A recent development in the case involving former police officer Ryan Pownall could have effects far beyond his murder trial and potentially reshape laws outlining when officers are allowed to use deadly force.
Pownall’s trial, which was scheduled to start Jan. 6, was delayed after the District Attorney’s Office appealed to the state Superior Court in an effort to change jury instructions governing when officers are justified in shooting a suspect.
The DA’s Office believes the current state law, known as Section 508, is unconstitutional and confusing. If not changed, it would “terminate or substantially handicap” the prosecution, according to the Dec. 31 appeal.
“The court has the authority to set the course for pending and future cases of police-involved shootings across the Commonwealth,” DA spokeswoman Jane Roh said in a statement. “Such a standard could prevent unnecessary deaths and help fairly and justly resolve more cases.”
Fortunato Perri Jr. and Charles Gibbs, attorneys for Pownall, characterize the move as a desperate attempt by the DA’s Office to rewrite rules on police-involved shootings on the eve of the trial.
“The appeal by the District Attorney is an admission that they are unable to proceed with this prosecution without a change in the existing law,” Perri Jr. said in an email.
Pownall, 37, of Bustleton, is accused of killing 30-year-old David Jones following an altercation June 8, 2017, in Feltonville.
A grand jury report found Jones was riding a dirtbike when Pownall approached him, frisked him and found a gun. After a physical altercation, Pownall tried to fire at Jones, but his gun jammed. Jones threw his own gun away and ran from the scene, and Pownall shot him twice in the back, according to the report.
Pownall, then a 15th District officer, was fired in September 2017 and is now facing charges of third-degree murder, possession of an instrument of crime with intent and reckless endangerment.
Section 508 says officers are justified in shooting a suspect if such force is needed to make an arrest and the suspect “has committed or attempted a forcible felony or is attempting to escape and possesses a deadly weapon, or otherwise indicates that he will endanger human life or inflict serious bodily injury unless arrested without delay.”
It’s a law that features a confluence of “ands” and “ors,” making it ripe for different interpretations, the DA’s Office said in court documents. The statute is also expected to form the basis of Pownall’s defense.
Prosecutors believe the law could be used to justify the killing of any suspect fleeing the scene with a deadly weapon, which could extend from guns to knives, mace and even cars.
The DA’s Office claims the interpretation would be a violation of the Fourth Amendment, which protects against “unreasonable searches and seizures,” and some legal scholars and advocates agree.
“I think that there’s some real question as to whether Pennsylvania’s current law, which allows a police officer to shoot a fleeing felon, would actually pass constitutional muster,” said Teri Ravenell, a law professor at Villanova University.
Ravenell, who has been following the case, said use of deadly force is typically justified under the Fourth Amendment when an officer believes there is an immediate threat to himself or others.
Tariq El-Shabazz, a lawyer and former assistant district attorney, said he believes the law is problematic because it gives too much leeway to law enforcement.
“It basically gives an excuse for officers to, in fact, engage in shooting where it’s questionable whether or not it is in defense of others or self-defense,” said El-Shabazz, who ran for DA in 2017.
Last month, the DA’s Office asked Court of Common Pleas Judge Barbara McDermott, who has been overseeing the case, to change how Section 508 is presented to jurors. Prosecutors said the “ors” should be changed to “ands,” meaning officers would only be justified in shooting armed fleeing felony suspects who pose an imminent danger of loss of life or serious injury.
In denying the motion, McDermott wrote that her court does not have the authority to rewrite laws passed by the Pennsylvania General Assembly.
Ravenell agreed. She believes the law should be changed, but doing so through the courts would be an overreach, she said.
“This would go beyond judicial interpretation of the statute,” Ravenell added. “This would be a whole cloth change to the statute, and I don’t think that’s the court’s role.”
Some legislators are trying to change Section 508. In June, a bill was introduced that would restrict an officer’s use of force to the protection of himself or others. It’s backed by 24 Democratic representatives, mostly progressives from the Philadelphia and Pittsburgh areas, and has been languishing in committee.
The legislation was crafted in response to the fatal police shooting of a black teenager in Pittsburgh. A jury found the officer not guilty in that case.
McDermott agreed to postpone Pownall’s trial until Superior Court makes a decision on the DA’s appeal of her ruling.
Even if Superior Court or another higher court determined the law is unconstitutional, there’s the question of whether it could be applied to Pownall’s case at all. His attorneys have argued it is unconstitutional to retroactively apply a new standard to a shooting that occurred more than two years ago.
It’s an opinion shared by most legal experts. The constitution bars laws and almost all judicial decisions from being applied retroactively.
“You can’t change the rules on (Pownall) at this point,” Ravenell said.
The DA’s Office hopes its appeal could have some sway on clarifying jury instructions. There’s also a belief that, even if it doesn’t impact Pownall’s fate, a revamped law could set a new statewide precedent for all future police shooting cases.
“It’s an unusual approach by the prosecution,” said George Parry, a longtime attorney and former state and federal prosecutor who has been closely watching the Pownall proceedings.
Parry, a critic of DA Larry Krasner, said the move fits in with the DA Office’s progressive agenda. He worries a successful appeal could lead to a placid police department, with officers hesitant to put themselves in harm’s way in case the law gets changed on them at a later date.
“I think his goal certainly could be interpreted to be that he’s trying to sow uncertainty in the police as to when they can use deadly force,” Parry said. “If you do that enough, I think the result could well be that you will have a passive police force.”
El-Shabazz said officers shouldn’t be championing Pownall’s case as the model example of a justified police shooting. He also doesn’t think reforming Section 508 should impact how officers behave on the street.
“The changing of the jury instruction as unconstitutional should not in any way inhibit police officers from, in fact, protecting themselves when their lives are threatened or when someone else is threatened,” he said.
Though the appeal could be critical to Pownall’s case, it’s anticipated that prosecutors will still take him to trial if it’s unsuccessful.
The DA’s Office is expected to argue Pownall knew Jones was unarmed. The grand jury found Pownall told a fellow officer immediately after the shooting that Jones threw his gun away.
“What Pownall’s going to have to show is that he believed that Jones presented a danger to human life or was going to inflict serious bodily injury unless arrested without delay,” Ravenell said.
Parry believes Pownall has a “perfectly valid defense,” but he said the outcome will depend on the jury. He compared a jury trial to going to Atlantic City with a wad of cash.
“If you get a jury that hates cops, then Krasner’s got a shot,” Parry said.
McDermott removed Pownall from house arrest. It’s unclear when he will have his day in court. Superior Court has asked the DA’s Office to submit a brief along with its appeal by Feb. 19. ••