police brutality

January 6, 2023

Police Use of Force a Problem in California

For anyone who thought that police use of force would wane after the riotous year of BLM protests in the recent past, the discouraging news is that these incidents are on the rise. Across the country in general, and in California specifically, documented cases of police use of force are on the rise. According to the Centers for Disease Control and Prevention (CDC), emergency room visits following police interactions have exceeded 400,000 throughout the United States in the past. Lethal force is particularly worrisome—with over 1,000 fatal police shootings in California in 2020 alone. Another unsurprising fact: these kinds of things happen most frequently in Black and brown communities, according to research.

California Law on Lethal Force

According to recent California law, lethal force is justifiable only in cases where human life is being protected. This is in contrast to the previous law allowing lethal force whenever an officer deemed it reasonable. Even so, case after case of police shootings continue to destroy families and neighborhoods. However, in some cases, officers are not getting off scot-free. A deputy in San Diego recently faced charges of second-degree murder, while an officer from San Leandro was looking at manslaughter charges, both a result of excessive use of force.

So, it seems our strict use-of-force laws are making a difference—though not eliminating the problem. Perhaps that is because officer training is very inconsistent across California. While some departments require that officers take a two-hour course, others have condensed the training down to 14 minutes in front of a video and being handed a memo. And many officers have received no training at all on the new law yet—and San Diego officers are sorely behind in the training.

A San Diego Story

One San Diego story is a tragic one. A 36-year-old who loved the environment and animals suffered from a mental illness that made him easily frustrated. To escape the pressure of difficult situations, he started running away as a toddler, and the pattern of behavior continued throughout his school years and into adulthood. In multiple situations, he ran from the police. When confronted by a park ranger for having his dog off-leash one afternoon, he fled. Ultimately the ranger and a backup officer found him, and he was tased and put under arrest due to his resistance and because he held a golf club that appeared to be held as a weapon. Cuffed and in the back of the squad car, the man managed to free one of his hands, open the door, and run. Though several officers on the scene believed he was not a threat, one officer shot the fugitive four times, resulting in his death later in the hospital.

When it Comes to Race…

Who is most likely to suffer police use of force? Black individuals are on the receiving end of such tactics in four of ten cases, despite the fact they make up only about one-tenth of the population. Conversely, whites experience police use of force in less than one-third of incidents, despite making up over 40% of the population. Continue reading

December 23, 2020

San Diego Pays Out $1.5 Million for Use of Excessive Force

by David M. Boertje

A week-long trial in San Diego ended in a jury deciding in favor of a victim of police brutality, with a $1.5 million settlement paid out by the city. Attorneys for the plaintiff argued that the incident in which the victim was thrown onto the ground and pepper-sprayed by police was a case of excessive force and false arrest. According to reports, San Diego police officers were aware of an assailant who was attacking the homeless population in the city. As a result, they were visiting many homeless encampments in plain clothes and not uniforms. The officers were trying to warn the homeless populations of the danger in order to keep them safe.

The authorities, who were not in uniform, gathered at a trolley stop near the Fashion Valley mall and prepared to visit a homeless encampment in a nearby riverbed to warn them about the assailant. Before they left the trolly station, they heard a loud noise in the vicinity and believed that they were taking fire from projectiles. As a result, one officer drew a gun, and when the victim was spotted, the officer approached him thinking that he was the culprit.

The plaintiff was simply heading back to his home after a night out drinking with friends. When he saw the officer approaching him and ordering him to raise his hands and get on the ground, he did not heed the orders. Because the plaintiff was not compliant with the orders, one officer pulled out pepper spray and shot him in the face with it, after which another officer slammed him to the ground, smashing his face against the pavement. The plaintiff sustained broken front teeth, jaw injuries, and nerve damage from the incident.

The plaintiff’s legal team argued that he had little time to respond to the situation and make any sense of what was happening. The noise that the officers heard was a result of an iPhone charging block being thrown and falling near the officers. When the plaintiff was given the commands, not only did he not have time to comprehend what was happening, it was also being done by officers in plain clothing.

Subsequently, the plaintiff was pulled off the ground and handcuffed. While this was happening, another individual admitted to the officers that they threw the charger. The individual who actually threw the charger faced no repercussions.

Why Did This Case Take so Long to be Seen in Court?

The case was delayed by a couple of factors including the coronavirus outbreak. Many trials and cases that were to be seen in the courts were delayed as a result of the pandemic. Additionally, city lawyers were successful in having the judge presiding over this incident be removed from the case just before it came to trial. These lawyers believed the judge made many adverse rulings and may be biased. Continue reading

February 15, 2019

Transparency in Law-Enforcement

by David M. Boertje

This week a San Francisco free-speech group, the First Amendment Coalition, sued the California Attorney General and Justice Department over their refusal to disclose police misconduct records under the state’s new transparency laws. Last year the Senate passed a bill providing the public with greater access to police personnel files as well as greater access to video or audio from police shootings or deadly use of force encounters. Details surrounding both laws are described below.

Greater Access to Police Personnel Files

The California Penal Code was amended with Senate Bill §1421 to permit more access to police and prison personnel records. In the past, police and prison personnel records were not disclosed for confidentiality reasons even for litigation and public-records requests.

While police and prison personnel records are still confidential, they may be released in situations in which one or more of the following conditions apply.

When a gun is fired by police or prison personnel that results in death or great bodily injury;
A sustained finding that police or prison personnel sexually assaulted someone; or
A sustained finding that police or prison personnel were dishonest in a criminal case or in the investigation of another police or prison officer.

