Assembly Bill (AB) 1506, effective July 1, 2021, amended Government Code section 12525.3(b)(1) to require that the California Department of Justice (DOJ) investigate all officer-involved-shootings that result in the death of an “unarmed civilian”.
On June 24, 2021, the California
Department of Justice released an information bulletin interpreting some of the
ambiguous language in AB 1506. On July 7th,
the DOJ released a more comprehensive package of protocols and guidelines for
the investigation of “qualifying events” (officer-involved shootings that
result in the death of an unarmed civilian).
Prior to the release of these guidelines,
the DOJ met with various stakeholders—including local and state law enforcement
agencies—to discuss how the legislation would be implemented. However, despite these
seemingly productive discussions, the protocols released on July 7th appear to disregard
serious concerns raised by law enforcement groups during these meetings.
Further, implementation of these guidelines is likely to improperly commandeer
the authority of local governments and agencies and result in violations of
officers’ constitutional rights. The full guidelines are lengthy and spread
across numerous documents. In this post we address some of the most concerning
issues for our law enforcement clients.
Most of these issues stem from the fact
that officers cannot be compelled to give a statement or participate in a
criminal investigation. Officers, like all citizens, have a Fifth Amendment
right not to incriminate themselves. After a critical incident the
involved officers will typically agree to voluntarily participate in a scene
walkthrough and give a voluntary statement to criminal investigators. However,
if the officer chooses not to do so, the employing agency can order the officer
to answer questions for the purpose of conducting an internal administrative
investigation. That compelled interview cannot be used against the officer in a
criminal matter because to do so would violate the Fifth Amendment. (See Lybarger
v. City of Los Angeles (1985) 40 Cal.3d 822.)
The DOJ’s guidelines suggest that if the
officer declines to waive their Fifth Amendment rights, the DOJ will request
that the employing agency compel officers to participate in various parts of
the investigation. For example, the protocol regarding scene walkthroughs suggests
that the DOJ will ask the employing agency to compel walkthroughs when
necessary. If an officer is compelled to do a walkthrough, that evidence cannot
be used against him in a criminal case. Moreover, if the DOJ acts in conjunction with the
employing agency to compel an officer to provide a statement in a criminal
investigation, that questioning is subject to POBR and the Lybarger
admonition. (California
Correctional Peace Officers Assn. v. State of California (2000) 82
Cal.App.4th 294.)
Additionally, the protocols state that if
the officer makes incriminating statements during a walkthrough, the
investigators should continue to obtain their statement, rather than
immediately Mirandizing the officer as is required by the Constitution.
Similarly, the DOJ cannot compel officers to provide a blood, breath, or urine
sample without probable cause and a warrant.
DOJ also cannot force the employing agency to compel its officers. If the employing agency administratively
compels a blood sample, it must be based on reasonable suspicion or a
negotiated policy, and the sample cannot be used in the criminal investigation.
Finally, separate and apart from these
Constitutional issues, the DOJ’s guidelines regarding sleep cycles and video evidence review do not follow best practices. Experts in use of
force science recommend that officers get at least two sleep cycles prior to
giving a statement. The science shows that a person’s memory of a traumatic
event is usually more accurate after their adrenaline wears off and they
have been given the opportunity to rest and emotionally decompress. The
DOJ intends to ask officers to immediately
provide a shortened statement recounting their actions, and then, if permitted
by local agency policy, allow the officer up to 48-hours of rest before
requiring a second full interrogation.
This policy undermines the entire purpose
of a sleep cycle; officers will be subject to having their credibility
questioned based on any additional details provided or if there are even small
discrepancies between the two statements (which will inevitably occur simply as a result of the
officer’s reduced adrenaline and time to recount the events).
The DOJ’s protocols on review of video
evidence present a similar problem. The guidelines state that the officer will
give a statement, then be permitted to review video evidence if allowed by
their agency, and then have the opportunity to clarify their original statement
based on that video evidence. This practice unfairly denies officers the basic
right to refresh their recollection and enhance their ability to give a full
and complete statement, a right afforded any witness in court. The second statement creates a similar
concern that any clarifications will be misused by critics to attack the
officer’s credibility.
Critical incident investigations are
lengthy, complex processes with lots of moving parts. This is why local
agencies, in conjunction with local law enforcement stakeholders, have
implemented their own policies and procedures that take into account the needs
of the agency, the officers, and their community. Rather than rely on this
local expertise, the DOJ’s policies usurp local authority, commandeer the
employment relationship to compel compliance, and are likely to create
confusion rather than uniformity. Although there is still a long way to go, we
are hopeful that we can continue to work with the DOJ and other stakeholders in
refining and revising these policies.
