David P. Mastagni Interviewed on KFBK's Kitty O'Neal About AB 748

On October 1, 2018, KBFK broadcaster Kitty O'Neil interviewed David P. Mastagni about AB 748.  Governor Brown signed the bill, which requires public release of video and records relating to critical incident investigations. 

O'Neil asked Mastagni what his concerns were about the new law.  He explained, "My greater concern is that the release itself is going to interfere with every single solitary investigation.  It’s going to cause witnesses to go into hiding. It’s going to jeopardize the safety of witnesses.  Frankly, it’s going to jeopardize the safety of the officers. And it will definitely take a law enforcement function and make it a media ping pong game."

O'Neil continued asking what he thought was behind the creation of the bill.  He explained, "I’ve dealt with the Legislature long enough to know they go by poll barometers and the never do anything based on the philosophic or best interests of society or law enforcement.  It’s always on what their district is like.  I call it promoability.  That public service, Kitty, has just gone from where you had volunteer councilman and people serving out of civic duty and dedication to career advancement and therefore you take positions that will encourage your constituency in your local district then you take them that will encourage your nomination ability in bigger, more statewide elections and I think that it’s all a calculus.  I’m sorry to say I don’t believe that the question of transparency or police-community relations – I think it’s there – but its maybe fifth, sixth, tenth down the line from how will this effect my career."

Listen to the whole interview here.

Federal Court Confirms Officer’s Use of Deadly Force Justified in Order to Prevent Escape

A recently published federal court case underlines that if officers have probable cause to believe a suspect poses a threat of serious physical harm to themselves or others, they are justified in using deadly force to prevent escape. A warning is only required if feasible.

In Horton v. Pobjecky (2018), an unarmed off-duty police officer was waiting for food in a  pizzeria. The officer—Frank Pobjecky, was sitting in the break area with the restaurant manager—Vincenzo Tarara. Suddenly, four young men entered the front door. One of the men held a revolver. Two of the men entered the break room while a third went around the counter toward the cash register. The fourth man, Michael Sago (“Sago”), acted as a lookout. Sago stood in the entrance holding the front door open.

One of the men pointed a gun at Tarara and demanded money. Tarara told him to get out of his restaurant. Tarra then slamed the man against a cooler and reached for the man’s gun. While Tarara and the man struggled for control of the gun, Pobjecky, who knew that Tarara carried a concealed handgun on his hip under his shirt, grabbed Tarara’s gun.

Sago approached the break area. As he approached, Pobjecky gained possession of Tarara’s gun. Simultaneously, Tarara won the struggle for the other gun.  Pobjecky began shooting. He never identified himself as a police officer or gave any verbal warnings or commands.

With Tarara’s gun, Pobjecky engaged each suspect as they moved around the restaurant. Pobjecky shot and wounded all three men. Sago was shot three times from behind in the lower back as he crawled away toward the door. After Sago crawled out of the restaurant, Pobjecky locked the front door and called 911. Approximately 11 minutes later paramedics arrived. Sago died shortly thereafter.
James Horton, representing Sago’s estate, sued Pobjecky alleging that he used excessive force and failed to provide medical care in violation of 42 U.S.C. § 1983

In dismissing Horton’s case, the Court noted that as long as the assailants were moving inside the pizzeria, they posed a threat. The Court ruled that given the circumstances no reasonable juror could conclude that he should have stopped to identify himself as a police officer or warn each assailants before defending himself.

As to the failure to provide medical care, the Court ruled that it was “unreasonable to demand Pobjecky venture into the night with an empty gun, risking further onslaught, braving the hazards [Sago] and the other assailants created, to administer treatment to [Sago]”

AG: CHP Can Disclose Brady List to Prosecutors

The California Highway Patrol and other law enforcement agencies are allowed to disclose some Brady information about their officers to prosecutors without a Pitchess motion.

On October 13th the Attorney General issued a legal opinion about the steps prosecutors must take to get Brady material about peace officers.  The Attorney General said CHP could give prosecutors a list of its officers who have been found guilty of dishonesty, moral turpitude, or bias, without a Pitchess motion being filed without violating Pitchess statutes or the Public Safety Officers Procedural Bill of Rights Act (POBRA).

