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Officer-Involved Shootings Will Now Be Investigated by CA DOJ

Posted on Sunday, August 01, 2021 at 12:00AM

 

DAVID GARCIA
Attorney
Goyette & Associates, Inc.

As most of you have likely already heard, AB 1506, which passed last fall, went into effect on July 1. Pursuant to this new law, the Department of Justice (DOJ) has jurisdiction and is required to investigate any incident of an “officer-involved shooting resulting in the death of an unarmed civilian.”
On June 24, the California Department of Justice Division of Law Enforcement issued an information bulletin. The purpose of the bulletin was to provide the DOJ’s understanding of the terms used in AB 1506, which in turn would provide guidance for law enforcement agencies in determining whether an incident falls within the scope of AB 1506.
Naturally, these terms and their definitions are essential for law enforcement agencies to understand now that the new law has gone into effect. Here is a quick reference for many of the key terms outlined in the information bulletin.

Definitions
Officer-involved: “A shooting is officer-involved if the death to the unarmed civilian is caused by a California peace officer acting under color of authority. All shootings committed by officers while on duty are officer-involved shootings.” However, the bulletin went further, stating that shootings committed by officers while off duty are considered officer-involved shootings only if the officer acted under color of authority.
Shooting: “The discharge of a metal projectile by a firearm. A firearm is a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion.” The bulletin specifically excludes incidents involving the use of electronic control devices, stun guns or weapons that discharge rubber bullets or bean bags. With this in mind, the DOJ does not consider the death of an unarmed civilian resulting from the use of a less-lethal rubber bullet or beanbag gun to qualify under the statute.
Unarmed civilian: “Anyone who is not in possession of a deadly weapon.” The bulletin further defines “possession” as a civilian who has a weapon under their dominion and control at the time of the shooting. Interestingly, the bulletin states that, “Where a civilian attempts to take control of an officer’s firearm, the civilian is not in possession unless the officer loses control of the firearm.”
Deadly weapon: “Any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, pilum, ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles or metal knuckles. All firearms, and BB/pellet guns, even if unloaded or inoperable, are deadly weapons.” The bulletin adds that, “Objects that have legitimate non-weapon purposes are considered deadly weapons only when, based on all the circumstances, they are actually being used in a manner likely to produce death or great bodily injury.” The following objects have been considered a deadly weapon when used in that manner: knives, box cutters, screwdrivers, bottles, chains, automobiles, rocks, razor blades and iron bars.

Law Enforcement Agency’s Notification Responsibility
It is important to note that, effective July 1, a law enforcement agency has a duty to immediately notify the DOJ when the agency has an incident of an officer-involved shooting resulting in the death of an unarmed civilian. The bulletin also states that when a situation arises and a law enforcement agency cannot determine if the civilian was unarmed, the DOJ nonetheless requests that it be notified of the incident.
Despite the DOJ’s information bulletin, other questions persist. In the event you are involved in an officer-involved shooting of an unarmed civilian, what will be the DOJ’s protocol? Will the DOJ send a team of investigators (how many) to the local law enforcement agency? Will the DOJ investigators be experienced in conducting these types of investigations? Will DOJ investigators meet with the subject officer(s) on the day of the shooting or later to attempt to obtain a statement? Will DOJ investigators request a blood draw? Will DOJ investigators have access to all local law enforcement agency items such as body-worn camera recordings or subject officer(s) public safety statements? What will be the time frame for the DOJ to complete its investigation? Will your agency conduct a separate but parallel OIS investigation?
If you are involved in an officer-involved shooting of an unarmed civilian, it is important that you immediately contact your PORAC LDF legal representative to discuss the underlying incident, and to strategize regarding providing a voluntary statement or compelled statement. Your PORAC LDF legal representative can assist you to develop a solid statement encompassing the terms outlined in the DOJ bulletin.