On January 10, 2017, a California Court of Appeal found that it was unconstitutional to prevent a grand jury from issuing indictments in fatal police shooting cases.  (People v. Superior Court of El Dorado County (South Lake Tahoe Police Officers’ Association, et al.) (2017) 7 Cal. App. 5th 402.)  The portion of California Penal Code Section 917 (“Section 917”) which created this restriction had only become law in early 2016, thus this challenge came quickly.  In essence, Section 917 was created to leave the decision to file charges solely with prosecutors and not the grand jury, in an effort to create more transparency with the general public on fatal police shooting cases.


The facts of this case were not in dispute, as this case focused on the constitutionality of the grand jury limitations the Legislature added to Section 917.

The South Lake Tahoe Police Department (SLTPD) responded to a domestic violence dispute at a motel in the middle of the night.  As the suspect tried to escape out the bath room window, he was fatally shot in the chest by a police officer.  The El Dorado County District Attorney waited to file charges until early January 2016, when the new provision of Section 917 was scheduled to take effect.  A grand jury was convened and jurors were summoned.  The District Attorney subpoenaed witnesses from the SLTPD to testify before the grand jury for the purpose of obtaining an indictment, in clear violation of Section 917.  On behalf of their members, the South Lake Tahoe Police Officers’ Association and the Police Supervisors’ Association (“Association’s”) asked the trial court to not allow the witnesses to testify and to dismiss the grand jury altogether.  Relying on Section 917, the trial court agreed and dismissed the grand jury without any witnesses testifying.  The District Attorney, as anticipated, appealed the ruling.

Court Discussion

On appeal, the District Attorney asserted that the new provision of Section 917 was unconstitutional and improperly limited the grand jury’s role.  The Association’s contended that the constitution allowed the Legislature to choose between indictment or a preliminary examination of cases.  They also argued that the Legislature was simply exercising its power over a permissible procedural matter by enacting Section 917. Further, the Association’s claimed that the public policy behind the statute was to create more transparency with the general public as grand jury proceedings “can seem unfair or inexplicable.”  The Court of Appeal disagreed with the Association’s positions.

The Court of Appeal ruled that the new provision of Section 917 was unconstitutional.  The Court explained that authority for grand jury indictments for the prosecution of felonies is found in the California Constitution at Article I, Section 14.  While the Legislature and the courts have control over the role vested in the grand jury, the Legislature cannot create a statute that restricts the judicial powers obtained from the California Constitution.  What that means is that the Court found that the Legislature cannot create a law that limits the constitutional power of the criminal grand jury to indict an adult accused of a criminal offense.

Interestingly, the Court noted that the Legislature has other avenues to address its goal of limiting grand juries in fatal police shooting cases.  The Legislature can seek to amend the State Constitution to remove the grand jury’s power to indict in such cases, or it could reform the procedural rules of secrecy for such cases.


This decision reinstates the former rule that indictments for officer-involved shootings will be subject to inquiry by a criminal grand jury.  Accordingly, a grand jury may again convene to examine an officer-involved shooting, subpoena witnesses and documents, and potentially issue an indictment for any involved law enforcement officer.

As with all legal issues, it is imperative that each agency seek out the advice and guidance of their designated legal advisor before implementing new law.  However, as always, if you wish to discuss this matter in greater detail, feel free to contact Jim Touchstone at (714) 446-1400 or via email at jrt@jones-mayer.com.

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