Legislation Would Create Independent Review in Police Shootings

Long before the deaths of Michael Brown and Eric Garner captured the nation’s attention, shootings like the 2009 killing of Luis Gutierrez by Yolo County Sheriff’s Deputies generated controversy for the way in which they were investigated by local district attorney’s offices, seen as closely aligned with local law enforcement.

However, that may change, as AB 86 introduced by Kevin McCarty ‒ who represents West Sacramento in addition to portions of Sacramento ‒ would require that any officer-involved shooting that results in the death of a civilian must be reviewed by an independent law enforcement panel established within the California Department of Justice.

The bill further requires the results of the investigation be submitted to the district attorney where the incident occurred, and the California Attorney General. Under this legislation, cases like those of Eric Garner and Michael Brown in California would be investigated by a state independent law enforcement panel rather than a local district attorney.

“For far too long there has been a cloud of confusion surrounding police shootings, now is the time for California to be a leader on this issue.  The creation of an independent police review panel is a common sense solution which will create trust between the police and the community,” said Assemblymember McCarty said in a January press release.  “District attorneys will no longer have to worry about investigating the police with whom they work so closely.  No one should be able to police themselves.”

Assemblymember Kevin McCarty told the Vanguard that the shooting of Luis Gutierrez was one of the cases which inspired him to take a closer look at this issue. “There were questions as far as could the Yolo County District Attorney’s Office do a fair and impartial review,” he said. “Eventually they got the state AG’s office involved.”

The assemblymember said that it seemed to make a lot of sense to revise the system to have an independent body investigate officer-involved shootings resulting in death. He believes that, in the process, this would “increase public trust.”

The assemblymember told the Vanguard that they probably were not looking at an appointed body to examine these cases, but rather creating a specific unit, under the Attorney General’s Office, to investigate these matters.

“The framework we’re looking at would be an investigative unit within the Department of Justice in the State of California,” he said.

Former State Supreme Court Justice Cruz Reynoso, now a Professor Emeritus at the King Hall School of Law, investigated the Gutierrez shooting as part of an independent civil rights panel back in 2010.

In late 2009, the district attorney released a 37-page report that concluded, “When considering all of the facts and circumstances known to them at the time, the use of deadly force by the deputies was objectively reasonable and justified and therefore does not warrant the filing of criminal charges against Sgt. Johnson, Deputy Oviedo or Deputy Bautista.”

Cruz Reynoso, in a phone interview on Wednesday, still questions those findings. “The district attorney claimed they were a completely independent body.” However, he argued that the investigator had “worked so closely with  Woodland and other police departments, that they’re very reluctant to be critical of those department.”

They are partners in investigating crimes. “So it becomes really difficult for the DA to come down with a decision that the police have done something wrong.”

Luis Gutierrez was shot by sheriff’s deputies who were part of the Yolo County Gang Task Force. At the time of the shooting, it was housed under the Yolo County Sheriff’s Department, but just four months prior it had been run out of the district attorney’s office.

Justice Reynoso argued, “They had a very strong interest in finding that that anti-gang unit had not done anything wrong.”

The conclusion by the DA’s office, at least on the criminal side, was that the officers had not broken the law. However, Justice Reynoso also questioned the thoroughness of the investigation. He noted that the independent Civil Rights Commission, which he chaired, “found several witnesses who saw what had happened whose observations were different from the ones included in the DA’s report.”

“Why the DA wasn’t able to find the same witnesses that we found, I’m really not quite sure,” he said. He noted, for example, that “none of the witnesses saw that Mr. Gutierrez had a knife.”

“It was, from my point of view, a completely slanted reported by the District Attorney,” he told the Vanguard.

The Attorney General’s Office would then review the report. The Attorney General’s Office, in a letter from Deputy Attorney General Maggy Krell to Assistant Chief Deputy DA Jonathan Raven, concurred with the conclusions of the investigation.

She wrote, “We reviewed your decision under an abuse of discretion standard. After a complete review of all available information, we have concluded that your decision was not unreasonable and thus did not constitute an abuse of discretion.”

Abuse of discretion represents an extremely high burden. Cruz Reynoso told the Vanguard that this doesn’t mean anything. “It doesn’t mean that what they did was right or wrong, it just means that, based on the information that the AG had been given, they reached that conclusion.”

