Can the Use of an LRAD "Sound Cannon" Be Excessive Force?

A tool that law enforcement agencies sometimes use in the context of demonstrations and crowd control is the “long range acoustic device” (LRAD) or “sound cannon.” In a nutshell, an LRAD emits extremely loud, focused sound that is painful — and perhaps even damaging to the hearing — for the listener. Several southern California law enforcement agencies have been documented as having these devices, including the police departments of Los Angeles and San Diego.

In some documented cases, these devices have been employed fairly indiscriminately against groups of people for the purpose of denying access to areas, in essentially the way that tear gas or baton strikes might be used on a more individualized basis. Since the devices are physically uncomfortable and potentially even physically harmful to the listener, their use in this manner raises concerns about excessive force. When there is no specific basis for the use of force, even a somewhat restrained use of force, as the LRAD might seem to be, may nevertheless be “excessive.” New York City and Pittsburgh have both settled lawsuits filed by individuals who asserted that the use of LRAD caused them hearing injuries (see footage of the Pittsburgh use in the YouTube video posted above).

To my mind, the litigation around LRADs also raises interesting questions around practices such as playing extremely loud classical music in transit stations, as has been seen for example in some Los Angeles metro stations. Loud or extremely repetitive music, of course, has also been used as a means of torture in some situations. When sound is being used to intentionally inflict pain or discomfort on individuals who are not actually breaking any law, and when the actor using that sound is the state, questions of excessive force are always potentially relevant.

Related Post: When Is Force Excessive?, Oct. 9, 2023

Related Post: Preserving Excessive Force Claims in “Resisting Arrest” Cases After Lemos v. County of Sonoma, Sept. 16, 2022

When is Force Excessive?

As surprising it as it may seem, law enforcement use of force does not become “excessive” merely because an individual is seriously injured, or even killed, by that force. Instead, the legal analysis looks to a cluster of circumstances that describe the context in which the force is used.

Under Graham v. Connor, 490 U.S. 386 (1989), courts look to several factors in deciding whether a particular use of force is “excessive.” Those factors are

(1) the severity of the crime being investigated,

(2) whether the suspect poses an immediate threat to officers or others, and

(3) whether the suspect is actively resisting arrest or attempting to flee.

In short, the “excessive force” analysis is a sliding scale, with more serious or risky situations generally justifying a faster, more dramatic use of force. On the other hand, the law — at least in the Ninth Circuit — is clear that when there is no call for the use of force, any use of force, even relatively minimal force, is “excessive.” See, for example, Headwaters Forest Defense v. County of Humbolt, 240 F.3d 1185, 1199 (9th Cir. 2000) and Lolli v. County of Orange 351 F.3d 410, 417 (9th Cir. 2003).

In the wake of a use of force by law enforcement, agencies whose officers have used force frequently put out press releases emphasizing whatever facts supported the officers’ action. However, it is often the case that that information is incomplete or misleading. Since the “excessive” quality of force depends on the facts, an informed assessment of whether force was “excessive” requires an aggressive effort to learn all the facts — not simply the facts that law enforcement agencies wish to highlight.

Related Post: Preserving Excessive Force Claims in “Resisting Arrest” Cases After Lemos v. County of Sonoma, Sept. 16, 2022

California Public Records Act Statute Numbering Cross-Reference Update

I have posted another update to the California Public Records Act statutory numbering cross-reference chart here. As I mentioned previously, this chart is useful because when the California Legislature renumbered the CPRA they left no simple way to find the connection between the new and the old statutory numbers, and virtually all of the caselaw refers to the old numbers.

What Is Governor Newsom Trying to Do on Disclosure of Law Enforcement Misconduct Records? Is SB2 on the chopping block?

What are the political currents that led to Governor Newsom attempting to roll back access to California’s public records law pertaining to law enforcement misconduct?

ACLU California Action Director of Government Affairs Carmen-Nicole Cox speaks out against the proposed change. Photo by KCRA.

