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Here’s how South Dakota investigates police shootings

June 29, 2019

SIOUX FALLS, S.D. (AP) — On a weekday afternoon last month in Sioux Falls, 44-year-old George Rinzy was shot by a police officer in the parking lot of the Minnehaha County Jail. The scene was chaotic.

Emergency vehicles clogged the streets, the courthouse went into lockdown and curious onlookers gathered, watching as Rinzy was loaded into an ambulance and rushed to the hospital. He would later recover and be charged with aggravated assault on law enforcement.

Police say Rinzy, who has a lengthy criminal record, smashed the glass front door of the jail with a liquor bottle before facing off against the officers sent to arrest him. He carried a knife in each hand.

Cell phone video from a bystander showed Rinzy wildly dodging the officers who surrounded him before charging, with a knife above his head, toward Minnehaha County Sheriff’s Deputy Craig Olson. The deputy fired two shots at Rinzy, who tumbled to the ground.

The midday scene was jarring, but the occurrence of a suspect being shot by law enforcement is not unique.

A Sioux Falls Argus Leader investigation took a closer look at the 44 officer-involved shootings in South Dakota since 2001 and the state-run investigations that followed.

In every one of those instances, the South Dakota Attorney General’s office determined that the officers were justified in their decision to shoot.

That figure doesn’t surprise Marty Jackley, a former attorney general who presided over 30 of those 44 investigations by the state’s Department of Criminal Investigation.

“I stood by every one of those cases,” Jackley told the Argus Leader. ”(They) were never turned over by a judge, they were never turned over by a jury, and it’s a testament to South Dakota law enforcement that I never had to make that hard decision (to deem an officer unjustified).”

The fact that no officers have been found at fault also does not surprise William Terrill, a criminology professor at Arizona State University who studies police culture and use of force. He once examined about 1,000 officer-involved shooting reports in San Antonio at the request of the city and found that every single case was declared justified.

“That’s pretty common, believe it or not,” Terrill said. “The state is very reluctant to rule that the officer was out of policy.”

That reluctance runs counter to rising tensions nationally when deadly force is deemed excessive, especially when caught on video. Highly publicized incidents such as the 2014 shooting of Michael Brown near St. Louis and the 2016 shooting of Philando Castile in the Twin Cities sparked calls for more police accountability, such as independent investigations and expanded open records.

In South Dakota, some officers have used Marsy’s Law, the controversial victims’ rights law passed in 2016, to prevent their names from being released following a shooting, adding to calls for more information.

Most agree the best scenario is for citizens to feel confident that investigations are fair and balanced, without police bias or public outrage altering the outcome, and with lessons learned along the way to potentially reduce such incidents in the future.

″(The objective) after thorough investigation,” said Jackley, “is to be able to say unequivocally, ‘This is a tragedy, it was unfortunate, but the officer didn’t have a choice.’”

Corey Milk wishes he could take back what happened the night he was shot by a cop.

It was July 20, 2015, and Milk, then 38, went to Grand Falls Casino to blow off some steam after arguing with his ex-girlfriend over custody of their young son. A few hours and several drinks later, he drove to Salem, where he had moved into a trailer only a month prior. He headed to the Brewery Bar on Main Street, parked his Ford Mustang out front and bought two rounds of drinks for the six people seated at the bar.

From there, the situation took an ugly turn.

Milk, who is half-Native American, claims that three of the men at the bar made racist comments and talked about jumping him. Angry, Milk confronted them, threatening to shoot the ceiling with the 9 mm handgun he had tucked into his waistband.

The bartender told Milk to leave, and he did. He walked out the front doors of the bar and, for reasons he himself can’t explain, fired several shots into the air.

That’s when he heard a voice from outside in the darkness: “Drop the (expletive) gun or I’ll blow your (expletive) head off.”

Frightened, Milk said he ran and hid behind the Mustang he had parked in front of the bar. He heard the voice say, “Show me your hands,” and deduced it was coming from a police officer, although he said the officer never identified himself.

Milk got into the driver’s seat of the Mustang and put the gun behind the front passenger seat. The officer was now standing in front of the car with his gun pointed, and Milk could see he was wearing a deputy’s uniform. The attorney general’s office later identified the officer as McCook County Sheriff’s Deputy Randy Schwader, who declined an interview request for this story.

Milk began to back up the car, and Schwader, who later told authorities that he was afraid Milk would try to run him over, fired three rounds from his duty weapon into the hood to disable the vehicle, but it didn’t work.

Backing up further, Milk says he put his hands up. Schwader told him to throw the keys out of the car door, but Milk says the car was in gear and he had his foot on the brake, so he reached down to put it in park. Schwader, who told authorities he thought Milk was reaching for a gun, unleashed another volley of shots.

“Oh my God, this guy’s shooting at me,” Milk remembers thinking. “Why is he shooting?”

