If officers shot and killed Michael Thomas in Georgia — instead of in Lancaster, California — a grand jury could investigate a Los Angeles County sheriff’s deputy’s claim that Thomas reached for the deputy’s gun during a domestic disturbance call inside the 62-year-old Black man’s home on June 11.
If officers shot and killed Sunshine Sallac in Utah, Wisconsin or Illinois — instead of in Lake Forest, California — an outside agency would investigate the June 24 incident, in which Orange County sheriff’s deputies responded to a residential burglary call and opened fire on the 22-year-old woman of Asian heritage, who they said was standing across the street holding a gun.
Instead, in all three cases and in dozens other California cases in recent years, the departments that hired and trained the officers involved in fatal shootings will determine what happens next. It’s standard protocol in this state, despite the fact that many legislators, local politicians, the families of the victims and, in some cases, law enforcement representatives themselves continue to call for greater outside scrutiny.
As the country contemplates the national ramifications of George Floyd’s final nine minutes of life in Minneapolis, California has its own version of the question: If this state is the nation’s laboratory for progressive laws, why has it been unable to keep the police from policing themselves?
“This one is actually embarrassing for California,” said Democratic Assemblymember Kevin McCarty of Sacramento, who is trying for the third time in five years to pass a law requiring the state’s attorney general to probe deadly officer encounters. “I think it’s a common sense reform that’s ripe for the taking this year in California.”
Yet California’s past three attorney generals — including former Gov. Jerry Brown and the state’s first two attorney generals of color, Kamala Harris and Xavier Becerra, all Democrats — have been reluctant to take on this responsibility, despite already having the authority to do so.
“We are neither equipped nor resourced to take over for the 58 district attorneys that role,” Becerra said in answer to a question from CalMatters during a Wednesday press conference. “On a limited occasion, we do. And usually it’s because a district attorney or his or her office must recuse himself, herself, itself from the prosecution or decision because of some conflict. Or because there is an abusive discretion on the part of the office of the DA. Or some other very exceptional circumstance.”
State oversight — by invitation only?
Nonetheless, McCarty‘s Assembly Bill 1506, which the California Senate is to consider when the Legislature returns from break, is more modest than previous iterations he’s carried that have failed. He’s abandoned the idea of requiring the attorney general to oversee inquiries into every deadly police encounter.
Instead this year’s version would create a new division within the state Justice Department to investigate deadly police encounters only if the local policing agency or district attorney actually asked for such an inquiry. The new division would also have the responsibility to prosecute any wrongdoing it uncovers.
The idea is patterned after laws in five other states: Wisconsin, Illinois, New York, New Jersey and Connecticut.
Thus far, 43 other lawmakers have co-sponsored the new measure and McCarty is confident that, unlike with his earlier attempts, locally elected district attorneys will endorse rather than oppose his legislation, since he sought their input. The California District Attorneys Association was set to take a vote July 9, but put it off for a week to continue working with McCarty on amendments, said Vern Pierson, the association’s president and the DA of El Dorado County.
But what about Becerra, whose department would be responsible for taking on deadly force investigations?
Thus far, he refuses to answer the question. On Wednesday, Becerra said he hadn’t been briefed on the latest version of the bill, “so it’d be hard for me to tell you where we would stand at the Department of Justice at this time.”
The pending bill says that if the Legislature doesn’t create new funding for this, the Justice Department still has to create it from existing funding — likely a more affordable prospect given the limited number of cases in which local authorities would request the state’s involvement.
At least one frustrated local prosecutor would like to see a mandate.
Last month, Solano County District Attorney Krishna Abrams announced on Facebook that she asked Becerra to take over the review of last month’s Vallejo police shooting of Monterrosa — and that his office denied her request.
According to the police department’s account, its officers responded to looting at a Walgreens, where an officer saw a man in a hooded sweatshirt crouch down in the parking lot and reach for his waist. The officer fired his weapon five times through the windshield of his vehicle and struck the man once. The man, identified as Monterossa, a 22-year-old resident of San Francisco, died at a local hospital. Investigators later found a 15-inch hammer in his sweatshirt pocket, but no gun.
