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Articles Tagged with police misconduct

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

More than 1,100 San Diego police officers are now outfitted with body cameras, and the San Diego County District Attorney’s office received more than 100,000 body-camera videos from police across the county since 2016. Body cameras were initially intended to be a transparency tool to reassure the public that their police force follows the rule of law. In other words, body-worn camera footage is now a staple of San Diego’s police force, yet members of the public have not been able to view it.

In fact, even after a trial is complete, it is nearly impossible for members of the public to access body camera footage. Police agencies claim that they withhold body camera videos from the public to preserve the accused’s right to a fair trial and to avoid tainting the jury pool.

Public Records Requests

Neither the San Diego Police Department nor the San Diego County district attorney’s office provides body camera footage through California’s open records laws. Instead, a requester has to go to the Superior Court where the trial is held, where copies of the video are kept in the evidence room. Even then, seeing the video requires a court order.

When the Evidence can be Viewed

Since police footage is next to impossible to obtain, there are only a few ways a defendant can see his or her own video.

  • If the prosecutor uses the body camera footage as evidence to try to obtain a conviction or compel a plea deal. The footage gets shared as part of the discovery process.
  • Prosecutors may share the tape during trial as part of the evidence.
  • If the District Attorney releases the video. The SDPD last year released a policy that provides a path for releasing videos of officer involved shootings in cases where no charges are being filed against the officer. This policy states that the district attorney has to by default release the video.
  • If you file a citizen complaint against the cop. The police may be willing to release it to prove their innocence.

Continue reading

In the latest of the terrifying bills that have come out of our current Congress, Republicans in the House and Senate recently introduced two companion bills they are calling the Back the Blue Act of 2017, to keep up with the Trump Administration’s rhetoric of “law and order.” S.1134 was introduced by John Cornyn (R-Tex.), and is co-sponsored by 15 senators, all Republicans.  H.R.2437 as introduced by Ted Poe (R-Tex.), and includes five co-sponsors, also all Republicans.

What the Bills do

The bills would create a new category of federal crimes for killing or attempting to kill a state or local law enforcement officer who works for a police agency that receives federal funding. It in effect treats all local police agencies as federal agencies because nearly all police agencies already receive some sort of federal funding. The bill would also allow for the federal death penalty in such cases, and it would impose limits on the ability of defendants to file habeas petitions in federal court after they have exhausted their appeals.

The bill would also make it a federal crime to “assault” any police officer, bringing a federal mandatory prison sentence of two to 10 years.

Additionally, the bills would allow a district attorney to overrule local officials if he or she did not like the way those officials were handling a case involving a police death. As it stands, the language of the proposed legislation explicitly authorizes federal prosecutions in cases where  “the verdict or sentence obtained pursuant to State charges left demonstratively un-vindicated the Federal interest in eradicating bias-motivated violence.”

Qualified Immunity

It has always been the case that police actions are covered under qualified immunity, which means that in order for a victim’s lawsuit to proceed, the plaintiff in a civil rights lawsuit must show that not only were his or her rights violated, but also that a reasonable police officer should have known that the actions in question were a violation of the Constitution (essentially that the police intentionally violated his or her rights).

Under the language of this proposed bill, police would only be liable for out-of-pocket expenses and not statutory punitive damages, such as in instances of Section 1983 lawsuits under the Civil Rights Act. Lastly, the bills would bar plaintiffs from recovering attorneys fees under Section 1988 of the Civil Rights Act.

The bills are being opposed by civil rights and accountability groups nation-wide. Continue reading

Earlier this month, Superior Court Judge Tamila E. Ipema issued a court order that the San Diego County District Attorney, Bonnie Dumanis, must return $100,000 of seized assets back to a medical marijuana businessman and his family. Over a year ago, DEA agents raided James Slatic’s business, but did not charge anyone with a crime. They used sledgehammers to break open the front door of Med-West Distribution, Slatic’s business that supplied a collective of medical pot shops with cannabis oils used for vaping as well as marijuana-laced edibles, topical creams, and other products. The agents seized all of the inventory, business records, and just over $324,000 in cash (a separate forfeiture proceeding for those funds is ongoing).

