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CA DOJ Releases Officer-Involved Shooting Investigation Procedural Guidelines

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

 

MICHAEL L. RAINS
Principal
Rains Lucia Stern St. Phalle & Silver, PC

This is a follow-up to my article that appeared in the April 2021 issue of PORAC Law Enforcement News entitled “Police Shootings of ‘Unarmed Civilians’ to be Investigated by State DOJ.” I am updating that article in light of the release by DOJ, on July 5, of a 33-page document entitled “Investigation Procedural Guidelines.” This 33-page document will be referred to in this article as “the guidelines.”
Following the release of the guidelines, I have heard about and seen some apprehension by law enforcement officers and law enforcement executives about whether the guidelines signal a significant departure from the agency- or county-wide OIS investigation protocols that have been firmly in place for a number of years, as well as a departure from or erosion of the rights of police officers who are involved in the fatal shooting of an “unarmed civilian” (which will hereinafter be referred to as a “qualifying event”). On July 12, PORAC LDF held a meeting that included the legal administrator, LDF panel attorneys and PORAC leadership. The discussion was centered on our thoughts and/or concerns about this new law. Attorney Andrew Ganz and I participated in the meeting on behalf of RLS. This article, while representing my thoughts about and interpretations of the new law, is also a product of some of the great insights of other panel attorneys expressed during that meeting.
From numerous discussions I have had with folks from DOJ or those retained by DOJ for advice and assistance, law enforcement officials and district attorneys who have been consulted by DOJ in preparing these guidelines, and my participation in DOJ-sponsored working group meetings, it is reasonably clear to me that the DOJ team that prepared these guidelines and the management officials who approved their release wanted the guidelines themselves to be a result of a collaborative process that included input from legal experts and police labor leaders, including PORAC President Brian Marvel and PORAC Vice President Damon Kurtz.
There is still some ambiguity in the guidelines in a few areas. However, I believe these ambiguities can and will be easily resolved between the DOJ investigative teams and the local law enforcement investigative teams that are involved in the investigation of one of these “qualifying events.” But one thing is pretty clear from both the guidelines themselves and commitments I have heard expressed by DOJ representatives: These investigations, when all is said and done, will follow the agency- or county-wide OIS protocol guidelines that are already in place. With that in mind, let me highlight several of the more important issues related to the investigation of these qualifying incidents and discussed in the 33-page guidelines document.

Summary of a “Qualifying Event” Under AB 1506
An AB 1506 “qualifying event” is an officer-involved shooting resulting in the death of an “unarmed civilian.” An OIS that results in injury to an “unarmed civilian” or shots fired at an “unarmed civilian” that do not strike the individual, is not considered a “qualifying event.”
The law defines an “unarmed civilian” as anyone “not in possession of a deadly weapon.” A “deadly weapon” is defined in the regulations not only as a “loaded weapon from which a shot readily capable of producing death or other serious physical injury may be discharged,” but also as a switchblade knife, pilum, ballistic knife, metal-knuckle knife, dagger, billy, blackjack, plastic knuckles or metal knuckles. All firearms and BB or pellet guns, even if unloaded or inoperable, are considered deadly weapons under this law. The guidelines also clearly indicate that other objects likely to produce death or great bodily injury fall within the definition of “deadly weapon.” These are objects such as knives, box cutters, screwdrivers, bottles, chains, automobiles, rocks, razor blades and iron bars. Additionally, to the extent a car is being intentionally driven at a police officer or another person in a threatening manner, it would be considered a “deadly weapon.” “Replica firearms” are not considered deadly weapons unless used in a manner to cause death or great bodily injury, such as a bludgeon.

