Existing law prohibits the prosecuting attorney, attorney for the defendant, or investigator for either the prosecution or the defendant from interviewing, questioning, or speaking to a victim or witness whose name has been disclosed by the defendant pursuant to existing law without first clearly identifying themself and identifying the full name of the agency by whom they are employed, and identifying whether they represent, or have been retained by, the prosecution or the defendant. Under existing law, if an interview takes place in person, the party is also required to show the victim or witness a business card, official badge, or other form of official identification before commencing the interview or questioning.

This bill would require a peace officer, as defined, a prosecuting attorney, or an investigator for the prosecution, prior to interviewing a an immediate family member of a person who has been killed or seriously injured by a peace officer, to clearly identify themself, if the interview takes place in person, to show identification, and to clearly state specified information, including that the family member has the right to ask about the status of their family member prior to answering questions, has the right to remain silent, and before speaking with the interviewer, can consult with a trusted person and can have that person with them while they speak to the interviewer. By increasing duties on local law enforcement, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law prohibits the prosecuting attorney, attorney for the defendant, or investigator for either the prosecution or the defendant from interviewing, questioning, or speaking to a victim or witness whose name has been disclosed by the defendant pursuant to existing law without first clearly identifying themself and identifying the full name of the agency by whom they are employed, and identifying whether they represent, or have been retained by, the prosecution or the defendant. Under existing law, if an interview takes place in person, the party is also required to show the victim or witness a business card, official badge, or other form of official identification before commencing the interview or questioning.

This bill would require a peace officer, as defined, a prosecuting attorney, or an investigator for the prosecution, prior to interviewing a family member of a person who has been killed or seriously injured by a peace officer, to clearly identify themself, if the interview takes place in person, to show identification, and to state specified information, including that the family member has the right to ask about the status of their family member prior to answering questions, has the right to remain silent, and before speaking with the interviewer, can consult with a trusted person and can have that person with them while they speak to the interviewer. By increasing duties on local law enforcement, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

 THIRD READING  

Bill No: AB 3021

Author: Kalra (D)

Amended: 5/9/24 in Assembly

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 4-1, 6/18/24

AYES: Wahab, Bradford, Skinner, Wiener

NOES: Seyarto

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/15/24

AYES: Caballero, Ashby, Becker, Bradford, Wahab

NOES: Jones, Seyarto

ASSEMBLY FLOOR: 47-17, 5/20/24 - See last page for vote

SUBJECT: Criminal procedure: interrogations

SOURCE: Californians for Safety and Justice

Silicon Valley De Bug

DIGEST:

This bill establishes procedures law enforcement must follow prior to interviewing, questioning, or interrogating the family member of person who has been killed or seriously injured by a peace officer.

ANALYSIS:

Existing law:

1. Requires a state prosecutor to investigate incidents of officer-involved use of force resulting in the death of an unarmed civilian. (Gov. Code § 12525.3 (b)(1).)
2. Requires a state prosecutor to investigate and gather facts in an incident involving a shooting by a peace officer that results in the death of a civilian if the civilian was unarmed or if there is a reasonable dispute as to whether the civilian was armed. (Gov. Code § 12525.3 (b)(2)(A).)
3. Requires law enforcement to furnish written notice to victims of domestic violence at the scene with information on victims’ rights and resources. (Penal Code § 13701.)
   
4. Requires, upon the initial interaction with a sexual assault victim, a law enforcement officer to provide the victim with a card explaining the rights of sexual assault victims, including that they do not need to participate in the criminal justice system. (Penal Code § 680.2 (a).)
5. Requires each department or agency in this state that employs peace officers to make a record of any investigations of misconduct involving a peace officer in the officer’s general personnel file or a separate file designated by the department or agency. (Penal Code § 832.12 (a).)
6. Requires every person employed as a peace officer to immediately report all uses of force by the officer to the officer’s department or agency. (Penal Code § 832.13.)
7. Provides that, to the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him. (Evidence Code, § 940.)
8. 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. (Pen. Code, § 832.7 (d).)

This bill:

1. Requires a peace officer, a prosecuting attorney, or an investigator for the prosecution, prior to commencing any interview, questioning, or interrogation, regardless of whether they are in a police station, of an immediate family member of a person who has been killed or seriously injured by a peace officer, to do both of the following:
   
2. Clearly identify themselves, including their full name and the agency they work for and whether they represent, or have been retained by, the prosecution. If the interview takes place in person, the person shall also show the person a business card, official badge, or other form of official identification before commencing the interview or questioning.
   
3. Clearly state the essence of all of the following to the person being interviewed, questioned, or interrogated:
   

i) “You have the right to ask about the status of your family member prior to answering any questions, and that information is not conditional on answering any questions.”

ii)“You are not being detained. You may leave at any time. You are not required to be taken to the police station. If you are detained at a later time, you will receive a Miranda warning.”

iii)“You do not have to talk to the police. You have the right to remain silent.”

iv)“Anything you say can be used as evidence in civil or criminal court.”
v) “You have the right to refuse to be recorded, photographed, or searched.”

vi) “Before speaking with law enforcement, the prosecution, or any investigator, you can consult with a trusted support person, civil attorney, or legal advocate, and you can have that person with you while you speak to the police.”

Defines “immediate family” for the purposes of this bill is the victim’s spouse, domestic partner, parent, guardian, grandparent, aunt, uncle, brother, sister, and children or grandchildren who are related by blood, marriage, or adaption.

Background

This bill would require law enforcement to give a Miranda-like warning prior to interviewing, questioning, or interrogating the immediate family member of person who has been killed or seriously injured by a peace officer. According to a recent Los Angeles Times report:

For years, law enforcement agencies across California have been trained to quickly question family members after a police killing in order to collect information that, among other things, is used to protect the involved officers and their department, an investigation by the Los Angeles Times and the Investigative Reporting Program at UC Berkeley’s Graduate School of Journalism has found.

Police and prosecutors routinely incorporate the information into disparaging accounts about the people who have been killed that help justify the killings, bolster the department’s defense against civil suits and reduce the amount of money families receive in settlements and jury verdicts, according to police reports, court records and interviews with families and their attorneys.

The Times and the Investigative Reporting Program documented 20 instances of the practice by 15 law enforcement agencies across the state since 2008. Attorneys specializing in police misconduct lawsuits say those cases are just a fraction of what they describe as a routine practice.

(Howey, After police killings, families are kept in the dark and grilled for information, L.A. Times (Mar. 28, 2023) <After police killings, California families often kept in the dark - Los Angeles Times (latimes.com) [last visited Mar. 26, 2024].)

“Miranda warnings” are a series of admonitions that are typically given by police prior to interrogating a suspect of a crime—they do not apply to, among others, witnesses of crime, the

family members of a criminal defendant, or the family members of a person killed by police. The purpose of Miranda warnings is to advise people that have been arrested of their constitutional right against self-incrimination. They are the product of the landmark Supreme Court decision Miranda v. Arizona (1966) 384 U.S. 436. In deciding that case, the Supreme Court imposed specific, constitutional requirements for the advice an officer must provide prior to engaging in custodial interrogation and held that statements taken without these warnings are inadmissible against the defendant in a criminal case. The Court summarized its decision as follows:

[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. (Id. at 444-45.)