A few days after the raid, the District Attorney’s office also froze Slatic’s personal bank account, along with the accounts of his wife and two stepdaughters, alleging that the money was illegal drug profits. They took $55,000 from Slatic’s account, $34,000 from his wife’s account and more than $5,000 each from the couple’s two daughters. The money was not formally seized until months later. Dumanis has used state and federal civil asset-forfeiture rules for years to confiscate millions of dollars from drug suspects.

Lawyers for Mr. Slatic argued that that money should be returned because it was not part of Med-West’s funds. Mr. Slatic wrote in a statement: “It’s about time. We did nothing wrong. My business operated openly and legally for more than two years; we paid taxes and had a retirement program for our 35 employees.” The District Attorney’s office has argued that they do not have to return the money until 12 months after money is formally seized, not 12 months after it is actually seized.

Formal Procedures of Civil Asset Forfeiture

Civil asset forfeiture occurs when the government (ie. police) literally seizes someone’s property without compensating them, based on the suspicion that the property was used in connection with criminal activity. The government has to follow certain procedures before it can declare forfeited property.

Schedule I substances (drugs) can be seized by policy without any formal petition of forfeiture. See CA Health and Safety Code § 11475.  

When police seize personal property worth less than $25,00 they must give notice of formal forfeiture proceedings to all property owners. See CA Health and Safety Code § 11488.4(j). You must be given an opportunity to file a claim if you recieve this notice, which must be filed within 30 days of the received notice.

California law prohibits police from keeping seized cash and property valued at less than $40,000 in federal cases without obtaining a criminal conviction. Continue reading

According to an Associated Press investigation, police officers across the country misuse confidential law enforcement databases to get information on romantic partners, business associates, neighbors, journalists, and others for reasons that have nothing to do with their police work. Through multiple public records requests to state agencies and major-city police departments, AP found that officers were fired, suspended, or resigned over 325 times between 2013 and 2015 for misuse of confidential databases for personal gain. Unspecified discipline was also imposed in over 90 instances.

It was reported last year that in California, specifically, there is also rampant misuse and lack of oversight in the state’s Law Enforcement Telecommunications System (CLETS) network.  Confirmed cases of misuse in the state’s unified law enforcement information network have doubled over the last five years, according to public records requests obtained by the Electronic Frontier Foundation pursuant to the California Public Records Act. There are 389 cases between 2010 and 2014 in which an investigation concluded an officer broke the rules for accessing CLETS. And these figures only represent what was self-reported by the government agencies to the California Attorney General, so they are likely underestimated.

No single agency tracks how often the abuse happens nationwide, and record-keeping inconsistencies make it impossible to know how many violations occur.

These Actions Can Lead to Criminal Charges

In 2010, an officer had been sending his ex-wife abusive text messages and using CLETS to obtain information on her new boyfriends. He ultimately pled no contest to a misdemeanor harassment charge, but the charges for violating CLETS were dropped. It is against police department policy and state law to access CLETS for personal reasons. Currently, the CLETS Advisory Committee (CAC) has sole jurisdiction to investigate misuse investigations.

Other Penalties: Violations of State Ethics and Corruption Laws

All too often, misuse of confidential databases and information is connected to other behavior that can lead to criminal charges for corruption. For example, if one obtains confidential information about another state employee, juror, arbitrator, judge, or investigator for the purposes of bribing them, that is a felony that can be punishable by two to four years.     Continue reading

Earlier this month, the news broke that two years after Eric Garner’s chokehold death went viral on the internet, the only person heading to jail is the man who filmed it, Ramsey Orta. This makes him the only person at the scene of Garner’s death who will serve jail time. In the beginning of July, it was reported that Orta took a plea deal on weapons charges that were unrelated to the filming of Garner’s death. He claims he has been repeatedly arrested and harassed by cops since he filmed the Garner incident.

Orta was arrested back in August 2014, shortly after the Garner incident in Staten Island, by the NYPD. The police claim that he was in a drug-dealing part of town, and that he tried to pass a teenager on a block that was known to have drugs. They claim they found a .25-caliber Norton semiautomatic handgun on him after they stopped and frisked him, and Orta was charged with two counts of criminal possession of a weapon. The NYPD had also arrested the teenager Orta passed, Alba Lekaj, 17, charging her with possession of the gun and possession of a small amount of marijuana. The police were in plain clothes.

Earlier this month in Manhattan Criminal Court, Orta pleaded guilty to the weapons charges. He will likely be spending the next four years in jail as part of the plea deal.