A sustained finding is a decision by investigational authorities in cases of police or prison personnel misconduct that finds fault in the conduct of the police or prison officer.

Greater Access to Video and Audio From Police Shootings

Assembly Bill §748 also amended the California Government Code and provides the public with greater access to video or audio from police shootings or deadly use of force incidents that result in death or great bodily injury.

The right to receive access to video and audio is not absolute. A police department or prison may deny disclosure or release of the video and audio recordings if the incident is under investigation and if would violate someone’s privacy rights. Assembly Bill §748 goes into effect on July 1, 2019.

Charged With a Misdemeanor or Felony Crime in California?

Most people in the criminal justice system are first-time offenders. For many accused people it may be the first and only criminal case they have in their lifetime. Understanding your rights and the steps involved to resolve a criminal case brings peace of mind during a turbulent and scary time for you and your loved ones.

Contact an experienced and knowledgeable San Diego Criminal Defense Attorney who can help mitigate penalties and explain your legal rights and responsibilities. Available 24/7, the Boertje Law Firm represents clients at any stage of the criminal case and for any crime charged. Continue reading

November 2, 2017

San Diego’s Sharp Spike in Police Dog Usage Raises Questions About Policies

by David M. Boertje

The San Diego Union Tribune reports that there has been a sharp spike in the use of police dogs in San Diego, and this has raised questions about how and when officers call on the dogs to quell dangerous situations. Police officials say canine units help de-escalate situations and prevent the elevated use of force, but some recent high-profile biting incidents have prompted complaints from community members, lawsuits for excessive force, and a large city settlement.

Specifically the number of suspects bitten per year has risen sharply from 15 in 2013 to 86 in 2016. The number of times officers deployed a canine increased from 1,778 to 3,222 over that time. This increase in usage of canines has occured despite an overall decrease in crime and drop in emergency responses by the Police Department. The police department claims that there has been a continued rise in the number of dog bite incidents involving suspects with mental illness and suspects who have been using drugs or alcohol.

Additionally, the number of canine units slowly increased from the initial 14 in 1984 up to 20 in 1990, and then has more than doubled to 44 units in 1991.

Last July, a YouTube video went viral of a man being bitten while handcuffed. It is predicted that a lawsuit will be likely. Last December, the city of San Diego paid out $385,000 after a dog bite left one man’s leg badly damaged.

Last year, Police Chief Shelley Zimmerman ordered a review of canine policies and training to include more role-playing activities and emotional intelligence components. However, there are currently no plans to shift away from having police physically remove dogs from suspects during a biting incident.

When are Police Dogs Considered Excessive Force?

There are still limits to the injuries police dogs may inflict in the course of their duties. California has fairly strict liability laws for dog owners, but there is an exception for police dogs in certain circumstances. For example, dog bite statutes might still apply when a dog bites an innocent bystander or witness to a crime.

The use of a dog in the course of police activity can be unreasonable when the nature and quality of the intrusion is not justified. When it is unreasonable, it can result in a 4th Amendment or 8th Amendment violation, which gives rise to civil damages under 42 U.S.C. § 1983. Continue reading

December 30, 2015

No Criminal Charges for CHP Officer Who Punched Woman Ten Times

by David M. Boertje

Earlier this year, the Los Angeles County district attorney’s (DA) office announced that it would not press charges against the California Highway Patrol (CHP) officer, Daniel Andrew, who was recorded on a cell phone throwing down a woman and repeatedly punching her alongside the 10 Freeway. The district attorney’s office issued a 30-page report concluding that Officer Andrew was “required to use some level of force” to keep the victim, Marlene Pinnock, from running or walking out onto freeway traffic. The DA’s office further stated that Andrew was by himself and had a duty to protect both Ms. Pinnock and commuters from a potentially dangerous situation.

Back in 2014, a cell phone recording of this incident was released online and caused public outrage. The DA’s decision not to file criminal charges comes nine months after the final use-of-force report was issued on Pinnock’s original arrest on July 1, 2014. It has also been over a year since CHP gave the DA their report on their criminal investigation into Andrew’s actions. The video shows him throwing Ms. Pinnock down to the ground, sitting on her, and punching her at least ten times. Andrew was also forced to resign as part of a $1.5-million settlement reached in September in an excessive force lawsuit filed in federal court by Pinnock against CHP. Civil rights advocates had pushed for additional criminal charges.

What is the Standard for Use of Force?

November 11, 2015

Gov. Brown Signs Legislation to Protect Minorities

by David M. Boertje

In an attempt to address the ongoing trend of police misconduct and institutional bias, California Governor Jerry Brown signed legislation last week mandating that California law enforcement agencies collect and make public data on the racial makeup of all those encountered by police. A.B. 953, was written by Assemblywoman Shirley Weber (D-San Diego) as a response to fatal police shootings of unarmed black men and other people of color. A 2008 study of LAPD data by a Yale researcher found blacks and Latinos were subjected to stops, frisks, searches, and arrests at significantly higher rates than whites, regardless of whether they lived in high-crime neighborhoods.

What A.B. 953 Does

A.B. 953 will amend Sections 13012 and 13519.4 of the California Penal Code. Under the new law, California police must collect data on the people they stop, including perceived race and ethnicity, the reason for the encounter, and the outcome. The state attorney general’s office will determine how the reporting is done and how the data are stored. In addition, police agencies whose officers wear cameras will have to follow rules on storing and using the video so it is not mishandled. The regulations dictate how long video should be kept and how supervisors should use it in investigations.