Under the its proposed “External Brady Policy,” CHP would create a list of its officers who have been found guilty of dishonesty, moral turpitude, or bias within the last five years. This list would include the names of officers and the earliest date of any misconduct. But it would not describe the misconduct. Prosecutors could search this Brady list for CHP officers who might be called to testify as witnesses in criminal trials. If a likely witness was on the list, a prosecutor could then file a Pitchess motion to view the officer’s personnel records. Also, an officer whose name was put on the list would be notified and could file an administrative appeal challenging their inclusion on the list. 

The Attorney General noted that several police departments have adopted similar Brady policies and the Supreme Court approved one of these policies in Johnson. So CHP would not violate Pitchess statutes by creating and sharing a Brady list. She also said CHP was part of the prosecution team for Brady purposes, and CHP was qualified to create a Brady list. 

Although the Attorney General’s legal opinion is only advisory and is not binding on local law enforcement agencies, it is has a lot of influence. Officer associations should be aware of their agency’s Brady policy and ensure that the confidentiality of peace officer personnel records is protected. While Brady lists may be created and shared, POBRA and Pitchess procedures must still be followed.

Proposal to Subject Officers in Critical Incidents to Special Prosecutor Fails in the Assembly

AB 86 was 86'd in the Assembly today.  Under the proposed bill, every officer-involved shooting would have to be reviewed by a special prosecutor appointed by the Attorney General.  This review would have been in addition to department and district attorney reviews.  The bill was among several bills that failed to advance through the Assembly Appropriations Committee earlier today.

California Senate Bans Grand Jury Investigations of Officer Involved Critical Incidents

On May 7, 2015, the California Senate voted to ban the use of grand juries to investigate officer involved critical incidents. Specifically, Senate Bill 227 prohibits a grand jury from inquiring into an offense or misconduct that involves a shooting or the use of excessive force by a peace officer that lead to the death of a person being detained or arrested by the peace officer.

Under current law there are two tracks a district attorney can take to file a case. Under one track, the district attorney can file a complaint in criminal court and schedule a preliminary hearing.  At the preliminary hearing the district attorney and the defense attorney present witnesses and evidence subject to cross-examination in open court. The judge then makes a determination of probable cause based on the evidence. If there is probable cause, the judge issues an information which lays the foundation for the criminal case.

The district attorney can also send the case to a grand jury. The grand jury then hears evidence presented in secret. The district attorney is allowed to present evidence favorable to his or her case without calling all relevant witnesses and without cross-examination. The grand jury decides if there is probable cause. If the grand jury dismisses the indictment, then the proceedings remain secret.

Senator Holly Mitchell, D-Los Angeles, argued the lack of transparency in the grand jury process and in grand jury deliberations has fostered an atmosphere of suspicion regarding the justice system and officer involved critical incidents. According to Senator Mitchell, requiring a district attorney to bring the case through a complaint allows the public to view the proceedings. If the public does not agree with the district attorney the public can then remove the district attorney at the next election.

The bill passed the senate on May 7 by a vote of 23-12. All of the "yes" votes came from Senate Democrats. The bill now moves to the Assembly for further review.

Assemblymember Jim Cooper Stands Up For Law Enforcement

California Assemblymember Jim Cooper is standing up for law enforcement statewide.  Cooper, a retired Sacramento Sheriff's Department Captain, has taken the lead educating his colleagues in the Legislature about officer-involved shootings, how law enforcement departments respond to and investigate critical incidents, limits of body cameras, how much training is already required of law enforcement, and the role of socio-economic issues law enforcement did not create and cannot solve alone.  Cooper's stand comes as another assemblymember has introduced a bill requiring the Department of Justice to review every officer-involved shooting in California.

BART POA Wins Injunction Protecting Identity of BART Officer Involved in Critical Incident

In BART Police Officers Association v. Bay Area Rapid Transit District et al., the BART Police Officers’ Association (BPOA) successfully defended the privacy rights of its members and prevented the unlawful disclosure of the name of an officer under investigation in a critical incident.

The Department sought to release the name of an officer identifying the officer as the subject of a disciplinary investigation following a use of force incident that gained widespread notoriety.