Generally, “Miranda warnings” are meant to inform people who are in custody of their constitutional right not to be a witness against themselves. Police are not required to speak a specific set of words but generally must convey that the person has the rights enumerated above.

Law enforcement is only required to give Miranda warnings to people “taken into custody or otherwise deprived of [their] freedom of action in any significant way”—i.e. people seized for questioning about a crime.

This bill would require law enforcement to give an admonishment similar to Miranda warnings to the immediate family members of a person killed or seriously injured by law enforcement The author and supporters of this bill believe such a warning is necessary because of the documented use of interrogating family members of individuals harmed by police use of force to obtain information. Specifically, it would require law enforcement to state that the person has a right to ask about their family member prior questioning by law enforcement; that the family member is not detained and may leave at any time; they that do not have to speak to law enforcement; that anything they say could be used in evidence in court; that they the right not to be recorded, photographed, or searched; and that they have the right to consult an attorney or legal advocate, and that that person can be with the family member during questioning.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to Senate Appropriations Committee, Potential cost pressures (local funds, General Fund) for state and local law enforcement officers to provide the required admonitions to family members before interviews. Potential costs include training costs to law enforcement officers and the cost of employee time to complete the training during work hours. General Fund costs will depend on whether the provisions of this bill impose a reimbursable state mandate, as determined by the Commission on State Mandates.

SUPPORT: (Verified 8/15/24)

Californians for Safety and Justice (co-source)

Silicon Valley De Bug (co-source)

ACLU California Action
California Faculty Association
California Public Defenders Association
Crime Survivors for Safety and Justice
Disability Rights California
Ella Baker Center for Human Rights
Family of Angel Ramos
Family of Caesar Cruz
Family of Christopher Okamoto
Family of Demetrius Stanley
Family of Ernie Serrano
Family of Fermin Vincent Valenzuela
Family of Francisco Villareal
Family of Jacob Dominguez
Family of Jason Alderman
Family of Lorenzo Cruz
Family of Mike E. Nelson, Jr
Family of Rudy Cardenas
Family of Steven Taylor
Family of Trevor Seever
Family of Tyler Scott Rushing
Felony Murder Elimination Project
Fresh Lifelines for Youth
Friends Committee on Legislation of California
Initiate Justice
Initiate Justice Action
LA Defensa
Los Angeles County District Attorney's Office
Oakland Privacy
Pacific Juvenile Defender Center
Smart Justice California, a Project of Tides Advocacy
South Bay Community Land Trust

OPPOSITION: (Verified 8/15/24)

Arcadia Police Officers' Association
Association for Los Angeles Deputy Sheriffs
Burbank Police Officers' Association
California Coalition of School Safety Professionals
California Correctional Supervisors Organization, INC.
California District Attorneys Association
California Narcotic Officers' Association
California Police Chiefs Association
California Reserve Peace Officers Association
California State Sheriffs' Association
Claremont Police Officers Association
Corona Police Officers Association
Culver City Police Officers' Association
Deputy Sheriffs' Association of Monterey County
Fullerton Police Officers' Association
Los Angeles County Professional Peace Officers Association
Los Angeles School Police Management Association
Los Angeles School Police Officers Association
Murrieta Police Officers' Association
Newport Beach Police Association
Novato Police Officers Association
Palos Verdes Police Officers Association
Peace Officers Research Association of California
Placer County Deputy Sheriffs' Assocation
Pomona Police Officers' Association
Riverside Police Officers Association
Riverside Sheriffs' Association
Sacramento County District Attorney's Office
Santa Ana Police Officers Association
Upland Police Officers Association

ARGUMENTS IN SUPPORT: Initiate Justice supports this bill stating:

In the aftermath of incidents involving police violence, families of the victim are often approached by authorities under the guise of an “interview”. Family members are told to go to the precinct, not given information about the state of their loved one, and often lied to about the incident as they are interrogated. While the family member is distressed and worried for their loved one, law enforcement uses this opportunity to coerce information about the victim’s past in order to paint a narrative about the victim or build a case against them. Such tactics not only inflict harm upon the victim and their family, but also erode trust in law enforcement. The relatives of individuals affected by police violence have a reasonable expectation of transparency about the circumstances surrounding their loved one; without being manipulated in the process.

Initiate Justice supports AB 3021 and thanks Assemblymember Kalra for this bill because it will empower families of victims to exercise their rights in interactions with law enforcement when they are at their most vulnerable.

ARGUMENTS IN OPPOSITION: The Los Angeles County Professional Peace Officers Association opposes this bill states:

While protecting the rights of family members is important, imposing rigid requirements on peace officers, prosecuting attorneys, and investigators could ultimately impede the pursuit of justice and compromise the effectiveness of law enforcement efforts. Peace officers and prosecutors are trained to conduct interviews effectively and ethically, and imposing rigid requirements could disrupt established procedures that have proven effective.

Moreover, requiring peace officers and prosecutors to disclose specified information before interviewing family members could compromise the confidentiality of ongoing investigations. This disclosure may inadvertently reveal sensitive details to individuals who are not directly involved in the case, potentially jeopardizing the integrity of the investigation or the safety of those involved.

ASSEMBLY FLOOR: 47-17, 5/20/24

AYES: Addis, Aguiar-Curry, Alvarez, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Connolly, Mike Fong, Friedman, Garcia, Gipson, Haney, Hart, Holden, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Ortega, Papan, Pellerin, Quirk-Silva, Rendon, Reyes, Blanca Rubio, Santiago, Schiavo, Ting, Valencia, Villapudua, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NOES: Alanis, Chen, Davies, Dixon, Essayli, Flora, Vince Fong, Gallagher, Hoover, Irwin, Lackey, Jim Patterson, Joe Patterson, Sanchez, Ta, Waldron, Wallis

NO VOTE RECORDED: Arambula, Bains, Calderon, Cervantes, Megan Dahle, Gabriel, Grayson, Mathis, Muratsuchi, Stephanie Nguyen, Pacheco, Petrie-Norris, Ramos, Luz Rivas, Rodriguez, Soria

Prepared by: Mary Kennedy / PUB. S. /

8/18/24 17:50:29

**** END ****

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

AB 3021 (Kalra) - Criminal procedure: interrogations

Bill Summary:

AB 3021 establishes procedures law enforcement must follow prior to interviewing, questioning, or interrogating the family member of person who has been killed or seriously injured by a peace officer.

Fiscal Impact:

Potential cost pressures (local funds, General Fund) for state and local law enforcement officers to provide the required admonitions to family members before interviews. Potential costs include training costs to law enforcement officers and the cost of employee time to complete the training during work hours. General Fund costs will depend on whether the provisions of this bill impose a reimbursable state mandate, as determined by the Commission on State Mandates. (See staff comments)

Background:

According to a recent Los Angeles Times report:

For years, law enforcement agencies across California have been trained to quickly question family members after a police killing in order to collect information that, among other things, is used to protect the involved officers and their department, an investigation by the Los Angeles Times and the Investigative Reporting Program at UC Berkeley’s Graduate School of Journalism has found.

