TS - 12/06/2007 Untested waters

TS Untested waters: Case against police commanders likely to hinge on 'criminal negligence,' expert says 12/06/2007

The expected grand jury indictments of former Eureka Police Chief David Douglas and Lt. Tony Zanotti would be unprecedented ground for Humboldt County, and possibly the nation.

”This is the first time I've heard of an indictment of police officers in the command aspect of a situation who weren't actually involved in the shootings themselves,” said Golden Gate University School of Law Professor and Dean Emeritus Peter Keane, who has served as a legal analyst for CNN, the BBC and MSNBC and is former vice-president of the State Bar of California.

”Generally,” Keane continued, “when you do see prosecution of police for unusual use of force or manslaughter, it's the officers that are actually involved in the shooting.”

A source familiar with the grand jury proceedings told the Times-Standard Tuesday the jury will hand up indictments of involuntary manslaughter to Douglas and Zanotti, who are scheduled to be arraigned Monday. The source requested anonymity, due to the secrecy of the proceedings.

Messages seeking comment from Humboldt County District Attorney Paul Gallegos had not been returned as of Wednesday evening.

Moore, who had a history of mental illness, was shot and killed April 14, 2006, by Eureka police officers in her second story apartment at Fifth and G streets. During the preceding two hour standoff, Moore brandished a flare gun, threw things from her second-story window and threatened to burn down the building.

Police have said they believed Moore had put down the flare gun when the decision was made to storm her apartment. Upon entering, officers said they came face to face with Moore, who was pointing the flare gun at them. Officers shot Moore several times.

Part of what is interesting about the grand jury's decision, according to Keane, is that it chose not to indict EPD officer Rocky Harpham and Sgt. Michael Johnson, who fired the fatal shots.

In an interview Wednesday, Eureka Police Chief Garr Nielsen said he felt that decision was the right one. But, like Keane, Nielsen said in his almost 30 years in law enforcement he has never heard of indictments being handed up to commanding officers after an officer-involved shooting.

”I think that this decision by the grand jury is going to have far-reaching impacts on command personnel in tactical operations all over the state, and maybe even the nation,” Nielsen said.

While Nielsen said this can serve as an important reminder to command officers in tactical situations of the possible effects of their decisions, he said losing a human life is enough to hammer that point home.

Nielsen said he is confident the decisions Zanotti and Douglas made did not amount to a criminal act, and he has faith in the justice system.

”We need to remember there is a presumption of innocence,” Nielsen said. “Even though it is a drain to have this potential indictment hanging over us, they are innocent until proven guilty by a jury.”

Nielsen said he felt his organization had turned a corner in recent months, but this has picked at old wounds and had an impact on morale. He made clear Wednesday he stands by his officers, saying he would not place Zanotti on administrative leave.

”In no way do I believe he is a threat to the community,” Nielsen said, adding his only change would be to keep Zanotti out of the role as a site commander. Even that decision, Nielsen said, has nothing to do with his confidence in the lieutenant, and is only intended to protect him.

Also reached Wednesday, Eureka City Attorney Sheryl Schaffner said she hadn't received any official word on the indictment from the DA's office.

”Until we do, it's just speculation,” she said.

But generally speaking, she said the City Council is authorized -- but not required -- to provide for the defense of an active employee who was acting in the course of his duties. That would mean hiring a criminal defense attorney to defend them, she said.

Zanotti may also be a member of the Police Officers Research Association of California, which has a legal defense fund. An e-mail inquiry to the association's president, Ron Cottingham, was not returned by deadline.

Humboldt County Sheriff's Department spokeswoman Brenda Godsey said she had no response to the indictment, at least until it's made officially public.

Gordon Kaupp, an attorney representing Moore's son, David Moore, in a civil case against the city and the involved officers, said news of the indictments came as a surprise to David Moore, who had essentially lost faith in the DA's office.

While he said he felt the individual officers involved should also face indictments, Kaupp said he felt the decision to indict the commanding officers was a good one.

”The thing here is the grand jury recognized that they should have never stormed the apartment,” he said, adding that, if anything, Moore's putting the flare gun down should have been seen as a sign of de-escalation rather than reason to move in. “Clearly, the decision makers put the shooters in the position to shoot when they had them in the position to enter the apartment.”

Down in San Francisco, Keane had a similar take.

He said it is likely the grand jury felt officers should have waited it out longer, made more attempts to negotiate or tried using non-lethal means, like tear gas.

”Once there was that decision to enter into the house, and there is someone in there with the possession of a weapon, it's almost a certainty that they are going to have to kill that person,” Keane said.

Arcata Police Chief Randy Mendoza was surprised by the news, saying he'd heard of civil lawsuits against police leadership, but not criminal charges against commanding officers. Mendoza said he's not intimately familiar with the facts of the case, but expected indictments in such a situation could create concerns for law enforcement.

”It's hard enough to fill police chief jobs in California,” Mendoza said.

John Driscoll can be reached at 441-0504 or jdriscoll@times-standard.com and Thadeus Greenson can be reached at 441-0509 or tgreenson@times-standard.com

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