The OIS Investigation and Investigation Teams
The guidelines state that the DOJ investigative team will work “collaboratively” with the respective local law enforcement agency (LEA). However, the DOJ investigation team serves as the “lead agency” ultimately in charge of the investigation and analysis of an officer’s action upon completion of the investigation.
Page 1 of the guidelines states that the goal of the DOJ-led investigation is to produce the “most comprehensive, thorough, accurate and timely investigation possible … ” Elsewhere, acknowledging the potential for fatal OIS’s to result in civil arrest and public disturbances, the guidelines provide that “investigations of these matters must be conducted efficiently, thoroughly and impartially.”
Page 17 of the guidelines clearly indicates that the investigation protocol of the employing agency and/or the county-wide protocol must be known to the DOJ investigative team and is to be followed.
The guidelines also make it clear that the DOJ-led investigation will concern itself with whether the use of force violates the provisions of Penal Code Section 835a and not the policy of the agency that employs the involved officer(s). Specifically, page 6 of the guidelines states that the administrative investigation of a qualifying event will be done by the employing agency to determine policy violations.
In addition, the guidelines provide that any “criminal” investigation of a suspect who was shot in a “qualifying event” or other suspects who may have escaped apprehension will be the responsibility of the local law enforcement agency.
There is some ambiguity in the guidelines concerning the composition of a DOJ investigative team that is expected to respond to a “qualifying event.” Page 17 of the guidelines states that there is both an “Investigation Management Team” and an “Investigative Team.” The Investigative Team consists of those agents who will be responding to the scene of the incident and/or location of investigative personnel in order to fulfill their obligation to lead the investigation. The guidelines (pp. 19–21) indicate that the Investigative Team will consist of four or five employees:
1. The special agent supervisor
2. The case agent
3. The co-case agent
4. The crime scene agent
5. The canvassing agent
The guidelines indicate that the state’s Bureau of Forensic Services (BFS) will not normally be called upon to do crime scene processing, and that the Investigative Team will rely upon work performed by crime scene technicians of the LEA. However, the guidelines also state that the “BFS Crime Scene Unit will provide investigative support as it relates to crime scene processing and analysis of evidence … ” (p. 28). The guidelines require that BFS senior criminalists ensure proper documenting of crime scenes using 3-D laser-mapping technology; ensure the proper identification and documentation of evidence and other relevant items to the incident; participate in ammunition counts; provide full-length and facial photographs of involved officers in their clothing to depict their appearance at the time of the incident; and provide crime scene investigation reports and related laboratory analysis results to the incident investigative team (pp. 28–30).
Although the taking of full-length and facial photographs of officers is a sound investigative measure, attorneys who represent involved officers should insist on redaction of an officer’s face or other identifying information if and when investigation documents are released pursuant to a Public Records Act request, a right afforded to officers in POBR (Gov’t Code Section 3303[e]).

Media Relations and Public Information Requests
The guidelines state that “any media or public request for information shall be referred to the DOJ communication office … ” However, the same paragraph states that “this media protocol does not prevent the local LEA from making statements to the media and/or responding to public requests” (p. 31).