Police and prosecutors routinely incorporate the information into disparaging accounts about the people who have been killed that help justify the killings, bolster the department’s defense against civil suits and reduce the amount of money families receive in settlements and jury verdicts, according to police reports, court records and interviews with families and their attorneys.

The Times and the Investigative Reporting Program documented 20 instances of the practice by 15 law enforcement agencies across the state since 2008. Attorneys specializing in police misconduct lawsuits say those cases are just a fraction of what they describe as a routine practice.

(Howey, After police killings, families are kept in the dark and grilled for information, L.A. Times (Mar. 28, 2023).)

Generally, “Miranda warnings” are meant to inform people who are in custody of their constitutional right not to be a witness against themselves. Police are not required to speak a specific set of words but generally must convey that the person has specified rights. Law enforcement is only required to give Miranda warnings to people “taken into custody or otherwise deprived of [their] freedom of action in any significant way”—i.e. people seized for questioning about a crime.

This bill would require law enforcement to give an admonishment similar to Miranda warnings to the immediate family members of a person killed or seriously injured by law enforcement The author and supporters of this bill believe such a warning is necessary because of the documented use of interrogating family members of individuals harmed by police use of force to obtain information.

Proposed Law:

This bill establishes procedures law enforcement must follow prior to interviewing, questioning, or interrogating the family member of person who has been killed or seriously injured by a peace officer. It would require law enforcement to state that the person has a right to ask about their family member prior questioning by law enforcement; that they are not detained and may leave at any time; they that do not have to speak to law enforcement; that anything they say could be used in evidence in court; that they the right not to be recorded, photographed, or searched; and that they have the right to consult an attorney or legal advocate.

Staff Comments:

In opposition to this bill, the Los Angeles County Professional Peace Officers Association indicated that “While protecting the rights of family members is important, imposing rigid requirements on peace officers, prosecuting attorneys, and investigators could ultimately impede the pursuit of justice and compromise the effectiveness of law enforcement efforts. Peace officers and prosecutors are trained to conduct interviews effectively and ethically, and imposing rigid requirements could disrupt established procedures that have proven effective.” To that end, this bill may require law enforcement officers to receive additional training so that they understand what is required of them during interviews and how and to provide the required admonitions to family members in a manner that does not jeopardize ongoing investigations.

.-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: AB 3021 Hearing Date: June 18, 2024

Subject: Criminal procedure: interrogations

HISTORY

Source: Californians for Safety and Justice

Silicon Valley De Bug

Prior Legislation: Not applicable

Support: ACLU California Action; California Public Defenders Association; Disability Rights California; Ella Baker Center for Human Rights; Felony Murder Elimination Project; Friends Committee on Legislation of California; Initiate Justice; Initiate Justice Action; LA Defensa; Oakland Privacy; Pacific Juvenile Defender Center; Smart Justice California; South Bay Community Land Trust; Multiple Individuals

Opposition: Association for Los Angeles Deputy Sheriffs; California Correctional Supervisors Organization, INC.; California District Attorneys Association; California Police Chiefs Association; California State Sheriffs’ Association; Los Angeles County Professional Peace Officers Association; Peace Officers Research Association of California

Assembly Floor Vote: 47 - 17

PURPOSE

This bill establishes procedures law enforcement must follow prior to interviewing, questioning, or interrogating the family member of person who has been killed or seriously injured by a peace officer.

Existing law requires a state prosecutor to investigate incidents of officer-involved use of force resulting in the death of an unarmed civilian. (Gov. Code § 12525.3 (b)(1).)

Existing law requires a state prosecutor to investigate and gather facts in an incident involving a shooting by a peace officer that results in the death of a civilian if the civilian was unarmed or if there is a reasonable dispute as to whether the civilian was armed. (Gov. Code § 12525.3 (b)(2)(A).)

Existing law requires law enforcement to furnish written notice to victims of domestic violence at the scene with information on victims’ rights and resources. (Penal Code § 13701.)

Existing law requires, upon the initial interaction with a sexual assault victim, a law enforcement officer to provide the victim with a card explaining the rights of sexual assault victims, including that they do not need to participate in the criminal justice system. (Penal Code § 680.2 (a).)

Existing law requires each department or agency in this state that employs peace officers to make a record of any investigations of misconduct involving a peace officer in the officer’s general personnel file or a separate file designated by the department or agency. (Penal Code § 832.12 (a).)

Existing law requires every person employed as a peace officer to immediately report all uses of force by the officer to the officer’s department or agency. (Penal Code § 832.13.)

Existing law provides that, to the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him. (Evidence Code, § 940.)

Existing law 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. (Pen. Code, § 832.7 (d).)

This bill requires a peace officer, a prosecuting attorney, or an investigator for the prosecution, prior to commencing any interview, questioning, or interrogation, regardless of whether they are in a police station, of an immediate family member of a person who has been killed or seriously injured by a peace officer, to do both of the following:

1. Clearly identify themselves, including their full name and the agency they work for and whether they represent, or have been retained by, the prosecution. If the interview takes place in person, the person shall also show the person a business card, official badge, or other form of official identification before commencing the interview or questioning.
   
2. Clearly state the essence of all of the following to the person being interviewed, questioned, or interrogated:
   
   1. “You have the right to ask about the status of your family member prior to answering any questions, and that information is not conditional on answering any questions.”
      
   2. “You are not being detained. You may leave at any time. You are not required to be taken to the police station. If you are detained at a later time, you will receive a Miranda warning.”
      
   3. “You do not have to talk to the police. You have the right to remain silent.”
      
   4. “Anything you say can be used as evidence in civil or criminal court.”
      
   5. “You have the right to refuse to be recorded, photographed, or searched.”
      
   6. “Before speaking with law enforcement, the prosecution, or any investigator, you can consult with a trusted support person, civil attorney, or legal advocate, and you can have that person with you while you speak to the police.”

This bill defines “immediate family” for the purposes of this bill is the victim’s spouse, domestic partner, parent, guardian, grandparent, aunt, uncle, brother, sister, and children or grandchildren who are related by blood, marriage, or adaption.

COMMENTS

1. Need for This Bill

According to the author:

The relatives of individuals affected by police violence have a reasonable expectation to transparency and information about the circumstances surrounding their loved ones' welfare, without encountering deceiving and threatening information. The harmful and immoral methods law enforcement officers use to interrogate family members of the victim not only inflict harm upon the victim and their family, but also erode trust in law enforcement. AB 3021 will affirm and empower the family members of victims of police violence to exercise their rights in interactions with law enforcement when they are at their most vulnerable.

2. Warning prior to interviewing family member

This bill would require law enforcement to give a Miranda-like warning prior to interviewing, questioning, or interrogating the immediate family member of person who has been killed or seriously injured by a peace officer.