A new law that is causing a buzz in the state of California is S.B. 443 (Forfeiture of Controlled Substances). The bipartisan law, authored by Senator Holly Mitchell (D-Los Angeles) and David Hadley (R-Torrance) failed to pass the assembly floor back in September 2015, and was recently amended in the state senate on April 6. The proposed law would require a conviction of a crime regarding controlled substances in order for police to seize one’s money and assets on the grounds it was suspected drug money. It would also prohibit state agencies from transferring these seized funds over to a federal agency and receiving an equitable share of those funds. A Tulchin poll found that nearly 80% of California voters would support such a law.

Despite bipartisan support and nearly unanimous votes at every previous juncture, law enforcement departments had deployed a variety of lobbying efforts and scare tactics back in September to defeat the bill.

What is Civil Asset Forfeiture?

In the latest incident of controversies involving the San Diego Police Department and accusations of bias against minorities, several community leaders protested at the preliminary hearing of Robert Branch at the Hall of Justice Thursday, March 10. Back in May of 2015, 25 year old Robert Branch, a security guard at the time, was accused of assaulting a sheriff’s deputy Paul Ward after an apparent road-rage incident.  Ward is described as a “loose cannon,” by his colleagues.

During the incident in question, Ward allegedly swerved to block Branch’s car from passing on an El Cajon onramp, sending Branch’s car into the shoulder lane. Ward then followed Branch for nearly ten miles. When Branch exited near San Diego State University, Ward pulled over Branch’s car in an unmarked and unidentified police vehicle. He was not in uniform, so Ward began recording with his cell phone. That led to Ward trying to restrain Branch, and Branch was charged with resisting arrest. Branch subsequently filed a civil suit for illegal detention.

Protestors with the National Action Network has accused District Attorney Bonnie Dumanis of selective prosecution of minorities intended to further her political ambitions.  

Resisting Arrest in California

Under California Penal Code § 148(a)(1), one may not willfully resist, relay, or obstruct an enforcement officer or emergency personnel from doing their job/ performing his or her duties. This is a vague definition which often leads to false allegations. Oftentimes, a cop will charge you simply for being dismissive, uncooperative in their eyes, or rude.

A conviction of resisting arrest is a misdemeanor punishable by up to one year imprisonment and a $1,000 fine.

Legal Defenses

Similar to battery on a peace officer, physically resisting an unlawful search, arrest or detainment or defending yourself against excessive force is does not constitute resisting arrest. Likewise, reasonable self-defense against excessive force does not constitute assault or battery on a police officer. Another legal defense is that it was a false allegation. You will need to prove that you did not intend on obstruct a cop’s duties.

Because these type of cases often turn to ‘he said/she said’ against police, it is always recommended you record your encounters with police (you do not even have to tell them you are recording if you fear retribution) and gather witnesses. Continue reading

Last April, the U.S. Department of Justice opened up a civil rights investigation over the death of Freddie Gray while he was in the custody of the Baltimore police. His neck was somehow broken and spinal cord severed whilst in transport to the police station.

Now, the trial of one of the six officers who have been charged in the case, William Porter, has resulted in a ‘mistrial. Mr. Porter faced four charges:

Back in April, we discussed the beating of Francis Pusok as he was trying to escape from police on horseback in the Southern California desert. Now, the three California deputies from San Bernardino County, Nicholas Downey, Michael Phelps, and Charles Foster will face criminal charges in the beating of Pusok. Each were charged with one count of assault by a public officer, and all three deputies are scheduled to appear in court for arraignment on Sept. 8. If convicted, each deputy faces between 16 months to three years in prison. They all remain on paid administrative leave pending the outcome.

Pusok’s attorney James Terrell believes eight of the 10 deputies should have been charged (not just the three involved in the incident). The other seven deputies who responded are not being criminally charged because of what was said on the voice recorders that the deputies carry on their belts. The helicopter footage that caught the incident indicated that Pusok appeared to have been kicked 17 times, punched 37 times, and struck with batons four times, a review of the video showed, and 13 blows appeared to be to the head. Mr. Pusok did file a lawsuit in response to the beating and settled it with San Bernardino County for $650,000. There has also been an internal probe of 10 deputies, along with an FBI civil rights probe.

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