He claims that Schwader then moved to the passenger’s side door and fired several more shots. Milk was struck seven times, some of the shots hitting his right arm, and then his left, and then his side and chest. His car propelled forward, crashing into an office building before stopping.

Milk woke up 17 days later at Sanford Medical Center, where medical records show he lost six pints of blood and had multiple fractures. He sustained lacerations to his right kidney, stomach and large intestine, three feet of which had to be removed.

In an interview at the South Dakota State Penitentiary in Sioux Falls, where he is currently serving a 15-year sentence for aggravated assault on law enforcement, Milk thought back on the incident, which added to his lengthy criminal record.

“I regret everything that night,” he said, but the way the shooting went down bothers him. “My hands were in the air. Why did he shoot me?”

Jackley said investigators interviewed associates of Milk who indicated he had discussed committing “suicide by cop.” Milk denied he was suicidal and said the only person among his family and friends who was willing to speak with police was his ex-girlfriend.

According to the attorney general’s report, there were two witnesses who reported seeing Schwader shoot Milk. One of them reported seeing Milk fire a gun at Schwader, a claim that was not mentioned anywhere else in the report by Schwader or anyone else.

Any doubts about what happened that night could have been cleared up by video footage, either from Schwader’s dashboard camera or from a body-worn camera. Neither is mentioned in the attorney general’s report.

Even when body camera footage is used in a shooting investigation, the results are not always conclusive. But there’s no doubt that adding video to the scenario can help shed light on what actually happened.

A 2013 study by the National Institute of Justice, the research arm of the U.S. Department of Justice, found that 75% of departments do not use body cameras. But several police departments in South Dakota, including Sioux Falls and Yankton, have invested money into purchasing the cameras for at least some of their staff.

Body-worn cameras are not a perfect product, but they are a way to hold officers accountable for their behavior, Sioux Falls Police Chief Matt Burns said.

“There’s accountability for the officer and making sure that they’re being professional, that they’re being courteous, that they’re following policy,” Burns said.

In 2016, video featured heavily in an officer-involved shooting in Hot Springs, where Officer Kyle Maciejewski’s body camera captured suspect Dylan Huff approaching Maciejewski and fellow Officer Justin Evans, knife in hand, according to the report. The video purportedly shows Maciejewski and Evans telling Huff 15 times to drop the knife before Maciejewski shoots him.

That footage was not released to the public, where it could have provided a raw and unbiased account of what happened, rather than relying on a report from state investigators.

“Not everyone’s going to agree with the attorney general’s interpretation,” said Terrill, who has written two books and numerous articles on officer-involved shootings.

South Dakota is one of the few states that has neither passed nor proposed legislation regarding public access to body-worn camera footage.

In Minnesota, the law states that footage depicting “use of force by a peace officer that results in substantial bodily harm” is public record. South Dakota has no such law, meaning the choice to release the footage falls to the department involved in the shooting.

“It’s not the attorney general’s evidence, it’s not the attorney general’s property, it’s in (the department’s) custody and control, so it’s really their decision,” Jackley said.

Critics call that an impediment to transparency, since most cases where an officer is found to be at fault only come to light after damning video enters the public eye.

A recent example is the 2015 shooting death of Walter Scott in South Carolina. A jury sentenced a North Charleston police officer, Michael Slager, to 20 years in prison after Slager pleaded guilty to shooting Scott in the back as he ran away. A witness’ cell phone video footage became a crucial piece of evidence in the case, proving Slager lied to his superiors when he told them Scott had grabbed for his taser.

Of course, body-worn cameras are only helpful when used correctly. In one South Dakota incident, an officer who shot a woman left his body camera in the car before going into the home where the incident occurred. In another, the officer wore the camera, but its memory was full, and the shooting was not recorded.

Even when the cameras are used correctly, they are not infallible. Burns said he has seen footage of an officer pointing a gun at a suspect, but their arms, hands and gun are blocking the camera.

“If you were trying to discern whether that person was threatening that officer with a weapon or not, well, you couldn’t see it,” he said. ”(A body camera is) not this magic thing that makes everything immediately clear and immediately obvious about the specifics of a situation. It does have its limitations, too.”

Retired Roberts County Sheriff’s Deputy Tom McClelland knows what it’s like to make the decision to pull the trigger: He shot and killed a man while on duty in 2005 and has struggled with the implications of that action ever since.

“I never thought it would come to that,” says McClelland, 53, who now lives in Sioux Falls. “Nearly every day, I think about it.”

On Oct. 15, 2005, McClelland was not even supposed to be at work. He was filling in for a fellow deputy who wanted to take the day off to go hunting. On his way to work, McClelland stopped to visit his parents and show off his new K-9 puppy. That’s when he got a phone call from dispatch about a mentally challenged man who was threatening hunters near Wilmot.

As he drove to the call, McClelland tried to get more information from the dispatcher about the situation. Although Roberts County is a small place, McClelland had never heard of 46-year-old Eric Christianson.

