State hasn't probed all police shootings of possibly unarmed people
A law passed in 2020 compels the state Justice Department to investigate all incidents in which a police officer shoots and kills someone who is unarmed.
But the department isn't investigating all of the incidents law enforcement agencies are referring to it — in at least 17 cases to date, the state has opted not to investigate.
The exact number and details about those cases are a bit of a mystery, Calmatters has learned. The Justice Department said it had not been tracking each report it received and could readily provide details only for cases in which its agents visited the scene or opened an investigation or reports. After Calmatters began raising questions in November, the department managed to track down some information on the 17 rejected cases, and acknowledged there were more.
Calmatters launched its own tracker to follow the police shooting cases the Justice Department is investigating, which number 31 and counting.
The department now says it has reversed course and begun tracking every report that comes in.
“Given the mandate and the need to rapidly implement a major new statewide initiative, our office focused on…qualifying events,” a Justice Department spokesperson wrote in an email to Calmatters Jan. 20. “We did not previously consider tracking calls for non-qualifying events. However, we are now tracking the information on our end and we're more than happy to provide updates on those figures as needed…”
Under the new law, whenever a police department or sheriff's office thinks one of their officers has shot someone who could be considered unarmed — including those carrying Airsoft rifles or other weapons not considered deadly — they're compelled by law to report it for review.
The law says: “A state prosecutor shall investigate incidents of an officerinvolved shooting resulting in the death of an unarmed civilian. The Attorney General is the state prosecutor unless otherwise specified or named.”
But sometimes a lot hinges on the definition of “unarmed.” The Justice Department may opt not to investigate a case if it determines the person killed was, in fact, armed in some way. For example, if the slain person was in a car, the deputy attorney general making the call might determine that person was using the car in a manner that constituted potential deadly force.
In any event, when the Justice Department doesn't take a case, it also hasn't been publishing an explanation as to why.
The review process for the shooting of unarmed people is public record, and the Justice Department has maintained a page recording the names and locations of the people shot and the officers suspected of shooting them.
Failing to report the original calls from law enforcement agencies — whether the person they shot was unarmed or not — makes analyzing the decisionmaking by the Justice Department more difficult. This was, after all, a law enacted in the wake of the George Floyd shooting to create a layer of state oversight.
For instance, there were 31 open investigations into the shootings of unarmed people as of Wednesday, but it's impossible to know what percentage that represents of the total number of calls the department has received. They have logged at least 66 total calls since July 1, 2021.
The legislation creating the program to investigate deadly police shootings does not explicitly mandate how the Justice Department will maintain records. The Justice Department told Calmatters that the program's operations are up to them.
“Oh it's absolutely troubling, but I'm just a lawyer, I'm not the family who lost a loved one,” said Izaak Schwaiger, an attorney representing the family of Pelaez Chavez in a federal lawsuit against the Sonoma County Sheriff's Office and the deputy who shot him.
“And for those folks out there who are relying on some oversight … to just get turned a cold shoulder like this is indefensible, and it's a misapplication of the attorney general's duty under the law.”
In that case, even the Sonoma County District Attorney has complained that the state Justice Department needed to be more transparent about its decision to not investigate.
The two authors of the original bill creating the program refused to comment on the way the Justice Department has been handling cases. One is Assemblymember Kevin Mccarty, the Sacramento Democrat whose spokesperson said he would soon introduce legislation expanding the Justice Department's mandate to investigate all deaths at the hands of law enforcement. The other is Attorney General Rob Bonta, a former legislator who now heads the Justice Department.
Other legislators heavily involved with policing also refused to comment.