Nevada Supreme Court strikes down coroner’s inquest rules but leaves door open to further change

By David McGrath Schwartz, Joe Schoenmann

Published Thursday, Oct. 25, 2012 | 10:17 a.m.

Updated Thursday, Oct. 25, 2012 | 5:43 p.m.

The Nevada Supreme Court threw out Clark County’s system for investigating deaths in which law enforcement officers are involved, but rejected Nevada Highway Patrol officers' contention that the process violated their constitutional rights, according to a unanimous decision released Thursday.

The ruling found that the role of the justices of the peace, whom the Clark County Commission decided to have preside over the coroner’s inquests, exceeded the duties layed out by the Nevada Legislature.

"We determine that the code provision requiring that a justice of the peace serve as presiding officer in coroner's inquest proceedings regarding officer-involved deaths intrudes on the Legislature's exclusive authority over the jurisdiction of justices of the peace," wrote Nevada Supreme Court Justice James W. Hardesty.

But the ruling let stand the broader question brought by the Nevada Highway Patrol officers as to whether the process itself is constitutional.

The Clark County Commission had set up new procedures in an effort to respond to concerns brought by family members of people killed by police. The coroner’s inquest is generally described as a fact-finding mission to examine the actions of the police, and is not related to determining whether an officer acted lawfully.

The case was brought by Nevada Highway Patrol Officers who had responded to a 2010 incident that resulted in the death of Eduardo Lopez-Hernandez.

Nevada Highway Patrol troopers used Tasers on Lopez-Hernandez after he started fighting with civilians and authorities, according to a review by Clark County District Attorney Steve Wolfson.

Troopers tried to subdue him with the Tasers in order to handcuff him and during the struggle troopers noticed Lopez-Hernandez had stopped breathing, the report said. Efforts to revive him were unsuccessful.

The Highway Patrol Officers’ legal challenge was primarily based on an argument that the new rules violated their “due process” rights granted under the Nevada Constitution. They argued that the new procedures, which allows for participation by an attorney for the family and an ombudsman, would be the basis for future criminal and civil complaints against the officers.

“It defies rationality to assume that ... prosecutorial zeal will not permeate the entire proceeding,” plaintiffs wrote.

The Nevada Supreme Court rejected this argument.

“The Clark County proceedings only serve a fact-finding and investigatory function,” according to the decision. The Clark County code states that the inquest is “not an adversarial proceeding.” It also can’t be used to find guilt.

But the Nevada Supreme Court struck down the system based on the more narrow question of whether justices of the peace can preside over the hearings.

“Because the Nevada Constitution vests the Legislature with exclusive authority to determine the jurisdiction of justices of the peace... the Clark County Board of County Commissioners has unconstitutionally impinged on the Legislature’s constitutionally delegated authority,” according to the ruling.

Representatives of the police officers praised the Supreme Court decision.

“We feel vindicated by the Supreme Court’s conclusion that the entire inquest scheme for officer-involved deaths must be struck down as unconstitutional,” said Josh Reisman, an attorney for the officers, in a statement.

Chris Collins, executive director of the Las Vegas Police Protective Association, said the union “applauds the Nevada Supreme Court” for its decision.

“From the beginning, we have been on record stating that this was a flawed course of action,” he said in a statement.

But Clark County Commissioner Steve Sisolak, who spearheaded changes to the coroner’s inquest system two years, said it appeared the court struck down the contention that an officer’s due process rights were being violated.

The Police Protective Association argued that under the new inquest guidelines, officers were being cross-examined, much as they would during a trial. With the possibility of a real court trial later on – if the deceased’s family sued – Sisolak said the union contended it was essentially trying the officer twice.

“But due process is not an issue, from my reading of the decision,” Sisolak said.

Instead, he said, the decision provides instruction on how to make the inquest process fit into existing laws. That means, he added, instead of using a justice of the peace to hear an inquest, the county will have to set up criteria and let someone else, such as a hearing master, preside.

“So I think the county will bring this back to the commission to adjust it,” he said.

District Attorney Steve Wolfson said the decision gives the county the chance to step back and "do what's best for this community."

"Everybody wants a transparent open process to provide information about what happened on this particular day. So how we get to that end gives us pause and we will have an opportunity to talk about it now," he said.

Like Sisolak, Wolfson said the ruling would not send the issue back to square one.

"The Nevada Supreme Court said the vast majority of the inquest process is fine, but this one little part of who should preside over the hearing isn't fine."

Asked how he though county commissioners would respond, Wolfson said, "I think they'll take a new, fresh look at it, and perhaps they'll make an inquiry of the parties that were put in place last time to review the process."

He wouldn't comment directly about who should preside over an inquest. In the past, Wolfson noted, private lawyers were called to sit as inquest hearing officers. "If the Board of County Commissioners wants the inquest to go forward, they could do something like that," he said.

Since coroner's inquests were stopped due to the lawsuit, the number of officer-involved shooting death cases had been building since the last inquest in October 2010. In response, after the County Commission appointed him district attorney earlier this year, Wolfson has been issuing detailed analyses of outstanding cases to determine if the officers acted lawfully. He has so far issued 17 opinions. His most recent decision in the shooting of veteran Stanley Gibson last December was to take it to a grand jury to seek a possible indictment.

Metro Police also now are releasing internal reviews of police shootings.

Still, Wolfson said inquests serve a purpose.

"Without an inquest process, we don't generally have another way to publicly provide information as to what happened. With the inquest process, the officers were called to testify and lay witnesses — people that witnessed the shooting — were called to testify. My written decisions explain that, but it's not in a public, open forum ... On the one hand, the inquest is a more thorough public proceeding, but on the other hand, there's been a lot of litigation over it, so perhaps it will never take place. It will be up to the county commissioners to decide," he said.

Sun reporter Jackie Valley contributed to this story.