Former Deputy Charged With Murder In Detainee Shooting Pleads Not Guilty

Speaker 1: 00:00 Former San Diego County. Sheriff's deputy Aaron Russell pleaded not guilty. Tuesday to second degree murder Russell is charged with the shooting death of Nicholas bills. As he was trying to escape from custody. The district attorney's office says it's the first time a San Diego law enforcement officer has been charged with murder in the shooting death of a suspect. It's also the first time a law enforcement officer has been charged under the state's new use of force standard, which went into effect in January Russell's defense claims. He was acting within the scope of his employment as a law enforcement officer. Joining me is former San Diego County district attorney, and now criminal defense lawyer, Paul fixed, and Paul, welcome to the program. Thank you. Now the new law in question is California's new use of force statute written by San Diego assembly member, Shirley Weber. Do you think that is a significant shift when it comes to police prosecutions? Speaker 2: 00:56 Well, most people think of deadly force as being a shooting, basically shooting a, but deadly force is defined as, as a force that may produce death or great bodily injury. So it doesn't have to result in death to be deadly forest. And I think that's probably where the most problems are gonna going to come in, because please we're trained in the, in the statute only to use only to shoot when they fear the eminent use of deadly physical force upon them or the third person. So that won't change a whole a whole lot. But what happens when someone tries to catch a burglary suspect and tackles him to the ground or something like that, is that going to cause great bodily injury? So that's where the rubber is going to be. I think felt most in the courtroom, this case involves of course, a shooting and a death. And the statute requires that it be done under circumstances that a reasonable officer would perceive at the time, rather than a reasonable person would perceive at the time, which was the old law. Speaker 1: 01:58 I understand it under the old standard, the use of force was judged by the standard of reasonable, but this new statute is judged under the standard of whether it's necessary. Isn't that the change that we're talking about? Speaker 2: 02:13 Well, of course it is necessary according to the perspective of a reasonable officer at the time, based upon what he or she perceives at the time. So there is still an interpretation requirement in the statute to say, was it necessary given the circumstances that the time, which of course comes back to whether it was reasonable, even though the word is not used Speaker 1: 02:43 When you got a police use of force case on your desk as da, how did you make a call? Whether to prosecute or not? Speaker 2: 02:50 Most of them were easy. Uh, every once in a while you got to one that was hard. The easy ones are obviously somebody points a gun at an officer and the officer returns fire. That's, that's a no brainer, but what happens when the officer is mistaken and believes that someone had a weapon, but they didn't have a weapon and the perceptions at the time, and those are the difficult cases, and those will continue to be difficult cases because then you would look at objectively whether there was a perception that the officer was about to be the victim of deadly force, in which case, then the officer's allowed to use deadly force. So it doesn't really change the shooting cases as much as I think people would expect, because this is the way that officers have been trained in the Academy and have been using use of force deadly physical force. But for a long time, Speaker 1: 03:43 Both of the men involved in this incident were white. And this law was really inspired by the killing of unarmed black men by police. Do you think the race of the alleged shooter or the victim makes a difference Speaker 2: 03:56 Now that is the multibillion dollar question, isn't it? Because not every shooting of course is racial. Even if the races are the same or of different races, but some appear to be influenced by race. How does one separate the ones that may have been influenced by race from the ones that are really have nothing to do with race? And that's something that juries have to wrestle with, but as you know, statistically, more white people are killed by police officers. Unarmed white people are killed by police officers than unarmed black people are killed by police officers. But of course the, the proportions are higher for African Americans than they are for Caucasians. Speaker 1: 04:38 You're talking about actual numbers as opposed to percentages, right? Speaker 2: 04:41 Correct. And the percentages are a higher percentage of, uh, of the police officer shootings and killings of unarmed people are African-American in respect to their percentage in the population. Speaker 1: 04:54 Now, Aaron Russell was relatively new to the Sheriff's department. He's 23 years old. How much of the blame for this shooting, if there is blame for this shooting, do you think can be put on his training and the judgment of the people who gave him a bath? Speaker 2: 05:09 You know, that is a really fascinating question. I feel sorry, because this case involves a very, very junior police officer who's working in the jail and probably has not spent a decent amount of time out on the streets. So as young as he is, I believe he's about 23 years old. And as, uh, he's new to the department about a year and a half. So he is certainly not a veteran officer and how that is going to play into this under the statute that currently exists. The fact that he is junior and inexperienced does not really matter because there's