BEWARE THE PROSECUTORS
There are two major changes coming at you in 2021 significantly increasing the scrutiny you will undergo when it comes to being charged with a criminal offense. First is that a new Los Angeles District Attorney has been elected who is known for his progressive view of the criminal justice system. A significant part of his campaign was to ensure that
police officers who have committed acts of excessive force or other crimes are criminally prosecuted. In fact, he has promised to review five previous use of force cases, including one former LAPD officer, to determine if criminal charges can be filed.
The second is that AB 1506 has become law, mandating that the State Attorney General take charge of the investigation into any officer-involved shooting of an unarmed civilian and prosecute any officer deemed to have used excessive force. This law was passed because the politicians surrendered to the pressure from various groups that local agencies could not be trusted to properly investigate and charge officers involved in these types of shootings.
Both changes carry the practical effect of demanding that police officers be criminally prosecuted. Failure to do so will have political consequences for the DA and the AG. And they know it.
I have discussed the use of force statutes and policy changes in previous “Warning Bells” articles, so I will not repeat those issues again, as important as they are. But you need to realize there are a host of other statutes in the penal code that may be used as the basis of criminal charges against you—some that are not intuitive as you march through your daily duties.
Six LAPD officers have been criminally charged with three sections that have nothing to do with uses of force: 182 (a) (5) and 134 and 118.1 of the penal code. The basis of these charges flow from the routine act of turning in afield interview card, something officers do a hundred times a day throughout the Department.
182 (a) (5) PC: Criminal Conspiracy: “If two or more persons conspire to commit any act injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws.”
134 PC: Preparing False Evidence: Every person guilty of preparing any false or antedated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding, or inquiry whatever, authorized by law, is guilty of felony.”
118.1 PC: False Statements in Crime Reports: “Every peace officer who files any report with the agency which employs him or her regarding the commission of any crime or any investigation of any crime, if he or she knowingly and intentionally makes any statement regarding any material matter in the report which the officer knows to be false, whether or not the statement is certified or otherwise expressly reported as true, is guilty of filing a false report punishable by imprisonment in the county jail for up to one year, or in the state prison for one, two, or three years.”
The factual case, according to the prosecutor, is simply proved. The field interview cards were inconsistent with the body-worn videos to a degree that the inaccuracies must have been intentional. And when partners turn in an FI card that is false, there must have been an agreement and, therefore, a conspiracy. The officers will get a jury trial and a defense that will raise many challenges to the so-called proof, but the point is that regardless of end results, do you want to take a chance of going through this?
Any report you write, if inconsistent with your body-worn video, digital in-car camera or any other video, puts a prosecutor (or civil jury) in a position to decide that it was a deliberate evil act instead of a mistake. The current anti-police atmosphere puts political pressure towards the assumption of evil. And that can lead to triggering any of these three statutes into a criminal filing. Inconsistent testimony with a report also can place you in this box. Watch that video before writing or testifying!
Here are some other statutes that careless action might inspire a criminal prosecution if misinterpreted, or if pressed by the politically powerful. Actions that used to be a personnel complaint could be reframed as a criminal act.
68 (a) PC: Soliciting a bribe to influence official actions: Of course, bribery is and should be a felony. However, could a simple traffic stop where an officer obtains a phone number from an attractive driver turn into this type of allegation? Especially if no ticket is written? It could end up being much more serious than converting an on-duty contact into an off-duty relationship.
70 (a) PC: Misdemeanor. Accepting any gratuity or reward for performing an official duty. Could someone allege that a discount on the price of a meal or pack of cigarettes result in extra patrol?
141 (b) PC: Felony to plant, create or tamper with evidence to cause a person
to be charged. Is your property report consistent with your body-worn video? Make sure it is.
146 PC: Misdemeanor to make an unlawful detention, arrest or seizure. Do you know your arrest and search and seizure laws? It could be a crime if you don’t.
147 PC: Willful inhumanity/oppression of a prisoner. Too much trouble to let an arrestee go to the bathroom?
149 PC: Wobbler. Unnecessary beating or assault of any person by a public officer. Sort of like Administrative Disapproval? Around 15% of uses of force are
ruled out of policy.
168 (a) PC: Wobbler. Willfully disclosing the existence of a search or arrest warrant before execution, for the purpose of preventing a search, seizure or
arrest. Loose lips can result in more than sunk ships.
335 PC: Misdemeanor not to enforce gambling laws. Ignoring that group rolling dice?
502 (c): Wobbler. unauthorized access to computers, systems and data. Running your neighbor could be a crime.
636 PC: Wobbler. Eavesdrop on or record confidential communications between a prisoner and an attorney, religious adviser or licensed physician. Notice that there is no need to record. Eavesdropping is enough.
637.4 PC: Civil fine $1,000. Requesting a forcible sex-crime victim to take a polygraph test.
825 (b) PC: Refusing to permit an arrestee to be visited by an attorney at the request of the prisoner or any relative. And the officer must pay the prisoner $500.
851.5 PC: Misdemeanor not to allow an arrestee 3–5 calls within three hours of arrest or immediately upon booking— whichever occurs first. Minors get two calls within one hour.
853.6 (i) PC: Misdemeanor to alter, conceal, modify, nullify or destroy the face of an issued citation before filing it with the court.
4030 (n) PC: Misdemeanor to authorize or conduct a strip, visual or physical body cavity search in violation of restrictions. Also, pay the prisoner $1,000 and attorney fees.
11166 (c): Misdemeanor not to make a mandated child-abuse report.
13519.4 (f): Misdemeanor to engage in racial profiling.
This is a short list warning of crimes that can be allegedly committed in a routine day’s work by the unwary, careless or ignorant.
Briefly returning to use of force, be aware that the use of force is not the only issue that can entangle you in the criminal process. Even if you did not use force, there can be issues of brandishing, violation of civil rights (a federal crime) by not having sufficient cause for a stop, ADW by unnecessarily pointing a gun, or failing to intervene if your partner uses excessive force, to name a few.
As stated many times in these articles, there are three fields to master for your own safety. Knowledge, articulation and accuracy. Know the law, state your observations clearly, and VIEW THE VIDEO before you put pen to paper and prior to testifying.
As the saying goes, there is a new sheriff in town. Beware.
Be legally careful out there
