“ A sitting sheriff cannot be charged except by a warrant issued by a Superior Court judge.”
Danny Porter in a radio interview on Monday, May 4th, 2015
Clayton County Sheriff Victor Hill made national headlines running for a second term while facing multiple felony charges such as racketeering and giving false statements.
He said the charges were politically motivated, and he kept a relatively low profile after being acquitted on a whittled-down list of charges in 2013.
But he was thrust back into the spotlight Sunday. Police said he telephoned 911 to report that he had shot a female acquaintance in a model home near Lawrenceville.
Gwenevere McCord, 43, was rushed to the hospital in critical condition with a gunshot wound to the abdomen.
There was some confusion Sunday about whether police could arrest Hill if they felt charges were warranted.
Georgia law says “a sitting sheriff cannot be charged except by a warrant issued by a superior court judge,” Gwinnett District Attorney Danny Porter told AM750 and 95.5 FM News/Talk WSB, a news partner of The Atlanta Journal-Constitution, in an interview Monday morning.
Porter later said that, after further research, he determined the state law only applies in cases where a sheriff is on official duty when he or she allegedly commits a crime and Hill was in Gwinnett for what “appears to be a completely personal errand.”
PolitiFact Georgia was intrigued.
Does Georgia give special or different treatment to sheriffs who are suspected of a crime?
We’ll look deeper at the law, which Terry Norris, executive director of the Georgia Sheriffs’ Association, was quick to tell us applies to far more people than just sheriffs.
The law, Georgia Code 17-4-40c states: “Any warrant for the arrest of a peace officer, law enforcement officer, teacher, or school administrator for any offense alleged to have been committed while in the performance of his or her duties may be issued only by a judge of a superior court, a judge of a state court, or a judge of a probate court.”
Norris said he believes the law, which dates to the 1860s, was designed to prevent private citizens from obtaining criminal warrants against sheriffs and teachers just because they are mad at them for doing their jobs.
Magistrates and municipal judges can issue most warrants. But under these circumstances, the law requires requests for warrants be handled by higher-level probate, state or superior court judges, he said.
Porter said Tuesday that he purposely proceeded cautiously.
“I was not sure enough of the procedure that was required to arrest the sheriff. I was afraid I would make a procedural error in the case,” he said.
Porter said Gwinnett County has six state court judges and one probate judge. But he doesn’t have relationships with them like he does with the superior court judges that would allow him to call ‘on a Sunday night and bring a police officer to their house.”
He said he also was concerned Hill might claim to be on duty Sunday.
“Police officers make the argument they’re always on duty,’ Porter said.
The Camaro that Hill was in had police lights and other equipment, he said.
Ronald Carlson, a professor at the University of Georgia School of Law, said Porter’s actions made sense, given the law.
“With a high profile sort of case, and with a high-profile person who may be charged or not, it’s good to go to probably to the highest court listed in statute, and that’s the superior court judge,” Carlson said. “I think he has the right idea.”.
Jill Polster, an Atlanta criminal defense attorney and former prosecutor, said it is not unusual for police to not make an arrest until a thorough investigation is done when there is possibility of what attorneys call an “affirmative” defense.
Those defenses pop up in situations such as the Hill shooting, or in home invasions, when the claim of accidental shootings or self-defense can delay or lengthen investigations as law enforcement conducts interviews to reconstruct what happened.
For instance, former Peachtree City Police Chief William McCollom was indicted April 15 on reckless conduct charges from the New Year’s Day shooting that left his former wife paralyzed.
McCollom told investigators he had fallen asleep with his gun in the bed when he accidentally shot Maggie McCollom in the back.
In the Hill case, there is a living victim, too. Police are likely waiting to talk to her before moving too quickly to determine what happened in a case that includes at least two other eyewitnesses, Polster said.
Our conclusion:
Gwinnett District Attorney Danny Porter said “A sitting sheriff cannot be charged except by a warrant issued by a Superior Court judge.”
He later said he had researched the law and determined that it only applied if the alleged crime occurred during the official performance of duty.
Porter’s overarching point is that under Georgia law sheriffs are treated differently when they may have broken the laws they’re supposed to uphold. On that point, Porter is correct.
But on the specifics, he’s off base. He had other options. Warrants can be issued against sheriffs by the state court and probate courts judges.
PolitiFact defines a statement as Half True when it’s at least partially accurate but missing enough context to be misleading to the average reader. Porter’s statement fits that bill.
We rate his statement Half True.
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