AB 1506 and What it Means to You
On September 30, 2020, your legislators passed Assembly Bill 1506. It required that all law enforcement shootings that resulted in the death of an unarmed civilian be investigated by the Attorney General (AG) of the State of California to determine if an officer committed a crime and, if so, to prosecute the officer. This law came about in response to the national anti-police rhetoric that not enough police officers were going to jail for excessive force and especially those officers that were gunning down unarmed black civilians. It should be pointed out here that in 2019 LAPD officers shot and killed 2 black citizens neither of which were unarmed. One had a machete in the process of bringing it down on an officer and the other was wanted for murder and fled from officers while armed with a gun which he pointed at the pursuing officers. Facts do not matter.
Nevertheless, the law passed. As of July 1, 2021, the Attorney General has formed investigation teams that are responding to all California officer-involved-shootings where an unarmed civilian was killed by officer gunfire. Remember that their sole purpose is to determine if you have committed a crime wherein the AG has responsibility to file criminal charges against you. We had our first one a few weeks ago and they were there.
The idea was for the AG to take over the criminal investigation. This was throttled down by the fact that the legislature didn’t fund the investigative teams that the AG was in the process of hiring. So, they are still responding, but in a more overview capacity. However, the responsibility to criminally file on an officer survived the shortfall of funds. And you can be sure that funding will eventually be provided.
Pursuant to this responsibility, the AG has published its guidelines on conducting criminal investigations of officer-involved-shootings. As would be expected, most of their guidelines put officers in the worst position possible. Officers are to give voluntary statements. The statements are to be videotaped. The statements must be given before the officer is allowed to look at Body Worn Video (BWV) or Digital In-Car video (DICVS). A voluntary blood draw is to be administered to determine if there is any alcohol or drugs in the system. The interview is to be given on the date of the OIS unless there are fatigue issues in which case an abbreviated interview would be done with a follow-up interview within 72 hours.
Fortunately, you have rights. We negotiated many of them over the years and our roll-out attorneys have been responding and enforcing those rights for decades. The AG recognizes this and in its guidelines to its investigators it urges them to try and get waivers from officers when local policy or procedures conflict with their guidelines. They understand that different departments across California have many different procedures that they normally follow. The AG investigators are instructed to respect those procedures if they cannot get an officer to waive them. That means you will probably be approached for waivers by these investigators.
With that in mind, let us go through the LAPD protocol and the protections that the law and MOU have given you. First rule, talk to your League roll-out attorney before you do anything!
First, the AG has one mission. Did you commit a criminal act? They are specifically told in their guide that the administrative issues and civil issues are the responsibility of the local agency. That means you will be going through the same FID investigative protocol that has been occurring for years. You will be required to go through an extensive interview before you go end of watch, probably a walk through, and all of it will be done pursuant to an order to cooperate or be terminated. (Lybarger) The difference is that FID will not have overall responsibility for the criminal investigation, the AG will. From a practical standpoint, they will not do anything differently except present the results of the investigation to the AG rather than the District Attorney and there will be another body hanging around watching everything they do along with the Inspector General.
What is an AG case? Anytime an unarmed civilian is shot by an officer acting in a law enforcement capacity and the civilian dies.
When is a civilian unarmed? Anytime the civilian is not in possession of a deadly weapon. Specifically speaking, a civilian attempting to take control of an officer’s firearm is not armed unless the officer loses control of the firearm.
What is considered a deadly weapon? A little more complicated. All firearms and BB/pellet guns, even if unloaded or inoperable, are deadly weapons. Replica guns are not deadly weapons. A switchblade knife, pilum, ballistic knife, metal knuckle knife, dagger, billy, blackjack, and plastic or metal knuckles are deadly weapons. Objects that have a legitimate non-weapon purpose are considered deadly ONLY when used in a manner likely to produce death or great bodily injury. If used in that manner, knives, box cutters, screwdrivers, bottles, chains, automobiles, rocks, razor blades, and iron bars can be considered deadly weapons.
