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