Two troopers challenge new inquest process

The revamped coroner's inquest into fatal police shootings faces another legal challenge, this time by Highway Patrol troopers who say the new process is unconstitutional.

Troopers Jorge Hernandez and Brittany Burtner, who filed a lawsuit challenging the process, faced an inquest in the August 2010 death of a motorist who fought with them on U.S. Highway 95.

Their lawsuit is a near carbon copy of a court challenge filed by three Las Vegas police officers. That challenge is tied up in federal court.

Because of the time taken to revamp the process and the legal challenges, the county hasn't held an inquest since October, creating a backlog of 15 cases.

At a hearing Tuesday, the troopers asked District Judge Joanna Kishner to grant a temporary restraining order to halt the process, which their lawyer called "a lopsided, arguably adversarial proceeding." Carson City-based lawyer Thomas Donaldson argued that his clients were being subjected to a new inquest process that was unconstitutional.

"They are the guinea pigs of the new process," he said.

The new inquest rules violated basic due process rights by limiting the troopers' access to evidence and their ability to present evidence, he said. His clients also worried that any testimony in an inquest could be used against the officers in a criminal case or civil lawsuit.

Donaldson also pointed to a potential violation of the constitutional separation of powers because it seems to allow the judge overseeing the inquest to be involved in the investigation, a function of the executive branch.

The county's lawyer, Eva Garcia-Mendoza, argued that it was premature to challenge the new inquest process because any claim of potential harm to the officers is speculative.

"They don't know because nobody's had an inquest," she said.

The officers can invoke their Fifth Amendment right against self-incrimination and refuse to testify at the inquests, she said. And any worries about testimony being used against them by prosecutors existed under the previous inquest rules, she said.

Kishner granted the temporary restraining order, which postponed a pre-inquest meeting set for today . She scheduled a hearing for Oct. 5 on the troopers' request for an injunction to stop their inquest for good.

In her questioning, Kishner focused on one line in the county ordinance that said the presiding judge "may request further investigation" of a fatal police shooting.

The troopers' case argued that line violates the separation of powers.

The County Commission began mulling changes to the inquest about a year ago after two controversial Las Vegas police shootings. A committee of lawyers, police, the coroner and activists recommended changes to the public hearing, which had been criticized as being too favorable to police.

In December, the commission approved several changes, including the appointment of a lawyer to question witnesses on behalf of the dead person's family.

The first revamped inquest was set for July 12 but was postponed after the three officers scheduled for the inquest filed the legal challenge. They contended the addition of the ombudsman transformed the fact-finding hearing into an adversarial one and violated their constitutional rights to due process. Police unions backed the challenge.

Rick McCann, executive director of the Nevada Association of Public Safety Officers, represents the two Henderson officers who face an inquest alongside the Highway Patrol troopers.

He criticized the inquest changes because they were motivated by the outcome of the old system -- that police officers were not being charged -- rather than the process, he said.

"If we had our druthers, we'd get rid of it," McCann said of the inquest. "But we don't have our druthers, so we'd prefer to go back to the old system."

Contact reporter Brian Haynes at bhaynes@reviewjournal.com or 702-383-0281.