DA @GeorgeGascon applies a higher charging standard than necessary to dismiss prosecutable @SFPD OIS cases— (SCULAW-IHRC)


International Human Rights Clinic of Santa Clara University Law School (SCULAW-IHRC)

Statement for April 7 Memorial for Luis Góngora Pat

Two years after the death of Luis Góngora, District Attorney Gascón has not pressed charges against the two officers responsible, and his family is still waiting for justice.

As you all know, on the morning of April 7, 2016, Sergeant Nate Seger and Officer Michael Mellone exited their patrol vehicle and within 30 seconds, they shot and killed Luis.  Luis was an indigenous Mayan from Mexico living in a homeless encampment on the corner of Shotwell and 19th Street in San Francisco’s Mission District.

DA Gascón has not pressed charges against any of the officers involved in any of the police killings in San Francisco during his watch, including those responsible for the death of Luis Góngora, despite overwhelming evidence that the officers’ use of deadly force was neither proportionate nor a result of an imminent threat. DA Gascón claims that the law is on the side of  the police because it actually allows police officers to use disproportionate force and even lethal  force despite the lack of any imminent threat. DA Gascón conveniently claims this is the reason why he does not charge officers for misconduct.

In fact, even though police kill more people in California than in any other state, due to the low standard of reasonable force, District Attorneys throughout the state rarely charge police officers after a shooting.

Unfortunately, the majority on the United States Supreme Court have upheld the law that shields police officers from liability even in cases of deadly shootings where there was no imminent threat. Just this week, in a case involving a police shooting, Justice Sotomayor wrote in a scathing dissent that the majority’s “decision is not just wrong on the law; it also … tells officers that they can shoot first and think later, and … that palpably unreasonable conduct will go unpunished.”

Amnesty International’s recent 2015 report on Deadly Force in the U.S. found that the laws of all 50 states on the use of lethal force by police are incompatible with minimum international human rights standards.  Under international law standards, the use of lethal force is only permissible when there are “no other means available”, “only as a last resort”, in order to protect against “imminent threat of death or serious injury”, and only when necessary and proportionate.

In a move to rectify the current low standard on the use of lethal force, California lawmakers have recently proposed a new bill, the Police Accountability and Community Protection Act. This law would change the current standard and restrict when officers can use lethal force. Instead of permitting “reasonable force,” the proposed bill will require police officers to only use “necessary force.” This means that officers would be allowed to shoot only as a last resort when there are no other “reasonable alternatives” to prevent imminent serious injury or death.  The proposed bill, strongly supported by the ACLU and the International Human Rights Clinic at Santa Clara Law, would make California the first U.S. state to align their standard with international human rights standards.

Another problem in these cases is that DA Gascón applies a higher charging standard than necessary. In a criminal trial, the prosecution must prove the guilt of the defendant beyond a reasonable doubt. DA Gascón has adopted this trial standard, which is intended to be used as a jury instruction while in a criminal trial, and inappropriately applies it much earlier in the criminal justice process. DA Gascón uses his prosecutorial discretion in applying such a high standard when deciding whether or not to file charges. As a result, prosecutable cases are discharged too early before allowing a full evidentiary case to be built and a jury to decide the case on its merits.

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Lastly, the Department of Justice and President Trump have refused to take responsibility for the role of the federal government in fixing widespread misconduct in police departments. The President conveniently attributes police killings of black men, such as Alton Sterling in Louisiana and Stephon Clark in California, as “local matters” despite the fact that the federal government, through the Department of Justice, has traditionally supported local authorities through training and reform measures.

In conclusion, we strongly urge California lawmakers to support the passing of the new Police Accountability and Community Protection Act.  We also implore DA Gascón to utilize his discretionary power responsibly by charging officers responsible for their misconduct, especially in the case of Luis Góngora.

PDF copy of SCULAW-IHRC Statement for Gongora Memorial


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