Existing law establishes the Department of Justice under the direction and control of the Attorney General, and requires the Department of Justice to perform duties in the investigation of crimes as may be assigned by the Attorney General. Existing law requires each department or agency in this state that employs peace officers to establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies, as specified.

This bill would require the Attorney General to direct the commencement of an appoint a special prosecutor to direct an independent investigation by the Department of Justice if a peace officer, in the performance of his or her duties, uses deadly physical force upon another person and that person dies as a result of the use of that deadly physical force. The bill would require the department, based on its investigation, to prepare and submit a written report setting forth specified information and recommendations to the Attorney General and to the district attorney and law enforcement agency of the county in which the use of deadly physical force by a peace office occurred. The bill would require the Attorney General to post each written report on the departments Internet Web site unless any information in the report is required to be maintained as confidential by any other law. The bill would grant the special prosecutor the sole authority to determine whether criminal charges should be filed. The bill would make the special prosecutor responsible for prosecuting any charges filed.

Existing law establishes the Department of Justice under the direction and control of the Attorney General, and requires the Department of Justice to perform duties in the investigation of crimes as may be assigned by the Attorney General. Existing law requires each department or agency in this state that employs peace officers to establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies, as specified.

Existing law requires each department or agency in this state that employs peace officers to establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies, as specified.

This bill would declare the intent of the Legislature to enact legislation that would establish, within the Department of Justice, an independent review panel to investigate and provide an independent review of peace officer involved shootings and other uses of force resulting in death.

Date of Hearing: May 13, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 86

Author:(McCarty) – As Amended Ver:April 23, 2015

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill r

equires the Department of Justice (DOJ) to commence an independent investigation, if a peace officer uses deadly force in the performance of his or her duties that results in the death of an individual. Specifically, this bill:

1. Specifies that if a peace officer, in the performance of his or her duties, uses deadly physical force upon another person and that person dies as a result of the use of that deadly physical force, the Attorney General (AG) is required to appoint a special prosecutor to direct the investigation concerning the use of deadly physical force by that peace officer.
   
   

2. Pursuant to this investigation, the special prosecutor will have the sole power to determine whether criminal charges should be filed, and if so, the charges must be filed in the superior court of the county in which the incident took place and the prosecutor is responsible for prosecuting.
   
   

FISCAL EFFECT:

Significant ongoing costs (GF), in excess of $1 million, to the DOJ to conduct at least 50 investigations per year. According to a 2005 DOJ bulletin, there were in excess of 300 deaths in custody in 2003, approximately 85 percent were in facilities and 15 percent on the streets. The DOJ is required to investigate all deaths; however; the assumption is that investigations for deaths on the streets will be more resource intensive.

COMMENTS:

1. Purpose. According to the author, "There is a growing appetite, both at the national and local level, to create a better and more transparent system regarding police shootings that is fair to police, families, and the community in order to restore public trust."
   
   “There is skepticism in the current process where local DA’s investigate cops they work most closely with.  To foster better transparency in the process, a common sense reform would be to have an independent review process by the Department of Justice to investigate police shootings where a civilian death occurs."
   
   “California needs to have this important conversation to restore public trust and show that we are a leader on this issue.”
   
   

2. Background. Under current law, when the AG deems it advisable or necessary in the public interest, or when directed to do so by the Governor, the AG is required to assist any district attorney in the discharge of his/her duties, and may, where he/she deems it necessary, take full charge of any investigation or prosecution of violations of law of which the superior court has jurisdiction. In this respect the AG has all the powers of a district attorney, including the power to issue or cause to be issued subpoenas or other process. Current law also provides that if a district attorney is disqualified to conduct any criminal prosecution within the county, the Attorney General may employ special counsel to conduct the prosecution. The attorney's fee in such case is a legal charge against the state.

The stated goal of the President’s Task Force on 21^st Century Policing was “. . . to strengthen community policing and trust among law enforcement officers and the communities they served, especially in light of recent events around the county that have underscored the need for and importance of lasting collaborative relationships between local police and the public.” Based on their investigation, the Task Force provided thoughts and recommendations on a variety of issues involved with community policing.