Are you required to give a voluntary statement? No. There are several reasons to stay with the protocol that we have had in place for decades of being compelled. First, anytime you use deadly force, you are in danger of a criminal filing. The possible crimes go far above just a consideration of whether the use of force was justified. Was the stop or property entry legal? (Federal crime) Were you justified in drawing your weapon? (brandishing) Were all your shots proper? (Several instances where the final shot was considered out of policy-ADW) It goes on and on. Second, at the time of the shooting you will be required to go into an extensive interview. Science says that you need two sleep cycles for your memory to properly process a stressful event. There is an increased likelihood that you will make a mistake. That mistake can be used against you in court. Third, the chief needs to know what happened right away, not days later like some departments that delay the interview. The trade off is that the chief can use the statements to decide if the shooting was proper and you are protected from the statement being used against you in a criminal proceeding. If the shooting was bad, the chief can bench you, or even terminate you, using the statements if protection of the community is needed. Fourth, you are likely to be sued. State law protects your statement under most circumstances from being used in a civil proceeding against you without review and decision by a judge. Fifth, FID will put you through an extensive compelled interview following the shooting. The AG investigators will not attend that interview (although it is perfectly legal for them to do so) because they cannot use the statements against you in their criminal investigation. That would require them to put you through another extensive voluntary interview. No attorney would allow multiple interviews on the same subject. Minor inconsistencies can be blown up into credibility issues in court. Also, all interviews will eventually be released under AB 1421 and those with a political agenda will likely do line by line comparisons to find things that can be amplified to put you in the worst light possible to further their political agendas. Sixth, under the Penal Code, the Attorney General has legal access to your statement. If they have questions as to what happened, it is readily available to them. You are not concealing any facts. If they refuse to look, that would be their decision, not yours. Prosecutors often construct clean teams when there is a need to do so and there is no reason the AG cannot do the same. If any issues arise over this with the AG, you will subsequently be referred to a League Panel Attorney with extensive criminal defense experience for representation and advice.
Are you required to give a blood sample? No. The MOU negotiated by the League requires that there be either objective symptoms or reasonable suspicion to believe that an officer is under the influence of alcohol or a drug. (MOU Article 3.5) Your blood is recognized by the courts as being private. There is no reason absent reasonable suspicion or objective symptoms to give up that privacy.
Are video interviews a good idea? No. Again AB 1421 eventually releases all videos of officer-involved-shootings. The taking of a life, even when required for the protection of yourself or others, is a high stress event. Officers often feel this weight as the interview forces them to relive it, sometimes breaking down. These videos are likely to end up being YouTube fodder.
Should you view your BWV or DICVS before the interview? Absolutely. The goal of the interview is to tell the truth. A high stress event challenges the memory. The review of the video prevents mistakes. If you see something on the video that you do not remember, simply say “I see that on the video, but I do not remember it.” The alternative is to say something by mistake that is not true. When that happens, you are handing those with an agenda a basis to attack your credibility. Remember that “accuracy is our most important product.” Everyone that testifies in court, or in a civil proceeding, prepares extensively to make sure that they are giving accurate testimony at the insistence of their attorneys. You should not behave differently. This is the most important interview of your life.
Especially since the George Floyd case, the national political atmosphere has been anti-police. It is this atmosphere that caused the passing of AB 1506. In fact, the current Attorney General was instrumental in its passing. One hopes that it is fairly applied, but what happens if the new law does not result in the criminal prosecution of officers? What kind of political pressure will be applied to the AG by the various activist groups who expect a recap? We know that officers make mistakes in high stress situations, but they do not deliberately violate the law. The use of force law was recently changed to incorporate de-escalation and other requirements under the same “reform” issues that caused this legislation. It is easier than ever to find grounds to file criminal charges against officers. (See previous articles on the changes made to 835a PC) Will the filing bar fall lower and lower if the AG is unable to provide the results that activists demand to see? Time will tell.
Be legally careful out there.
