CalAware and 66 other advocacy groups nationwide are urging the U.S. Department of Justice to improve its monitoring of deaths in police custody.

In a letter sent Monday (August 29), the organizations responded to DOJ’s proposal for implementing the Deaths in Custody Reporting Act (DICRA), which requires police departments across the country to disclose details to the federal government about custodial deaths.

DICRA was signed into law in 2014 in response to a troubling lack of reliable data on these deaths ,and DOJ is currently collecting comments on its implementation proposal published August 4.

Besides Californians Aware, signers include The Leadership Conference on Civil and Human Rights, the ACLU, and the NAACP Legal Defense and Educational Fund, among many others.

In their letter, the organizations list a number of deficiencies in the proposal that are a “departure” from DICRA, including a lack of accountability to ensure state and local police are actually reporting the data; a failure to condition federal funding on adequate reporting; a disturbing reliance on media reports instead of police departments for data; a lack of clarity on how DICRA applies to federal agencies; and the absence of a clear definition of the word “custody.”

The groups are especially concerned about the lack of consequences for not reporting accurate data because “voluntary reporting programs on police-community encounters have failed. Only 224 of the more than 18,000 law enforcement agencies reported about 444 fatal police shootings to the Federal Bureau of Investigation (FBI) in 2014, though we have reason to believe that annual numbers of people killed by police exceeds 1,000.”

“The loopholes in these regulations are cavernous,” said Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights. “You can’t fix what you can’t measure. Police departments should report deaths in custody when they happen; it should be that simple. But these regulations make it clear that DOJ would rather bend over backwards to accommodate police departments’ dysfunction or reluctance. There should be simple procedures so that police can provide complete and accurate data or face clear consequences for non-compliance.”

“Relying on news coverage for the data reporting work of departments is especially problematic,” Henderson continued. “Newsrooms are shrinking across the country and – now more than ever— it’s the government that should be providing journalists with transparent data, not the other way around.”

Terry Francke, CalAware’s general counsel, adds that while California law was independently amended in the 1980s to require local and state law enforcement agencies and correctional facilities to report data on deaths in custody to the state Attorney General, both the law itself and its enforcement have been of limited value.

Penal Code Section 12525 currently states:

In any case in which a person dies while in the custody of any law enforcement agency or while in custody in a local or state correctional facility in this state, the law enforcement agency or the agency in charge of the correctional facility shall report in writing to the Attorney General, within 10 days after the death, all facts in the possession of the law enforcement agency or agency in charge of the correctional facility concerning the death. These writings are public records within the meaning of subdivision (d) of Section 6252 of the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1), are open to public inspection pursuant to Sections 6253, 6256, 6257, and 6258. Nothing in this section shall permit the disclosure of confidential medical information that may have been submitted to the Attorney General's office in conjunction with the report except as provided in Part 2.6 (commencing with Section 56) of Division 1 of the Civil Code.

All but one of the references to particular sections in the Public Records Act are obsolete due to subsequent amendments that renumbered or modified them. But the reference to the Public Records Act—insisted on by a law enforcement lobbyist— holds open the government’s right to argue an exemption excusing disclosure, for example the exemption for law enforcement investigations. And despite the demand to report “all facts . . . concerning the death,” the Attorney General devised a checkoff form for reporting agencies to use that collects far less information.

Form BCIA 713, which the Department of Justice provides to law enforcement and correctional facilities and accepts as full compliance with Section 12525, does not require the reporting of “all facts” concerning a death in custody. While obviously useful for overall statistical analysis, the forms involve no narrative, and allow a checkbox response of “other” (in addition to several predesignated categories of response) that specify:

  • what was the stage of custodial process (arrest through post-sentencing) when the death occurred;
  • which agency or organization had custodial responsibility at the time of death;
  • the location where the cause of death occurred;
  • which facility was the scene of the death;
  • what was the manner of death, legally speaking; and
  • what was the means of death.

As noted by CalAware in a letter to the department two years ago,

There is no requirement for a supplementary narrative report identifying what is meant by “other” in these circumstances, nor any requirement of follow-up reporting when “pending investigation” is the checked box for manner and means of death. Nor is there any requirement to disclose the identity of those (custodial staff or inmate) who caused the death, what if any discipline has been imposed if the death is classified as a homicide, whether willful or justified. Nor is there any explanation of what circumstances permitted a suicide, or why the manner and means of death are checked as “cannot be determined."

In summary, the Department appears to be failing to require law enforcement or correctional agencies to provide “all facts” in their possession that would explain why a death in their custody occurred and what if anything has been done about it. Is there some reason why “all facts” are not being sought as the statute requires?

That question remains unanswered. Meanwhile an investigative journalist, Dave Maass, told CalAware that

A new lawsuit was just filed against the San Diego Sheriff's office after an oversight body found that jailers seriously screwed up in monitoring an inmate. The oversight board took nearly two years to complete the investigation, which found that sheriff's deputies lied and failed to conduct a proper investigation. Families only have six months to make a claim under state law. They have two years under federal law. When I contacted them to let them know about the report, they had only about two weeks to file the lawsuit.

This is exactly where this law is so supposed to help. If the sheriff actually had to hand over more information within 10 days, then the family would've known to file before the six months ran out.

We've seen this several times now, where the county refuses to give families any information at all until after the statute of limitations expires.

Maas’s experience seeking such information is documented here, with responsive attachments from the Department showing the kind of information it collects on deaths in custody.

AB 619 by Assembly Member Shirley Weber (D-San Diego), was introduced in February 2015 and, although widely supported and with no opposition on record, halted in May by the Assembly Appropriations Committee on cost grounds. The bill expanded the term “custody” in Penal Code Section 12525 into "any point in time when a person’s freedom of movement is curtailed or limited by a peace officer, or when a person is led to believe, as a reasonable person, that he or she is so deprived of the freedom to move, such as during a stop, a stop and frisk, an interrogation, an arrest, transport prior to booking, or correctional confinement."

The bill also would have required documentation and reporting on law enforcement or custodial uses of force against a person resulting in his or her hospitalization.