According to a recent Los Angeles Times report:

For years, law enforcement agencies across California have been trained to quickly question family members after a police killing in order to collect information that, among other things, is used to protect the involved officers and their department, an investigation by the Los Angeles Times and the Investigative Reporting Program at UC Berkeley’s Graduate School of Journalism has found.

Police and prosecutors routinely incorporate the information into disparaging accounts about the people who have been killed that help justify the killings, bolster the department’s defense against civil suits and reduce the amount of money families receive in settlements and jury verdicts, according to police reports, court records and interviews with families and their attorneys.

The Times and the Investigative Reporting Program documented 20 instances of the practice by 15 law enforcement agencies across the state since 2008. Attorneys specializing in police misconduct lawsuits say those cases are just a fraction of what they describe as a routine practice.

(Howey, After police killings, families are kept in the dark and grilled for information, L.A. Times (Mar. 28, 2023) <After police killings, California families often kept in the dark - Los Angeles Times (latimes.com)> [last visited Mar. 26, 2024].)

“Miranda warnings” are a series of admonitions that are typically given by police prior to interrogating a suspect of a crime—they do not apply to, among others, witnesses of crime, the

family members of a criminal defendant, or the family members of a person killed by police. The purpose of Miranda warnings is to advise people that have been arrested of their constitutional right against self-incrimination. They are the product of the landmark Supreme Court decision Miranda v. Arizona (1966) 384 U.S. 436. In deciding that case, the Supreme Court imposed specific, constitutional requirements for the advice an officer must provide prior to engaging in custodial interrogation and held that statements taken without these warnings are inadmissible against the defendant in a criminal case. The Court summarized its decision as follows:

[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. (Id. at 444-45.)

Generally, “Miranda warnings” are meant to inform people who are in custody of their constitutional right not to be a witness against themselves. Police are not required to speak a specific set of words but generally must convey that the person has the rights enumerated above.

Law enforcement is only required to give Miranda warnings to people “taken into custody or otherwise deprived of [their] freedom of action in any significant way”—i.e. people seized for questioning about a crime.

This bill would require law enforcement to give an admonishment similar to Miranda warnings to the immediate family members of a person killed or seriously injured by law enforcement The author and supporters of this bill believe such a warning is necessary because of the documented use of interrogating family members of individuals harmed by police use of force to obtain information. Specifically, it would require law enforcement to state that the person has a right to ask about their family member prior questioning by law enforcement; that the family member is not detained and may leave at any time; they that do not have to speak to law enforcement; that anything they say could be used in evidence in court; that they the right not to be recorded, photographed, or searched; and that they have the right to consult an attorney or legal advocate, and that that person can be with the family member during questioning.

3. Argument in Support

Initiate Justice supports this bill stating:

In the aftermath of incidents involving police violence, families of the victim are often approached by authorities under the guise of an “interview”. Family members are told to go to the precinct, not given information about the state of their loved one, and often lied to about the incident as they are interrogated. While the family member is distressed and worried for their loved one, law enforcement uses this opportunity to coerce information about the victim’s past in order to paint a narrative about the victim or build a case against them. Such tactics not only inflict harm upon the victim and their family, but also erode trust in law enforcement. The relatives of individuals affected by police violence have a reasonable expectation of transparency about the circumstances surrounding their loved one; without being manipulated in the process.

Initiate Justice supports AB 3021 and thanks Assemblymember Kalra for this bill because it will empower families of victims to exercise their rights in interactions with law enforcement when they are at their most vulnerable.

4. Argument in Opposition

The Los Angeles County Professional Peace Officers Association opposes this bill states:

While protecting the rights of family members is important, imposing rigid requirements on peace officers, prosecuting attorneys, and investigators could ultimately impede the pursuit of justice and compromise the effectiveness of law enforcement efforts. Peace officers and prosecutors are trained to conduct interviews effectively and ethically, and imposing rigid requirements could disrupt established procedures that have proven effective.

Moreover, requiring peace officers and prosecutors to disclose specified information before interviewing family members could compromise the confidentiality of ongoing investigations. This disclosure may inadvertently reveal sensitive details to individuals who are not directly involved in the case, potentially jeopardizing the integrity of the investigation or the safety of those involved.

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 3021

Author:(Kalra)

As Amended Ver:May 9, 2024

Majority vote

SUMMARY

Establishes procedures law enforcement must follow prior to interviewing, questioning, or interrogating the family member of person who has been killed or seriously injured by a peace officer. Specifically, this bill: Requires a peace officer, a prosecuting attorney, or an investigator for the prosecution, prior to commencing any interview, questioning, or interrogation, regardless of whether they are in a police station, of an immediate family member of a person who has been killed or seriously injured by a peace officer, to do both of the following:

Major Provisions

1. Clearly identify themselves, including their full name and the agency they work for and whether they represent, or have been retained by, the prosecution. If the interview takes place in person, the person shall also show the person a business card, official badge, or other form of official identification before commencing the interview or questioning.
2. Clearly state the essence of all of the following to the person being interviewed, questioned, or interrogated:
   1. "You have the right to ask about the status of your family member prior to answering any questions, and that information is not conditional on answering any questions."
   2. "You are not being detained. You may leave at any time. You are not required to be taken to the police station. If you are detained at a later time, you will receive a Miranda warning."
   3. "You do not have to talk to the police. You have the right to remain silent."
   4. "Anything you say can be used as evidence in civil or criminal court."
   5. "You have the right to refuse to be recorded, photographed, or searched."
   6. "Before speaking with law enforcement, the prosecution, or any investigator, you can consult with a trusted support person, attorney, or a legal advocate, and you can have that person with you while you speak to the police."
3. Defines "immediate family" as the victim's spouse, domestic partner, parent, guardian, grandparent, aunt, uncle, brother, sister, and children or grandchildren who are related by blood, marriage, or adoption.

COMMENTS

Need of the Bill: This bill would require law enforcement to give a Miranda-like warning prior to interviewing, questioning, or interrogating the family member of person who has been killed or seriously injured by a peace officer.

According to a recent Los Angeles Times report:

For years, law enforcement agencies across California have been trained to quickly question family members after a police killing in order to collect information that, among other things, is used to protect the involved officers and their department, an investigation by the Los Angeles Times and the Investigative Reporting Program at UC Berkeley's Graduate School of Journalism has found.

Police and prosecutors routinely incorporate the information into disparaging accounts about the people who have been killed that help justify the killings, bolster the department's defense against civil suits and reduce the amount of money families receive in settlements and jury verdicts, according to police reports, court records and interviews with families and their attorneys.

The Times and the Investigative Reporting Program documented 20 instances of the practice by 15 law enforcement agencies across the state since 2008. Attorneys specializing in police misconduct lawsuits say those cases are just a fraction of what they describe as a routine practice.

(Howey, After police killings, families are kept in the dark and grilled for information, L.A. Times (March 28, 2023) <After police killings, California families often kept in the dark - Los Angeles Times (latimes.com)> [last visited March 26, 2024].)