What Newsom was attempting to do, as discussed in good coverage here by KCRA, was to attach a budget trailer bill that would exempt the Commission on Peace Officer Standards and Training (POST) from provisions of the CPRA that pertain to disclosure of records of misconduct. The actual text of the trailer bill is here (hat tip to the Mercury News for actually posting a link). The text is the following:

ADD GOVERNMENT CODE SECTION 7923.601

This division does not require the disclosure of peace officer personnel files, and background investigation files gathered by law enforcement agencies pursuant to Government Code section 1031, in the custody of the Commission on Peace Officer Standards and Training in connection with the commission's authority to verify eligibility for the issuance of certification and investigate grounds for decertification of a peace officer pursuant to Penal Code section 13510.8, including any and all investigative files and records relating to complaints of, and investigations of, police misconduct, and all other investigative files and materials. Nothing in this paragraph shall limit the obligation of another public agency to disclose records of police misconduct, or other public records, pursuant to Penal Code section 832.7 or any other provision of law.

In some ways, this language seems limited (in the sense that, for example, it seemingly leaves intact many of the CPRA provisions that require disclosure of records of misconduct), and in other ways it’s obviously not. Does this language mean that if personnel records from a local agency — like a county sheriff’s department, for example — are “in the custody of the Commission on Peace Officer Standards and Training,” they are then shielded from disclosure? The last sentence might suggest the answer is “no,” but undoubtedly law enforcement agencies would argue “yes.”

More broadly, why would this language be consistent with the Legislature’s intent in enacting SB 2, SB 1421, and AB 748, all of which sought precisely to expand access to records of misconduct? Why is a higher degree of secrecy around officers who commit misconduct necessary, or reasonable, or anything that California voters should want?

Backing up for a second: what the heck is going on? Newsom is generally pretty reasonable on policing issues and California was way overdue for reform around public access to records related to law enforcement misconduct. Why on Earth would he be pushing to roll back that progress? Who is he listening to? As critics note in the coverage linked above, the fact that he was using this budget trailer process to try to get this change through is worrisome, because it strongly looks like an attempt to legislate under the radar.

The report about the proposed transparency tweak comes on the heels of another one suggesting — in my opinion, without any empirical basis — that the decertification provision of SB2 could produce “staggering” losses in law enforcement (nonpaywall summary here). It’s hard to know the specifics of what’s playing out here, but reading between the lines a little bit there strongly appears to be a lobbying effort going on to undercut SB2. Bottom line, this is also an effort to keep bad law enforcement officers from being exposed as such, and that is not something that any reasonable politician should support.

I have reached out to Newsom’s office in connection with this post and will update if I get any response.

Related Post: LA Times Endorses SB2, Aug. 7, 2021

Related Post: Retired LAPD Sergeant Dorsey: Pass SB2, July 13, 2021

Comparison Chart of Old and New Statute Numbering for the California Public Records Act (CPRA)

An aggravating modification was made to the statutory numbering of the California Public Records Act (CPRA) effective at the beginning of 2023, entirely relabeling and subdividing a large body of law. It’s not a bad thing in itself, but the problem is that virtually all of the caselaw on the CPRA uses the old statutory numbering and, at least in Lexis, there is no way to follow the links from the old statute to the new statute. This is quite annoying.

Therefore, here is a simple chart cross-referencing the old and new statutory numbering of at least some of the important components of the CPRA. I will add to this over time. (Edit: a second, more extensive, update is here.) Please make sure to verify any citations before using them in actual litigation.

Preserving Excessive Force Claims in “Resisting arrest” Cases After Lemos v. County of Sonoma.

A recurring theme in California criminal defense is the “resisting” charge – either simple resistance under § 148 or “forcible” resistance under § 69 – filed against individuals who are themselves victims of excessive force by law enforcement. A conviction for such a charge has the potential to act as a barrier to civil liability for the officer under the doctrine of Heck v. Humphrey (1994) 512 U.S. 477. But not all “resisting” cases are created equal, in terms of their effect on civil liability for an aggressive officer. Some fact patterns, and some tactics in handling the criminal case, are more likely to preserve causes of action for excessive force.

