BILL ANALYSIS Ó
AB 86
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Date of Hearing: May 13, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
AB
86 (McCarty) - As Amended April 23, 2015
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Urgency: No State Mandated Local Program: NoReimbursable: No
SUMMARY:
This bill requires the Department of Justice (DOJ) to commence
an independent investigation, if a peace officer uses deadly
force in the performance of his or her duties that results in
the death of an individual. Specifically, this bill:
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1)Specifies that if a peace officer, in the performance of his
or her duties, uses deadly physical force upon another person
and that person dies as a result of the use of that deadly
physical force, the Attorney General (AG) is required to
appoint a special prosecutor to direct the investigation
concerning the use of deadly physical force by that peace
officer.
2)Pursuant to this investigation, the special prosecutor will
have the sole power to determine whether criminal charges
should be filed, and if so, the charges must be filed in the
superior court of the county in which the incident took place
and the prosecutor is responsible for prosecuting.
FISCAL EFFECT:
Significant ongoing costs (GF), in excess of $1 million, to the
DOJ to conduct at least 50 investigations per year. According
to a 2005 DOJ bulletin, there were in excess of 300 deaths in
custody in 2003, approximately 85 percent were in facilities and
15 percent on the streets. The DOJ is required to investigate
all deaths; however; the assumption is that investigations for
deaths on the streets will be more resource intensive.
COMMENTS:
1)Purpose. According to the author, "There is a growing
appetite, both at the national and local level, to create a
better and more transparent system regarding police shootings
that is fair to police, families, and the community in order
to restore public trust."
"There is skepticism in the current process where local DA's
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investigate cops they work most closely with. To foster
better transparency in the process, a common sense reform
would be to have an independent review process by the
Department of Justice to investigate police shootings where a
civilian death occurs."
"California needs to have this important conversation to restore
public trust and show that we are a leader on this issue."
2)Background. Under current law, when the AG deems it advisable
or necessary in the public interest, or when directed to do so
by the Governor, the AG is required to assist any district
attorney in the discharge of his/her duties, and may, where
he/she deems it necessary, take full charge of any
investigation or prosecution of violations of law of which the
superior court has jurisdiction. In this respect the AG has
all the powers of a district attorney, including the power to
issue or cause to be issued subpoenas or other process.
Current law also provides that if a district attorney is
disqualified to conduct any criminal prosecution within the
county, the Attorney General may employ special counsel to
conduct the prosecution. The attorney's fee in such case is a
legal charge against the state.
The stated goal of the President's Task Force on 21st Century
Policing was ". . . to strengthen community policing and trust
among law enforcement officers and the communities they
served, especially in light of recent events around the county
that have underscored the need for and importance of lasting
collaborative relationships between local police and the
public." Based on their investigation, the Task Force
provided thoughts and recommendations on a variety of issues
involved with community policing.
One of the areas of police practices explored by the Task
Force was oversight. The Task Force developed the following
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actions items (among others) in connection with cases that
involved police use of force resulting in a death, or police
shootings resulting in death or injury:
2.2.2 Action Item: These policies should also mandate
external and independent criminal investigation in cases of
police use of force resulting in death, officer-involved
shooting resulting in injury or death, or in-custody
deaths.
2.2.3 Action Item: The task force encourages policies
that mandate the use of external and independent
prosecutors in cases of police use of force resulting in
death, officer-involved shootings resulting in injury of
death, or in-custody deaths.
"Strong systems and policies that encourage use of an
independent prosecutor for reviewing police uses of force and
for prosecution in cases of inappropriate deadly force and
in-custody death will demonstrate the transparency to the
public that can lead to mutual trust between community and law
enforcement." (Interim Report of the President's Task Force on
21st Century Policing (2015, p. 22.)
1)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
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procedures, outmoded technology, and operating norms that puts
officers at odds with the community they are meant to serve
and protect.
2)Argument in Opposition: According to The Peace Officers
Research Association of California, "District Attorneys are
elected by their counties to handle these types of
investigations. District Attorneys have made decisions for
years, and have overseen difficult cases that have been
scrutinized heavily by the media and public. The concern that
there would be a conflict of interest between a District
Attorney and officers they may work with is unfounded.
District Attorneys routinely prosecute peace officers when
they believe there is sufficient evidence to prove a crime
beyond a reasonable doubt. It is a District Attorney's
ethical duty to ensure the fair administration of justice,
without regard to who is being investigated."
"AB 86 is unnecessary because we believe the Attorney General
already has the authority to investigate and prosecute any
case in which he or she believes criminal conduct has
occurred."
3)Related Legislation: SB 227 (Mitchell), currently on Senate
floor, would prohibit a grand jury from inquiring into an
offense or misconduct that involves a shooting or use of
excessive force by a peace officer, as specified, that led to
the death of a person being detained or arrested by the peace
officer.
AB 86
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Analysis Prepared by:Pedro R. Reyes / APPR. / (916)
319-2081