According to the Author

"The relatives of individuals affected by police violence have a reasonable expectation to transparency and information about the circumstances surrounding their loved ones' welfare, without encountering deceiving and threatening information. The harmful and immoral methods law enforcement officers use to interrogate family members of the victim not only inflict harm upon the victim and their family, but also erode trust in law enforcement. [This bill] will affirm and empower the family members of victims of police violence to exercise their rights in interactions with law enforcement when they are at their most vulnerable."

Arguments in Support

According to Californians for Safety and Justice, one of the bill's co-sponsors, "In the aftermath of incidents involving police violence, families of the victim are often approached by authorities under the guise of an "interview". Family members are told to go to the precinct, not given information about the state of their loved one, and often lied to about the incident as they are interrogated. While the family member is distressed and worried for their loved one, law enforcement uses this opportunity to coerce information about the victim's past in order to paint a narrative about the victim or build a case against them. Such tactics not only inflict harm upon the victim and their family, but also erode trust in law enforcement. The relatives of individuals affected by police violence have a reasonable expectation to transparency about the circumstances surrounding their loved ones', without being manipulated in the process."

Arguments in Opposition

According to the California District Attorneys Association, "Because the bill requires police to recite inherently accusatory 'rights,' and because of the ubiquitous understanding of the purpose of Miranda warnings in our culture, these warnings are likely to mislead rather than inform. The warnings may even mislead persons the bill seeks to protect.

"Miranda warnings are required before police can interrogate suspects who are in custody. This is because custodial interrogations of suspects are deemed inherently coercive. Family members of a person killed or seriously injured by a police officer are not suspects and are not in custody. They don't undergo Miranda interrogation either, because police questioning is not reasonably likely to elicit a response that incriminates them.

"Miranda warnings are a staple of television crime shows and movies and are familiar to most persons. When police administer a Miranda admonition, everyone understands the recipient is suspected of committing a crime. Telling a witness, they have the right to remain silent, anything they say can be used as evidence in court, that they have the right to refuse to be searched (a search would clearly be illegal under these circumstances), and that they have the right to legal representation, are inherently accusatory. A person hearing such Miranda-like warnings and familiar with their ordinary context will reasonably conclude police think they committed a crime.

"Because of these common understandings (correct for over 50 years under the U.S. Constitution and California law) the effect of these warnings will be to mislead rather than inform. A conversation with a family member of a person killed or seriously injured by police is a difficult one, made harder or impossible after this admonition. The proposed admonition's effect is likely to discourage communication and to impede the search for truth, vital to a fair evaluation of an officer involved shooting. To evaluate whether charges should be filed on an officer, it is important to know whether the person shot suffered from mental illness or suicidal ideation, because such facts may provide circumstantial understanding of the earlier violent encounter. Even more important, when a person is injured by police and faces the prospect of criminal charges for felony assault on an officer, the suspect's state of mind is critically important to the prosecution and defense in any criminal case. Family members often are the most immediate source for this crucial information. Charges might be brought against an officer, or not be brought against a civilian suspect, depending on the truth.

"Miranda admonitions, which often inhibit the search for truth, are necessary when a person is in the custody and control of police and is subject to lengthy interrogation. Witnesses, who are not similarly situated, properly run the risk that their statements will be evaluated in determining whether criminal charges lie, regardless of their own preferences concerning a putative criminal defendant. We understand that loved ones may later regret providing truthful statements to police either because they disagree with a decision not to file on an officer, or because their statements were used in a criminal prosecution, or because their statements were inimical to their subsequent civil lawsuit; but we disagree that the answer is to mislead them so they are discouraged from giving a statement in the first place 'for their own good' at the expense of the truth. [This bill] as written does not strike the proper balance. We do agree with you, however, that family members in a vulnerable state should not be taken advantage of or misled in any way.

FISCAL COMMENTS

According to the Assembly Appropriations Committee, "Minimal workload costs for peace officers to provide the required admonitions to family members before interviews. Each admonition will likely take only a few minutes; even if officers must issue hundreds of admonitions in a given year, overall workload costs will likely be in the low thousands of dollars."

VOTES

ASM PUBLIC SAFETY: 6-1-1

YES: McCarty, Stephanie Nguyen, Reyes, Ting, Wilson, Zbur

NO: Alanis

ABS, ABST OR NV: Lackey

ASM APPROPRIATIONS: 11-3-1

YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

NO: Sanchez, Dixon, Ta

ABS, ABST OR NV: Jim Patterson

UPDATED

VERSION: May 9, 2024

CONSULTANT: Andrew Ironside / PUB. S. / (916) 319-3744 FN: 0002894

ASSEMBLY THIRD READING

ATR Bill Id:AB 3021

Author:(Kalra)

As Introduced Ver:February 16, 2024

Majority vote

SUMMARY

Establishes procedures law enforcement must follow prior to interviewing, questioning, or interrogating the family member of person who has been killed or seriously injured by a peace officer. Specifically, this bill: Requires a peace officer, a prosecuting attorney, or an investigator for the prosecution, prior to commencing any interview, questioning, or interrogation, regardless of whether they are in a police station, of a family member of a person who has been killed or seriously injured by a peace officer, to do both of the following:

Major Provisions

1. Clearly identify themselves, including their full name and the agency they work for and whether they represent, or have been retained by, the prosecution. If the interview takes place in person, the person shall also show the person a business card, official badge, or other form of official identification before commencing the interview or questioning.
2. State all of the following to the person being interviewed, questioned, or interrogated:
   1. "You have the right to ask about the status of your family member prior to answering any questions, and that information is not conditional on answering any questions."
   2. "You are not being detained. You may leave at any time. You are not required to be taken to the police station."
   3. "You do not have to talk to the police. You have the right to remain silent."
   4. "Anything you say can be used as evidence in civil or criminal court."
   5. "You have the right to refuse to be recorded, photographed, or searched."
   6. "Before speaking with law enforcement, the prosecution, or any investigator, you can consult with a trusted support person, civil attorney, or legal advocate, and you can have that person with you while you speak to the police."

COMMENTS

Need of the Bill: This bill would require law enforcement to give a Miranda-like warning prior to interviewing, questioning, or interrogating the family member of person who has been killed or seriously injured by a peace officer.

According to a recent Los Angeles Times report:

For years, law enforcement agencies across California have been trained to quickly question family members after a police killing in order to collect information that, among other things, is used to protect the involved officers and their department, an investigation by the Los Angeles Times and the Investigative Reporting Program at UC Berkeley's Graduate School of Journalism has found.

Police and prosecutors routinely incorporate the information into disparaging accounts about the people who have been killed that help justify the killings, bolster the department's defense against civil suits and reduce the amount of money families receive in settlements and jury verdicts, according to police reports, court records and interviews with families and their attorneys.

The Times and the Investigative Reporting Program documented 20 instances of the practice by 15 law enforcement agencies across the state since 2008. Attorneys specializing in police misconduct lawsuits say those cases are just a fraction of what they describe as a routine practice.

(Howey, After police killings, families are kept in the dark and grilled for information, L.A. Times (March 28, 2023) <After police killings, California families often kept in the dark - Los Angeles Times (latimes.com)> [last visited March 26, 2024].)