One of the areas of police practices explored by the Task Force was oversight. The Task Force developed the following actions items (among others) in connection with cases that involved police use of force resulting in a death, or police shootings resulting in death or injury:

• 2.2.2 Action Item: These policies should also mandate external and independent criminal investigation in cases of police use of force resulting in death, officer-involved shooting resulting in injury or death, or in-custody deaths.

• 2.2.3 Action Item: The task force encourages policies that mandate the use of external and independent prosecutors in cases of police use of force resulting in death, officer-involved shootings resulting in injury of death, or in-custody deaths.

"Strong systems and policies that encourage use of an independent prosecutor for reviewing police uses of force and for prosecution in cases of inappropriate deadly force and in-custody death will demonstrate the transparency to the public that can lead to mutual trust between community and law enforcement." (Interim Report of the President’s Task Force on 21^st Century Policing (2015, p. 22.)

3. Argument in Support: According to the California State Conference of the National Association for the Advancement of Colored People, “Police brutality has had a long history in California, leading many civil rights organizations and advocates to raise issues concerning police misconduct. Following the high-profiled deaths of Michael Brown and Eric Garner, civil rights advocates have campaigned for greater oversight of the investigation process following deaths involving law enforcement. Independent review panels of law enforcement agencies help uncover broken policies, outdated procedures, outmoded technology, and operating norms that puts officers at odds with the community they are meant to serve and protect.

4. Argument in Opposition: According to The Peace Officers Research Association of California, "District Attorneys are elected by their counties to handle these types of investigations. District Attorneys have made decisions for years, and have overseen difficult cases that have been scrutinized heavily by the media and public. The concern that there would be a conflict of interest between a District Attorney and officers they may work with is unfounded. District Attorneys routinely prosecute peace officers when they believe there is sufficient evidence to prove a crime beyond a reasonable doubt. It is a District Attorney’s ethical duty to ensure the fair administration of justice, without regard to who is being investigated."

“AB 86 is unnecessary because we believe the Attorney General already has the authority to investigate and prosecute any case in which he or she believes criminal conduct has occurred.”

5. Related Legislation: SB 227 (Mitchell), currently on Senate floor, would prohibit a grand jury from inquiring into an offense or misconduct that involves a shooting or use of excessive force by a peace officer, as specified, that led to the death of a person being detained or arrested by the peace officer.

Analysis Prepared by: Pedro R. Reyes / APPR. / (916) 319-2081

Date of Hearing: April 28, 2015

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Bill Quirk, Chair

ABPCA Bill Id:AB 86

Author:(McCarty) – As Amended Ver:April 23, 2015

SUMMARY:

Requires the Department of Justice to commence an independent investigation, if a peace officer uses deadly force in the performance of his or her duties that results in the death of an individual. Specifically, this bill:

1. Specifies that a peace officer, in the performance of his or her duties, uses deadly physical force upon another person and that person dies as a result of the use of that deadly physical force, the Attorney General shall appoint a special prosecutor to direct the investigation concerning the use of deadly physical force by that peace officer.
   
   

2. Pursuant to this investigation, the special prosecutor shall have the sole power to determine whether criminal charges should be filed.
   
   

3. If the special prosecutor chooses to file charges, the special prosecutor will file those charges in the superior court of the county in which the incident took place.
   
   

4. The special prosecutor is responsible for prosecuting any criminal charges that are file I connection with this section.
   
   

5. Any support the special prosecutor needs to pursue prosecution of the criminal charges filed under this section, will be provided by the Attorney General's Office.
   
   

EXISTING LAW:

1. Specifies that subject to the powers and duties of the Governor, the Attorney General shall be the chief law officer of the State. (Cal. Const., Art. 5, § 13.)
   
   

2. States that it shall be the duty of the Attorney General to see that the laws of the State are uniformly and adequately enforced. (Cal. Const., Art. 5, § 13.)
   