Following a use of force incident, a citizen made a complaint against the officer, and the department made statements to the media that the incident was under investigation. The Department informed the officer that they intended to release the officer’s name to the media, identifying him as the officer under investigation for the incident. The Department informed BART POA it intended to release the officer’s name to the press.

BART POA President Keith Garcia immediately moved to protect the officer’s privacy. BART POA sent a cease and desist letter to the Department and prepared an application for a temporary restraining order. Then the POA secured an agreement from the District to preserve the officer’s privacy until the dispute could be heard by a court on an expedited basis.

Then, on April 17, 2014, the Alameda Superior Court and the parties agreed to a preliminary injunction protecting officer privacy until at least 30 days after the California Supreme Court decides two closely related cases.

The California Supreme Court is considering two important cases about peace officers’ privacy rights. In Federated University Police Officers Association v. Superior Court, the Court will decide whether or not the California Public Records Act can be used to force disclosure of peace officers’ names in a report about the use of pepper spray at UC Davis in 2011.

In Long Beach Police Officers Association v. City of Long Beach, the Court will decide whether the California Public Records Act requires agencies to release the names of officers involved in officer-involved shootings. Together, these cases will establish the legal foundation for how these information requests must be treated in the future. In the meantime, officers can protect their rights by pursuing injunctions like the one BART POA won in this case.

Mastagni Law attorneys Kevin A. Flautt, David E. Mastagni, Jeffrey R. A. Edwards, and Brendon P. Parenti represented BART POA in the matter.

Ninth Circuit: Officers' Use of Taser 22 Times Was Justified, Despite Death of Suspect

In Marquez v. City of Phoenix (9th Cir. 2012) 693 F.3d 1167, the Ninth Circuit Court of Appeals held that officers’ repeated and prolonged use of a taser against the suspect, both in “probe mode” and in “drive-stun mode,” which resulted in the suspect’s death, did not amount to excessive force in violation of the Fourth Amendment.

The case started when two Phoenix, Arizona, police officers arrived at a suspect's family home. They learned that the male suspect was attempting to perform an exorcism on his three-year old granddaughter. Upon entering the bedroom, which had been barricaded, the officers found chaos. The walls and furniture were smeared with blood, the suspect was reclining on the bed with a silent and motionless victim in a choke-hold, and the suspect’s adult daughter was naked in the corner screaming with evidence on her face of a recent beating. One officer ordered the suspect to let the child go or he was going to be tased. The suspect did not comply and, the officer deployed his TASER X26 ECD in “probe mode.” The taser was ineffective and the suspect continued to actively resist arrest, even kicking one officer in the groin.

After the victim was removed, the suspect continued to resist. Officers were eventually able to wrestle Ronald into submission after using the taser multiple times. At that point, the officers found that he had a weak pulse. Despite resuscitation efforts, the suspect went into cardiac arrest and died. The cause of death was listed as “excited delirium” and records found that the suspect received nine five-second cycles from the X26; two while it was ineffectively deployed in “probe mode” and seven when it was deployed in “drive-stun mode.” In all, the officers pulled the X26's trigger a combined 22 times.

While the Court found that considerable force was used, the force was not excessive. Interestingly, the Court was “not convinced that the use of an X26 involves deadly force” but even if it did, under the totality of the circumstances, the force was reasonable. The Court highlighted the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain and rapidly evolving. In this situation, officers were responding to a domestic violence call in which the suspect would not release his granddaughter from a choke-hold and then struggled viciously in close quarters against the officers attempting to restrain him while his daughter, who had also been the victim of his attacks, remained in the room throughout.

Judge Orders Relative of Suspect to Stay Away from Officers, Families

The San Joaquin County Superior Court issued a permanent restraining order protecting two Manteca police officers and family members from harassment by the brother of a suspect killed in an officer-involved shooting in June 2011.  Family members of the suspect have been holding group protests for several months and approached family members of one officer at an amusement park.

The restraining order prohibits the suspect's brother from coming within 25 yards of the officers at the Manteca police department and within 100 yards anywhere else, including the officers' homes and child's school.  It also prohibits him from attempting to contact them in any way.  The order further prohibits the suspect's brother from possessing firearms or ammunition and orders him to dispose of any firearms or ammunition with 24 hours.  The restraining order has a three year term.  Mastagni Law attorneys represented the police officers in the matter.  More information about the case is available here.