By Eric Gelber
This installment of California Capitol Watch discusses two new laws related to law enforcement that took effect on January 1st: AB 1506 (McCarty), and AB 1196 (Gipson).
AB 1506
What problem/issue does the new law address?
According to the author, in California alone, there have been almost 800 fatal shootings by police since 2015, yet less than five independent investigations have been conducted. While the vast majority of law enforcement officers, from county prosecutors to police officers, act in accordance with appropriate professional and ethical standards, the current process of local district attorneys investigating local police is fraught with bias and conflicts of interest. Since prosecutors and police officers are essentially colleagues, it raises questions about the impartiality of “findings”. A 2016 a Stanford Law School study, “At Arm’s Length: Improving Criminal Investigations of Police Shootings,” determined that police departments and district attorneys lack the independence and incentive to investigate one of their own.
The author also noted that a 2015 report of The U.S. Conference of Mayors Working Group of Mayors and Police Chiefs on Police-Community Relations also called for independent investigations. Further, the lack of accountability and transparency has created enormous mistrust between law enforcement and the residents they aim to protect and serve. The current appetite for reform, both at the national and local level, to create a fairer and more transparent process for deadly force cases is huge and immediate. In March 2015, the Obama administration released the “President’s Task Force on 21st Century Policing”, which encouraged policies that mandate the use of external and independent prosecutors in cases of police use-of-force resulting in death, officer-involved shootings resulting injury or death, or in-custody deaths.
What the new law does
AB 1506 requires the California Attorney General (AG) to investigate incidents of an officer-involved shooting resulting in the death of an unarmed civilian. It also authorizes the state prosecutor to prepare a written report, and requires the AG to post any reports made on a public internet website. An “unarmed civilian” includes anyone who is not in possession of a “deadly weapon,” which “includes but is not limited to 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.” The AG is authorized to:
A) Investigate and gather facts in an incident involving a shooting by a peace officer that results in the death of an unarmed civilian.
(B) For all investigations conducted, prepare and submit a written report. The written report shall include, at a minimum, the following information:
(i) A statement of the facts.
(ii) A detailed analysis and conclusion for each investigatory issue.
(iii) Recommendations to modify the policies and practices of the law enforcement agency, as applicable.
(C) If criminal charges against the involved officer are found to be warranted, initiate and prosecute a criminal action against the officer.
The bill also authorizes the AG to prepare a written report, and would require the AG to post any reports made on a public Internet website.
Additionally, commencing on July 1, 2023, the AG will operate a Police Practices Division within the Department of Justice to, upon request of a local law enforcement agency, review the use of deadly force policies of that law enforcement agency. The Division will then make specific and customized recommendations to the law enforcement agency that requests a review based on those policies identified as recommended best practices.
Comments
In support of AB 1506, the California Public Defenders Association (CPDA) and other proponents of the bill cited statistics, including the following: Police in California killed, in the line of duty, more than 610 people in California in the five-year period between 2009 and 2014. In Los Angeles County, since the year 2000 nearly 900 people, (80% of whom were Black and Brown persons) have died at the hands of law enforcement. Since the year 2000 only two officers were charged as the result of the shooting of a civilian while on duty. In virtually all of the cases, the Los Angeles County District Attorney deemed the use of force resulting in the death of the civilian legally justified.
In a much smaller county, Solano County, the Vallejo Police Department (alone) has killed 19 people since 2010. In 2012, Vallejo officers fatally shot 6 people. Vallejo is a small city of 122,000 people. No Vallejo police officer has been charged for an on duty shooting or use of force causing the death of a civilian. Some of the Vallejo officers killed again, even before the Solano County District Attorney had decided about prosecution in the first killing. Nevertheless, the Solano County District Attorney has found that all the deaths of civilians at the hands of Vallejo officers since 2010 were legally justified.
Proponents further noted that the District Attorney and the law enforcement officers in any given county must work hand in hand to investigate and prosecute crime. Many District Attorneys rely on the endorsements and financial support of Police Chiefs, Sheriffs and Police Officer Associations for their elections. Given this interdependence, relying on the local District Attorney to complete a transparent, reliable and truly independent investigation undermines trust in the entire justice system. AB 1506 would be a significant step towards ensuring California’s citizens that the investigations of these many deaths is more likely to be independent, fair and just.
An earlier version of AB 1506 provided that the AG would investigate incidents only upon request of a law enforcement agency. The bill was amended to authorize (though not require) the AG to investigate without such a request.
In addition to CPDA, the bill was supported by several advocacy organizations and cities, as well as by a number of district attorneys’ offices, including the Yolo County District Attorney.