   

3. Provides that the Attorney General shall have direct supervision over every district attorney and sheriff and over such other law enforcement officers as may be designated by law , in all matters pertaining to the duties of their respective offices, and may require any of said officers to make reports concerning the investigation, detection, prosecution, and punishment of crime in their perspective jurisdictions as to the Attorney General may seem advisable. (Cal. Const., Art. 5, § 13.)
   
   

4. States that whenever in the opinion of the Attorney General any law of the State is not being adequately enforced in any county, it shall be the duty of the Attorney General to prosecute any violation of law of which the superior court shall have jurisdiction, and in such cases the Attorney General shall have all the powers of a district attorney. When required by the public interest or directed by the Governor, the Attorney General shall assist any district attorney in the discharge of the duties of that office. (Cal. Const., Art. 5, § 13.)
   
   

5. Specifies that the Attorney General has direct supervision over the district attorneys of the several counties of the State and may require of them written reports as to the condition of public business entrusted to their charge. (Gov. Code, § 12550.)
   
   

6. Provides that when the Attorney General deems it advisable or necessary in the public interest, or when directed to do so by the Governor, he shall assist any district attorney in the discharge of his duties, and may, where he deems it necessary, take full charge of any investigation or prosecution of violations of law of which the superior court has jurisdiction. In this respect he has all the powers of a district attorney, including the power to issue or cause to be issued subpoenas or other process. State that if a district attorney is disqualified to conduct any criminal prosecution within the county, the Attorney General may employ special counsel to conduct the prosecution. The attorney's fee in such case is a legal charge against the state. (Gov. Code, § 12550.)
   
   

7. States that if a district attorney is disqualified to conduct any criminal prosecution within the county, the Attorney General may employ special counsel to conduct the prosecution. The attorney's fee in such case is a legal charge against the State. (Gov. Code, § 12553.)
   
   

8. States that when requested to do so by the grand jury of any county, the Attorney General ma employ special counsel and special investigators, whose duty it shall be to investigate and present the evidence in such investigation to such grand jury. (Pen. Code, § 936.)
   
   

9. Provides that when a grand jury request special counsel, services of such special counsel and special investigators shall be a count charge of such county. (Pen. Code, § 936.)
   
   

10. Specifies that the district attorney is the public prosecutor, except as otherwise provided by law. (Gov. Code, § 25600.)
    
    

11. States that a public prosecutor shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses. (Gov. Code, § 25600.)
    
    

12. Requires each department or agency in this state that employs peace officers to establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies, and shall make a written description of the procedure available to the public. (Pen. Code, § 832.5, subd. (a)(1).)
    
    

13. Allows each department or agency that employs custodial officers, to establish a procedure to investigate complaints by members of the public against those custodial officers employed by these departments or agencies, provided however, that any procedure so established shall comply with the provisions of this section and with other provisions as specified. (Pen. Code, § 832.5, subd. (a)(2).)
    
    

14. Requires complaints and any reports or findings relating to these complaints be retained for a period of at least five years. All complaints retained may be maintained either in the peace or custodial officer's general personnel file or in a separate file designated by the department or agency as provided by department or agency policy, in accordance with all applicable requirements of law. However, prior to any official determination regarding promotion, transfer, or disciplinary action by an officer's employing department or agency, the complaints, as specified, shall be removed from the officer's general personnel file and placed in separate file designated by the department or agency, in accordance with all applicable requirements of law. (Pen. Code, § 832.5, subd. (b).)
    
    

15. Prohibits complaints by members of the public that are determined by the peace or custodial officer's employing agency to be frivolous, or unfounded or exonerated, or any portion of a complaint that is determined to be frivolous, unfounded, or exonerated, from being maintained in that officer's general personnel file. However, these complaints shall be retained in other, separate files that shall be deemed personnel records for purposes of the California Public Records Act (Pen. Code, § 832.5, subd. (c).)
    