The police shooting of Monterrosa occurred during a fraught moment for American law enforcement. The police killings of Floyd in Minnesota, Breonna Taylor in Kentucky, Ahmaud Arbery and Rayshard Brooks in Georgia, and officers’ forceful crackdowns on demonstrations, once again forced the country into a searing examination of police violence, particularly against Black and Latino residents.
It also marked the latest in a series of controversies over the conduct of Vallejo police.
Three days after Monterrosa’s death, the Vallejo City Council asked Becerra’s office to review the shooting. The Justice Department agreed to audit the embattled department’s practices and policies, but declined to take over the shooting investigation.
“Given the totality of the circumstances, it is difficult to discern why the Attorney General’s Office is reluctant to assume the responsibility in this case when both of our offices agree that community trust in the process is of critical importance,” Abrams wrote in the June 23 Facebook post.
A state Justice Department spokesperson who declined to identify themselves wrote in an unsigned email that the department offered to provide additional people to assist with the Solano district attorney’s review, but doesn’t have the funding or the staffing to investigate every officer-involved shooting throughout the state.
“Absent a conflict of interest, an abuse of discretion, or other exceptional circumstances, Cal DOJ does not assume responsibility for local investigations or prosecutions typically handled by local authorities,” the spokesperson wrote. “We have confidence in DA Abrams’ capabilities to fully and fairly complete the investigation before her.”
Abrams contends those “exceptional circumstances” were present due to the outpouring of calls for an independent investigation from the community and state and local officials. “While I am confident that my office can conduct a fair and thorough review of all officer involved shootings, an independent review is needed at this time to restore public trust and provide credibility, transparency, and important oversight,” she wrote.
Becerra reiterated his office’s points on Wednesday.
“We are prepared, if there is a conflict by her office in trying to handle this matter or if she abuses her discretion, then certainly, the people of Solano County who voted for the district attorney have a right to know that someone else will take over to make sure it’s a fair process,” he said. “But without those standards being met, we would essentially be substituting for the 58 DAs and we don’t have the capacity to do that.”
As for whether the attorney general, as the state’s top elected prosecutor, would come to different legal conclusions than locally elected prosecutors, that didn’t happen last year, when Becerra announced that he, too, would not prosecute two Sacramento officers who fatally shot Stephon Clark in 2018.
Both Sacramento County District Attorney Anne Marie Schubert and Becerra determined the shooting of the unarmed Black man was lawful, even though they determined that police officers didn’t announce themselves as they rounded a blind corner in search of a vandal and opened fire on Clark, who was in his grandparents’ backyard holding a cellphone.
Under McCarty’s bill, the Attorney General’s Office would essentially take over the role of locally elected DAs, reviewing deadly force investigations by police and deciding whether to prosecute.
What other states have done
No state has been immune to the historic civil unrest that Floyd’s death and other controversial police killings have touched off, but several have taken steps in the name of holding law enforcement accountable.
Utah, Illinois and Wisconsin require people from outside agencies to investigate use-of-force cases. Connecticut prohibits police departments from hiring officers who were dismissed for misconduct or who resigned or retired while under investigation for misconduct. Colorado requires police departments to share information about officers who committed misconduct or misrepresented themselves with other departments in the state.
While no state has enacted a broad mandate for all law enforcement officers to wear body cameras, South Carolina does demand that police departments require body cams if the state provides funding for them, and Nevada requires uniformed officers who routinely interact with the public wear them.
California only requires that of its Highway Patrol.
Since Floyd’s Memorial Day death, 31 states have introduced 307 law enforcement-related bills, according to the National Conference of State Legislatures. California is considering six bills, including proposed bans on chokeholds or carotid restraints, and against using kinetic energy projectiles or chemical weapons to break up demonstrations.
California’s powerful law enforcement unions appear resolved to the fact that some changes are likely.
The California Police Chiefs Association has endorsed both McCarty’s deadly force investigations bill and the carotid restraint bill, while the Peace Officers Research Association of California, the state’s largest professional federation of local, state and federal law enforcement agencies, has even called for a nationwide use-of-force standard similar to what California adopted last year.
The state’s oldest professional law enforcement federation, the California Peace Officers Association, hasn’t taken a position on the proposed carotid-restraint ban, but its deputy director acknowledged the governor is likely to sign the bill if it reaches his desk.