an objective standard that's being used that applies to all police officers without consideration to their relative length of tenure on the department. So he is of those people who this statute may affect more strongly than someone who's more, a veteran has spent more time in situations involving use of force. His history of use of force would be very limited simply because he is so junior in the department. Speaker 1: 06:13 And this incident also seems to give some credence to the movement, to take funding away from police and put it into social services. Now, the victim in Nicholas bills, his family says he was schizophrenic. So shouldn't his case had been handled by a psychiatric team instead of park Rangers and deputies. Speaker 2: 06:32 Well, of course he was going to jail. And, uh, when he escaped the officers who are outside the deputy Sheriff's outside, had no idea what his mental status was or whether he was mentally ill or not. So it was not an opportunity under these circumstances for them to seek professional help because the County does have what we call per teams to bring psycho psychiatric professionals to scenes when there's time to do that. But this, this case did not give the officer's time to seek out psychological professionals. I won't even approach the issue about how psychiatric professional people will deal with someone who is violent without a police officer being there. That's something that we've been trying to work out for 20 or 30 years. Speaker 1: 07:19 You think about the effort to re redirect funds from police to community services. Speaker 2: 07:25 We will always need please. And we will need, and the more place we have in the better train they are the safer we will be. That's been proven time and time again, I think rather than going through defunding and taking money away from police and redirecting that money. If, if we believe that there is an advantage to having non-police professionals involved in this, and we should up that budget, but not reduce the police budget in communities of color around the County. I represented the County as an elected official for a year as the entire County. Uh, when we go into communities of color, I was constantly asked why don't we have more police, not fewer place? Why don't we have more police? Because that is where the higher concentration of crime has been. And when you have a higher concentration of crime that people in that community expect more police presence, not less, some people would disagree with that, but in my experience, the people in high crime areas want more, not fewer place, Speaker 1: 08:23 But there's also an effort to sort of reimagine what the police are and what the community can be. And with that might come a change of heart of how many police we actually need. Speaker 2: 08:35 Well, we'll wait and see about that because, um, I think a lot of people would hope that there aren't as many bad people in our communities as they are, who require force domestic violence cases. A classic example, when one goes to a domestic violence case, one could say, well, why don't we bring a psychological professional marriage and family, counselor person to deal with this? Except those are the most dangerous types of cases for police to respond to where police are afraid of getting shot at the door, which happened just a few days ago in another state. So trying to say, when can we use alternative to police in a situation, whether it's a nine one, one call is a very challenging thing. And I think most sheriffs, if they had an opportunity to not deal with psychiatric patients and let somebody else deal with them would be extraordinarily happy to give up that responsibility because it's such a difficult thing. The highest, the most significant mental health care provider in the County, unfortunately, is the Sheriff's department because of the mentally ill people who were in jail, Speaker 1: 09:46 San Diego city voters will decide in November whether to create a new police review board, which would have more power to investigate police shootings. Would that kind of board actually help the da in making calls about which cases to prosecute? Speaker 2: 10:02 No, the da is charged with the ultimate responsibility and it would, it may do is actually impair the ability to prosecute officers by if there is subpoena power and having people testify, it can complicate the investigatory process. This has been discussed repeatedly in San Diego County for as long as I've been here doing this in the criminal justice system, which has over 30 years now. And from time to time, this idea has been posed. And from time to time after careful examination has been decided that adding another investigative layer into the examination of police officer shooting can have counterproductive effects. Let me give you an example. If there is an independent investigation coming to an officer's shooting, most of the investigation has to be done immediately upon the shooting. When the witnesses are there and available. If the assigned officers who respond to the scene do not conduct the investigation, then the witnesses may be lost forever. And by the time the other investigators come in, they may not be able to do as, as, as, um, comprehensive investigation as is required. So in every police officer involved shooting case and immediate investigation, rounding up witnesses and getting the evidence right away is critically important to understand the dynamic of what happened. It's not a situation where the officers have a chance to wait. Speaker 1: 11:28 I have been speaking with former San Diego County district attorney now, criminal defense lawyer. Paul. Thanks, Paul. Thank you very much. Speaker 2: 11:36 It's my pleasure. Thank you.