He was told a group of hunters had called authorities along with Christianson’s mother, saying Christianson was agitated about the hunters being near land owned by him and his mother. He had struck the hunters’ vehicles with a stick and punctured their tires with a pitchfork.

Christianson wasn’t there when McClelland pulled up on the gravel road near 466th Avenue, but McClelland soon saw him coming up the road, a baseball bat in his hand.

“He was walking toward us . almost at a power walk,” recalled McClelland, who was standing with the hunters and Christianson’s mom. “I thought, ‘Oh boy, here we go.’”

Suddenly, McClelland heard a gunshot coming from where Christianson was standing. He and the others quickly ducked behind his car and McClelland began loading his shotgun, loudly, so Christianson could hear it. Slowly, he stepped out from behind the car and told Christianson several times to put the revolver he was holding down. Christianson didn’t.

“I just kept telling myself, ‘Don’t shoot this guy,’” McClelland said.

Christianson began running toward McClelland. He raised his hand and pointed the revolver at McClelland, who fired one shot, striking Christianson in the jaw.

“He fell dead with the gun in his hand . and his finger on the trigger,” McClelland said. “The thing that always haunted me was that his mom was standing right there.”

Larry Long, the state’s attorney general at the time, reviewed the case and found McClelland acted rightfully in his decision to shoot Christianson.

“Christianson’s family reports that Eric has had mental health problems and was resistant to (get) help for his disorder,” Long wrote in his conclusion. “Deputy McClelland had no choice but to fire his weapon in order to protect himself and the citizens with him.”

Although McClelland believes he did what he had to do that day, the incident stayed with him. For the rest of his career, he made even stronger efforts to try to talk someone down without using his gun, out of fear he would have to shoot someone else.

“It definitely affected my decision-making,” he said. “I had a fear that it would happen again.”

In some ways, South Dakota is ahead of national trends when it comes to the investigation of officer-involved shootings.

Last month, Democratic presidential candidate and former California attorney general Kamala Harris called for “independent investigations” into such cases. During her time as attorney general, Harris declined to support legislation that would have required her office to investigate the shootings, instead leaving it up to local district attorneys.

In South Dakota, removing a shooting probe from local agencies is the norm. Division of Criminal Investigation (DCI) agents submit their evidence to the attorney general, who issues a ruling on whether the shooting was justified within 30 days of the incident.

It has been that way since at least 1991, said Long, the former attorney general who retired as a circuit court judge last year.

“It seems to have worked up to this point,” he told the Argus Leader. “They (police departments) needed some entity other than themselves to investigate a shooting.”

Jackley said there is no state statute that lays out how the investigations should be carried out.

“There isn’t a national model,” he said. “We had our own protocol that we developed here in South Dakota, we found that it worked, and I was proud enough of it that I laid it out nationally for other attorneys general to use.”

Still, there are questions that revolve around a system in which a law enforcement entity is in charge of probing the actions of police officers. Questioning the justification of a shooting could have consequences they are not prepared to deal with.

“There’s a kinship there,” said Terrill. “We all look at it through a different lens.”

One of the prevailing questions in the aftermath of Sioux Falls’ most recent officer-involved shooting is simple: How can the system improve?

Minnesota passed a law in 2016 that makes body camera footage public record if it involves a law enforcement officer causing someone substantial bodily harm through use of force.

South Dakota state senator Reynold Nesiba said he admired Minnesota’s straightforward approach to body cameras and the release of video.

“What I like about their statute is they have clear rules about authorizing the use of cameras,” said Nesiba, a Democrat from Sioux Falls. “That seems like a reasonable way.”

Meanwhile, in terms of transparency, South Dakota has actually regressed in some respects with the 2016 passage of Marsy’s Law.

The law was intended to protect the rights of victims of crime, including the right to “prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family.”

But it was invoked in the case of a South Dakota Highway Patrol officer who shot a man on Interstate 29 in 2018, keeping her name from public disclosure. That decision, supported by the attorney general, sparked controversy over the limits of Marsy’s Law and whether it extends to police officers acting in an official capacity.

“The lack of transparency is concerning,” said Libby Skarin, policy director for the ACLU of South Dakota. “The public should have the right to information about the identity of a law enforcement officer engaging in perhaps the most high-stakes action possible: the use of deadly or potentially deadly force.”

As seen with last month’s incident at Minnehaha County Jail, emotions and reactions vary widely in the aftermath of a police shooting. That makes it even more important to provide as much information as possible to boost public confidence in investigations and create clear laws that ensure accountability for law enforcement.

“It would be far better to have a rule in place about how to authorize cameras and under what conditions that data is released,” said Nesiba, “than to have a case that requires people to protest in the street to push a local department to release something that it doesn’t want to release because the rules aren’t clear.”

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Information from: Argus Leader, http://www.argusleader.com

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