Heck holds that a claim under 42 U.S.C. § 1983 will be barred if success in that action would “necessarily require” the plaintiff to show the unlawfulness of his or her criminal conviction. (512 U.S. at p. 486.) But as explained in the recent en banc opinion in Lemos v. County of Sonoma (9th Cir. July 19, 2022) No. 19-15222, determining whether a conviction creates a barrier to liability requires close attention to what the bases could have been for the conviction and what was actually determined in the criminal case. As the Lemos dissent puts it, there is an “escape hatch to Heck” in the ambiguities of some cases. (Slip opn. at * 16.)

The “escape hatch” is that an allegation of excessive force will not be Heck barred if the problematic conduct of the officer is distinct temporally or spatially from the factual basis for the resisting conviction, such that success in the 1983 action does not “necessarily” require showing that the conviction was improper. This scenario is most likely to arise when there is a series of interactions between the defendant and the officer that could potentially give rise to the resisting charge, and where the officer’s use of excessive force did not necessarily occur at the same time and place as the resisting.

For example, in Lemos, the jury was instructed that four different actions by the defendant could be the basis for “resisting.” The jury’s general verdict of guilt did not make clear which of the bases it adopted, and success on the subsequent excessive force claim, which relied on the officer’s handling of only one of the four bases, therefore did not “necessarily” require invalidating that verdict. (Slip opn. at * 11.) No contradiction had to exist, after all, between the idea that Lemos resisted or obstructed the officer in his duties by blocking him from opening a truck door and the idea that the officer used excessive force when he tackled Lemos minutes later. (Id. at * 11-12.) (In reaching this conclusion, Lemos disapproved language in Smith v. City of Hemet (9th Cir. 2005) 394 F.3d 689 and Beets v. County of Los Angeles (9th Cir. 2012) 669 F.3d 1038 stating that a jury’s verdict in a resisting case that could be based on multiple acts “necessarily determines the lawfulness of the officers’ actions throughout the whole course of the defendant’s conduct.”)

Lemos drew support from the California Supreme Court’s conclusions in Yount v. City of Sacramento (2008) 43 Cal.4th 885, where the defendant resisted officers by struggling and kicking. Some minutes later, as Yount continued to resist, an officer accidentally shot him. Yount pled to a count of 148, stipulating to a factual basis for the plea “without any explicit recitation of what those facts were.” (43 Cal.4th at p. 895.) Such a plea did not create a Heck bar to an excessive force claim because there were “two isolated factual contexts” involved in the case, and success on the claim related to the use of force would not necessarily invalidate Yount’s guilt related to the initial struggle with police. (43 Cal.4th at p. 899, internal quotations omitted; see also Sanford v. Motts (9th Cir. 2001) 258 F.3d 1117, 1119 [no Heck bar to excessive force claim where several incidents could have given rise to resisting conviction and “nothing in the record informs us what the factual basis was for Sanford’s plea”].)

The takeaway message of Lemos is that liability for excessive force is more likely to be preserved after a resisting conviction if (1) the facts suggest multiple bases for the conviction, (2) those bases are separated from each other temporally or spatially, and (3) the record either leaves it unclear which basis was adopted or makes it apparent that that the basis for the criminal conviction is not directly intertwined with the conduct that gives rise to the excessive force claim.

Therefore, in a jury trial on resisting, it may be worth considering whether the jury can be instructed with multiple factual bases for the charge, as occurred in Lemos, at least if doing so does not undermine an otherwise defensible case; or, alternatively, whether the factual basis can be omitted altogether from the instructions so that the record will leave the jury’s factual determination vague.

In a plea bargain situation, defense counsel should consider whether it is possible to keep the factual basis strategically vague or, alternatively, to specify a basis for the plea that is temporally and physically distinct from the actions that could be the basis of a later excessive force claim. In stipulating to factual bases for pleas, defense counsel should avoid blanket adoption of entire documents, such as police reports or preliminary hearing transcripts, since adopting the entire document will tend to suggest that there is no conceivable excessive force claim that wouldn’t “necessarily” invalidate the resisting plea.

Related Post: When Is Force Excessive?, Oct. 9, 2023

A Template for California Public Records Act Requests in Cases Where Law Enforcement Has Inflicted Great Bodily Injury

Law Enforcement Agency

Attn: Public Records Requests

[Date]

To whom it may concern:

I am writing to make a request under the California Public Records Act for records related to a [date] use-of-force incident in which [law enforcement agency] caused [victim] to suffer great bodily injury.