Other Important Issues That Can and Should Be Resolved in DOJ-Led Investigations of Qualifying Events
Scene walkthroughs: The guidelines call for “scene walkthroughs” with percipient and involved officers in order to place “placards” or “markers” identifying the officers’ and/or suspect’s location. The guidelines indicate that the “primary purpose of conducting scene walkthroughs with the involved and percipient officers is to document their approximate positions at the time of the incident. It also aids in the memory recall of the incident and scene prior to the officer’s interview.” The guidelines specifically state that “questions should be kept to a minimum.” And the guidelines further provide that if officers request to be compelled to do a scene walkthrough, nothing said by the officer can be used against them in the event of criminal proceedings, and no recordings or notes may be made of anything said during such compelled scene walkthroughs (pp. 22–23).
This is an area in which I think and hope the DOJ investigative team, investigators from the LEA and attorneys for the officer can determine, on a case-by-case basis, whether a “walkthrough” will either help clarify investigation issues or help improve the memory of the involved officer(s) prior to participating in a formal interview. Frankly, there are many instances in which the location of an officer at the time of a shooting and the location of the suspect at the same time can easily be discerned through other witness statements or physical evidence or video evidence, and there would be no need to have an officer place “placards” in specific locations. There are many instances in which there was very little movement by an officer or a suspect before the officer fired a weapon, and nothing to be gained by showing the officer a “static” crime scene. While the guidelines appear to be somewhat vague on whether the DOJ contemplates a scene walkthrough on every single qualifying event, it is my hope that the need for such a procedure and the procedure itself can be and will be dependent on the incident and agreements between the investigative team and the attorneys representing the involved officer(s).
Interviews of involved officers: The guidelines indicate that the DOJ incident investigative team may conduct an initial “condensed” interview with an involved officer due to fatigue. If that occurs, a further interview is to be conducted within 72 hours (pp. 23–24). During a working group discussion about officer interviews, I posed a question to DOJ representatives as to whether an agreement can be reached in instances where the DOJ investigative team requires a considerable time to respond such that an interview of any type or nature can be delayed for at least 36 hours (without conducting a “condensed” interview at all). I recall receiving a favorable response to such a proposal. Naturally, the lawyers representing officers have to assess the emotional well-being of their police officer clients and issues relating to fatigue, and there may be instances where a projected delay in commencing an officer interview will require an agreement to schedule a single comprehensive interview within two or three days after the OIS.
The guidelines currently state that interviews of officers “shall” be audio-recorded. The guidelines state that these same interviews “should” be video-recorded. Some attorneys, including those at this office, will insist that interviews of officers who have been involved in a fatal OIS be audio-recorded only, and will not agree to a video-recording of the officer’s interview in accord with their right to refuse the release of a photograph to the media or public contained in Government Code Section 3303(e).
Whether an officer in a qualifying event will be allowed to view audio or video recordings of the incident prior to participating in an interview will be dependent upon the LEA’s policies and procedures, a county-wide OIS protocol or collective bargaining agreements (p. 24). However, it seems clear that if this issue is not addressed in an LEA policy, a county-wide protocol or language in a collective bargaining agreement, the approach by DOJ will be to conduct the initial interview of any involved officer before the officer has reviewed audio or video recordings. The guidelines contain a reminder to the investigative team that “audio/video recordings have limitations and may depict events differently than the events recalled by the involved officer(s)” (p. 25). It also encourages the investigative team to admonish involved officers about the limitations of audio and video recordings, and the fact that the officer’s account will likely, if not certainly, differ from any audio/video recording (p. 25). I believe it would be best to have a standard admonishment on this subject, which is currently contained in some county OIS protocols.
Finally, there is a provision in the guidelines that the DOJ investigative team will work with the employing agency to obtain a “voluntary blood or urine sample for drug and/or alcohol testing” (p. 25). There is nothing in the language of the guidelines to suggest that if an officer declines to provide a voluntary sample for testing the DOJ investigators will ask or attempt to require the officer’s employer to order the officer to provide such a sample. Moreover, we have rarely seen these types of directives from law enforcement employers in the event an officer, upon the advice of counsel, declines to provide a voluntary sample.

Conclusion
AB 1506 requires DOJ to be the lead investigative agency in a “qualifying event” and to make a decision as to whether or not an officer’s use of lethal force causing the death of an “unarmed civilian” violates the provisions of Penal Code Section 835a. It is the responsibility of DOJ to determine whether or not to file criminal charges. If criminal charges are filed, the attorney general’s office is required to prosecute the case.
So far, we believe DOJ personnel assigned to implement AB 1506 have made sincere and legitimate efforts to formulate policy and procedures to ensure comprehensive, thorough, accurate, timely and impartial investigations of these matters. There will undoubtedly be some issues or procedures that will be identified and clarified or even modified as “qualifying events” occur and the various participants in those events, including the DOJ investigators, the LEA, investigators and the involved officers and their attorneys, find a more effective way to complete their respective obligations.
When all is said and done, despite some issues that would benefit from additional clarification or case-by-case implementation, there is no reason why law enforcement labor leaders should not embrace and support a DOJ-led investigation of the fatal shooting of an “unarmed civilian” conducted by carefully selected and thoroughly trained investigators who are committed to the completion of an investigation that is thorough, accurate, timely and impartial, as well as eventual adjudication of that investigation by DOJ executives who share the same commitment.

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.