biased.
If the GBI charges an officer with felony murder but a grand jury returns an no bill for indictment or an indictment on lesser charges, the public is angered because a cop isn’t held accountable to the degree they were first told.
If the grand jury does return a true bill on felony murder but the DA can’t prove felony murder in court, the result is an acquittal and the public is outraged because a cop got off.
These are two very real realities that arise after police shootings that contribute to the breakdown in public trust.
And yet, the GBI routinely sprints down the path of their agency-outlined ‘independent investigations’ with the goal of deciding whether or not a shooting was justified, knowing full well that the burden will be on the state to prove it and bearing no blame when the case crumbles in court.
It isn’t ‘blue privilege,’ it’s the result of poorly constructed cases that have either been inflated in the public eye without any context or quickly constructed cases that catered to emotion and not concrete evidence. Doing it the way they do allows the agents to tell all of the involved parties “Sorry, we tried to do right,” without any blow back. At least they tried, right? Never mind that all of the parties walk away feeling like justice was denied.
But the alternative – the seemingly ‘days of yore’ approach – of a grand jury process was put into place to consider evidence, context, and the standard that’s been in place for decades: would another officer with an understanding of the same facts and circumstances make the same decision?
The GBI is not the right entity to determine that.
No officer-involved shooting is the same, yet we’ve morphed into a society that expects a set of cookie cutter standards to immediately tell us whether or not the use of force was justified. Was the victim armed? What was the race of the deceased? What was the race of the officer? How many shots were fired? Where was the person shot? What was the reason for the initial interaction? Did the officer have past complaints? Did the deceased have a criminal record? Were drugs and alcohol a factor?
These questions naturally espouse more questions and a few answers (and rumors) leak out in the days and weeks that follow. It takes weeks and months to answer most of them ahead of a trial, but the GBI made an arrest months ago based on conclusions inferred in the days that followed because they used a standard of what the officer should have known at the time when the standard under the law —and Graham v. OConner —is what the officer DID know at the time. The only real question is ‘Was it reasonable?’
And so it crashes and burns and the result is that no one is held accountable for anything. The rate of officers charged versus those convicted is abysmal and the divide grows wider.
If this sounds really depressing, fear not – there is a remedy for the hyper-political process. The result would likely satisfy all parties whose eyes are on justice reform and police accountability.
If the desire is to have the GBI serve as a true investigative agency responsible for collecting evidence, conducting interviews, and, when necessary, making arrests to initiate the legal process in the criminal justice system as they would with any other case, then clearly define that in policy or statute and stop the agency from operating like a half-cocked quasi-friendly entity that is just helping out another law enforcement agency. Stop the narrative that officers – who, in these situations, become alleged offenders – can and should speak freely and without legal counsel. And make the GBI responsible for ALL use of force investigations, not just when a firearm is discharged. Either the GBI works in a partnership with county and city agencies to process scenes and collect evidence for the DA or they’re an investigative agency looking for proof of criminal acts. Pick one.
Sometimes officer involved shootings are not justified and those instances need to be clearly defined, free of politics or public pressure. Only a grand jury can offer what the district attorney and the GBI cannot: Accurate accusations brought forth based on evidence and a higher likelihood of conviction due to the appropriateness of the charges followed by an adequate sentence for the actual crime committed. It is the only pathway with integrity from start to finish and that can yield the desired result of accountability.