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Justice System

From the archives 2021

District attorney consulted with Pennsylvania State Police before shooting, then ruled it justified

by Gary Harki of Spotlight PA |

The fact that Beaver County District Attorney David J. Lozier (left)was involved in the decision to shoot, and then was the one to sign off on whether it was appropriate, has raised serious alarm among policing experts.
Bob Donaldson / Post-Gazette

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HARRISBURG — In 2016, after eight hours of a violent standoff with a man in Beaver County, the Pennsylvania State Police consulted with the local district attorney as to whether troopers could kill the suspect. The man was subsequently shot three times by a sniper.

The same prosecutor, Beaver County District Attorney David Lozier, then reviewed the shooting investigation conducted by the State Police and found the use of force to be justified.

While no one has raised questions about whether the shooting was justified, the case has become the impetus for a sweeping new recommendation to reform who investigates troopers in Pennsylvania when they use force or kill someone.

The fact that Lozier was involved in the decision to shoot, and then was the one to sign off on whether it was appropriate, has raised serious alarm among policing experts.

They said such a cozy relationship between the police and the prosecutors responsible for holding law enforcement accountable further undermines public trust and makes it all but impossible for investigations into police conduct to truly be objective and independent.

Kelley Hodge, a former Philadelphia district attorney and member of the state oversight commission that adopted the recommendation Friday, said the State Police acted quickly and fairly in its investigation of the case but that “there was an inherent suspicion … or conflict of interest that could arise” based on the circumstances.

It’s a disturbing situation with few, if any, parallels, said David Harris, a law professor at the University of Pittsburgh.

“They’re asking for permission to use deadly force,” Harris said. “And getting prosecutorial sanction for that in advance makes this too much like, ‘We have permission to shoot to kill.’”

In an interview Wednesday, Lozier said he was at the scene that day and continually talked to State Police about the evolving circumstances.

“We were discussing as the situation worsened the use-of-force parameters to make sure the State Police who were running the scene and I were in agreement,” Lozier said. “We’re all being smart in the way that we are responding to a violent situation.”

He said the question of whether it was appropriate for him to later review the shooting was never asked, but added, “Looking back on it, maybe different decisions would be made as far as an outside review.”

The case is one of the first three to be taken up by the Pennsylvania State Law Enforcement Citizen Advisory Commission, which was created through a 2020 executive order by Gov. Tom Wolf following protests over the murder of George Floyd.

On Friday, the commission recommended that an outside prosecutor — rather than a local district attorney who works closely with law enforcement — be in charge of deciding whether to charge State Police troopers when they injure or kill someone. The recommendation also included a provision that State Police do not investigate such cases internally.

Several neighboring states — including Delaware, Maryland, and New Jersey — have similar procedures to guard against real or perceived conflicts of interest.

Elizabeth Pittinger, a commission member and long-time police oversight advocate, said at a recent subcommittee meeting that the recommendations are not meant to suggest that any outcomes in the Beaver County case were wrong, but rather speak to a larger issue.

“If we can reach toward that outcome that guarantees the impartiality of the entire process then we’ve gone a long way in protecting the agency, protecting civilians,” Pittinger said.

The nearly unchecked power that local Pennsylvania district attorneys have in determining whether officers should be charged with a crime garnered national attention in November after Spotlight PA and NBC News published new video of the death of Christian Hall, 19, who had his hands in the air when he was shot and killed by State Police in December 2020 in Stroudsburg.

The shooting was investigated by the State Police and ruled justified by the Monroe County district attorney. The State Police and the district attorney work closely together because troopers are responsible for coverage in much of the county.

Hall’s family and their attorneys have criticized what they see as a clear conflict of interest, and they are calling for an independent investigation.

A violent standoff

When local police officers in Beaver County responded to a domestic disturbance at about 9:30 p.m. March 17, 2016, they found Ryan Shorak inside his home and his wife locked in her car to get away from him, according to an account by KDKA in Pittsburgh.

Around 11:15 p.m., Shorak counted to 30 and started firing at police, who fired back. No one was injured at that time. A State Police Emergency Response Team was brought in, and Lozier arrived at the makeshift command post at the scene.