In opposition to AB 1506, California Attorneys for Criminal Justice (CACJ) questioned the independence, perceived or real, of the AG since the office is touted as the “top cop” of California. CACJ also asserted that the bill did not give the victims or family of victims any say in who investigates and prosecutes a case, which, they said, can result in further distrust in the system and outcome of any investigations. CACJ requested amendments to, among other things, create a state independent prosecutor office to have full and unfettered authority to investigate, make charging decisions, and handle prosecution of individual law enforcement officers. The suggested amendments were not made. The bill was also opposed by the California State Police Chiefs Association and California Sheriffs Association as well as the Peace Officers Research Association of California (PORAC). The bill passed with only one No vote on either the Assembly or Senate Floor.
AB 1196
What problem/issue does the new law address?
According to the author, the carotid restraint is one of the most commonly used strangleholds. To perform this hold, a peace officer applies pressure on either side of the windpipe—but not on the windpipe itself—to slow or stop the flow of blood to the brain via the carotid arteries. While designed to render subjects unconscious, this hold can go wrong in two main ways: either when improperly applied, or when a subjects’ physical disposition—if they suffers from coronary artery disease, for example—makes the hold dangerous or lethal. Simply maintaining restricted blood flow for one minute after the suspect is rendered unconscious can lead to irreversible brain damage.
In the Eric Garner case, NY Commissioner James O’Neill said that the officer’s failure to relax his grip while subduing him triggered a fatal asthma attack. With the high-profile death of George Floyd in Minneapolis, where a peace officer used his knee to subdue and detain him, it is clear that similar methods of restraining suspects are incredibly risky and should no longer be allowed. Police Departments in cities such as San Francisco, Los Angeles, and San Diego have already taken steps to prohibit their use but statewide policies regarding neck restraints vary, which results in a lack of accountability for officers who use them. AB 1196 creates a uniform statewide policy on carotid restraints and similar techniques to ensure that these procedures can no longer be improperly applied on Californians.
What the new law does
AB 1196 prohibits a law enforcement agency from authorizing the use of a carotid restraint hold or a choke hold. “Carotid restraint” is defined as a vascular neck restraint or any similar restraint, hold, or other defensive tactic in which pressure is applied to the sides of a person’s neck that involves a substantial risk of restricting blood flow and may render the person unconscious in order to subdue or control the person. “Choke hold” means any defensive tactic or force option in which direct pressure is applied to a person’s trachea or windpipe.
Comments
Many local law enforcement agencies have forbidden the use of chokeholds over the years; however, with enactment of AB 1196, the practice is banned statewide. The practice fell out of favor over the years due to serious injury and death caused by the usage of the technique. Both federal and California courts have found the practice subjects municipalities, government entities, and law enforcement agencies that permit the usage liable for wrongful death and serious injury to persons who have been subjected to the use of a choke hold by law enforcement agencies. As a result of these findings of liability, the usage of choke holds fell out of favor and cities and agencies routinely banned their usage. The Commission on Peace Officer Standards and Training (POST) ceased instruction on the technique. Until enactment of AB 1196, the practice has never been expressly banned in California statute.
Carotid restraint is similar to a choke hold. It involves cutting off blood circulation to the person’s head, which can cause the person to lose consciousness. This technique has conventionally been taught to be less deadly than a traditional choke hold which can more easily collapse the wind pipe because it’s focused on the front of the neck. However, a slight deviation in the placement of the arm of the person implementing the hold can convert a carotid restraint into a choke hold. Additionally, cutting off blood flow to a person’s brain has its own dangers.
Disability advocates further noted that people with disabilities can be particularly vulnerable to these holds due both to particular impairments they may have and because they are often applied to behaviors related to impairments, such as mental disorders and developmental disabilities that can be mistaken by law enforcement as belligerent behavior.
AB 1196 had recorded support from over 70 organizations, including advocacy and professional organizations, and local municipalities. Opposition was reported from approximately eight law enforcement organizations, including the Sacramento County Deputy Sheriffs Association.
In opposition to the bill, the Association of Los Angeles Deputy Sheriffs asserted that the bill does not provide law enforcement officers the ability to use these trained techniques when their own life, or any other person, is at risk. “It is for this reason that we request language be added to specify an officer can use these restraints if they reasonably fear they, or any other person, is in danger of great bodily injury or death.” The requested language was not adopted.
The bill received only one No vote on the final Floor votes in both houses, although, a number of Members had no vote recorded.
Eric Gelber, now retired, is a 1980 graduate of UC Davis School of Law (King Hall). He has nearly four decades of experience monitoring, analyzing, and crafting legislation through positions as a disability rights attorney, Chief Consultant with the Assembly Human Services Committee, and Legislative Director of the California Department of Developmental Services.
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