The Trouble With Applying Civilian Crimes to Police Use-of-Force Cases

From: PORAC LDF
By: Andrew M. Ganz and Nicole Pifari

“In court, the thing we punish is the criminal intention — the mens rea, the guilty mind. There is an ancient rule: actus non facit reum nisi mens sit rea — ‘the act does not create guilt unless the mind is also guilty.’”

— William Landay, Defending Jacob

When we boil down the role of law enforcement — whether we are talking about actual peace officers, prosecutors, legislators or the law itself — it comes down to maintaining some sense of order, safety and justice. These are the basics of civilization. Without the rule of law and the real potential for criminal sanctions, we have chaos. It is a matter of common sense for anyone with any degree of life experience (particularly those of us who have raised children) that there must be rules and there must ultimately be consequences for breaking those rules.

Another way to frame this basic concept is that human beings act upon incentives. These do not have to be negative or punitive (dis)incentives, but they can be. Sometimes, we can take the positive incentive approach. For example, a program in the Bay Area that rewards individuals addicted to drugs with gift cards incrementally increasing in value the longer they stay sober is apparently showing some promise.(1) Experienced parents recognize that it is extremely important to praise your kids for good behavior. But no one wants to sit at a restaurant or on an airplane next to the kids with no rules and no consequences. Human beings test limits, and those limits and the consequences cannot just be a bluff. Police officers, like any other professionals who wield the significant potential to negatively affect others’ lives, must be disincentivized to abuse or even negligently misapply that power.

This all must be carefully balanced. Cops should be disincentivized from punching a person just because they are angry for leading them on a pursuit. They must also be incentivized to protect and serve, whether that be in the moment of a particular encounter, when making the decision whether to even bother responding to a call, or even whether to get into the profession in the first place or retire early. That balance has been grossly and dangerously thrown off-kilter over the past several years, and we all see the obvious and predictable results. Far fewer people want to become police officers, far more are leaving the profession early, and our most basic, hardwired, Darwinian instincts tell us that we would have to almost be insane in many places to do proactive police work.

A huge part of this disincentive comes from the increasingly real threat that any officer may face criminal charges and incarceration for doing their job. No other career or job (save for perhaps drug dealer or hitman) comes with this risk and disincentive. Accountants do not have to lose sleep worrying about going to prison if they screw up someone’s taxes. Surgeons don’t turn on the news every night and see yet another in a countless parade of stories about a professional peer with a mugshot after they made an error in judgment that resulted in a patient passing away. They face other important and fair disincentives, but the imposition of criminal sanctions in those areas is not on the table, save for the rare sadistic psychopath who actually intends harm.

Police officers live with this real and intense fear, particularly in the Bay Area and particularly over the past few years. Prosecutors, also acting on those same self-preservation instincts, feel like in order to attain or maintain their positions of power, they have to charge a cop. There continues to be a proliferation of these cases.(2) While charges somewhat run the gamut, the most common cases we see and hear about are those charging some sort of assault, battery or homicide crime against an officer. A “245” (3) with personal use of a firearm,(4) voluntary manslaughter5 and second-degree murder(6) are some of the most common and most serious constellation of charges.

The use of these statutes and the steep potential sentencing consequences (to be discussed below) was never intended by the Legislature to be applied to police officers acting in the scope of their duty, nor is it morally or philosophically acceptable. If “the act does not create guilt unless the mind is also guilty,” how can we possibly suggest locking a person up for volunteering and doing their best to keep order in our society? How can responding dutifully to a call for service at 3 in the morning on hardly any sleep at the end of a long week, and then encountering a person who is walking toward you quickly with a large knife and a murderous look in their eye, subject the actual victim of crime to the possibility of decades behind bars for trying to make it home to their family? We — law enforcement and their lawyers — are in the position of literally and figuratively going on the defensive when it comes to the abuse of power that we see by these prosecutors. Not here. The perversion of right and wrong in the misuse of these statues for political gain is disgusting and dangerous.

One prime and consequential example of this disconnect is the sentencing enhancement for personal use of a firearm (Penal Code Section 12022.5). When an officer-involved shooting (OIS) results in criminal charges against the officer, prosecutors will typically charge assault with a semi-automatic firearm combined with a special allegation for personal use of a firearm.