In this incident, members of the [law enforcement agency] used force against [victim].  As a result, [victim’s injuries go here]. These injuries were “great bodily injury” under any interpretation of that term, and thus implicate the language of Penal Code section  832.7, subd. (b)(1)(A)(ii) and Government Code section 6254, subd. (f)(4)(c)(ii).

With these factors in mind, I respectfully request to be provided (1) any use of force report that was generated, (2) any bodycamera or surveillance footage of the use of force, (3) any other documentation that was created to describe why and how force was used against [victim].

Thank you for your assistance with this request, and please let me know if you need any clarification.

Sincerely,

The Sergeant's Taser Trophy, and What It Says About Excessive Force

A San Diego Sheriff’s Sergeant who received a bizarre “trophy” for deploying his taser 25 times has resigned while under investigation for creating a hostile work environment for his colleagues, the San Diego Union reported yesterday. The newspaper quotes University of South Carolina law Professor Seth Stoughton, who points out that giving such a trophy for using force repeatedly “explicitly communicates that an officer’s use of force is something to be celebrated rather than avoided to the extent it is possible to do so.”

The taser “trophy” received by the sergeant. Photo by San Diego Union-Tribune.

Fierro v. Smith: Deference to Prison Officials in Eighth Amendment Claims

A jury should not be instructed on the need to defer to prison officials’ decisions regarding the administration of prisons, in cases raising Eighth Amendment claims, unless the treatment that is at issue (1) was provided pursuant to a security-based policy or practice, and, if so, (2) was a necessary, justified, and non-exaggerated response to security needs. That point is reiterated in the Ninth Circuit’s opinion in Fierro v. Smith (19-16786), filed yesterday, where Arizona prison officials repeatedly disregarded an inmate’s request to be put in protective custody before the inmate was attacked by gang members. Fierro brought a claim under 42 U.S.C. § 1983 against the correctional officers who failed to respond to his requests to be housed safely.

In Fierro, the Ninth Circuit concluded, there were genuine factual disputes as to both of the two prongs of the analysis, and the jury should therefore have been given, at most, an instruction saying it was their choice whether to defer to prison officials’ judgment. In a footnote, the Ninth Circuit panel points out that even a “jury’s choice”-type instruction “could risk confusion without much added benefit,” which seems like a charitable way of putting it.

Can a Civil Rights Case With Low Damages Succeed?

A “nominal damages” civil rights case is a case where there is no obvious economic impact to the plaintiff, or only a very small economic impact. Sometimes these cases are suits for $1, or some other small figure, and sometimes such suits seek more money but recover only a symbolic $1 verdict.

Can nominal damages civil rights cases succeed? The answer is a qualified “yes,” depending on what you are trying to accomplish. If your goal is to make lots of money, obviously such a case is not going to do that for you. However, if a plaintiff is passionate about standing up for particular principles, and if those principles may resonate with other people, such a case might have legs. The federal civil rights statute provides for attorney fees even in nominal damages cases, so there can be an incentive for a lawyer to assist with such a case even if there is no big payout contemplated for the person bringing the suit.

There are some basic pragmatic issues to consider. One of the most important is simply that the plaintiff’s leverage in litigation is the threat of going to trial. So if the asserted violation of a right is so minor or trivial that it would be ridiculous to ask a jury of regular people to spend days of their own time stuck in a courtroom resolving the issue, then it probably doesn’t make sense to file that suit in the first place.

For example, consider a brief police detention that, though technically not supported by adequate legal grounds, quickly resolves with the police moving on and letting the detained person go about their business. Yes, this is probably an example of a Fourth Amendment violation. But it’s probably not a good case to pursue absent other facts (such as a discriminatory motive, repeated harassment, etc.), because no defendant will ever agree to settle the case, and if the case ever went to a jury, that jury would most likely be very annoyed at the plaintiff for having wasted their time with the matter. Why should these jurors be forced to sit for days and days in a courthouse to figure out if you were merely inconvenienced for a few minutes?