According to the Author

"The relatives of individuals affected by police violence have a reasonable expectation to transparency and information about the circumstances surrounding their loved ones' welfare, without encountering deceiving and threatening information. The harmful and immoral methods law enforcement officers use to interrogate family members of the victim not only inflict harm upon the victim and their family, but also erode trust in law enforcement. [This bill] will affirm and empower the family members of victims of police violence to exercise their rights in interactions with law enforcement when they are at their most vulnerable."

Arguments in Support

According to Californians for Safety and Justice, one of the bill's co-sponsors, "In the aftermath of incidents involving police violence, families of the victim are often approached by authorities under the guise of an "interview". Family members are told to go to the precinct, not given information about the state of their loved one, and often lied to about the incident as they are interrogated. While the family member is distressed and worried for their loved one, law enforcement uses this opportunity to coerce information about the victim's past in order to paint a narrative about the victim or build a case against them. Such tactics not only inflict harm upon the victim and their family, but also erode trust in law enforcement. The relatives of individuals affected by police violence have a reasonable expectation to transparency about the circumstances surrounding their loved ones', without being manipulated in the process."

Arguments in Opposition

According to the California District Attorneys Association, "Because the bill requires police to recite inherently accusatory 'rights,' and because of the ubiquitous understanding of the purpose of Miranda warnings in our culture, these warnings are likely to mislead rather than inform. The warnings may even mislead persons the bill seeks to protect.

"Miranda warnings are required before police can interrogate suspects who are in custody. This is because custodial interrogations of suspects are deemed inherently coercive. Family members of a person killed or seriously injured by a police officer are not suspects and are not in custody. They don't undergo Miranda interrogation either, because police questioning is not reasonably likely to elicit a response that incriminates them.

"Miranda warnings are a staple of television crime shows and movies and are familiar to most persons. When police administer a Miranda admonition, everyone understands the recipient is suspected of committing a crime. Telling a witness, they have the right to remain silent, anything they say can be used as evidence in court, that they have the right to refuse to be searched (a search would clearly be illegal under these circumstances), and that they have the right to legal representation, are inherently accusatory. A person hearing such Miranda-like warnings and familiar with their ordinary context will reasonably conclude police think they committed a crime.

"Because of these common understandings (correct for over 50 years under the U.S. Constitution and California law) the effect of these warnings will be to mislead rather than inform. A conversation with a family member of a person killed or seriously injured by police is a difficult one, made harder or impossible after this admonition. The proposed admonition's effect is likely to discourage communication and to impede the search for truth, vital to a fair evaluation of an officer involved shooting. To evaluate whether charges should be filed on an officer, it is important to know whether the person shot suffered from mental illness or suicidal ideation, because such facts may provide circumstantial understanding of the earlier violent encounter. Even more important, when a person is injured by police and faces the prospect of criminal charges for felony assault on an officer, the suspect's state of mind is critically important to the prosecution and defense in any criminal case. Family members often are the most immediate source for this crucial information. Charges might be brought against an officer, or not be brought against a civilian suspect, depending on the truth.

"Miranda admonitions, which often inhibit the search for truth, are necessary when a person is in the custody and control of police and is subject to lengthy interrogation. Witnesses, who are not similarly situated, properly run the risk that their statements will be evaluated in determining whether criminal charges lie, regardless of their own preferences concerning a putative criminal defendant. We understand that loved ones may later regret providing truthful statements to police either because they disagree with a decision not to file on an officer, or because their statements were used in a criminal prosecution, or because their statements were inimical to their subsequent civil lawsuit; but we disagree that the answer is to mislead them so they are discouraged from giving a statement in the first place 'for their own good' at the expense of the truth. [This bill] as written does not strike the proper balance. We do agree with you, however, that family members in a vulnerable state should not be taken advantage of or misled in any way."

FISCAL COMMENTS

According to the Assembly Appropriations Committee, "Minimal workload costs for peace officers to provide the required admonitions to family members before interviews. Each admonition will likely take only a few minutes; even if officers must issue hundreds of admonitions in a given year, overall workload costs will likely be in the low thousands of dollars."

VOTES

ASM PUBLIC SAFETY: 6-1-1

YES: McCarty, Stephanie Nguyen, Reyes, Ting, Wilson, Zbur

NO: Alanis

ABS, ABST OR NV: Lackey

ASM APPROPRIATIONS: 11-3-1

YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

NO: Sanchez, Dixon, Ta

ABS, ABST OR NV: Jim Patterson

UPDATED

VERSION: February 16, 2024

CONSULTANT: Andrew Ironside / PUB. S. / (916) 319-3744 FN: 0002746

Date of Hearing: April 17, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 3021

Author:(Kalra) – As Introduced Ver:February 16, 2024

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

SUMMARY:

This bill requires a peace officer, prosecutor, or prosecutor’s investigator to give a family member of a person killed or injured by the police information about the family member’s rights before interviewing, questioning, or interrogating them.

Specifically, this bill requires an applicable law enforcement officer to:

1. Clearly identify themselves, including their full name and the agency they work for and whether they represent, or have been retained by, the prosecution. If the interview takes place in person, the law enforcement officer shall also show the person a business card, official badge, or other form of official identification before commencing the interview or questioning.
2. State all of the following to the person being interviewed, questioned, or interrogated:
   1. You have the right to ask about the status of your family member prior to answering any questions, and that information is not conditional on answering any questions.
   2. You are not being detained. You may leave at any time. You are not required to be taken to the police station.
   3. You do not have to talk to the police. You have the right to remain silent.
   4. Anything you say can be used as evidence in civil or criminal court.
   5. You have the right to refuse to be recorded, photographed, or searched.
   6. Before speaking with law enforcement, the prosecution, or any investigator, you can consult with a trusted support person, civil attorney, or legal advocate, and you can have that person with you while you speak to the police.

FISCAL EFFECT:

Minimal workload costs for peace officers to provide the required admonitions to family members before interviews. Each admonition will likely take only a few minutes; even if officers must issue hundreds of admonitions in a given year, overall workload costs will likely be in the low thousands of dollars.

COMMENTS:

1. Purpose. According to the author:

The relatives of individuals affected by police violence have a reasonable expectation to transparency and information about the circumstances surrounding their loved ones’ welfare, without encountering deceiving and threatening information. The harmful and immoral methods law enforcement officers use to interrogate family members of the victim not only inflict harm upon the victim and their family, but also erode trust in law enforcement. AB 3021 will affirm and empower the family members of victims of police violence to exercise their rights in interactions with law enforcement when they are at their most vulnerable

1. Background. Despite the passage of policing reforms and oversight measures in recent years, officer-involved shootings and other police use-of-force incidents have continued to occur in California. In many circumstances, these incidents are investigated by law enforcement agencies and prosecutors, who collect evidence and witness testimony to determine what happened and whether anyone is criminally liable for the incident. During such an investigation, officers and prosecutors often interview friends and family members of the person killed or injured by police.