    

16. Allows a department or agency that employs peace or custodial officers to release factual information concerning a disciplinary investigation if the officer who is the subject of the disciplinary investigation, or the officer's agent or representative, publicly makes a statement he or she knows to be false concerning the investigation or the imposition of disciplinary action. Information may not be disclosed by the peace or custodial officer's employer unless the false statement was published by an established medium of communication, such as television, radio, or a newspaper. Disclosure of factual information by the employing agency pursuant to this subdivision is limited to facts contained in the officer's personnel file concerning the disciplinary investigation or imposition of disciplinary action that specifically refute the false statements made public by the peace or custodial officer or his or her agent or representative. (Pen. Code, § 832.7, subd. (d).)
    
    

17. Requires the department or agency to provide written notification to the complaining party of the disposition of the complaint within 30 days of the disposition. (Pen. Code, § 832.7, subd. (e)(1).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "There is a growing appetite, both at the national and local level, to create a better and more transparent system regarding police shootings that is fair to police, families, and the community in order to restore public trust.
   
   “There is skepticism in the current process where local DA’s investigate cops they work most closely with.  To foster better transparency in the process, a common sense reform would be to have an independent review process by the Department of Justice to investigate police shootings where a civilian death occurs.
   
   “California needs to have this important conversation to restore public trust and show that we are a leader on this issue.”
   
   

2. AB 409 in Wisconsin was signed into law by Gov. Walker in April 2014. That law requires that an investigation must be performed by an independent review panel when a police officer is involved in the death of a civilian. The panel must consist of two individuals from outside of the police agency involved. In addition, the family of the victim must be informed of their legal rights.
   
   

3. Connecticut Law Requires Independent Investigation Into Use of Deadly Force by a Police Officer: In 2012, Connecticut passed a statute governing the procedure for the investigation of the use of deadly force by a police officer. The statute provided for the appointment of an individual to conduct the investigation, other than prosecutorial official from the judicial district where the incident occurred. Upon the conclusion of the investigation of the incident, a report must be filed that contains the following: (1) The circumstances of the incident, (2) a determination of whether the use of deadly physical force by the peace officer was appropriate, and (3) any future action to the taken by the Division of Criminal Justice as a result of the incident. (CT Gen Stat § 51-277 (2012).)
   
   

4. Interim Report of the President’s Task Force on 21^st Century Policing (2013): The Task Force was Co-Chaired by Charles Ramsey, Commissioner, Philadelphia Police Department and Laurie Robinson, Professor, George Mason University. The nine members of the task force included individuals from law enforcement and civil rights communities. The stated goal of the task force was “. . . to strengthen community policing and trust among law enforcement officers and the communities they served, especially in light of recent events around the county that have underscored the need for and importance of lasting collaborative relationships between local police and the public.” (Interim Report of the President’s Task Force on 21^st Century Policing (2015), p. v.) Based on based on their investigation, the Task Force provided thoughts and recommendations on a variety of issues that involved with community policing.
   
   One of the areas of police practices explored by the Task Force was oversight. The Task Force developed the following actions items (among others) in connection with cases that involved police use of force resulting in a death, or police shootings resulting in death or injury:
   
   2.2.2 Action Item: These policies should also mandate external and independent criminal investigation in cases of police use of force resulting in death, officer-involved shooting resulting in injury or death, or in-custody deaths.
   
   One way this can be accomplished is by the creation of multi-agency force investigation task forces comprising state and local investigators. Other ways to structure this investigative process include referring to neighboring jurisdictions or to the next higher levels of government (many small departments may already have state agencies handle investigations), but in order to restore and maintain trust, this independence is crucial.
   
   In written testimony to the task force, James Palmer of the Wisconsin Professional Police Association offered an example in that state’s statutes requiring that agency written policies “require an investigation that is conducted by at least two investigators . . . neither of whom is employed by a law enforcement agency that employs a law enforcement officer involved in the officer – involved death.” Furthermore, in order to establish and maintain internal legitimacy and procedural justice, these investigations should be performed by law enforcement agencies with adequate training, knowledge, and experience investigating police use of force. (Interim Report of the President’s Task Force on 21^st Century Policing (2015), p. 21.)
   
