BILL ANALYSIS Ó
AB 86
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Date of Hearing: April 28, 2015
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
86 (McCarty) - As Amended 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
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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.)
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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
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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
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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
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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 21st 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 21st
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.
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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 21st 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.
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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
21st 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 21st 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
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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
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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
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Analysis Prepared
by: David Billingsley / PUB. S. / (916) 319-3744