Justice Matters with Bryan Porter: What goes into a use-of-force review

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Commonwealth's Attorney Bryan Porter
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This past June, Alexandria joined the unfortunately growing list of cities that have suffered the psychological trauma of an active shooter incident.

A lone gunman, angry over politics, took an assault rifle and a handgun and began shooting at a peaceful assembly of Republican legislators and staffers who were practicing
for an annual charity baseball game. While three people suffered serious injury and a number of others were slightly injured, the only death associated with the event was that of the shooter. But for the heroic actions of Alexandria police officers and agents of the U.S. Capitol Police, many more deaths and injuries would have occurred.

Soon after the incident, I announced that my office was conducting a use-of-force review of the incident.

This announcement caused several citizens to contact me and ask why I was reviewing an incident in which the police so “obviously” needed to employ deadly force. These citizens assumed that the fact that I was reviewing the incident somehow meant that I believed the officers had not acted lawfully.

No such assumption should have been made. Before the facts can be considered “obvious,” it is axiomatic that they must be established to a reasonable degree of certainty. The duty to so establish them falls within the responsibility of my office. The Commonwealth’s Attorney has a duty to investigate any death occurring in the city that is caused by a law enforcement officer exercising his police authority. This duty obtains no matter the agency involved.

Therefore, with regards to the Simpson Field incident, I was tasked with reviewing the actions of both the Alexandria Police officers and the U.S. Capitol Police agents.

In Virginia, law enforcement officers may use deadly force when, in light of the totality of the circumstances surrounding the incident, they reasonably believe that their lives or the lives of a third party are in imminent danger. I am not asked to review compliance with proper police procedures or whether I think the officers could have employed different tactics.

My sole responsibility is to determine whether the deadly use of force comported with the law of the Commonwealth.

In order to make that determination, I must complete a comprehensive review of the evidence. This means reading hundreds of reports, inspecting the location of the incident and, when necessary, conducting independent interviews with witnesses.

Conducting a thorough review takes a substantial amount of time. In this case, four months elapsed between the incident and the release of my report, and future reviews could take even longer.

At the conclusion of my review, if I determine that deadly use of force was justified, the public has a right to know the evidence on which I relied and my legal reasoning.
In Alexandria, I choose to write a report outlining my findings and then make that report available online.

One of the most difficult parts about conducting a deadly force review is this: initial media reports are often inaccurate and are always incomplete. Therefore, what the public believes are “obvious” facts may not comport with what I know to be the evidence. However, the rules of ethics that apply to prosecutors prohibit me from publicly commenting about the
facts of a case that may be tried to a jury. In other words, until I have decided that the use of force was legally justified, I cannot grant interviews in which I discuss the evidence.
Furthermore, if any person is charged with a crime as a result of the incident, the ethical rules preclude me from publicly discussing the matter until after trial.

For instance, if the shooter had survived the Simpson incident, I could not have released my report on the shooting until his criminal case was resolved.

In the end, as I have in every case throughout my career, I must conduct a thorough review, establish the facts to the best of my ability and then make a decision based on the law, the evidence and my best judgment, and with no regard to fear or favor.

As Martin Luther once said, “I can do no other.”

The writer is the commonwealth’s attorney for Alexandria.

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