By David M. Greenwald
Santa Ana, CA – A report by a government watchdog agency found that the Orange County Sheriff’s Department was out of compliance with numerous policies regarding the training and reporting of use of force practices—problems that led it to erroneously give its department a clean bill of health in 2020. That policy in some cases may have deprived defendants of the right to material that was potentially exculpatory.
The Office of Independent Review (OIR) issued a report detailing the Orange County Sheriff’s Department’s force policies, training and practice. While the report found that OCSD “has in place many critical components that effectively govern the use of force by its deputies,” the department is “out of step with best practices that would better enable its deputies to carry out their work in the most safe and effective manner.”
The report hits the department for not providing “enough information on de-escalation and other critical areas, including the use of lethal force.” These policies allow “avoid high-risk force practices,” including “avoidable high-risk force practices, like warning shots and what OCSD calls ‘alternative’ force.
Moreover, “OCSD training on force and crisis intervention revealed troubling cultural currents that may contribute to undesirable deputy conduct.”
Specifically, “some instructors made statements and shared anecdotes that could encourage bias and run counter to certain policies and law.”
Perhaps most troubling in a department racked by several scandals including the failure to turn over evidence, “OCSD’s force-reporting and review practices make it difficult to fully understand how well the Department is managing the use of force by its deputies.
“Force reports often lacked necessary detail and the supervisory reviews that followed were, at times, deficient – leading to failures to refer potential misuse of force to its Internal Affairs team,” they wrote.
The OIR also identified a frequent practice of late reports: “Twenty one percent (21%) of use-of- force packets reviewed from 2020 included at least one late force report. One was filed 41 days after the force incident took place.”
With respect to de-escalation, the OIR found that OCSD “has no dedicated de-escalation policy” and those policies that exist “do not align with best practices.” Instead, “Department policies generally only provide passing references to de-escalation” and, worse yet, “some force-related policies even provide incorrect information about what de-escalation is and how it should be used.”
The report notes, “In all 1,000-plus pages of OCSD’s Court & Custody Operation Manual, ‘de-escalate’ is only mentioned once, and is used inaccurately.”
The OIR finds, “By failing to effectively address de-escalation and its requirements, OCSD is unnecessarily increasing the exposure of both its deputies and the community to physical harm that is potentially avoidable.”
Here too, the policies fall short with the OIR finding that “though OCSD policy accurately reflects California law regarding the use of lethal force, it fails to adhere to best practices by omitting a list of prohibited types of force, and it includes misinformation regarding what constitutes lethal force.”
They further note: “OCSD’s policy regarding lethal or deadly force complies with the minimum requirements of the law, but its treatment of the concept may lead to confusion for its deputies and their supervisors.”
Use of force reports were not only routinely filed late, but also “often lacked detail regarding uses of force, making it difficult to fully understand what took place during the event and why.”
The OIR writes that “many reports also made use of boilerplate or general language instead of providing particular, event-specific information.” This they found problematic because “[t]he use of such general language and lack of detail make it difficult for reviewers to determine whether the force was reasonable and within policy.”
Further they found the supervisory review of force is often insufficient, which they found to be “cursory and incomplete.”
Most troubling, OIR also found that there were supervisory reviews “that determined a use of force was unauthorized or out-of-policy, but the supervisors did not refer them to Internal Affairs for investigation.”
In particular, the report notes that such handling is problematic because “the S.A.F.E. Division categorizes all force incidents as ‘in policy’ if they are not referred to Internal Affairs.
“S.A.F.E. treats all force-related issues not referred to Internal Affairs as within policy, skewing its statistics and calling into question its conclusions,” they write. “As a result, S.A.F.E. wrongly concluded that 98.1% of all use of force incidents were within Department policy, because it failed to include incidents in which supervisors found an out-of-policy use of force but which were not referred to Internal Affairs.”
As a result, in its 2020 report, S.A.F.E. concluded that OCSD “continues to operate with the highest level of professionalism” and “provide[s] the best service and training to our personnel.”
This problem goes further than merely obscuring use of force problems internally—it also potentially excludes from discovery evidence that might be exculpatory.
Earlier this year, an Orange County judge denied a motion to compel the Sheriff’s Department to disclose additional police records.
In that case, defendant Mohamed Sayem was approached in his vehicle after police were called because he was sitting, slouched and asleep with keys in the ignition.
At this point, a confrontation ensued and Sayem was “beaten to the ground and then terrorized,” Sanders alleges in his motion.
In his motion, Orange County Public Defender Scott Sanders sought additional peace officer records arguing that the OCSD “withheld Supervisor’s Use of Force Reports related to prior uses of force by Devitt and Ota—consistent with its long-standing practice of improperly concealing responsive records involving the use of force.”
The problem is that this process, according to Sanders, “would have likely led the OCSD to automatically exclude as many as 98 percent of the eligible Supervisor Use of Force Reports from the court’s in camera consideration.”
Their review shows that roughly 3667 of 3742 Supervisor’s Use of Force reports are denied by the OCSD.
Which means that not only did the uses of force escape scrutiny by Internal Affairs, they may also have eluded discovery to the defense.
In court, Sanders argued that these documents should have been brought up in a Pitchess motion and the judge’s ruling would mean that a huge quantity of documents that demonstrate prior use of force by a given deputy get omitted from the Pitchess process.