Police officers challenging the revamped inquest process suffered their second legal defeat Monday, this time at the hands of a federal judge who dismissed claims that the new system violated their constitutional rights.
In his 22-page decision, U.S. District Judge Philip Pro said the officers' rights under the Constitution, including due process and equal protection, were not jeopardized by Clark County's inquest ordinance. But he ruled that the ordinance could violate the Nevada Constitution's separation of powers clause and sent that part of the case to be heard in state District Court.
Lawyers for Las Vegas police officers Phillip Zaragoza, Michael Franco and Peter Kruse argued last week that the new process, which includes an ombudsman to represent the family of the person killed by police, transformed a fact-finding process into an adversarial hearing that violated the officers' constitutional rights.
They also argued that the inquest treated police officers differently from regular citizens after a homicide.
The three officers were the first to potentially face the new inquest process in the death of Benjamin Hunter Bowman, who was shot and killed in November 2010 as he held a knife to the throat of a bartender at a PT's Pub.
Pro wrote that the officers' due process rights were not violated because the inquest was an investigative hearing and that its findings were nonbinding, leaving the decision to prosecute solely with the district attorney's office.
In dismissing the officers' claims of unequal treatment, the judge wrote that they are treated differently because of the extraordinary powers society gives them.
The judge found that the ordinance could violate constitutional separation of powers because of language that gives the justice of the peace overseeing the inquest the power to investigate, which is a function of the executive, not judicial, branch of government.
That issue will be decided in state court.
"At this time we are moving forward with the matters in state court related to separation of powers and the unconstitutional expansion of jurisdiction," the officers' lawyer, Josh Reisman, said in a statement.
"As well, we are evaluating our options in terms of appealing Judge Pro's decision to the 9th Circuit Court of Appeals."
Pro's decision paralleled last month's ruling by state District Judge Joanna Kishner in another legal challenge of the inquest.
That case arose from a group of Nevada Highway Patrol troopers facing an inquest in the August 2010 death of a motorist on U.S. Highway 95. The troopers challenged the inquest in state court and used many of the same arguments.
Like Pro, Kishner threw out the troopers' claims of constitutional rights violations. And like Pro, she found that the county ordinance raised separation of powers questions, but she ruled that issue could be fixed by simply deleting a sentence from the ordinance.
The Clark County Commission changed the inquest a year ago amid complaints that it was too favorable for police. Because of the time it took to review and change the inquest, plus the delays for the legal challenges, the coroner's office hasn't held an inquest since October 2010, leaving a backlog of 16 cases.
Contact reporter Brian Haynes at bhaynes@review journal.com or 702-383-0281.