The absurdity and injustice actually start with the base charge, which will usually be a “245(b).” The “b” subsection is for assault with a semi-auto rather than a revolver. Police departments are not actively issuing and training on revolvers in 2024, as far as I am aware. Officers are issued and trained on semi-automatic firearms, so when an OIS does take place, a semi-automatic firearm is almost always used, if not an “assault rifle.” Yet, prosecutors still apply this charge to cops, taking what would otherwise result in a maximum sentence of four years in prison to a nine-year max. An assault weapon brings with it a maximum of 12 years.(7)

The 12022.5 personal use enhancement is similarly ridiculous as applied in the context of an OIS. It carries a maximum additional penalty of 10 years in state prison. That means when a DA charges a cop for an OIS, the typical maximum punishment is going to be approximately two decades in state prison.

The legislation that ultimately codified Section 12022.5 (pictured on the opposite page) listed some of these dangerous specified felonies that it could be applied to, including rape and murder.

The legislative purpose of Section 12022.5, like of many other crimes and enhancements, centers around the concept of deterrence.(8) The purpose is to deter those who were already choosing to engage in certain already-illegal and dangerous crimes from bringing real firearms with them.(9) This is the case with similar iterations and crimes for use of a firearm, where courts have observed that the Legislature adds these penalties under the belief that anyone who arms themselves prior to committing a felony, such as burglary or robbery, does so with the intent of killing anyone who might interrupt or attempt to interrupt the crime. The additional penalty for use, the courts have explained, was intended to deter that additional escalation in the crime.(10)

Another way to illustrate this intent is by recognizing that when a person commits a robbery with a plastic replica firearm, which can cause the same fear and trauma to the victim, there is no enhancement. That one choice (to bring a “fake” gun) can save a person 10 years in state prison, and that is almost certainly because the Legislature actually wanted to incentivize that choice. In other words, if a robber wants to use the threat of a weapon to accomplish their crime but knows that a real gun will cost them 10 years, we want them to choose the replica or no gun at all so that the victim goes home after the ordeal and not to the hospital or morgue.

With all respect to the esteemed justices who have shared their review of the legislative history, this is not complicated. Any of us who have worked within the criminal justice system know that people get killed every day when robberies and burglaries “go bad” if guns are available to the offenders. Sadly and maddeningly, just after Christmas last year, an Oakland police officer lost his life when he tried to interrupt a burglary in progress. If those killers had not been armed with firearms, he would still be here. Again, this enhancement was designed and enacted to try to deter a criminal from picking up a gun as he/she headed out to commit their crime.

That purpose and effect does not apply in the context of officer-involved shootings. Where the various criminal penalties and enhancements are designed to help encourage a robber to leave their gun at home or perhaps bring a fake one, an officer does not have that same decision to make when they go to work or respond to a call. Officers are required to arm themselves. Officers are not responding to these dangerous situations with the intent to commit a crime. The whole legislative intent behind these criminal sanctions is disconnected from the context of these OIS scenarios.

We will not here go through the various Graham v. Connor quotes about split-second decisions in rapidly-evolving situations. Suffice it to say that foisting a public servant into a dangerous situation where they have to make that sort of judgment call is no more similar legally or morally than comparing the surgeon with a scalpel to the robber armed with a knife.

Speaking of that analogy, let’s really think about it for a second. Just imagine if no one ever put the spotlight on those high-profile police use-of-force cases, but instead directed their attention to a so-called epidemic of surgeons “murdering” or harming people. There is no question we could find more than a few deaths occurring during surgery that could support this movement and present it to the public in a way that could whip them up into a frenzy. Imagine the protests, riots, changes in policy, law and the prosecutions of all these surgeons when a split-second decision they made to try to protect life went bad. Imagine a new high-profile case of voluntary manslaughter or assault with a deadly weapon capturing national attention every other week, with a new surgeon’s name and face paraded before the public, portrayed as the devil.

Seems really unjust and absurd, right? So, too, are most of the cases charging cops with homicide and assault with personal use of a firearm. The surgeon does not begin a surgery seeking to do harm. They cannot predict everything the body of the patient is going to do during the course of the surgery. They are forced to react and do their best in extremely challenging situations. Luck is a factor both ways. Things do not always go ideally despite best efforts. The same is true of an officer beginning his/her shift.

