By: Mike Rains
On September 30, 2020, Governor Newsom signed AB 1506 requiring the California Department of Justice to investigate incidents of an officer involved shooting resulting in the death of an unarmed civilian and, upon request of a law enforcement agency, review the use of force policy of the agency and make recommendations. The legislation, effective on July 1, 2021, enacted section 12525.3 the Government Code.
In the lead up to July 1st, there was much discussion as to how the legislation would be implemented. I participated in various working groups which included local and state law enforcement agencies as well as members of the Department of Justice. While there’s been an effort to clarify the DOJ’s role and responsibilities, especially as it relates to the investigations of an OIS involving the death of an unarmed civilian, it is safe to say that there is still some confusion concerning how Government Code section 12525.3(b)(1) will be implemented. In an effort to assist our clients in gaining a better understanding of the relevant portions of AB 1506, and how to prepare for implementation, we have prepared the following outline of the essential provisions with our recommendations:
- The new law addresses only officer involved shootings which result in the death of “an unarmed civilian.” (Government Code section 12525.3(b)(1)) An officer involved shooting which results in a suspect being hospitalized and injured but recovering from those injuries, even if the person was “unarmed” within the meaning of the law is not a “qualifying event.”
- Our clients should understand the nuances of the definition of “unarmed civilian.” In a nutshell, here is what you should be aware of:
- An unarmed civilian is anyone “not in possession of a deadly weapon.” A deadly weapon would include such objects as screwdrivers, hammers, baseball bats, and clubs of various sorts. In addition, all firearms and BB/pellet guns, even if unloaded or inoperable are considered “deadly weapons.”
- However, “replica firearms” are not considered deadly weapons unless used in a manner to cause death or great bodily injury (for instance, as a bludgeon).
- In our opinion, this law will result in involvement by the Department of Justice in the investigation of the death of an individual who was shot by a law enforcement officer following a “furtive” movement of hands, when the suspect was unarmed, or even reaching for a cell phone. Similarly, DOJ will investigate an officer involved fatal shooting of an individual who suddenly produces a “shiny object” which turns out to be, for example, a cell phone.
- If a law enforcement officer is involved in a “qualifying event” as defined in this new law, the law enforcement agency is required to call the Department of Justice hotline at 800-522-9327.
- The Department of Justice will be considered the “lead investigating agency” in an investigation in any one of these qualifying events.
- The Department of Justice will be working in concert with the local District Attorney’s Office of the county where the officer involved shooting occurred, and will also be working with the employing law enforcement agency of the officer that used the deadly force.
- Since it is possible, if not likely, that the arrival of DOJ investigators at the incident scene or location of the sequestered involved officer(s) may take substantial time, interviews of the involved officer(s) may be delayed by agreement 24-48 hours following the event.
- Crime scene work will be performed by the local agency, i.e., either the local District Attorney’s Office, the county crime lab, or crime scene technicians of the employing agency.
- The Attorney General’s Office will be reviewing reports prepared by investigators in the case and will make a decision whether or not to criminally charge an officer involved in the fatal shooting of an unarmed civilian.
- If criminal charges are filed, the State Attorney General’s Office will prosecute the criminal case.
- The employing agency of the officer(s) involved in the fatal shooting of an unarmed civilian will still be required to conduct an administrative investigation to determine whether or not the shooting was in violation of department policy, in order to comply with the provisions of Penal Code section 835(a).
- Law enforcement labor organizations should formally request to meet and confer with their respective employers to discuss how AB 1506 will be implemented and the extent to which current OIS protocols will be modified.
Please feel free to contact Mike Rains, or any one of our attorneys, if you or members of your association have any questions concerning the new law and its implementation.
CA DOJ OIS Investigation Procedural Guidelines