   2.2.3 Action Item: The task force encourages policies that mandate the use of external and independent prosecutors in cases of police use of force resulting in death, officer-involved shootings resulting in injury of death, or in- custody deaths.
   
   Strong systems and policies that encourage use of an independent prosecutor for reviewing police uses of force and for prosecution in cases of inappropriate deadly force and in-custody death will demonstrate the transparency to the public that can lead to mutual trust between community and law enforcement. (Interim Report of the President’s Task Force on 21^st Century Policing (2015, p. 22.)
   
   2.2.5 Action Item: Polices on use of force should clearly state what types of information will be released, when, and in what situation, to maintain transparency.
   
   This should also include procedures on the release of a summary statement regarding the circumstances of the incident by the department as soon as possible and within 24 hours. The intent of this directive should be to share as much information as possible without compromising the integrity of the investigation or anyone’s rights. (Interim Report of the President’s Task Force on 21^st Century Policing (2015, p. 22.)
   
   

5. Argument in Support: According to the California State Conference of the National Association for the advancement of Colored People, “Police brutality has had a long history in California leading many civil rights organizations and advocates to raise issues concerning police misconduct. Following the high-profiled deaths of Michael Brown and Eric Garner, civil rights advocates have campaigned for greater oversight of the investigation process following deaths involving law enforcement. Independent review panels of law enforcement agencies help uncover broken policies, outdated procedures, outmoded technology, and operating norms that puts officers at odds with the community they are meant to serve and protect.

“Currently, three-fourths of the largest cities in the United States have established some form of law enforcement review panel which represents a de facto public finding that additional oversight is a suitable response to the problem of law enforcement misconduct. It is important to California and to all citizens to have transparency and accountability in all police and public safety policies. AB 86 is good public policy in that it would build public trust by establishing an independent review process in cases involving peace officer shooting and other use of force resulting in death.”

6. Argument in Opposition: According to The Peace Officers Research Association of California, “AB 86 would require the Attorney General to commence an independent investigation by the Department of Justice if a peace officer uses deadly force upon another person and that person dies as a result. The finding of such an investigation, and recommendation whether or not to prosecute would then be forwarded to the Attorney General and District Attorney of the county where the incident occurred.

“District Attorneys are elected by their counties to handle these types of investigations. District Attorneys have made decisions for years, and have overseen difficult cases that have been scrutinized heavily by the media and public. The concern that there would be a conflict of interest between a District Attorney and officers they may work with is unfounded. District Attorneys routinely prosecute peace officers when they believe there is sufficient evidence to prove a crime beyond a reasonable doubt. It is a District Attorney’s ethical duty to ensure the fair administration of justice, without regard to who is being investigated.

“AB 86 is unnecessary because we believe the Attorney General already has the authority to investigate and prosecute any case in which he or she believes criminal conduct has occurred.”

7. Related Legislation: SB-227 (Mitchell) would prohibit a grand jury from inquiring into an offense or misconduct that involves a shooting or use of excessive force by a peace officer, as specified, that led to the death of a person being detained or arrested by the peace officer. SB 227 is pending a vote on the Senate floor.

REGISTERED SUPPORT / OPPOSITION:

Support

American Civil Liberties Union of California

California State Conference of the National Association for the Advancement of Colored People

Friends Committee on Legislation

Legal Services for Prisoners with Children

National Association of Social Workers

Opposition

Association of Los Angeles Deputy Sheriffs

Association of Deputy District Attorneys

California Association of Highway Patrolmen

California College and University Police Chiefs Association

California Correctional Supervisors Organization

California District Attorneys Association

California Narcotic Officers Association

California Peace Officers’ Association

California Police Chiefs Association

California Statewide Law Enforcement Association

Los Angeles Police Protective League

Office of the District Attorney, Alameda County

Eva Patterson, Equal Justice Society/Co-Chair CCRC

Peace Officers Research Association of California

Riverside Sheriffs Association

Analysis Prepared by:

David Billingsley / PUB. S. / (916) 319-3744