For that matter, the plaintiff also has to understand that civil rights litigation can be a slow, tedious, and time-consuming process, one that can take years to work through the system and require a considerable amount of work on the plaintiff’s part. It’s probably not worth it, from the potential plaintiff’s perspective, to go through all that aggravation to make a point about some purely technical violation of a legal standard.

With this in mind, a more promising type of “nominal damage” case is one in which the symbolic significance of the violation is high, even if the economic impact is low. Violations that touch on basic political values of our society, such as the right to peacefully protest, the right to religious freedom, or the right to be free from arbitrary state discrimination, can sometimes involve these weighty symbolic factors. The existence of important political principles or the potential for broader public impact in a case is also a factor the courts look to in assessing whether attorney fees should be awarded, and so it is a factor that a lawyer will typically consider in deciding whether to take on a case in the first place.

LA Times Endorses SB2

The editorial board endorses SB2, which would permit decertification of police found to have committed misconduct, here. The board writes:

California is out front on a lot of police reform legislation, but on this one it’s struggling to keep up. Florida, Georgia and Arizona, all of which are police-friendly states, already have decertification processes much like this one.

SB 2 is actually a very modest bill. It deserves passage. The first step toward better policing is getting bad cops out of the ranks, and Californians have waited long enough for a better way to get that done. So, as a matter of fact, have all the good cops.

Related Post: Retired LAPD Sergeant Dorsey: Pass SB2, July 13, 2021

Border Patrol Will Adopt Bodycams

Here’s another law enforcement agency coming late to the bodycam party: the Border Patrol, which said this week it will finally start using bodycams.

The Border Patrol joins the Orange County Sheriff as “Very Late Adopter” of technology that most other agencies adopted many years ago. The Sheriff announced last month that bodycams might start being deployed. As I noted the other day, some agencies have been using bodycams for more than 15 years at this point.

Ninth Circuit Upholds "Loss of Life" Damages in 1983 Action

The Ninth Circuit on Tuesday upheld awarding $3.6 million in “loss of life” damages in a 1983 action in Valenzuela v. City of Anaheim. That position, from which Judge Kenneth K. Lee dissented, reinforces the holding of Chaudry v. City of Los Angeles, 751 F.3d 1096 (2014). It also marks a distinction between the way this issue is handled in federal court versus the way it is treated under California law, where § 377.34 of the Cal Code of Civil Procedure bars recovery for loss of life in an action brought by the estate of a decedent.

As footnote 7 of the opinion acknowledges, the position taken by the majority here has been unanimously followed by district courts in the Ninth Circuit after Chaudry, so this outcome is not any major shift in the landscape. In fact, if anything, the longer term significance of the opinion would seem to be Judge Lee’s dissent, which makes the case for revisiting Chaudry.

Congresswoman Waters Calls for Investigation into LA Sheriff Gangs

Congresswoman Maxine Waters (D-Los Angeles) has requested that the federal Department of Justice investigate the presence of gangs among the Los Angeles County Sheriff’s Department.

This call seems to be an effect of the tremendous work that Cerise Castle has done in documenting the distresing extent of gangs within the Sheriff’s Department. Waters’ inquiry focuses specifically on a gang called the Executioners that is said to dominate the Sheriff’s station in Compton, but Castle has documented gangs permeating virtually the entire department.

Sheriff Villanueva in May acknowledged that “There’s cliques everywhere. Every single police station, I guarantee you,” while simultaneously asserting that this was nothing to worry about.

Officer "Wellness" App Deployed by Lexipol, Surely No Ulterior Motive

We wrote earlier about the troubling case of Lexipol, the private agency that is simultaneously drafting policies for law enforcement agencies around the county and lobbying against law enforcement reform, with the ultimate goal being, at all times, to reduce costs for municipalities.

Now it’s being reported that Lexipol is behind an “officer wellness” app, CordicoShield, the ostensible purpose of which is

to provide officers with resources to address PTSD, anxiety, depression, familial adversity, social stress and substance abuse — all of which can arise because of cumulative stress and trauma associated with the job. CordicoShield is a wellness solution designed to provide a host of critical resources to help law enforcement officers learn about the behavioral health issues they may be facing, build and maintain resilience, and connect with vetted therapists and peer support team members.

