By: Michael L. Rains
I hope that those who read this article are not hearing for the first time about an important change in the law relating to officer involved shooting investigations The primary objective of my article is to advise police officers in California about Assembly Bill 1506 which is intended to add section 12525.3 to the California Government Code, and is likely slated to become effective July 1, 2021. Under this new law, the State Attorney General’s office is mandated to investigate “incidents of an officer involved shooting resulting in the death of an unarmed civilian.” The term “unarmed civilian” is defined as “… anyone who is not in possession of a deadly weapon,” and Government Code section 12525.3(a)(1) contains the following definition of “deadly weapon”:
‘Deadly weapon’ includes, but is not limited to, any loaded weapon
from which a shot, readily capable of producing death or other serious
physical injury, may be discharged, or a switchblade knife, pilum-
ballistic knife, metal-knuckle knife, dagger, billy, blackjack, plastic-
knuckles, or metal-knuckles.
So, from the standpoint of language alone, what is the “bottom line” of OIS investigations after July 1, 2021? If the police shoot a “civilian” who possesses virtually any instrument/object which is “capable” of producing “serious physical injury” the investigation of that OIS will be conducted in the traditional manner, usually by the invocation of a countywide OIS protocol and a response by the local District Attorney’s office to head-up the investigation. Hypothetically then, if the OIS involves a “civilian” in the possession of a screwdriver, a baseball bat, a two-by-four, a kitchen knife or even a glass bottle, State DOJ will not likely have statutory “jurisdiction” to investigate the OIS.
However, I can see that we may have some arguments/disputes between local DAs and the State DOJ concerning OIS investigations where, for instance, a fleeing suspect makes a sudden furtive movement to his waistband area and is shot, and is determined after the fact to be carrying a closed switchblade knife in his pants pocket. And, as a slight variation of that theme, it is my belief that the OIS of an individual who makes a sudden furtive movement toward his waistband area and is shot, but later determined to have no objects in his immediate possession which would be “readily capable” of producing serious physical injury, such as a cellphone, will require investigation by the State DOJ.
In preparing to discuss this law for classes I have been recently teaching concerning our new use of force law contained in Penal Code Section 835a, I have been attempting to get a sense of how the DOJ will likely set-up investigations of OISs of unarmed civilians. Here are some of the important points I have been able to discern:
- AB 1506 is only slated to take effect as a new law if funding is approved by the California Legislature. Although such funding is likely to be approved for the next fiscal year beginning July 1, 2021, there is no guarantee that the funding will be approved, and therefore no certainty that this law will take effect on July 1st.
- The DOJ plans to establish OIS teams of DOJ special agents and/or investigators who will be assigned to work in four separate offices in Northern California and four in Southern California which will be established by geographical locations. For Northern California investigations, I have heard that offices will most likely be located in Sacramento, Fresno, Dublin and Redding.
- I also understand that DOJ agents will likely be requesting investigators in the agencies which employ officers who have been involved in an OIS to assist them in gathering evidence and/or information. I am not certain of the precise scope of assistance which the DOJ will be requesting from the employing agency of the involved officer, but I believe it would certainly include such things as obtaining any available video evidence, possibly canvassing for witnesses and witness statements, and no doubt assisting in crowd control, traffic control and crime scene preservation. At this juncture, it is not entirely clear to me that the DOJ will be set up with personnel to do the full array of crime scene processing which is often required in the aftermath of an OIS.
What is pretty clear to me from reading the new statute is that a DOJ team investigating the OIS of an “unarmed civilian” under this new law will not be asking to be assisted in that investigation by the local DA of the county where the shooting occurred.
Additionally, Government Code section 12525.3(b)(2) authorizes the DOJ to prepare and submit a written report containing a statement of the facts, a detailed analysis and conclusion for each investigatory issue, and recommendations to modify policies and practices of the involved law enforcement agency. It also requires the State DOJ to initiate and prosecute a criminal action against an officer if criminal charges are found to be warranted.
Finally, of note, the new law requires the Attorney General to operate a “police practices division” within the DOJ which will, upon request of a local law enforcement agency, review its use of deadly force policies.
I have seen an increasing belief primarily by criminal justice academics and legal scholars in the last five years that detectives from the agency which employs the involved officer in an OIS should take no role in the investigation. In addition, the mistrust of a police agency to investigate its own officers thoroughly and objectively in an OIS has had a “spillover” effect, with suggestions as well that the DA of the county where the involved officer’s employing agency is located should also take no role in the ensuing investigation analysis or conclusions. The growing sense of suspicion surrounding the ability of police agencies and DA offices to investigate, charge and prosecute “one of their own” was, no doubt, some of the impetus for AB 1506. As I write this article and try to picture the future of OIS investigations of “unarmed civilians,” I have a number of questions and concerns:
- The response time for State DOJ investigators to arrive at the shooting location and commence an investigation – an extended delay in arrival time may necessitate delaying interviews of involved officers for 36 to 48 hours at a minimum for that reason alone.
- Which agency will be responsible for crime scene processing?
- How knowledgeable will State DOJ agents be in analyzing OISs under our new use of force law contained in Penal Code section 835a?
- The new law makes no mention of responsibility for providing information to the media or public concerning the OIS of an “unarmed civilian” (which is much more likely than the OIS of an armed suspect to trigger community concern, questions, protests, outrage and demonstrations). I have serious concerns that a lack of clarity in this law concerning media relations or the sharing of information with the media will lead to a public relations nightmare for the involved officer(s) and agency.
- Will the as-of-yet to be appointed State Attorney General, due to philosophical beliefs or merely for political survival, succumb to pressure or criticism from the media or public related to the OIS of an “unarmed civilian” and charge an officer criminally when it is unlikely that a jury will convict an officer beyond a reasonable doubt based upon the facts of the investigation?
For California cops, it is an unsettled world consisting of often inadequate, shoddy or inept legal or political support from political leaders. Regrettably, I do not see AB 1506 adding a sense of stability or security to the lives or livelihoods of California police officers who are involved in OISs of “unarmed civilians.”
Mike Rains is a principal and founding member of Rains Lucia Stern St. Phalle & Silver, PC. He heads the firm’s Criminal Defense and Legal Defense of Peace Officers Practice Groups. Mike is one of California’s top trial attorneys. He has over 40 years of experience representing peace officers and other high-profile clients in civil and criminal litigation.