Las Vegas Sun

August 22, 2019

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Judge: Officers’ rights not violated by new inquest process

Clark County’s new coroner’s inquest process for police shootings does not violate the rights of police officers whose actions are examined, a federal judge ruled Monday.

U.S. District Judge Philip Pro rejected a constitutional due process challenge to the new inquest ordinance filed by three police officers.

But Pro sent the case to state court for further litigation on another issue: Whether the new ordinance and the revised inquest process violate the Nevada Constitution’s separation of powers clause.

The challenge to the inquest process was filed by attorneys for Las Vegas Metropolitan Police Department officers Phillip Zaragoza, Michael Franco and Pete Kruse.

They were involved in the shooting death of Benjamin Bowman in November 2010 at a PT’s Pub during an incident in which investigators said Bowman had taken a bartender hostage with a knife during a robbery.

The coroner’s inquest into that shooting would have been the first under changes approved in December 2010 by the Clark County Commission, which for years had heard complaints the inquests were one-sided and always cleared police officers.

Changes include the establishment of an ombudsman to represent the victim’s family, the release of key evidence and investigative files and the restructuring of meetings before the inquest hearing.

The Las Vegas Police Protective Association complained the new process wouldn’t be fair to officers as it would turn the system into an adversarial one pitting officers against the families of those shot and killed by police.

Pro, in Monday’s ruling, found the coroner’s inquest system as revised is not a system that jeopardizes officers’ rights as it’s intended to determine the facts about a shooting, and not to assign guilt or innocence.

"The inquest is designed to be an investigatory body, not an adjudicatory or accusatory body. It does not adjudicate any legal rights. It does not recommend any particular action to any other entity, including the district attorney’s office. Whether to initiate criminal charges following an inquest remains solely within the discretion of the prosecuting authorities," Pro wrote in his ruling. "The fact that officers may face reputational harms, may suffer adverse employment actions or may become the subject of a future civil or criminal proceeding are speculative collateral consequences that do not trigger due process guarantees."

Pro also rejected claims by the officers that their equal protection rights under the U.S. Constitution would be violated as private citizens involved in shootings don’t face inquests.

"The County Commission rationally could have concluded that because police officers in essence investigate themselves in an officer involved death, and because the district attorney’s office has either a real or perceived relationship with police officers that it does not have with the average citizen, different procedures are required to ensure both actual meaningful review of police conduct and to preserve the appearance of balanced, meaningful review," the judge wrote.

However, he sent the case back to Clark County District Court on the issue of whether having a justice of the peace preside over the inquests violates the separation clause of the state Constitution.

The issue there is whether the justice of the peace is performing an executive function as opposed to a judicial function authorized by the Nevada Legislature.

Pro found the state court is better suited than the federal court to interpret Nevada law on that issue.

That would indicate the challenge to the inquest process will continue for some time and could end up in the Nevada Supreme Court.

The officers’ attorneys also have the option of appealing Pro’s ruling of Monday, though as of Tuesday they had not done so.

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