By Mastagni Holstedt, APC
Assembly Bill 1506, which became effective July 1, amended Government Code section 12525.3(b)(1) to require that the California Department of Justice (DOJ) investigate all officer-involved shootings that result in the death of an unarmed civilian.
On June 24, the California Department of Justice released an information bulletin interpreting some of the ambiguous language in AB 1506. On July 7, the DOJ released a more comprehensive package of protocols and guidelines for the investigation of “qualifying events” (officer-involved shootings that result in the death of an unarmed civilian).
Prior to the release of these guidelines, the DOJ met with various stakeholders — including local and state law enforcement agencies — to discuss how the legislation would be implemented. However, despite these seemingly productive discussions, the protocols released on July 7 appear to disregard serious concerns raised by law enforcement groups during these meetings. Further, implementation of these guidelines is likely to improperly commandeer the authority of local governments and agencies and result in violations of officers’ constitutional rights. The full guidelines are lengthy and spread across numerous documents. In this article, we address some of the most concerning issues for our law enforcement clients.
Most of these issues stem from the fact that officers cannot be compelled to give a statement or participate in a criminal investigation. Officers, like all citizens, have a Fifth Amendment right not to incriminate themselves. After a critical incident, the involved officers will typically agree to voluntarily participate in a scene walkthrough and give a voluntary statement to criminal investigators. However, if the officer chooses not to do so, the employing agency can order the officer to answer questions for the purpose of conducting an internal administrative investigation. That compelled interview cannot be used against the officer in a criminal matter because to do so would violate the Fifth Amendment. (See Lybarger v. City of Los Angeles [1985] 40 Cal.3d 822.)
The DOJ’s guidelines suggest that if the officer declines to waive their Fifth Amendment rights, the DOJ will request that the employing agency compel officers to participate in various parts of the investigation. For example, the protocol regarding scene walkthroughs suggests that the DOJ will ask the employing agency to compel walkthroughs when necessary. If an officer is compelled to do a walkthrough, that evidence cannot be used against him or her in a criminal case. Moreover, if the DOJ acts in conjunction with the employing agency to compel an officer to provide a statement in a criminal investigation, that questioning is subject to POBR and the Lybarger admonition. (See California Correctional Peace Officers Assn. v. State of California [2000] 82 Cal.App.4th 294.)
Additionally, the protocols state that if the officer makes incriminating statements during a walkthrough, the investigators should continue to obtain their statement, rather than immediately Mirandizing the officer as is required by the Constitution. Similarly, the DOJ cannot compel officers to provide a blood, breath or urine sample without probable cause and a warrant. The DOJ also cannot force the employing agency to compel its officers. If the employing agency administratively compels a blood sample, it must be based on reasonable suspicion or a negotiated policy, and the sample cannot be used in the criminal investigation.
Finally, separate and apart from these constitutional issues, the DOJ’s guidelines regarding sleep cycles and video evidence review do not follow best practices. Experts in use-of-force science recommend that officers get at least two sleep cycles prior to giving a statement. The science shows that a person’s memory of a traumatic event is usually more accurate after their adrenaline wears off and they have been given the opportunity to rest and emotionally decompress. The DOJ intends to ask officers to immediately provide a shortened statement recounting their actions, and then, if permitted by local agency policy, allow the officer up to 48 hours of rest before requiring a second full interrogation.
This policy undermines the entire purpose of a sleep cycle; officers will be subject to having their credibility questioned based on any additional details provided or if there are even small discrepancies between the two statements (which will inevitably occur simply as a result of the officer’s reduced adrenaline and time to recount the events).
The DOJ’s protocols on review of video evidence present a similar problem. The guidelines state that the officer will give a statement, then be permitted to review video evidence if allowed by their agency, and then have the opportunity to clarify their original statement based on that video evidence. This practice unfairly denies officers the basic right to refresh their recollection and enhance their ability to give a full and complete statement, a right afforded any witness in court. The second statement creates a similar concern that any clarifications will be misused by critics to attack the officer’s credibility.
Critical incident investigations are lengthy, complex processes with lots of moving parts. This is why local agencies, in conjunction with local law enforcement stakeholders, have implemented their own policies and procedures that take into account the needs of the agency, the officers and their community. Rather than rely on this local expertise, the DOJ’s policies usurp local authority, commandeer the employment relationship to compel compliance and are likely to create confusion rather than uniformity. Although there is still a long way to go, we are hopeful that we can continue to work with the DOJ and other stakeholders in refining and revising these policies. Mastagni Holstedt, APC, will continue to work with law enforcement stakeholders in the fight to uphold the rights of peace officers in California.
Mastagni Holstedt, APC, is the general counsel for LAAPOA. The firm provides legal services in the following areas for our members: workers’ compensation, personal injury, criminal defense, civil litigation defense and retirement law.