This bill requires a peace officer, prosecutor, or prosecutor’s investigator to give a specified admonition to the family member of a person who was injured or killed by police violence before interviewing, questioning, or interrogating the family member. Under the bill, an applicable officer, prosecutor, or investigator must identify themselves, identify the agency for whom they work, and provide additional information about the family member’s rights and options before commencing an interview or interrogation. As described in more detail in the policy analysis of this bill, the admonition required by this bill is similar to a Miranda warning in that it provides a person with information about their rights before they talk to a law enforcement officer. However, unlike a Miranda warning, this bill’s admonition must be given before speaking to a family member or witness who may not be in police custody, rather than someone suspected of criminal activity who is subject to custodial interrogation.

1. Support and Opposition. In support of this bill, co-sponsor Californians for Safety and Justice writes:

In the aftermath of incidents involving police violence, families of the victim are often approached by authorities under the guise of an “interview”. Family members are told to go to the precinct, not given information about the state of their loved one, and often lied to about the incident as they are interrogated. While the family member is distressed and worried for their loved one, law enforcement uses this opportunity to coerce information about the victim’s past in order to paint a narrative about the victim or build a case against them. Such tactics not only inflict harm upon the victim and their family, but also erode trust in law enforcement.

In opposition, a coalition of law enforcement agencies writes:

It is always challenging to get accurate and timely statements from witnesses in criminal investigations, and more so when a person has been injured or killed by police. Because this bill will effectively discourage cooperation from critical witnesses and make our job of protecting the public and investigating crimes much more difficult, we must oppose AB 3021 and respectfully request a NO vote.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: April 2, 2024

Counsel: Andrew Ironside

ASSEMBLY COMMITTEE ON

Kevin McCarty, Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Establishes procedures law enforcement must follow prior to interviewing, questioning, or interrogating the family member of person who has been killed or seriously injured by a peace officer. Specifically, this bill: Requires a peace officer, a prosecuting attorney, or an investigator for the prosecution, prior to commencing any interview, questioning, or interrogation, regardless of whether they are in a police station, of a family member of a person who has been killed or seriously injured by a peace officer, to do both of the following:

1. Clearly identify themselves, including their full name and the agency they work for and whether they represent, or have been retained by, the prosecution. If the interview takes place in person, the person shall also show the person a business card, official badge, or other form of official identification before commencing the interview or questioning.
   
2. State all of the following to the person being interviewed, questioned, or interrogated:
   
   1. “You have the right to ask about the status of your family member prior to answering any questions, and that information is not conditional on answering any questions.”
      
   2. “You are not being detained. You may leave at any time. You are not required to be taken to the police station.”
      
   3. “You do not have to talk to the police. You have the right to remain silent.”
      
   4. “Anything you say can be used as evidence in civil or criminal court.”
      
   5. “You have the right to refuse to be recorded, photographed, or searched.”
      
   6. “Before speaking with law enforcement, the prosecution, or any investigator, you can consult with a trusted support person, civil attorney, or legal advocate, and you can have that person with you while you speak to the police.”

EXISTING LAW:

1. Requires a state prosecutor to investigate incidents of officer-involved use of force resulting in the death of an unarmed civilian. (Gov. Code, § 12525.3, subd. (b)(1).)
   
2. Requires a state prosecutor to investigate and gather facts in an incident involving a shooting by a peace officer that results in the death of a civilian if the civilian was unarmed or if there is a reasonable dispute as to whether the civilian was armed. (Gov. Code, § 12525.3, subd. (b)(2)(A).)
   
3. Requires law enforcement to furnish written notice to victims of domestic violence at the scene with information on victims’ rights and resources. (Pen. Code, § 13701.)
   
4. Requires, upon the initial interaction with a sexual assault victim, a law enforcement officer to provide the victim with a card explaining the rights of sexual assault victims, including that they do not need to participate in the criminal justice system. (Pen. Code, § 680.2, subd. (a).)
   
5. Requires each department or agency in this state that employs peace officers to make a record of any investigations of misconduct involving a peace officer in the officer’s general personnel file or a separate file designated by the department or agency. (Pen. Code, § 832.12, subd. (a).)
   
6. Requires every person employed as a peace officer to immediately report all uses of force by the officer to the officer’s department or agency. (Pen. Code, § 832.13.)
   
7. Provides that, to the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him. (Evid. Code, § 940.)
   
8. 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. (Pen. Code, § 832.7, subd. (d).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “The relatives of individuals affected by police violence have a reasonable expectation to transparency and information about the circumstances surrounding their loved ones' welfare, without encountering deceiving and threatening information. The harmful and immoral methods law enforcement officers use to interrogate family members of the victim not only inflict harm upon the victim and their family, but also erode trust in law enforcement. AB 3021 will affirm and empower the family members of victims of police violence to exercise their rights in interactions with law enforcement when they are at their most vulnerable.”
   
2. Need of the Bill: This bill would require law enforcement to give a Miranda-like warning prior to interviewing, questioning, or interrogating the family member of person who has been killed or seriously injured by a peace officer.
   
   According to a recent Los Angeles Times report:
   

For years, law enforcement agencies across California have been trained to quickly question family members after a police killing in order to collect information that, among other things, is used to protect the involved officers and their department, an investigation by the Los Angeles Times and the Investigative Reporting Program at UC Berkeley’s Graduate School of Journalism has found.

Police and prosecutors routinely incorporate the information into disparaging accounts about the people who have been killed that help justify the killings, bolster the department’s defense against civil suits and reduce the amount of money families receive in settlements and jury verdicts, according to police reports, court records and interviews with families and their attorneys.

The Times and the Investigative Reporting Program documented 20 instances of the practice by 15 law enforcement agencies across the state since 2008. Attorneys specializing in police misconduct lawsuits say those cases are just a fraction of what they describe as a routine practice.

(Howey, After police killings, families are kept in the dark and grilled for information, L.A. Times (Mar. 28, 2023) <After police killings, California families often kept in the dark - Los Angeles Times (latimes.com)> [last visited Mar. 26, 2024].)

“Miranda warnings” are a series of admonitions that are typically given by police prior to interrogating a suspect of a crime—they do not apply to, among others, witnesses of crime, the family members of a criminal defendant, or the family members of a person killed by police. The purpose of Miranda warnings is to advise people that have been arrested of their constitutional right against self-incrimination. They are the product of the landmark Supreme Court decision Miranda v. Arizona (1966) 384 U.S. 436. In deciding that case, the Supreme Court imposed specific, constitutional requirements for the advice an officer must provide prior to engaging in custodial interrogation and held that statements taken without these warnings are inadmissible against the defendant in a criminal case. The Court summarized its decision as follows:

[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

(Id. at 444-45.)

Put more simply, “Miranda warnings” are meant to inform people who are in custody of their constitutional right not to be a witness against themselves. Police are not required to speak a specific set of words but generally must convey that the person has the rights enumerated above.

Notably, however, law enforcement need only give Miranda warnings to people “taken into custody or otherwise deprived of [their] freedom of action in any significant way”—i.e. people seized for questioning about a crime.