“We were having an ongoing discussion of an evolving situation to make sure that the use-of-force protocols and the statute were being followed and that the officers on the ground knew what the law was,” Lozier said.

After an all-night standoff, Shorak threatened to shoot police again at about 6 a.m. He was holding a semiautomatic weapon, the Associated Press reported at the time.

That’s when a State Police sniper shot Shorak three times, knocking him down.

An autopsy later determined that Shorak had shot and killed himself after being shot by the trooper.

At the time, Lozier said he didn’t consider asking for an outside prosecutor.

“We did a review and everything was in compliance with use-of-force protocols and the statute,” he said. “And that was it.

“Looking back on it, maybe different decisions would be made as far as an outside review.”

Eugene O’Donnell, a professor at John Jay College of Criminal Justice in New York and a former New York police officer and prosecutor, said it was a mistake for Lozier to review the case after helping make the decision.

But O’Donnell said it’s refreshing to have a DA “stop driving from the backseat and get into the front seat, even though I think in this case, it’s ill-advised.”

How well district attorneys can judge an incident as it’s happening is also limited, he said. They are trained and experienced in examining cases, but that’s different from making the judgment in the moment.

“In theory, I might not even want to shoot,” O’Donnell said, putting himself in the position of a trooper. “I might be having second thoughts about shooting but now you have a DA saying, ‘Oh, it’s OK, you can shoot him.’”

He understands why police would want to seek legal advice before a shooting. Because of the scrutiny and criticism of police officers, he believes they are often afraid to make their own decisions in such incidents.

“We’re going to have to reckon with a lot of serious issues in policing going forward because … nobody wants to do the job. Nobody wants to go into difficult situations,” he said.

It’s often best practice for police to consult with prosecutors, for instance, on complicated warrants, Harris said. What’s different in this situation is that use-of-force incidents are rapidly evolving and involve split-second decisions. They can change in a heartbeat.

And once the green light is given, it would be very difficult for a prosecutor to then judge the shooting after the fact, he said.

“Once he gives some kind of permission, the prosecutor, he’s actually involved as an actor in whatever happens next,” Harris said. “So he or she should not be the person making the post hoc judgment. He just shouldn’t.”

Limited power

The recommendation adopted Friday is significant but the degree to which the State Police and other agencies will cooperate and what happens next is unclear.

A spokesperson for State Police, Cpl. Brent Miller, said Friday that the agency will take this and other recommendations put forth by the commission “under advisement.” Miller said State Police helped train commission members to make meaningful recommendations.

“PSP appreciates the dedication and time these citizens have volunteered to improving public safety and fair treatment, and addressing inequities in law enforcement,” he wrote by email.

Wolf’s executive order creating the commission states that it will prepare a report of its findings on the cases it reviews and include recommendations that are approved by the full panel.

Then state agencies under its jurisdiction, such as the State Police, “will review the recommendations and provide the commission with responses and updates regarding implementation of recommendations, as appropriate,” the order states.

A spokesperson for the commission declined to elaborate.

The State Police could agree to change its policies and not investigate incidents involving troopers, but that would require determining who else would do it. Removing local district attorneys from overseeing fatal State Police killings in their jurisdiction would likely take legislation, such as a bill proposed by Sen. Art Haywood (D., Montgomery), which would give the state attorney general the power.

Currently, the attorney general can only intervene at the request of a local district attorney.

Lozier said that the recommendations would be hard to implement because there simply aren’t a lot of resources available.

“I can’t go to Lawrence County or Butler County or Washington County because they have no more resources than I do to investigate State Police incidents here,” he said.

But neighboring states have found solutions.

In New Jersey, the attorney general’s office in 2019 established a public integrity and accountability office, which is responsible for selecting independent investigators, or performing investigations itself, into incidents involving deadly force or serious injury.

In Delaware, the state Division of Civil Rights and Public Trust investigates use-of-force incidents by police.

And the Maryland state legislature this year passed sweeping police reforms that include tasking a division of the state attorney general’s office with investigating all fatalities involving police officers.

The public needs to have its faith restored in police, Pittinger said at the subcommittee meeting, and she believes the commission can help do that.

This story was updated Dec. 10 to reflect the vote of the State Law Enforcement Citizen Advisory Commission.

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