‘A Green Light For Abuse’: Despite Reforms, California Counties Still Conceal Records On Police Use Of Force

A lawsuit in Los Angeles and a motion in Orange County highlight battles to get key information.

Jazmyne Eng’s family has been waiting over seven years to learn more about her death at the hands of sheriff’s deputies in 2012.

Eng, 40, had schizophrenia and was a patient at the Asian Pacific Family Center in Rosemead, California. On January 4, 2012, she arrived at the center with a small hammer. She was sitting in the lobby “very calmly,” the center’s director told a police dispatcher when he called to seek assistance in holding Eng involuntarily, according to news reports.

Four Los Angeles county sheriff’s department deputies arrived and, according to a complaint later filed, one deputy shot her with a Taser and another shot her with a gun, killing her. The deputies said Eng, who was under 100 pounds, repeatedly “charged” toward them with the hammer raised, according to a memo by the district attorney’s office. The DA declined to prosecute, concluding that she was killed in self-defense. The family filed a wrongful death and a federal civil rights suit, and was ultimately awarded $1.8 million.

But advocates say they and other families of people killed by law enforcement deserve answers, too.

Senate Bill 1421, enacted in January, requires the sharing of law enforcement personnel cases when there are sustained findings of sexual assault, dishonesty-related misconduct, or use-of-force resulting in death or “great bodily injury.” The law was meant to increase accountability and transparency. But months later, the sheriff department hasn’t shared any of the requested records with Eng’s family.

This week, her family and others joined the ACLU of Southern California in filing suit against Los Angeles county and the sheriff’s department, for not providing documents they say should be made public under SB 1421.

“They have waited months since making those requests and years since their family members’ deaths for this information but have received nothing but silence from LASD,” the attorneys wrote in their complaint.

In a statement to The Appeal, the sheriff’s department said it was “working diligently to satisfy a major unfunded mandate from the legislature. Our budget mitigation efforts have left us with an insufficient capacity to handle the deluge of thousands of [public records act] SB 1421 requests for documents.”

Difficulties obtaining officers’ records is a problem that extends far beyond Los Angeles County, advocates say. In Orange County, assistant public defender Scott Sanders recently filed a motion alleging that the county sheriff’s department may be improperly withholding use-of-force records from the court.

Other departments in California have allegedly destroyed such records rather than share them. While the legislature was considering SB 1421, the Union City police department destroyed records related to use-of-force incidents and police shootings. The Inglewood City Council approved the destruction of records of police shootings in December, just weeks before SB 1421 was to take effect.

Such battles defeat the purpose of the law, said Melina Abdullah, co-founder of Black Lives Matter-LA. “What happens when they’re not transparent with the public is it actually puts us in jeopardy,” she said. “What they’re doing is giving a green light for abuse.”

In Orange County, the sheriff’s department is “slow-rolling” its response to SB 1421, Sanders told The Appeal. The department has posted 16 use-of-force incidents on its website, out of “more than 100 reports that will be reviewed, redacted, and posted in response to the requests for 1421,” according to sheriff’s department spokesperson Carrie Braun.

For more than a year, Sanders tried to obtain records related to the deputies involved in the case of his client, Mohamed Sayem.

On Aug. 19, 2018, Sayem was punched repeatedly by Michael Devitt, an Orange County sheriff’s deputy and then arrested for felony resisting arrest and public intoxication. Devitt said he felt threatened by Sayem, but the incident, largely captured on dashboard camera video, shows Devitt dragging Sayem out of his car and punching him several times. Sheriff Sandra Hutchens, who left office in December, defended Devitt’s actions saying, “An appropriate use of force was utilized at that time.”

As Sayem’s case proceeded, Sanders filed what’s known as a Pitchess motion to obtain personnel records for Devitt and the other deputies involved in the incident, to determine if any had faced previous allegations of misconduct or excessive force. Sanders also requested documents related to internal investigations into the incident. Under Brady v. Maryland, the sheriff’s department has a constitutional obligation to turn over evidence that could be used to impeach the credibility of a state’s witness, including a member of law enforcement.

But the county counsel and the sheriff’s department have given conflicting statements about the department’s record-sharing policies, raising questions about exactly what information is generally provided to the court, which determines whether it can be disclosed to the defense.

In a meeting in the judge’s chambers last December, Deputy County Counsel Kayla Watson said she was sharing the use-of-force summary for Sayem’s arrest out of “an abundance of caution,” but did not think it was responsive to Sanders’s motion because an internal affairs investigation was not conducted and “there’s no complainant, and there is no mention of excessive force.” When contacted by the Orange County Register, Braun explained the policy slightly differently. She said if force is deemed to be within department policy, it is not required to be shared under a Pitchess motion.

The Orange County sheriff’s department and the district attorney’s office declined to address questions from The Appeal, noting that that the questions involve a case that is currently being prosecuted. The county counsel, which represents the sheriff’s department, did not respond to requests for comment.

“We at this point have no idea how they’re making the call,” Sanders said of the Orange County sheriff’s office. “It erodes completely the faith that anybody would reasonably have that any rules are being followed.”

Sanders is particularly concerned that if the department is withholding all reports on force that it found to be within its policy, it is eliminating most of the reports. Between 2013 and 2018, there were 108 use-of-force complaints, out of which 37 were sustained, according to data released by the department.

Use-of-force reports posted on the Orange County sheriff department’s website show that even when serious injuries are caused, incidents won’t necessarily be determined to involve excessive force. On April 2, 2015, for instance, one deputy opened the door of a prisoner’s cell and told him he had to be handcuffed. The prisoner threw his sandals against the wall, and said, “‘You’re not fucking handcuffing me,’ and took a fighting stance,” according to internal reports on the incident. The deputy put him in a carotid restraint, a controversial hold that compresses the neck. The prisoner fell unconscious. The deputy’s actions were found to be within policy, according to the sheriff department’s records, though the supervising officers recommended that he receive training on alternate uses of force.

In another incident, a deputy punched a prisoner multiple times in the face during a cell extraction, according to the use-of-force summary prepared by the sheriff’s department. And in another, a deputy pulled his gun on a man who appeared intoxicated as he ran away. When another deputy caught up with him, he elbowed the man in the face multiple times, breaking his nose and cheekbones, according to the department’s reports. The deputy said he was acting in self-defense; his actions were found by his sergeant to be within policy.

Somil Trivedi, a staff attorney with the ACLU, said that rather than have the department decide what to share with the court, a judge should decide what is and isn’t relevant.

“If you let the agency itself determine whether its officers have committed use of force, it’s a conflict of interest,” said Trivedi. “There could be information that qualifies under Brady … that is not necessarily corroborated under the sheriff’s own policy.”