Fatal flaw in lethal-force cop investigations

Prompted by police incidents across the country, an effort is underway to make California the first state in the nation to have its top law enforcement officer independently investigate deaths in police custody, bypassing the prosecutors in California’s 58 counties.

Under the plan, the state attorney general would appoint a special prosecutor to direct an investigation when a civilian dies as a result of deadly physical force by a peace officer. The bill is authored by local Assemblyman Kevin McCarty, a Democrat and former Sacramento City Council member.

The issue could prove to be politically volatile for state Attorney General Kamala Harris, a Democrat who is also running for the U.S. Senate next year.

“We haven’t heard from her one way or the other,” McCarty said of whether she will support his Assembly Bill 86. But the Assembly member added that a report from Harris’ office last month discussed the need for independent review and transparency when it comes to reviewing high-profile cases.

“So, we view that as a step in the right direction,” McCarty said.

In the earlier report, Harris directed her office’s Division of Law Enforcement to conduct a review of state special-agent forces. One of their key findings—and one on which they are taking action—is a new process intended to enhance transparency after one of their state-level officers is involved in a lethal incident.

That internal process would apply to only state special agents, however, not to local police forces.

Harris, a former district attorney in San Francisco, has not taken a position on McCarty’s bill. But she does not support the idea of taking prosecutorial discretion away from locally elected district attorneys.

Neither does Sacramento County DA Anne Marie Schubert, who restarted her office’s review of deadly-use-of-force incidents in January, following a three-and-a-half-year layoff.

“Any claims that District Attorneys cannot fairly evaluate allegations of criminal conduct by law enforcement are false and contrary to the fact that our office has prosecuted peace officers for crimes they have committed,” she wrote in an emailed statement to SN&R. “We are dedicated to fulfilling our ethical duty to fairly administer justice.”

Schubert pointed to her office’s successful prosecution, in 2013, of ex-Sacramento police Officer Brandon Mullock, who falsified dozens of police reports following traffic stops that led to DUI arrests. The disgraced officer pleaded no contest to one count of perjury and three counts of filing a false police report. The DA’s office also overturned 79 convictions borne from Mullock’s tainted evidence.

As for officer-involved-shooting prosecutions, those are much rarer. Only two such prosecutions occurred during a 30-year span in Sacramento County.

The first part of 2015 has already produced five officer-involved shootings and two in-custody deaths across the county. The latest occurred near Cesar Chavez Plaza last Thursday evening, when a woman hailed officers because she reportedly felt threatened by her adult son. After allegedly advancing on police with a knife, one officer shot the 28-year-old man multiple times. A news release listed the man in stable condition.

It was the second shooting in seven days for the department. On May 15, police fatally shot a 42-year-old man during a domestic disturbance call. The man allegedly pointed a black, semi-automatic-style BB gun at two officers who entered his home. One of the officers fired his weapon as he and his partner retreated. A department release described the man’s weapon as “visually indistinguishable from a real handgun.”

Police spokesman Sgt. Doug Morse said investigators don’t yet know what prompted the man to point a replica firearm. “However, it is reasonable that suicide by cop may have played a factor,” he said via email in response to a question.

Officers involved in both shootings were placed on paid administrative leave.

Harris has said the current process of investigating civilian deaths by local law enforcement is effective enough. She also has said that the local district attorneys should have the authority to investigate officer-involved shootings, in part because they are elected by—and held accountable to—local constituents.

Schubert agreed, saying Sacramento County voters elect their DA “to independently review and prosecute all crimes committed here.”

“I don’t think there’s an inherent conflict,” Harris said in an interview with the San Francisco Chronicle back in December. “Where there are abuses, we have designed the system to address them.”

That system isn’t always up to the task.

In Sacramento County, only the city of Sacramento boasts an independent law enforcement monitor. Police departments in Citrus Heights, Elk Grove, Folsom and Rancho Cordova, which had one officer-involved shooting this year, aren’t subject to external review. Neither is the county’s largest law enforcement agency, the sheriff’s department, which has investigated two officer-involved shootings and a jail inmate death this year.

Meanwhile, the city of Sacramento’s Office of Public Safety and Accountability last week released its 2014 annual report to zero fanfare, showing that complaints against the police department dropped for the third straight year.

According to OPSA’s independent database, 139 complaints were made against the police department last year, down 11 percent from 2013. Last year’s sum also represents a 33 percent decline from 2012, which saw 207 complaints leveled against police.

The OPSA report also reviewed police involvement in five officer-involved shootings last year, all but one of which was fatal. This includes two family incidents in which the subjects goaded police into shooting them.

Under current law, if the attorney general believes a peace officer acted in an unlawful way, he or she has the authority to investigate and prosecute such a case.

But Attorney General Harris hasn’t flexed this authority since she was elected, in 2010, and her predecessors did so only rarely.

McCarty’s bill would require that the attorney general get involved in the case.

A.B. 86 is in the Assembly, held at least temporarily in the Appropriations Committee, which is examining its price tag.

Fifty of these investigations a year would cost the Department of Justice, the agency that would be responsible for exploring such incidents, in excess of $1 million, according to a committee analysis.

That price tag stopped the bill in its tracks at a recent committee hearing, and it’s currently sitting in the committee’s suspense file. It will be voted on later this month.

If it ultimately emerges from the Legislature, to become law it will require the signature of Gov. Jerry Brown—a former attorney general.

McCarty’s bill is not the only legislation prompted by police-linked deaths.

A bill by Senator Holly Mitchell, a Democrat from Los Angeles, would prohibit the use of criminal grand juries in police-involved shootings, or in cases where the alleged use of excessive force by an officer results in the death of a suspect.

The 40-member Senate approved the bill 23-12, largely along party lines, and sent it to the Assembly.

Mitchell opposes the lack of transparency when it comes to criminal grand juries. “Criminal grand jury proceedings are secret, not conducted by judges, allow no objections and the evidence presented is chosen only by the prosecutor,” she wrote. “That process can’t be trusted to indict wrongdoers, to vindicate victims wrongfully killed or to publicly exonerate officers who acted in good faith.”

The million-dollar price-tag for McCarty’s bill may hurt its chances of moving out of the Assembly’s fiscal committee. But it also faces a backlash from law-enforcement groups who believe it’s unnecessary and could infringe on their right to equal prosecutions under the law.

Several high-profile deaths at the hands of law enforcement in the past year, including those in Ferguson and Baltimore, have catalyzed a national public desire for some type of changes in police-linked prosecutions.

Chauncee Smith, a racial-justice advocate for the American Civil Liberties Union of California, which supports McCarty’s bill, says lawmakers are taking notice. “To account for that, and to alleviate public concerns … Legislatures have enacted or proposed statutes that seek to provide a degree of independence in either the investigation or the prosecutorial process,” he said.

Smith’s home state, Wisconsin, was actually the trailblazer for independent police investigations. A law approved in that state mandates that independent investigations occur outside of the area of jurisdiction where the incident occurred.

Under this law, district attorneys still have the final say in whether or not to pursue charges against an officer—and they have yet to do so.

That’s not the case in Sacramento County, where departments often investigate the shootings of their own officers.

McCarty says an independent review reinforces faith in law enforcement. “You can have an official with law enforcement do the review,” McCarty said, “but maybe you should bring about some real distance from where the incident happened, so you can bring more public trust in the process.”