PITTSBURGH — The Pennsylvania Supreme Court on Wednesday rejected Philadelphia prosecutors’ attempts to challenge state law governing how and when police officers are permitted to use deadly force, the latest development in the case against a former cop charged with murder in a 2017 killing.
The high court not only decided against the Philadelphia District Attorney’s Office in a 4-2 decision; Justice Kevin M. Dougherty, who wrote on behalf of the majority, also filed an unusual concurring opinion chastising the prosecutors for their handling of the case.
The murder trial for former Philadelphia police Officer Ryan Pownall, who was accused of shooting 30-year-old David Jones, who was fleeing from a traffic stop in North Philadelphia in June 2017, has been on hold since DA Larry Krasner’s office challenged the law before the trial was set to begin.
Prosecutors tried to argue that Section 508, a state statute describing when police use of force is justified, was unconstitutional. Their suggested solution was to change several uses of the word “or” in the law to “and,” according to the state Supreme Court’s opinion.
That wording would mean officers could only use deadly force “against fleeing arrestees who attempted or committed a forcible felony and possess a deadly weapon and indicate that they would endanger human life or inflict serious bodily injury unless arrested without delay.”
That remedy, the lower court found, tried to “judicially usurp the legislative function of the Pennsylvania General Assembly and rewrite Section 508 out of whole cloth.”
Prosecutors argued to the Supreme Court that denying their motion would “handicap” their burden of proof in the case, because the current law would force them to disprove three separate parts of the statute justifying police use of force.
Under Section 508, police officers can use force if it is necessary to stop the person from ending the arrest through resisting or escaping. Additionally, the person being arrested must have committed or attempted a “forcible felony” or is attempting to escape and possesses a deadly weapon.
Two of those elements – the forcible felony or deadly weapon justifications – are invalid under the Fourth Amendment of the U.S. Constitution, the DA’s office argued.
The high court disagreed.
“Even assuming for the moment that the DAO (DA’s office) is correct about its constitutional claim, it is impossible to know in this pretrial posture whether the DAO will actually be forced to disprove anything,” Justice Dougherty wrote.
The DA’s office alleges only that in some circumstances the use of the forcible felony or deadly weapon justifications could result in “unconstitutional situations,” the justice continues. That is not always applicable, “maybe not even in this case,” he wrote.
“As we see it, the DAO’s asserted substantial handicap is constructed on layer after layer of speculation and ‘what ifs,’” the opinion reads.
Also at issue in the case was whether or not the DA’s office appeal regarding constitutionality was something the state Supreme Court could consider. Doing so would be asking the court to rewrite state law, the opinion says.
“We recognize the DAO’s fervent desire to put the troubling and recurring issue of police shootings in the spotlight,” the justice concluded. “We agree the issue warrants serious examination, by every facet of government as well as those outside of it. But the proper forum for that debate is not an interlocutory appeal of a pretrial motion challenging a suggested jury instruction that might not even be applicable."
Justice Dougherty added that the court was not considering the facts of Jones’ killing, noting that the appeal concerns a pretrial order for a criminal case that has not yet begun. It remains unclear when Mr. Pownall will head to trial.
But the justice went even further in his concurring opinion, listing three aspects of the DA’s office approach that he took issue with: its failure to provide the investigating grand jury in the case with “all relevant legal definitions,” its successful attempt to deny Mr. Pownall a preliminary hearing and its “relentless but unsuccessful attempt” to change Section 508’s use of force justification law prior to Mr. Pownall’s trial.
Mr. Pownall and his attorney alleged in prior proceedings that prosecutors failed to define the criminal charges of murder and manslaughter to the grand jury.
“This may be (the) first time in the history of Pennsylvania jurisprudence that a District Attorney requested a grand jury to authorize criminal charges without explaining the law that applies to those charges because to do so would have prevented a finding of probable cause,” the defense wrote.
Justice Dougherty wrote that “if these allegations are true, as they appear to be, it implicates a potential abuse of the grand jury process.”
He also writes that the grand jury issue was “not the most troubling part” of the case. The DA’s office then successfully argued that Mr. Pownall should not have a preliminary hearing, which almost all criminal defendants go through, because it would somehow “undermine” the grand jury’s work.
“One implication of this statement is that a preliminary hearing would have exposed the DAO’s questionable means of obtaining the grand jury’s presentment; another is that it might have led to the dismissal of some or all charges,” Justice Dougherty continued.
That leaves the appeal regarding Section 508, which, “(w)hen combined with the other tactics highlighted throughout this concurrence, a compelling argument may be made that the DAO’s decision to delay Pownall’s trial further … was intended to deprive him of a fair and speedy trial,” the justice wrote.
In concluding, Justice Dougherty wrote: “Little that has happened in this case up to this point reflects procedural justice. On the contrary, the DAO’s prosecution of Pownall appears to be ‘driven by a win-at-all-cost office culture’ that treats police officers differently than other criminal defendants.”
Responding to request for comment, the Philadelphia DA’s office said the Pennsylvania Supreme Court in this case failed to meet its obligation to review the constitutionality of legislation.
“We respectfully disagree with the majority opinion,” Jane Roh, a spokeswoman for the DA’s office, wrote in a statement. “We are studying our options for possible appeal at this time.”
“Please also note that, separately, the prosecution of Mr. Pownall remains live, active and ongoing,” she added.
Justice David N. Wecht, joined in his dissenting opinion by Justice Christine Donohue, argued that the majority’s assessment was too narrow, and he agreed that Section 508 does conflict with the Fourth Amendment.
“By justifying the use of deadly force on suspicions of criminal conduct, regardless of whether the suspect actually poses a threat, Section 508 impermissibly grants police officers the power of judge, jury and executioner,” he wrote.
He continues to say, however, that Mr. Pownall is still entitled to a trial under the language of Section 508 as it existed at the time of his alleged offense.
The Section 508 law challenged by the Philadelphia DA’s office was a large reason behind the acquittal of Michael Rosfeld, the former East Pittsburgh police officer who was charged with killing 17-year-old Antwon Rose II, who was shot while fleeing from a car during a traffic stop.
The opinion is not the only criticism Mr. Krasner has received in recent weeks; state legislators at the end of June established a panel on Philadelphia's gun violence situation that could eventually recommend Mr. Krasner's impeachment over complaints of how his office is handling those cases. That comes as 300 people have already been killed in homicides in Philadelphia this year.
The proposal was sponsored by Republican state Rep. Josh Kail of Beaver County, who announced plans to seek impeachment.
____
