Analysis of State DOJ OIS Investigations Pursuant to AB 1506

MIKE RAINS
Principal Attorney
Rains Lucia Stern St. Phalle & Silver, PC

I am pleased and honored to write this article for the PORAC LE News to share my thoughts with California peace officers concerning the investigations undertaken and reports issued to date by the California State Department of Justice of fatal shootings of unarmed civilians since the inception of Assembly Bill 1506.

Let me give you a brief background on my interest in the investigations conducted and the analyses undertaken by the State DOJ of this specific set of fatal officer-involved shootings since AB 1506 became effective on July 1, 2021. Shortly after AB 1506 was signed into law by the governor on September 30, 2020, I was asked by the California District Attorneys’ Association (CDAA) to participate in a panel discussion at its fall annual conference to discuss the new law. At that time, law enforcement clients of our office expressed great reservation about what to expect from the State DOJ — would the investigators be experienced, knowledgeable and objective? Who at the DOJ would analyze the facts and evidence and determine whether or not to criminally charge the involved officer(s)? Would the relationship between the DOJ investigative team and both the involved officer(s) and their counsel, and the investigators from the agency that employed the involved officers, be cordial and cooperative, or combative?

Two things occurred in the fall of 2020 that gave me reason to think our police clients would receive a “fair shake” from DOJ investigators and the deputy attorneys general who would be analyzing the evidence, making charging decisions and preparing written reports.

First, I was teaching classes in fall 2020 (and had been teaching them for many years at that time) on the analysis of video evidence in police officer shootings and other uses of force. Among some of the students attending those classes in the fall were a sizeable number of DOJ investigators who were going to be part of the AB 1506 response teams. That gave me an opportunity to meet many of the investigators, talk to them and get a sense of both their experience and their commitment to doing a thorough and fair investigation. Although the experience levels doing OIS investigations varied from very little to very high, I was impressed with the commitment of the DOJ investigators to do a thorough and fair investigation, and the amount of training they were receiving.

Second, when I appeared at the CDAA Conference in the fall, on the panel discussing DOJ investigations under AB 1506, the panel included DOJ Criminal Division Chief Lance Winters. That offered me an opportunity to spend some time talking to Lance prior to and following the panel discussion and hear his presentation to a sizeable CDAA audience, many of whom, like my police officer clients, had expressed skepticism to me about the commitment and ability of the DOJ to conduct thorough investigations and make objective determinations based on the facts of each case and applicable law. The statements and commitments those in attendance heard from Lance calmed a lot of nerves among district attorneys in the room, even though everyone remained well aware of the fact that there was some uncertainty concerning the definition of an “unarmed civilian” and some fear that the DOJ would be aggressively asserting jurisdiction over fatal shootings of armed suspects as well.

It did not take long after the law went into effect on July 1, 2021, for the first AB 1506 OIS to occur on July 15, 2021, in the city of Los Angeles. Our attorneys in both Northern and Southern California started responding to fatal OIS incidents after that where we would sometimes witness confusion between the State DOJ and local agencies concerning whether or not the fatal OIS was a “1506 case” or not. While we stayed out of those discussions, our attorneys reported that the assertion by the State DOJ of “jurisdiction” to investigate cases under 1506 appeared to be consistent with criteria that was supposed to be considered in that decision.

In the early days of 1506 investigations, our attorneys reported that in some instances, even though the State DOJ asserted jurisdiction to investigate an OIS, the DOJ investigators were allowing the investigators from the agency that employed the involved officers to “take the lead” on interviewing the involved officer(s). As the DOJ investigative teams have handled more cases, we have now seen the DOJ investigators doing solo interviews of officers in many cases, although there are still instances in which the interviews of officers are jointly conducted by DOJ investigators and investigators from the officer’s employing agency.

Our lawyers who have handled 1506 cases have consistently indicated that the DOJ investigators and deputy attorneys general who they have interacted with in connection with 1506 cases have been professional, knowledgeable, cordial and reasonable. Requests to delay interviews of the involved officer(s) for 36 to 72 hours have generally been acceptable to the DOJ investigative teams, and the interviews, when they occur, have been thorough and comprehensive.

1506 Cases to Date and Reports Issued by the DOJ

As of the preparation of this article, it appears to me that DOJ has investigated 56 cases pursuant to AB 1506. Reports have been prepared and issued for 12 separate 1506 investigations commencing on July 15, 2021, through June 21, 2022. It appears that there are 44 incidents under investigation and pending the issuance of a decision and report, the earliest of which occurred on August 7, 2021, and the most recent of which occurred on May 31, 2024. When the DOJ issues a 1506 report on a case, it is accessible on the DOJ website, so I have obtained and reviewed all 12 of the reports issued to date. In addition, I have reviewed two fatal shooting investigation reports prepared by the DOJ that, it appears, were undertaken due to a potential conflict with the District Attorney’s Office of the county where the shooting occurred. I will comment on those two investigations at the conclusion of this article as well.