Because of the documented use of interrogating family members of individuals harmed by police use of force to obtain information, akin to Miranda warnings, this bill would require law enforcement to give an admonishment to the family members of a person killed or seriously injured by law enforcement. Specifically, it would require law enforcement to state that the person has a right to ask about their family member prior questioning by law enforcement; that the family member is not detained and may leave at any time; they that do not have to speak to law enforcement; that anything they say could be used in evidence in court; that they the right not to be recorded, photographed, or searched; and that they have the right to consult an attorney or legal advocate, and that that person can be with the family member during questioning.

1. Argument in Support: According to Californians for Safety and Justice, one of the bill’s co-sponsors, “In the aftermath of incidents involving police violence, families of the victim are often approached by authorities under the guise of an “interview”. Family members are told to go to the precinct, not given information about the state of their loved one, and often lied to about the incident as they are interrogated. While the family member is distressed and worried for their loved one, law enforcement uses this opportunity to coerce information about the victim’s past in order to paint a narrative about the victim or build a case against them. Such tactics not only inflict harm upon the victim and their family, but also erode trust in law enforcement. The relatives of individuals affected by police violence have a reasonable expectation to transparency about the circumstances surrounding their loved ones', without being manipulated in the process.”
   
2. Argument in Opposition: According to the California District Attorneys Association, “Because the bill requires police to recite inherently accusatory ‘rights,’ and because of the ubiquitous understanding of the purpose of Miranda warnings in our culture, these warnings are likely to mislead rather than inform. The warnings may even mislead persons the bill seeks to protect.
   
   “Miranda warnings are required before police can interrogate suspects who are in custody. This is because custodial interrogations of suspects are deemed inherently coercive. Family members of a person killed or seriously injured by a police officer are not suspects and are not in custody. They don’t undergo Miranda interrogation either, because police questioning is not reasonably likely to elicit a response that incriminates them.
   
   “Miranda warnings are a staple of television crime shows and movies and are familiar to most persons. When police administer a Miranda admonition, everyone understands the recipient is suspected of committing a crime. Telling a witness, they have the right to remain silent, anything they say can be used as evidence in court, that they have the right to refuse to be searched (a search would clearly be illegal under these circumstances), and that they have the right to legal representation, are inherently accusatory. A person hearing such Miranda-like warnings and familiar with their ordinary context will reasonably conclude police think they committed a crime.
   
   “Because of these common understandings (correct for over 50 years under the U.S. Constitution and California law) the effect of these warnings will be to mislead rather than inform. A conversation with a family member of a person killed or seriously injured by police is a difficult one, made harder or impossible after this admonition. The proposed admonition’s effect is likely to discourage communication and to impede the search for truth, vital to a fair evaluation of an officer involved shooting. To evaluate whether charges should be filed on an officer, it is important to know whether the person shot suffered from mental illness or suicidal ideation, because such facts may provide circumstantial understanding of the earlier violent encounter. Even more important, when a person is injured by police and faces the prospect of criminal charges for felony assault on an officer, the suspect’s state of mind is critically important to the prosecution and defense in any criminal case. Family members often are the most immediate source for this crucial information. Charges might be brought against an officer, or not be brought against a civilian suspect, depending on the truth.
   
   “Miranda admonitions, which often inhibit the search for truth, are necessary when a person is in the custody and control of police and is subject to lengthy interrogation. Witnesses, who are not similarly situated, properly run the risk that their statements will be evaluated in determining whether criminal charges lie, regardless of their own preferences concerning a putative criminal defendant. We understand that loved ones may later regret providing truthful statements to police either because they disagree with a decision not to file on an officer, or because their statements were used in a criminal prosecution, or because their statements were inimical to their subsequent civil lawsuit; but we disagree that the answer is to mislead them so they are discouraged from giving a statement in the first place ‘for their own good’ at the expense of the truth. AB 3021 as written does not strike the proper balance. We do agree with you, however, that family members in a vulnerable state should not be taken advantage of or misled in any way.”
   
3. Prior Legislation:
   
   1. AB 1506 (McCarty), Chapter 326, Statutes of 2020, requires a state prosecutor to conduct an investigation of any officer-involved shooting that resulted in the death of an unarmed civilian, as specified.
      
   2. SB 203 (Bradford), Chapter 355, Statutes of 2020, requires that, prior to any custodial interrogation and before the waiver of any Miranda rights, a youth of 17 years or younger must consult with legal counsel in person, by telephone, or by video conference.
      
   3. SB 395 (Lara) Chapter 681, Statutes of 2017 requires that a youth 15 years of age or younger consult with legal counsel in person, by telephone, or by video conference prior to a custodial interrogation and before waiving any of the above-specified rights.
      
   4. SB 1052 (Lara), of the 2015-2016 Legislative Session, would have required that a youth under the age of 18 consult with counsel prior to a custodial interrogation and before waiving any specified rights. SB 1052 was vetoed by Governor Brown.
      

REGISTERED SUPPORT / OPPOSITION:

Support

A New Way of Life Re-entry Project
Alliance for Boys and Men of Color
Amelia Ann Adams Whole Life Center
Asian Law Alliance
California Families United 4 Justice
California for Safety and Justice
California Public Defenders Association
Californians United for A Responsible Budget
Caras Gilroy
Children's Defense Fund - CA
Coalition for Justice and Accountability
Communities United for Restorative Youth Justice (CURYJ)
Community Agency for Resources, Advocacy and Services
Fixin' San Mateo County
Haywood Burns Institute
Immigrant Legal Resource Center
In Our Care San Mateo County
Initiate Justice
Initiate Justice Action
Lawyers' Committee for Civil Rights of The San Francisco Bay Area
Legal Services for Prisoners With Children
Love Not Blood Campaign
Oakland Privacy
Orange County Rapid Response Network
Pacific Juvenile Defender Center
Pillars of The Community
Reuniting Families Contra Costa
Rubicon Programs
San Francisco Public Defender
San Jose Peace and Justice Center
Showing Up for Racial Justice At Sacred Heart Community Service (san José)
Silicon Valley De-bug
Sister Warriors Freedom Coalition
Urban Peace Movement
Young Women's Freedom Center

16 Private Individuals

Opposition

Arcadia Police Officers' Association
Burbank Police Officers' Association
California Coalition of School Safety Professionals
California District Attorneys Association
California Narcotic Officers' Association
California Police Chiefs Association
California Reserve Peace Officers Association
California State Sheriffs' Association
Claremont Police Officers Association
Corona Police Officers Association
Culver City Police Officers' Association
Deputy Sheriffs' Association of Monterey County
Fullerton Police Officers' Association
Los Angeles County Professional Peace Officers Association
Los Angeles School Police Management Association
Los Angeles School Police Officers Association
Murrieta Police Officers' Association
Newport Beach Police Association
Novato Police Officers Association
Palos Verdes Police Officers Association
Placer County Deputy Sheriffs' Assocation
Pomona Police Officers' Association
Riverside Police Officers Association
Riverside Sheriffs' Association
Santa Ana Police Officers Association
Upland Police Officers Association

Analysis Prepared by: