DATE: Friday, June 27, 1997                 TAG: 9706270672

SECTION: LOCAL                   PAGE: B1   EDITION: FINAL 

TYPE: Q & A

SOURCE: Tom Holden 

                                            LENGTH:  127 lines

PROSECUTOR HUMPHREYS DISCUSSES 4 FATAL POLICE SHOOTINGS

Virginia Beach may be the safest city of its size in the United States, but that does not mean it is crime free. Sometimes police take extreme measures in dealing with armed and violent suspects.

Within the last 18 months, city police have shot and killed four armed people.

The most recent was the June 15 fatal shooting of a knife-wielding man in Windsor Woods, Bryan E. Dugan, killed after a night of drinking and a violent argument with his live-in girlfriend.

On March 25, a low-speed chase on Independence Boulevard ended in a fusillade that claimed the life of Bruce Quagliato, who reportedly had rammed his car into police vehicles and acted as if he were reaching for a gun.

On Jan. 31, 1996, Edward Carolina, 42, died when he fired at an officer in a Hilltop shopping center. The officer fired back, killing Carolina.

On Feb. 27, 1996, Jason W. Scruggs, 26, was killed in an armed standoff with police in London Bridge.

In each shooting, the police conduct at least two investigations while the commonwealth's attorney conducts a third.

Virginia Beach Commonwealth's Attorney Robert J. Humphreys announced this week that the officers in the Dugan case would not be subject to criminal charges. In an effort to explain what his investigators do, Humphreys on Thursday answered a series of questions from staff writer Tom Holden.

Q: How does your investigator conduct an investigation into a police shooting?

Humphreys: When there is an officer involved in a shooting, the police department's communications division has a list of people it must call. Among them are the chief of police, the city manager and me. We send an investigator to the scene and often times I or my chief deputy meets them there. No one touches anything until we get there. The police take all the photos and we review them. We talk to witnesses. We do a scene diagram marking the evidence. Then we interview the officer if they want to talk. They don't have to, of course.

Police officers have constitutional rights just as everyone else and they can chose to invoke the Fifth Amendment privilege against self-incrimination. We'll canvass the neighborhood and, if possible, tape witnesses statements.

In some cases, we wait for laboratory work to come back. In the case of Dugan, I took an oral statement from the medical examiner's office rather than wait for the written report, because I knew there was so much interest in the case. The investigator prepares the report. I review it and make a decision.

Q: Given that the commonwealth's attorney's office works closely with the police in prosecuting hundreds of cases a year, how does your office ensure impartiality when investigating a police shooting?

Humphreys: In screening cases for prosecution, we routinely tell the police that they don't have enough evidence to prosecute normal cases. Someone has to make the decision to prosecute and it's us. It's inappropriate, it seems to me, for us to base our decision on their work.

We have three investigators who work for me, and none are former Virginia Beach police officers. The one who worked on the Dugan shooting is a retired detective from the Montgomery County, Va., Police Department.

One of the biggest differences is that the investigators are on my payroll and not the police department's. It's about as independent as you can make it. If a police officer is wrong, then it's my office that has to prosecute. We do it based on the information gathered by our people.

Q: Has your office ever found wrongdoing on the part of police when conducting an investigation of this type? If so, what were the results?

Humphreys: It does not happen often, but it does when we find officers have used excessive force. Many years ago we found an officer had used excessive force in a case involving a mentally retarded person who was beaten on the head severely by a night stick. The officer lost his cool and overreacted. He was charged with unlawful wounding, a felony, and he was acquitted by a jury. He is no longer with the force.

In another case, an officer accused of excessive force resigned. The victim, who was being prosecuted in our office for other crimes, decided he didn't want to pursue it. There are cases where we don't see criminal wrongdoing, but there may be concerns about training, and we will bring them to the attention of the chief.

Q: Once your office has cleared an officer of the possibility of facing criminal prosecution, is there any way that civil charges could be brought?

Humphreys: Certainly. The only call we make is if there is any evidence to charge the officer with a criminal offense. The standard of proof is one beyond a reasonable doubt. There is a lesser standard in civil cases and that one is a preponderance of evidence. That does not stop a victim or a victim's family from pursuing civil litigation. But the police have a healthy level of immunity from civil judgments. You have to show they were acting in bad faith. You have to show they were way out of line as opposed to simply making a bad judgment call.

Q: What would happen if an investigation by a person's family turned up what they believed was sound evidence of wrongdoing on the part of police? Would your office consider action to reopen a case?

Humphreys: Yes. If any evidence is found that we missed and would make a difference in our findings, if new people showed up who we did not talk to, then it's no problem at all for us to consider it.

Q: In the June 15 shooting death of Bryan Dugan, the family has wondered why Mace or pepper gas was not used more extensively to subdue him, given that he was outnumbered three-to-one by the officers. What, in your view, constitutes a reasonable effort by law enforcement officers to exhaust non-lethal means of force before deadly force is required?

Humphreys: The call that I make is not based on whether I think all non-lethal means have been exhausted. The law does not require that. The law says that police may act with deadly force to protect themselves or a citizen from injury or death and, in some cases, to apprehend some criminals who are trying to avoid arrest. If at any point a person was armed with a deadly weapon and makes any motion or indicates by words or actions that a reasonable person would believe was a threat to inflict bodily injury, then the police are justified. Obviously, if they could have subdued him they would have. . .

Q: Your office employs three investigators to help collect facts following a police shooting. The investigator's report, along with information provided by witnesses and the police are the basis for your decision. Are you required by law to consider any other statements or documentary evidence before making a ruling?

Humphreys: Not by law, but I do. If someone calls me and says I have something that you don't know anything about, I'll consider that. I'll consider any source of information. ILLUSTRATION: Color photo

Robert J. Humphreys KEYWORDS: VIRGINIA BEACH POLICE DEPARTMENT SHOOTING

INVESTIGATION INTERVIEW

Send Suggestions or Comments to webmaster@scholar.lib.vt.edu