Cruz Reynoso talked to Ms. Krell who told him, “No, she didn’t do any investigation. She was simply responding to what was in the report by the district attorney’s office.”

This bill is really about assuring the public that these matters will be investigated in a fair and impartial way.

Assemblyman Kevin McCarthy told the Vanguard, “Whether it’s the Woodland incident, Ferguson or New York or a high profile one here in Lodi just south of Sacramento, there are questions remaining after these tragic incidents ‒ what happens? Is the process a good one? Is it fair? Does it bring about confidence in the final resolution?”

On January 25, 2014, Parminder Singh Shergill, a 43-year-old mentally ill Gulf War veteran, was fatally shot by Lodi police. The two officers involved in the shooting were investigated and later cleared by the San Joaquin District Attorney’s office, which works directly with the Lodi Police Department on a regular basis.

In a release, the assemblymember’s office noted that the Lodi incident has caused a significant rift between members of the community and the police. They believe that an independent review panel would help foster increased trust in the community for incidents like Mr. Shergill’s, by providing a transparent and independent process.

“There are too many unanswered questions and it’s really too gray many times,” said Assemblymember McCarty. “The approach here would try to be to improve upon the system to make it work better for everybody.”

As the Lodi case, and the Gutierrez shooting before it, suggest, the assemblymember is concerned with what he called the “coziness factor between local law enforcement and the DAs on the front lines.” He said, “Whether it’s real or perceived it’s there. Having an entity like the State Department of Justice, the Attorney General’s office, come in and be the lead (investigator), I think would improve upon that process and remove some of the doubts.”

Chauncee Smith is a Racial Justice Advocate for the ACLU of California. He told the Vanguard that the ACLU believes “that the measure is very strong and a good idea.”

“It would provide an independent assessment of these incidents that occur,” he said. “It alleviates the appearance of impropriety based on the close-knit relationship between DA and local law enforcement, they have to work together on a regular basis. It creates an appearance of foul play even if that is not always the case.”

But there is a second issue, in addition to the close relationship between investigator and local law enforcement. When the DA issued their report on Gutierrez, they could only address whether a crime had occurred.

The report noted specifically, “We address only whether or not there is sufficient evidence to support the filing of criminal charges in connection with the shooting death of Luis Gutierrez Navarro.”

There was then a civil trial in federal court a few years later that addressed whether the officers violated Mr. Gutierrez’s civil rights and wrongly shot him. The jury in that case ruled in favor of the officers.

Mr. Smith said the ACLU believes that civil investigations should also be conducted by independent review panels.

“The ACLU would like to see the investigation by the independent entity, and of course the criminal conduct, be considered the beginning rather than the end of the inquiry,” he said. He said, speaking with independent investigators who look into such matters, they say that 99 percent of the time, “based on the law, police officer’s conduct is going to be deemed justified” regardless of who does the investigation.

Thus, in addition to “investigating the conduct of the officer under a criminal standard, we believe that we can broaden the scope of the inquiry to determine whether there is civil misconduct.”

A civil standard misconduct may be seen much more broadly. Such an investigation would also allow the investigator to investigate the internal policies and procedures of the police department to determine whether the officer’s conduct satisfied those standards.

This is similar to what happened at UC Davis with the Pepper Spray incident. The district attorney’s office investigated and determined that the officers had not violated the law with their use of force. But Bill Bratton and his firm Kroll, as well as Cruz Reynoso’s task force, found that the officers acted in an unreasonable manner and violated policies and procedures in their application of the pepper spray on protesters at UC Davis in 2011.

“Right now what is only being considered is the bare minimum of a criminal standard,” Chauncee Smith said. “If there was a violation under these other thresholds it would be great if there were some recommendations provided to the local law enforcement department so we can have these practices and policies reformed so that we can prevent these harms from occurring in the future.”

The bill is still in the early process. However, there has already been some pushback. The Sacramento Bee ran an editorial earlier this week and noted that Sacramento County Sheriff Scott Jones, “a vice president of the peace officers association, is concerned about changing the current system to fix a ‘perceived social wrong.’ And he’s wary of reform that hands decisions about police procedure over to a politically appointed panel, even if such panels were to include former law enforcement officials.”

The Bee also noted that the California Peace Officers Association has taken a position against AB 86.

Assemblymember Kevin McCarty said that, while he has read the reports, his office has not seen any notification of opposition.

—David M. Greenwald reporting

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