Suffice it to say that my review of the 12 AB 1506 reports and the other two non-1506 fatal OIS investigation reports has resulted in my favorable view of the thoroughness and objectivity of both the investigation and the final adjudication of these fatal shootings. An overview of my analysis of these 14 cases appears below.

• • Criminal charging decisions: Following its review of all 14 incidents, the DOJ has determined that no criminal charges would be filed.
  • Typical report length: All of the reports are lengthy and range from 23 pages to as many as 54 pages.
  • Typical subjects covered/reported on in the written reports: Virtually all of these reports include a discussion of the following topics: a description of the scene, evidence recovered, review and analysis of available video evidence, involved law enforcement officer interviews, witness interviews, expert witness statements (if experts were consulted), emergency responder interviews, radio communications issues, background of decedent, autopsy findings/determinations, ballistics/firearms analyses, legal issues/analyses and a conclusion.

Involved Officer Interviews, Expert Witness Opinions, and Policy and Practice Recommendations

Some of the cases I reviewed involved situations where the subject officers declined to give voluntary statements to the DOJ. Even though the officers later gave compelled statements to department investigators, the DOJ does not receive nor review those statements in reporting or in analyzing the incident or making findings/conclusions. Of the 14 total cases I reviewed, the DOJ did not consult an expert witness on the majority of cases, but the expert witnesses it did consult on the cases reported were all widely recognized and knowledgeable experts in the law enforcement field, most of whom have been retained by attorneys in our office to offer expert opinions in criminal and administrative cases. The DOJ’s reliance upon an expert opinion of Dr. Bill Lewinsky from Force Science Institute in a non-1506 fatal shooting case that occurred in Los Angeles resulted in a highly critical article of his selection by the Los Angeles Times.

Most of the reports issued include several pages of “Policy and Practice Recommendations” arising out of the investigation. These recommendations generally concerned one or more of the following issues: officer training, camera activation/deactivation, de-escalation, tactical planning, radio communication, command and control, officer situational/positional awareness, agency policy formulation, activating crisis intervention teams and evidence collection/crime scene contamination.

DOJ’s Recitation of Applicable Legal Standards, Burden of Proof Issues and Legal Analysis Preceding Its Final Conclusion

Each of the reports I reviewed contained the above-mentioned sections in which the potential criminal violations under investigation were explained and analyzed, and any potential defenses to the officer including self-defense or defense of others were also discussed. Significantly, each of these reports contains a discussion concerning the burden of proof that the DOJ recognizes it will be faced with if an officer is charged criminally as a result of a fatal OIS. Typically, each report contains the following acknowledgment: “A prosecutor abides by elementary standards of fair play and decency by refusing to seek indictments until he or she is completely satisfied the defendant should be prosecuted and the office of the prosecutor will be able to promptly establish guilt beyond a reasonable doubt. (People v. Spicer (2015) 235 Cal.App.4th 1359, 1374.)”

I have paid particular attention to the legal analysis in each of these reports that guides to the ultimate conclusion on whether or not the DOJ will file criminal charges against the involved officer(s) and have been very favorably impressed with the analysis discussed in these reports, which, as stated above, has resulted in the determination in each report I have reviewed that criminal charges would not be filed against the involved officers.

Conclusion

The 12 reports issued by DOJ on 1506 cases to date have thoroughly, fairly and accurately reported on the facts and accurately analyzed the law, and I hope they will be the standard by which the additional cases under review by the DOJ will be analyzed and decided.

The two non-1506 cases I have reviewed included one out of LAPD where the district attorney at the time declared a conflict due to the relationship of the involved officer to a high-ranking member of the Los Angeles Police Protective League. The other case was a very high-profile fatal shooting that occurred during the George Floyd riots in June 2020, which resulted in a great deal of public pressure and insistence in Solano County that the involved officer be charged criminally. In that case, the DOJ resisted the public sentiment and pressure and made the decision that charges would not be filed against the involved officer, relying heavily upon expert witness statements of two highly regarded use-of-force experts in the state, Sean McCann and Jody Stiger.

The DOJ cases I have reviewed have given me comfort and confidence that the State Department of Justice in California has set a standard for 1506 cases that includes a thorough and objective investigation and a careful and considered analysis of the evidence and the applicable law in formulating its final determinations.

About the Author

Mike Rains is a principal and founding member of Rains Lucia Stern St. Phalle & Silver, PC. He heads the firm’s Criminal Defense and Legal Defense of Peace Officers Practice Groups. Mike is one of California’s top trial attorneys. He has over 40 years of experience representing peace officers and other high-profile clients in civil and criminal litigation