The State Protects the State: Evidence of Wrongdoing but No Charges for Police who Killed Anthony Heffernan

In the Canadian state context it is exceedingly rare for police who kill civilians to be charged with a criminal offence, no matter how egregious or obviously criminal their actions are. Often times so-called oversight agencies will exonerate the officers (sometimes because they do not receive full or proper disclosure from obstructionist forces or police associations, as the Ontario Ombudsperson has reported). In other cases the Crown will operate to shield officers who kill by refusing to bring charges even where the oversight agency has found evidence of wrongdoing by police. By refusing to bring charges the Crown acts to protect killer police officers from having to defend their actions in court and foreclosing even the possibility of conviction. The decision to withhold charges also deprives the public, and family members of the victim, from learning the identity of the officers responsible as the bringing of charges is often the only mechanism by which the identities of killer police officers are revealed publicly. Given the close associations and mutual professional benefits of positive relations between police and prosecutors (and the more straightforward interest of the state in defending its own operators) the choice of prosecutors not to charge police even in cases of apparent wrongdoing is not overly surprising.

Yet it is still disappointing particularly for friends and family members of victims and for community advocates. Another such disappointing case of prosecutorial shielding of police came out of Alberta on August 22, 2016 when the Crown prosecutor chose not to bring charges against the officers who killed Anthony Heffernan (27) in 2015, despite the fact that the provincial oversight body, the Alberta Serious Incident Response Team (ASIRT), found evidence of police wrongdoing through their investigation. Incredibly, the officer who killed Anthony Heffernan has since gone on to kill another man, Dave McQueen, a man in a wheelchair, in 2016. Tellingly the killing of Anthony Heffernan was the closest any police officer has come to being criminally charged for killing someone.

 

Comply or Die Policing Again: The Killing of Anthony Heffernan

Anthony Heffernan was a young man experiencing addiction and mental health issues who was shot multiple times and killed by police despite the fact that he was confined to a room in a Super 8 motel and posed no immediate danger to anyone but perhaps himself. Heffernan suffered three shots to the neck and head. The ASIRT report found that police could Heffernan through the partially opened hotel room door and they described him as “flushed, non-responsive and hyperventilating” (quoted in Grant and Fletcher 2016). Police described the victim as being “in medical distress” (quoted in Grant and Fletcher 2016) but there is no proper explanation as to why the response of officers was to shoot someone in distress, and confined to an enclosed space, multiple times. Heffernan was only holding a “small diabetic needle” with no point on it and a lighter. The entire incident lasted only 72 seconds. In that short amount of time police encountered, engaged, and killed a young man in distress and confined to a room.

This appears to be yet another case of “comply or die” policing in which someone is killed simply because they do not fulfill the authoritarian wishes of officers shouting commands. Indeed, in this case officers asserted that they shot Heffernan because he did not comply with their orders to drop the needle and lighter. A steep price to pay, summary execution, for failing to satisfy the authoritarian desires of police.

 

State Protecting State

The ASIRT report said that although “there is evidence capable of providing reasonable grounds to believe that an offence or offences have been committed, the Crown opinion has determined that the case does not meet the standard for prosecution” (quoted in Grant and Bell 2016). The family finds this twist of logic to be “shocking.”

To excuse their decision not to bring charges the Crown prosecutors, perhaps trying to defuse criticism of their controversial choice released a lengthy statement. It read in part:

“The evidence would be that he did so as a defensive action against an individual who was armed with a syringe, and who had been either unwilling or unable to comply with police directions.

“In all of these circumstances, it could not be disproven that the subject officer acted upon a reasonable belief that he and the other officers were at risk of serious or grievous bodily harm, and that his use of force was necessary.” (quoted in Grant and Fletcher 2016)

 

Calgary Chief of Police Roger Chaffin responded by saying he stands by his officer despite noting that he has been reassigned while working “through his own, particular issues” (quoted in Grant and Fletcher 2016). Notably the Chief of Police in Calgary has been so concerned with improper behavior in the force that he has gone on a public witch hunt against whistleblowers in the department who have spoken out against misconduct or named officers involved.

The lawyer for the Heffernan family, Tom Engel, notes that the officer involved in the shooting exercised his right to remain silent during the ASIRT investigation and refused even to give the police oversight agency his notes. This is an incredible privilege given police but denied civilians. It is one reason among many that so-called independent oversight agencies have been so ineffectual (or effective in shielding police) in every provincial context within the Canadian state. Notably, again, not bringing charges protects the officers from having to testify and hand over their notes so the Crown, even in this way, is protecting the officers from necessary public scrutiny regardless of a conviction or not.

The family is planning a civil suit against the police. This is often the last resort option to which families must turn simply to learn the names of officers involved in killing their loved one. In this case the family is hoping that the civil suit against Calgary Police Services and the officers who were in the Super 8 motel room will have to testify and turn over the notes. According to Tom Engel: “It just seemed that, with all those police officers in the room with all that fire power … [Anthony] was shot having nothing but a lighter in his hand and possibly approaching the officers, it’s a stretch to say it was a justifiable homicide” (quoted in Grant and Bell 2016).

Engel also points out the double standard that exists because officers are allowed to stay silent and keep their notes under the Police Act. Indeed officers are rarely if ever arrested when they kill someone, even under dubious circumstances. In Engel’s view:

“If the tables were reversed and Anthony Heffernan had killed a police officer, they would have arrested him on the spot and had him in for an intensive interrogation trying to break down his will to remain silent. But that’s not the case with a police officer, they don’t arrest him, they carry on an investigation for months or even years.” (quoted in Grant and Bell 2016)

In the case of a civil suit or fatality inquiry the officers would be compelled to testify and would have to turn over the notes. The officers were the only witnesses to the killing and their stories about what happened actually differed in key areas such as the movements of Heffernan before he was shot.

 

Anyone in Contact with Police is at Tremendous Risk: the Family Responds

The family was devastated by the Crown decision. Given the circumstances around the killing of Anthony Heffernan they expected the bringing of a rare charge of murder against the officer responsible (who would kill again earlier this year). Anthony Heffernan’s mother, Irene, had hoped “clear and just thinking would prevail, but it didn’t” (quoted in 2016). Heffernan’s father Pat says his son’s killing shows that people are at risk any time they come into contact with police. In his words: “It’s a sad day for all Albertans and Canadians alike. There is no justice in this case. Anthony is dead, and anyone else who comes into contact with police is at tremendous risk … because they [officers] are going to be supporting each other in whatever needs to be said” (quoted in Grant and Fletcher 2016).

This is another case that begs us to ask deeper questions about why police are called in the first place. It raises the effects of social isolation and moral panics, around drug use or mental health, which lead people to call police for behavior that is not harming anyone but may be unusual or disturbing. This is a matter manufactured fear and dependence on authorities. And it ends with someone dead at the hands of police upset that their orders have not been obeyed and trained to shoot first, second, and always. And knowing they will not be held accountable for the great harm they do, for the lives they destroy.

 

Further Reading

Grant, Meghan and David Bell. 2016. “Anthony Heffernan’s Family to Sue after Calgary Police Officer Cleared in Fatal Shooting. CBC News. August 22. http://www.cbc.ca/news/canada/calgary/civil-suit-planned-anthony-heffernan-death-1.3731681

Grant, Mehan and Robson Fletcher. 2016. “Calgary Officer who Fatally Shot Anthony Heffernan won’t be Charged.” CBC News. August 22. http://www.cbc.ca/news/canada/calgary/anthony-heffernan-calgary-police-shot-asirt-charges-1.3730911

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