Sounds lovely. Surely there couldn’t be any privacy concerns, and certainly no conflicts of interest, in having a bunch of lawyers, whose core job is to reduce liability exposure for municipalities, release an app to monitor the mental health of individual law enforcement officers. (Note: While this app is being described as an effort to “help law enforcement officers,” when Lexipol originally acquired Cordico in December of 2020, it explicitly acknowledged that the point of the app was to be “a part of every public safety agency’s risk management strategy,” where “risk management” means management of liability risk to agencies and municipalities, not to LEOs.) Surely the point of this app is to make those individual officers feel “well,” not to monitor them in areas of their lives that would normally be their own private business. All the resources are “confidential,” Lexipol says, and surely LEOs can rely on that representation, which couldn’t possibly be misleading or incomplete, or legally impossible for individual LEOS to enforce. Surely this would not be an effort by Lexipol to insert itself into the employer-employee relationship in exactly the same way it has inserted itself into the relationship between public agencies and the public.

California Police Unions Throw Money at Key Lawmakers Ahead of SB2 Votes

The Sacramento Bee reports that police unions are opening up their checkbooks in what looks like an effort to influence key Democratic members of the Assembly ahead of votes on SB2, the bill that would allow decertification of officers who have been found to have committed misconduct.

In particular, the article notes, the unions have donated to Assembly Appropriations Chairwoman Lorena Gonzalez (D-San Diego), with the Los Angeles Police Protective League giving $24,300 to a ballot measure favored by Gonzalez and a PAC of the Deputy Sheriff’s Association of San Diego splitting nearly $50,000 in donations between the ballot measure and Gonzalez’s campaign account.

A spokesman for Gonzalez rejected the suggestion that the donations could influence her votes, the paper reported.

SB2 passed through the Assembly Public Safety Committee earlier this month.

Retired LAPD Sergeant Dorsey: Pass SB2

The Sacramento Bee ran an op-ed Sunday (semi-paywall) from retired LAPD Sergeant Cheryl Dorsey arguing that California’s SB2 should be passed to permit decertification of law enforcement officers who have committed serious misconduct. Dorsey writes:

Having served Los Angeles for 20 years as a police officer, I support this bill because the police badge should not be used as a weapon to abuse power, or as a shield from owning our mistakes.

CA Atttorney General Will Begin Handling Investigations of Fatal Police Shootings

The California Attorney General will begin investigating fatal police shootings, taking over those investigations from the local law enforcement agencies that had previously handled them. According to news accounts:

two newly established state teams, one based in Northern California and the other in Southern California, will have a combined 33 special agents and supervisors who can call on crime analysts, forensic experts and others as needed.

The state teams will focus solely on whether the shootings were legally justified, sending their reports to the California Department of Justice’s Special Prosecutions Section for a decision. The department will ultimately either file criminal charges or release a written report outlining why they weren't warranted

There are interesting public records implications to having such investigations occur, because the content of such investigations should (presumably) be public under the terms of SB 1421.

LAPD Finds No Wrongdoing by Sergeant Who Shared Offensive George Floyd Meme

An LAPD sergeant who shared an offensive meme about George Floyd has been cleared of wrongdoing by the department. The meme, sent on Valentine’s Day, featured an image of Floyd and the caption “You take my breath away.”

As outrageous as the content of that meme is, there do seem to be ambiguities in this case about the intent of the sergeant. His attorney is quoted by the LA Daily News as saying “The officer found the meme offensive, he did not create the meme, nor did he distribute it beyond notifying a commanding officer of its existence.” Tough to know if that is accurate, but at the same time there may be a value (in the context of our contemporary culture) in not taking everything in the worst possible light.