While neither officers’ organization has taken a position on McCarty’s deadly force investigations bill, they seem largely untroubled by the idea of occasional oversight.
“We have no problem with the AG’s office coming in (which they can already do now) to do an independent investigation, especially at an agency’s request,” Peace Officers Association deputy director Sean Rundle wrote in an email. “What we don’t want to see, is an attempt to shut local agencies out of the process without giving them an opportunity to conduct a [thorough] local investigation. Luckily, AB 1506 doesn’t do that.”
When he was the DA in San Francisco, Gascon said he established a division within his office to both investigate and prosecute use-of-force cases. He said he hired experienced homicide investigators from outside San Francisco to conduct the investigations and former civil rights attorneys and public defenders to determine if prosecution was merited. The one shortcoming, he said, was the unit still responded to him.
“You have to have it completely decoupled from local law enforcement,” Gascon said. “We came as close as we could.”
The reason, Gascon said, is the public’s perception that prosecutors work too closely with the cops they’re being asked to scrutinize.
Gascon said he’s also skeptical that the voluntary nature of McCarty’s oversight bill would work, as the police who investigate use-of-force cases and the prosecutors who review them are unlikely to request scrutiny.
“It fails to address a basic concern: You have a lot of people who are not going to ask for that,” he said. “You have to take police away from investigating itself much like you have to take away the local district attorneys from making that call” about whether to prosecute.
In almost every deadly law enforcement encounter in California, the agency that has jurisdiction where the killing occurred is responsible for investigating it. While that may make geographic sense, it means that law enforcement agencies typically investigate their own officers’ conduct.
Locally elected DAs then review — but often don’t externally investigate — the completed investigations to determine if officers committed any crime and if that can be proven beyond a reasonable doubt.
If the initial investigators ask leading questions of witnesses or mishandle evidence, there’s little an external review can do to correct a compromised investigation, Gascon said. “The most crucial time in this investigation … is the first 10, 12, 24 hours,” Gascon said. “If you don’t do that very well in the beginning, it’s very hard to fix it late.”
McCarty said he also wants his bill to give neighboring police departments some role in initial investigations, so the officers who used lethal force aren’t solely investigated by the departments that employ them. But he doesn’t rule out involvement by the police agency whose officers used lethal force. One reason, he said: It would likely take days for a local agency to request the involvement of the Attorney General’s Office — leaving those crucial first hours of the investigation up in the air.
“Granted, it’s still law enforcement,” McCarty said, “but it’s not the same jurisdiction.”
California has seen 65 fatal police shootings in the first half of 2020, according to The Washington Post’s database. More than a third of the victims were identified as Latino, 40% allegedly possessed a gun and nearly half were reportedly fleeing the scene, according to press coverage of police accounts. Yet body camera footage was only available in eight instances, meaning the officers responsible for taking a life were the ones to say what happened.
Even with the passage of landmark use-of-force legislation last year, California is on pace for 124 fatal police shootings this year when factoring seasonal averages. That’s shy of the 135 mark reached last year, but higher than the 114 fatal shootings in 2018.
This doesn’t include other deaths that happen in law enforcement custody, which hit a 10-year peak in 2018 before dipping slightly last year, according to tracking by the California Department of Justice.
Brian Marvel, president of Peace Officers Research Association of California, which contributed $1.6 million during the 2017-18 election cycle, including $1,500 toward Becerra’s reelection, said his group wants to make sure “that the funding is there” for the attorney general to assume the broader oversight role that McCarty’s legislation proposes. As for the bills restricting officers’ use of carotid restraints and tear gas, Marvel said he and his colleagues simply want clear marching orders.
“We just want clear direction from the electeds on what policing looks like,” Marvel said. “If politicians want to say, ‘Let the people burn the buildings down’ … we can work with that.”
Advocates say this year presents an opportunity for bold change. McCarty noted that if a staunch Republican like former Wisconsin Gov. Scott Walker can sign a bill compelling state reviews of officer-involved deaths (although he didn’t immediately provide funding for his new law), “Then why can’t California do it?”
“If you create a half measure, you lose all your wind and then it’s hard to recover,” he said. “You’re dying by a thousand cuts.”
Raheem Hosseini is a contributing writer to CalMatters.CalMatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.