News of the year: Donald Trump? Well, we’ll see. We’ve had actors/athletes Ronald Reagan, Shirley Temple Black, Arnold Schwarzenegger and Bill Bradley–achieve the highest level of politics before.
Police/racial issues? At a place we’ve not seen since the aftermath of the 1991 Rodney King incident, and if we believe the media, at a point of critical mass.
This year, we Georgians have seen legal treatment of police officers cut both ways. Literally catching up with the rest of the country, effective July 1, 2016, a new law went into effect curtailing the criminal rights of police officers charged with improper use of force resulting in death or serious bodily injury. Cutting the other way, on June 20, 2016, a divided Georgia Supreme Court nuanced a qualified immunity ruling in favor of police (and other public officials) in a jail suicide case. (Pierce v. Tucker, Case No. S15G1310). This column focuses solely on Georgia’s new law involving police violence.
House Bill 941
Use of force by police, specifically, use of force against minorities, dominated the public’s view of law enforcement the past two years until the recent Dallas and Baton Rouge massacres. While we see thousands times more civil than criminal actions brought against police charged with use of force violations (mainly because the vast majority of force incidents do not lead to death/serious injury), through HB 941 the General Assembly took aim at the criminal side of police force.
HB 941 focuses on the grand jury aspect of prosecution of police officers for use of force resulting in death or serious bodily injury. Previously, law enforcement personnel criminally charged in force situations had rights unlike any others brought before grand juries offered up for indictment.
At its heart, the new law diminishes officers’ right to attend the grand jury hearing, listen to all the evidence against him/her and, after hearing the evidence, address the grand jury in response without having to sit for questions by grand jury members or the prosecutor. This gave police officers an upper hand.
According to the bill sponsor, Rep. Rich Golick, R-Smyrna, “This obviously opens the door to the officer potentially tailoring his testimony according to what he has just seen and heard with the end result being the potential manipulation of the grand jury process.” Standing alone, such provisions were more favorable to law enforcement that anywhere else in the country. HB 941 changes all of that. Now, the charged officer can no longer sit in the grand jury room while the evidence against him/her is presented. A little take.
The new law does, however, allow the officer to make a statement to the grand jury after the introduction of the evidence against him/her. A little give. And now, the big take: if an officer does so make a statement they can no longer simply pack up his/her bags and exit the grand jury room. Nope, making such a statement now opens the officer up to questions by the grand jury, and perhaps more critically, cross-examination by the prosecutor. The officer’s attorney may be present, but is not allowed to ask questions.
Grand juries everywhere have long had a cloak of secrecy surrounding their proceedings. In fact, grand jurors take an oath to remain mum to the outside world about anything that goes on once they convene. When it comes to police violence, however, there is a new rule.
Any time an officer’s use of force actions are before a grand jury, the secrecy cloud clears dramatically. A court reporter is required to take down everything that happens in these proceedings. If the grand jury does not vote to indict, the grand jury is now required to report in writing all evidence and findings of fact. The report is read in open court, and, along with all evidence, transcripts, etc., made available for public review within six months or the end of the following term of court, whichever is later.
Some say the changes to HB 941 show General Assembly’s recognition of the national sentiment concerning use of force against minorities by police. Even without such sentiment, Georgia’s old rules pertaining to grand jury proceedings in these cases gave greater rights to our officers than any other state.
Phil Friduss is a local government attorney with the law firm of Hall Booth Smith, P.C., in its Atlanta office. Phil lives in Woodstock with his wife, Dayna, and his boys Jakob and Wesley.