The main difference would be that the surgeon does not have to deal with the risk of themselves, one of their nurses or a member of the public being shot or attacked by the patient. The unpredictability they face is within the body of an unconscious person. Peace officers in OIS scenarios must balance the use of their firearms against the possibility that they may leave their or someone else’s family without a father, mother or spouse. Surgeons are making a cut with a knife that is not in defense of anyone.

Using these types of charges and enhancements for a purpose that was never envisioned, that does not align with the intent of the Legislature and which results in extreme potential prison sentences for people who have no criminal intent, is not just. It also rarely works. Although these cases are complicated and each has its own wrinkles, fair jurors ultimately recognize that they are being asked to convict a person of a serious felony for doing the best they could in a very difficult situation. I believe they understand, at least some of them, that if we hold police officers to this impossible standard, there will be no one remaining employed, nor seeking employment, in law enforcement. I think they understand that if this sort of scrutiny was placed upon their profession, whether they are a surgeon, lawyer or barista, they could find themselves in the position of defendant. Once a juror recognizes that “but for the grace of God go I,” it is nearly impossible for a prosecutor to get them to vote for guilt.

But what about that balance referred to above? Do we not need any criminal liability for police officers who engage in an unnecessary OIS? If these crimes and enhancements should not apply to uses of force, what should be used? This is certainly up for reasonable debate. There are deterrents other than criminal liability that can serve that purpose. As pointed out, surgeons face potential consequences for malpractice. It does not seem, anecdotally, that surgeons are running amok careless about human life, “murdering” people without the threat of going to prison. Non-criminal consequences seem to serve their deterrent purpose in medicine.

If criminal sanctions are imposed on cops, there are some already in place. Penal Code 149 (assault under color of authority) is a special, if not poorly conceived, charge (11) that the Legislature specifically considered to apply to peace officers. Lawmakers could enact other legislation actually intended and crafted to apply to these incidents. Perhaps a negligence standard and the extreme mitigation in sentencing that comes with it is the right place to start. These are the rare and difficult cases where a person can still be held criminally liable even though they did not have criminal intent, but their conduct is considered reckless. If you text and drive and kill someone in a crash as a result, you are most likely going to be charged with, if anything, misdemeanor manslaughter. That reckless conduct carries with it a maximum of one year in jail.

Whatever the solution, the status quo needs to change. We are seeing the effects of these politically-driven prosecutions across the state and, in particular, in the crime rates of the Bay Area and Los Angeles County. Now that regular people seem like they may be recognizing the connection between their safety and the disingenuous attack on law enforcement, and the politicians are starting to respond accordingly, it is time to consider introducing legislation to fix this abuse of these statutes. In the meantime, we are forced to put our faith in judges and jurors to make just decisions. It is our job to show them why not only the punishment does not fit the crime in these cases, but also that criminal charges may not fit the act, where the mind is not guilty.

About the authors
Andrew M. Ganz is a trial attorney in the RLS Legal Defense Practice Group. Andrew defends public-sector employees in criminal matters, administrative investigations, critical incident investigations and disciplinary appeals. He also represents public-sector employees in disciplinary actions and related litigation. Prior to joining RLS, Andrew worked as a prosecutor for over 13 years, during which time he handled virtually every type of criminal matter. (RLS Partner Nicole Pifari contributed to this article.)

Footnotes
(1) See tinyurl.com/bdza5pfd.
(2) See policecrime.bgsu.edu.
(3) Penal Code Section 245
(4) Penal Code Section 12022.5
(5) Penal Code Section 192(a)
(6) Penal Code Section 187
(7) Penal Code Section 245(a)(3)
(8) See In re Culbreth, (1976) 17 Cal. 3d 330.
(9) See People v. Hays, (1983) 147 Cal. App. 3d 534.
(10) See In re Application of O’Donnell, (1932) 121 Cal. App. 370.
(11) See People v. Lewelling, (2017) 16 Cal. App. 5th 276, a case that Harry Stern of RLS spearheaded (along with Nicole Pifari, many other RLS attorneys and, to a much lesser extent, I handled) through years of criminal, civil and administrative litigation, which ultimately resulted in acquittals, reinstatement to employment and a lot of discussion about the application of Section 149.