Multnomah County judge hears legal wrangling as grand jury looks ...

With a grand jury convened, Multnomah County prosecutors and Portland Officer Dane Reister's lawyer legally wrangled today in court on what the jury reviewing Reister's June 30 shooting of another man can consider.

Reister, who mistakenly fired lethal rounds from a beanbag shotgun and wounded a man in June, had five years earlier mistakenly fired a loaded riot-suppression launcher during training, striking an officer posing as a protester with a smoke round.

Reister's attorney, Janet Hoffman, urged the presiding judge to prevent prosecutors from sharing with grand jurors Reister's 2006 firearms mistake. She also argued that the district attorney's office should not be allowed to instruct the grand jury to consider a "negligent wounding" statute in its review of Reister's most recent shooting.

The grand jury reviewing Reister's June shooting of William Kyle Monroe, now 21, began Wednesday and is expected to last through early November. The district attorney's office has retained an expert from out of state to review Reister's most recent shooting.

After two hours of unprecedented arguments about what the state should be allowed to present to a sitting grand jury. Presiding Judge Jean Kerr Maurer said she'd issue her ruling on Monday at 11 am.

Hoffman said Reister's two firearms mistakes are "totally dissimilar," and the 2006 incident would have a "hugely prejudicial effect" on the grand jury.

In 2006, Reister thought he was "dry firing" a TL-1 launcher at an officer posing as a rioter during a training exercise at Camp Rilea. He thought his weapon was unloaded, but it wasn't and when he pulled the trigger, he fired a 37 mm smoke projectile that struck another Officer Zach Kenney in the leg. It caused a minor injury, a red welt on Kenney's thigh that was treated with an ice pack.? (Both sides submitted to the court an agreed upon statement of facts, describing Reister's 2006 firearms mistake)

Speaking of Reister's wounding of William Kyle Monroe in Southwest Portland by lethal shotgun rounds, Hoffman said: "It was a mistake that that particular ammunition was in that firearm. It was no mistake absolutely to shoot him."

Reister received a letter of reprimand after the 2006 firearms mistake. But the lesson he took from that incident 5 years ago, Hoffman said, was: "Be sure to know if your firearm is loaded."

"That is not applicable to the loading of the firearm in the dark, dim basement" of the parking garage across from Central Precinct, where Reister loaded the wrong ammunition into his beanbag shotgun June 30, Hoffman argued.

Norm Frink, a chief deputy district attorney, argued just the opposite. He said Reister's 2006 error was directly relevant. In both shootings, Reister was unaware of what his less-lethal firearm was loaded with, Frink said.

"His state of mind was the same. He incorrectly perceived the status of the ammunition in that less-lethal firearm," Frink said.

In a separate but related matter,Reister's lawyer also urged the judge not to allow the grand jury to consider whether the Portland officer's wounding of Monroe represented "negligent wounding," an Oregon statute that is not part of the criminal code. It brings a lower standard of proof than a criminally negligent charge, which would require a showing of "gross deviation" from a reasonable person's standard of care.

Under Oregon's negligent wounding statute, "any person who, as a result of failure to use ordinary care under the circumstances, wounds any other person with a bullet or shot from any firearm, or with an arrow from any bow, shall be punished by imprisonment in the county jail for a period not to exceed six months, or by a fine not to exceed $500, or both."

Reister's lawyer argued that state lawmakers intended the negligent wounding charge for hunters, and not for police officers.

"It is not applicable to the lawful use of force, which officers have," Hoffman said.

But the district attorney's office argued that while the "negligent wounding" statute may have started out as focused on hunters, it was revised to include "any person."

The language of the negligent wounding statute contains nothing to exempt police from the wording 'any person,' argued deputy district attorney Jeff Howes.

Hoffman countered that state statutes often refer to police as "peace officers," not as "persons."

--Maxine Bernstein

Source: http://www.oregonlive.com/portland/index.ssf/2011/10/armultnomah_county_judge_h_da_of.html

susan sarandon susan sarandon motorola razr camille grammer camille grammer big east port charlotte florida