County attacks Taser ruling

A citizen should not have the legal right to ask a judge to bring criminal charges against a sheriff’s deputy, the Spokane County prosecutor’s office said Friday in court filings.

Deputy Prosecutor Brian O’Brien advanced the argument in formally asking District Court Judge Sara Derr to reverse her ruling allowing two county sheriff’s deputies to be charged with animal cruelty for using their Taser stun guns to kill an escaped calf.

The filing challenges the constitutionality of a seldom-used Washington state court rule allowing any citizen to ask a court to file charges if a prosecutor’s office declines to act, but only in misdemeanor cases.

“The citizen complaint (process) is an unconstitutional usurpation by the judicial branch of the executive branch’s power to decide who is or is not charged with violation of criminal laws,” O’Brien said in legal filings.

In a companion argument, the deputy prosecutor said police officers “acting under the community care taking function” of another state law are immune from civil or criminal liability.

A hearing over those issues scheduled for Feb. 12 could trigger a protracted legal battle and eventually find its way to the state Supreme Court.

The case also is attracting substantial interest in state law enforcement and legal circles, and among animal rights activists.

The Spokane judge ruled Monday there was probable cause to charge Deputies Damon Simmons and Ballard Bates with second-degree animal cruelty – a simple misdemeanor.

The ruling came after a citizen’s petition was filed by Chris Anderlik, of Liberty Lake, who said she was outraged that the two deputies separately used their Taser guns for a combined total of more than seven minutes before eventually killing a black Angus calf that had escaped from a Greenacres farm.

Killing the animal was necessary for public safety reasons because it had run to a congested area near Interstate 90 and the Spokane Valley Mall, Sheriff Ozzie Knezovich said in backing the action of the deputies.

Attorney Adam Karp, of Bellingham, who represented Anderlik, said the animal could have been controlled with a rope. He presented opinions from experts who said it was inhumane to use Tasers to kill the animal over a period of several minutes.

“In this case, the young calf was not seriously injured or suffering,” Karp said. “He was exhausted, drooling at the mouth with labored breathing, and standing still when Tasered.”

The attorney, who specializes in animal law issues, said he’s prepared to take the case to the Supreme Court.

“The reason why the citizen criminal complaint process is so precious to our state’s residents is that it preserves the rule of law,” Karp said. “It prevents selective enforcement by understandably biased prosecutors who may choose not to charge the sheriff’s deputies with whom they work daily.”

Karp said the state law giving police the authority to shoot injured animals applies to instances when the animal has been “seriously injured and would otherwise continue to suffer.” Even then, he said, officers must use “reasonable prudence” before killing an animal.

Karp and his client referred to the 6-month-old animal as a “calf.” In his pleadings, the deputy prosecutor calls the animal a “bull.”

In formally asking the judge to reconsider her ruling, O’Brien argued that the deputies who cornered the animal were required to act under public nuisance provisions of state law.

The law, he said, “declares any cattle running at large to be a public nuisance, and imposes a duty on the officers to act to impound the animal. If the officers do not act, then they face civil liability.”

But the largest portion of the prosecutor’s 11-page legal brief attacked the constitutionality of allowing a citizen to approach a judge to bring a misdemeanor charge.

Court rules allowing that violate the “separation of powers doctrine” clearly defining the authority of the three branches of government – legislative, executive and judicial.

“The criminal prosecution function is, and historically has been, an executive branch responsibility,” O’Brien said in the court document.

“The decision to file or not file charges, or the number of charges, is a matter left to the discretion of the prosecuting attorney,” part of the executive branch of government, he said.

Prosecutors have wide discretion and must consider both the strength of a given case and the public interest before making a decision to charge, he said.

Provisions of state court rules used by Karp and Anderlik to get the animal cruelty case before a District Court judge were “a clear invasion of the executive authority,” O’Brien said.

“Indeed, since the power to initiate charges is exclusively an executive one, the courts simply cannot claim such authority,” he said.

“The policy argument that a judicial citizen review process is a necessary check on the prosecutor’s powers is one which must be addressed to the Legislature, not the court,” O’Brien said.