Legislation Would Create Independent Review in Police Shootings

Assemblymember Kevin McCarty introduced AB 86 in January
Assemblymember Kevin McCarty introduced AB 86 in January

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 talks to Santa Gutierrez, father of slain farm worker Luis Gutierrez, in Sacramento in 2010.
Cruz Reynoso talks to Santa Gutierrez, father of slain farm worker Luis Gutierrez, in Sacramento in 2010.

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

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. Davis Progressive

    interesting proposal.  like i said yesterday, i think the ag’s office would be ideal to conduct the investigation. the problem with the gutierrez case is maggie wasn’t investigating the case, she was reviewing whether the conclusion was reasonable based on the findings – and it was.  however as cruz points out, the da’s office missed key witnesses or some were afraid to come forward.  i understand that ultimately they probably wouldn’t have been found criminally liable, but maybe had the da’s office done a better initial investigation the civil case would have had a chance.  i like the aclu idea of folding criminal into civil and allow the ag’s office to investigate both then we don’t have people waiting years for justice.  good work.

      1. Tia Will


        Sounds like “job security” for AG employees”

        Interesting choice of words since it sounds to me like the lack of independent investigation has meant “job security” for a number of police officers.

        1. David Greenwald

          There are literally thousands of Deputy AG’s out there, I don’t see how a small unit of AGs to investigate these matters really changes the equation.

      2. Davis Progressive

        I think that was probably a backhanded swipe against me. That’s fine I can take it. Understand that I could make a lot more money if I ever wanted to go to the private sector. Bus is David said they have thousands of jobs. This is really about finding the best way to handle a tough situation and that is investigate a police officerWho has had to take a persons life during the course of his duties in to make sure that there is a transparent way to keep the public trust that this was on the up and up.

    1. zaqzaq


      Are you taking the position that the civil jury in the Gutierrez got it wrong?  That jury’s verdict was vindication for the officers that the allegations made by the Reynoso’s self appointed people’s court got it wrong.  Hopefully the county recouped the cost of the trial from the plaintiffs and/or their attorney’s.  One thing that the civil jury did was vindicate the decision by the DA not to file charges.  I am assuming that the DA made the decision and did not take the case to the grand jury unlike what happened in Ferguson.  The bottom line is that someone with an agenda will always be quick to criticize whomever makes the decision if they do not agree with it.

      The idea of an appointed board that would investigate civil misconduct that could then be used in civil lawsuits for monetary damages is concerning.  Would this only be for cases involving death or discharge of a firearm, use of a tazor or any use of force by an officer?  Where would the resources come from?  What happens when a city or county disagrees with this politically appointed board’s decision concerning civil misconduct?

      1. David Greenwald

        I covered a lot of the trial. I can’t speak for DP, but from my perspective, the jury probably got it correct – the burden was on the plaintiffs and I think the facts presented at the trial left a lot of questions about the conduct of the officers but were not definitive enough. But part of the problem, which is what Cruz Reynoso was getting at was the poor nature of the DA’s initial investigation. They hired a private investigator and he found a whole slew of witnesses that the DA apparently missed.

        There was also a suspicious witness – the guy who said that Gutierrez was a knife thrower who apparently disappeared and was deported.

        So had an independent body investigating may have been able to have found the witnesses earlier and conduct a better investigation.

        I think you also need to separate outcome from process – an independent investigator may well have come to the same conclusion as the DA and the jury, but the problem here was the process left people to wonder if it was thoroughly investigate – and there was reason to believe it wasn’t.

        “The idea of an appointed board that would investigate civil misconduct that could then be used in civil lawsuits for monetary damages is concerning. ”

        Not to me it isn’t. First of all, I think most people would be satisfied knowing the truth and receiving official acknowledgement if there is a mistake. I can go into that more if you’d like. Second, in many cases, the police will be exonerated by such a process which will reduce the number of civil law suits. Right now a lot of lawsuits get filed because of uncertainty. Jurisdictions will often pay out a sum of money to settle. So in the end, that probably will balance out. Finally, if the police make an egregious mistake, they should pay a settlement to the victims of that mistake. So I don’t really have a problem.

        ” Would this only be for cases involving death or discharge of a firearm, use of a tazor or any use of force by an officer?”

        The legislation is only in cases that end in death.

        “Where would the resources come from? What happens when a city or county disagrees with this politically appointed board’s decision concerning civil misconduct?”

        As was explained to me this would be a unit in the AG’s office, a permanent unit, not a body politically appointed.

        1. zaqzaq

          A permanent unit in the AG’s office would be in my opinion more susceptible to political pressure from outside interests advocating for a prosecution and a finding of civil misconduct.  AG Harris is now running for the US senate.  Her Prop 47 language was political.  Look at how the US attorney’s office has handled the Zimmerman and Wilson (Furguson) cases.  We are still waiting for a decisions from Holder while local prosecutors made more timely decisions on their cases.  My concern is that the AG’s unit would act more like the special prosecutor in the Zimmerman case forcing a prosecution and a criminal trial as a result of intense media attention.  Would Harris have the same courage to not file charges that the local prosecutor made in Zimmerman’s case or would she react to media scrutiny and force an innocent man to go through jury trial.   After the trial it is now clear that the local prosecutor made the correct decision in the Zimmerman case when charges were not filed.  Some will still claim that the AG’s office, like the local DA’s, still has to close of a working relationship with law enforcement.

          1. David Greenwald

            You’re never going to find a truly independent body that is completely free of political pressure. I think the AG’s office is reasonable starting place. It may not be perfect as you point out.

        2. David Greenwald

          All I really want – and I understand that there are other people who have agendas and will never be satisfied unless Zimmerman is hung by his toes in townsquare – is a fair process.  If the justice department declines to file charges, that’s actually good enough for me.  That of course doesn’t mean that Zimmerman couldn’t be held civilly liable in the death of Martin.

      2. Davis Progressive

        Like David my concern was the process. I don’t think the process created trust in segments of the community. Yeah there will always be somebody trying to take advantage of the situation to their own rental at Vantage but in this case the real questions about how it was done. And I understand that jury’s decision in the federal civil rights trialbut had it been investigated properly from the start everything mat have  looked very different once it got to go to the trial.

  2. PhilColeman

    In fairness to any District Attorney in any county, the role in reviewing the circumstances of a police action is limited to applicable laws. DA’s are prosecutors, and they prosecute violations of law. They have no authority to rule on policies and procedures.

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