“On Our Watch” Tackles Brady after SB 1421, and Raises Questions About WhY THERE IS NO california PROTOCOL AROUND TRANSMITTING BRADY INFORMATION

The latest episode of the fantastic NPR podcast On Our Watch addresses Brady information (i.e., information that is exculpatory or impeaching in a criminal case) that now is available to the public by virtue of the passage of SB 1421. It also raises challenging questions about why Brady information about problematic officers is handled in such an informal, unsystematic way in California, with each individual law enforcement agency throughout the state doing whatever it likes — which, in a surprisingly large percentage of cases, is nothing at all — to track Brady information, to make it available to prosecutors who might conceivably convey it to defense lawyers, and to share it with other agencies who might otherwise hire these officers.

Brady Monkeys. Like administrators in California law enforcement agencies, they see no evil, hear no evil, and certainly don’t talk about evil with anybody else.

At one point, reporter Sukey Lewis notes that an On Our Watch analysis of 200 internal affairs cases from 2014 through 2019 found over 100 California law enforcement officers lied on an official police report or in sworn testimony. Just in that set of data, the podcast identified 23 officers who were known to have lied who are still working as police today.

The prior episode of the podcast, which had to do with an officer in Salinas who was fired after repeatedly dropping the ball in filing reports and, in general, doing an extremely poor job of investigating crime, raised a similar concern because it noted that the officer in question was still employed in law enforcement, just at a different agency. Not only that, his current employer did not even want to know about what problems he had had previously when Lewis offered to share that information. Still another episode discussed a DA who was informed about Brady information — specifically, an officer lying and exaggerating in a report to justify her own error in having let her dog seriously injure a woman — but kept it under wraps, continuing to push for criminal charges against the woman who was harmed by the error of the officer, apparently without ever informing the public defender that the officer had been disciplined for her misrepresentations.

The whole thing seems upside down, if you think about it for a moment. Shouldn’t law enforcement agencies have duty to ensure that the people they hire have not been previously fired from some other agency for dishonesty? And shouldn’t there be some sort of statewide (or even national) index of Brady-type material, such that it’s not just left to chance and to somebody’s good intentions whether the relevant information is even available to review in the first place?

Lewis notes that some prosecuting offices maintain a “Brady” list, which is good, except that it’s almost certainly just an Excel file on somebody’s desktop somewhere. California defense lawyers do something similar, informally sharing names of officers who are known to have been involved in problematic situations. But it is striking that a repository of this type of information is not systematized, given how weighty the concern is. Officers get fired for sexual misconduct on the job, to take one example that the podcast has covered, and simply get rehired elsewhere, free to continue doing the same thing because they not only haven’t been criminally prosecuted for the abuse of their authority to harass and coerce women but in many cases their misconduct hasn’t even been shared outside of the department that fired them in the first place.

Above all else, the full arc of On Our Watch illustrates what a stranglehold police unions have had over the contours of law enforcement policy in California. Municipalities bend over backwards to avoid union wrath while individual problem officers bounce around from agency to agency like so many wayward priests. They may be slapped on the wrist, but they are almost never prosecuted, almost never publicly named, and almost never stopped from repeating their misdeeds.

This issue is related to the problem SB2 is intended to resolve — namely, that California does not currently have a way to decertify officers who have been found to have committed misconduct, thereby preventing those people from being rehired at a different agency. 46 other states already have such a process, and California is definitely lagging behind in this respect. This issue is also related to the proposed changes of SB16 which would make many more types of police personnel records subject to disclosure under the California Public Records Act, and would also require law enforcement agencies to actually make some effort to review the employment history of a candidate who has previously worked in law enforcement before giving that person yet another crack at carrying a gun and a badge. Those would be positive steps, if enacted.

More fundamentally, however, it seems like California needs legislation focused on the way Brady information, in particular, is handled by, and transmitted by, law enforcement agencies, and to whom it must be transmitted. The lack of any broad scale policy around this subject seems to mean, bizarrely, that the entity in this state that probably has the most comprehensive overview of Brady information related to California law enforcement officers is KQED itself, simply by virtue of the fact that they made so many requests for public records from state law enforcement agencies after SB 1421 was passed. Not a law enforcement agency, not a state regular: a radio station.

Thank goodness for the diligent work of the reporters putting together On Our Watch, but it’s no substitute for the type of formalized, statewide structure that should actually be in place to deal with this issue.