Pa. Supreme Court sides with former Philly cop facing murder charges and says DA Krasner can’t ‘rewrite the law’

The Pennsylvania Supreme Court on Wednesday rejected a challenge by Philadelphia prosecutors to the state law governing how and when officers are permitted to use deadly force — the latest development in a long-running legal battle over the murder prosecution of former city police officer Ryan Pownall.

In a 4-2 decision, the high court said that although it agrees police shootings warrant “serious examination, by every facet of government as well as those outside of it,” District Attorney Larry Krasner’s office had chosen the wrong venue — Pownall’s trial — to try to upend the statute outlining when it is legal for police to fire their weapons.

“Doing as the DAO asks ... would essentially criminalize conduct the General Assembly has deemed noncriminal,” wrote Justice Kevin Dougherty.

In an unusual step, Dougherty also filed a blistering concurring opinion criticizing Krasner’s office for its handling of Pownall’s case.

» READ MORE: It should be unconstitutional when police officers kill fleeing felony suspects, Philly DA’s Office says

Without suggesting any remedy or potential penalty, Dougherty criticized nearly every step of the prosecution so far, saying Krasner’s office had not properly instructed grand jurors about the law when the panel was deciding whether to charge Pownall; went to “disturbing” lengths to prevent Pownall from having a preliminary hearing; and then, before trial, sought to “rewrite the law and retroactively apply it to Pownall’s case.”

“Little that has happened in this case up to this point reflects procedural justice,” Dougherty wrote. “On the contrary, the DAO’s prosecution of Pownall appears to be ‘driven by a win-at-all-cost office culture’ that treats police officers differently than other criminal defendants. This is the antithesis of what the law expects of a prosecutor.”

Jane Roh, a spokesperson for Krasner’s office, would not say if prosecutors planned to challenge the ruling, including by possibly appealing it to the U.S. Supreme Court. In a statement, Roh said: “The Pennsylvania Supreme Court exists to review the constitutionality of legislation. They failed to meet that obligation here. We respectfully disagree with the majority opinion.”

Pownall’s attorneys did not provide immediate comment.

The opinions marked a blow to the attempt by Krasner’s office to change the state’s use-of-force law for police.

Pownall’s case remains on track to go to trial. It was not immediately clear Wednesday when he might appear before a jury; a trial date scheduled for next month was expected to be delayed.

» READ MORE: Ex-Philly cop Ryan Pownall is charged in fatal on-duty shooting; FOP calls decision ‘absurd disgrace’

Krasner’s office charged Pownall with murder in 2018 for fatally shooting 30-year-old David Jones, who had run from Pownall after being stopped while riding a dirt bike and illegally carrying a firearm in North Philadelphia a year earlier. Pownall was fired not long after the shooting.

Prosecutors said the shooting of Jones “was not necessary to secure his apprehension — an apprehension that would never have been necessary if Pownall had not incited the confrontation.”

Pownall’s attorneys have long said that he was legally justified in firing his gun. And the police union, which has supported Pownall, called his arrest an “absurd disgrace.” He was the first Philadelphia officer charged with murder over an on-duty shooting in two decades (a judge later downgraded the case to third-degree murder and related charges).

In 2019, just weeks before Pownall’s trial was set to begin, prosecutors asked the judge to give jurors instructions about the state’s use-of-force law that differed from the state’s criminal code. Prosecutors said that was necessary because state law permits officers to shoot fleeing suspects even if there is no threat of imminent death or serious injury. Prosecutors say that violates the Pennsylvania Constitution and the Fourth Amendment.

» READ MORE: Murder trial for ex-Philly cop may be delayed by legal battle over use-of-force law

Pownall’s attorneys called the action “a thinly veiled attempt to bolster [a] weak case” and an inappropriate effort to change the law shortly before trial and retroactively apply it against Pownall.

Common Pleas Court Judge Barbara A. McDermott declined to grant the prosecutors’ request to change jury instructions, saying she had “no authority to summarily rewrite portions of a criminal statute.”

Prosecutors appealed that ruling, first to the Superior Court and then the Supreme Court. The high court on Wednesday affirmed McDermott’s decision and also signaled it did not believe Pownall could or should be tried on a law if it changed in the middle of his case.

Dougherty wrote in part: “A ruling in the DAO’s favor on its constitutional issue would, quite literally, result in an after-the-fact judicial alteration of the substantive criminal law with which Pownall has been charged.”

In a dissenting opinion, Justice David N. Wecht said he agreed with that principle. But he also said that he believed prosecutors were correct in viewing portions of the state’s use-of-force law as unconstitutional, and that the majority opinion “leaves the important questions implicated in this case unanswered, not just today but perhaps indefinitely.”