For Immediate Release - September 28, 2020

OPEN LETTER TO THE COMMUNITY


Sep 28, 2020

Dear fellow Angelenos:

Long before I entered this race, significant concerns were raised by law enforcement officials, civil rights attorneys, activists, and others regarding incumbent District Attorney Jackie Lacey鈥檚 handling of police use of force cases. Over the summer, these concerns reached a fever pitch in the aftermath of numerous high-profile shootings. Public trust in her decision-making process has further been undermined by the enormous sums of financial support the District Attorney has received from the law enforcement unions representing the many officers she has failed to hold accountable.

As you may know, I began my 40-year career in law enforcement walking a beat for the Los Angeles Police Department鈥檚 Hollywood Division. I, myself, have faced difficult encounters as a police officer in which I could have used force but chose not to. Later in my career I taught use of force policy to new sergeants鈥攐ne of the most critical levels of supervision and oversight in a police department鈥攁nd subsequently, as a police chief in both progressive and conservative American cities, I made disciplinary decisions related to officers who had inappropriately used force. Later, as a District Attorney, I made criminal charging decisions related to officers who used excessive force.

From beat cop to elected prosecutor, I have seen first-hand the destructive consequences of policing practices that are harsh, unjust, or unfair. Such practices undermine police legitimacy, the public鈥檚 trust, community safety, and the moral authority of the criminal justice system. This is validated by decades of research showing that lower levels of trust in police significantly decrease the likelihood that people will report crimes or cooperate with law enforcement. For these reasons, law enforcement accountability is not only the civil rights fight of this generation, it also has significant implications for the health and safety of our entire community.

With fear being used by both Donald Trump and Jackie Lacey to denigrate a social justice movement as 鈥渁narchist鈥 in an effort to divide us along social and racial lines, it is important that those of us seeking to be your leaders provide you with facts and specifics instead of panic and platitudes. The public deserves an opportunity to make an informed decision when choosing their top law enforcement official, and to know how each candidate differs in their view and approach to police use of force cases. What鈥檚 more, in light of Jackie Lacey鈥檚 multi- million-dollar conflict of interest, achieved by the huge sums of direct and indirect financial support from the unions representing the involved-officers, public trust demands an objective review of the cases she has declined to charge.

For these reasons, over the summer former Inspector General for the Los Angeles Police Department and retired judge, Katherine Mader, along with former Senior Trial Attorney from the Civil Rights Division of President Obama鈥檚 Department of Justice, Je Yon Jung, have been reviewing police use of force cases District Attorney Jackie Lacey declined to charge. Based on their findings and recommendations, in conjunction with my own view of the cases and for the reasons stated below, I have decided that I will reopen investigations into the following officer- Involved-shootings if elected as Los Angeles District Attorney. 鈥淩eopening鈥 an investigation requires a review of all available evidence, including the full taped interviews of witnesses, interviews of additional witnesses as necessary, analysis of the forensic evidence, and a re- evaluation of the District Attorney鈥檚 decision to close these cases in light of the applicable law.

This is not intended to be an exhaustive list of cases that require an objective review and our review of cases is ongoing. Additionally, I have detailed concerns below related to five more cases that either remain under investigation or in which the statute of limitations has passed where I believe charges may be appropriate.

I. The initial cases I pledge to reopen are as follows:

1. Brendon Glenn, Los Angeles Police Department, 2015. Video available here.

According to public records, a homeless and mentally ill man, Brendon Glenn, was heavily intoxicated and struggled with police officers at-length. It was during this struggle that LAPD Officer Proctor pulled out his firearm and shot Mr. Glenn twice in the lower back flank.

DA Jackie Lacey鈥檚 report declining to bring criminal charges relies heavily on still photos and inconclusive DNA evidence to support Officer Proctor鈥檚 position that he feared that Glenn was reaching for his partner鈥檚 gun when he shot him twice in the back. Additionally, immediately after the shooting, his partner, Officer Kawahara, stated that he did not know why Officer Proctor opened fire. Officer Kawahara never told Officer Proctor that Glenn was reaching for his firearm. Officer Kawahara also was inexplicably interviewed a second time seven months after his original statement and was shown videos of the incident. He did not change his prior statements and articulated what was on the video, namely that Glenn鈥檚 hand was around his leg.

Glenn was extremely intoxicated, raising questions as to his capacity to remove any weapon from Officer Kawahara鈥檚 holster (i.e., firearm on his left side or a taser from his right side), let alone pull it out, remove the safety, point and shoot. At the moment Officer Proctor pulled out his firearm and fired, Glenn was fully bent over and facing the ground while both officers were positioned near his back. Glenn鈥檚 right hand was not visible to Officer Proctor, having been obstructed by his partner鈥檚 body. Officer Kawahara鈥檚 gun was on his left side, however, which is the same side as Officer Proctor and therefore visible to him.

Significant questions exist as to the objective reasonableness of Officer Proctor鈥檚 position that Glenn was reaching for a weapon and his corresponding use of deadly force against Brendon Glenn. Indeed, then-LAPD Chief Charlie Beck called on Jackie Lacey to criminally charge Officer Proctor for this shooting. Nevertheless, DA Lacey declined to bring criminal charges.

2. Ricardo Diaz Zeferino, Gardena Police Department, 2013. Video available here.

According to public records, Ricardo Diaz Zeferino along with his brother, one of whom was the victim of a bicycle theft, were mistaken by police as the bicycle theft suspects. Despite the absence of any weapons, aggressive threats, or acts of violence by the subjects, Officer Mendez and Sergeant Cuff exited their vehicle with guns drawn. They directed the three subjects to put their hands in the air without first identifying the individuals to determine if they had committed a crime. Zeferino initially complied, but throughout the incident with guns drawn at them, Zeferino dropped and raised his hands repeatedly. During these movements, Officer Mendez stated to his partner, 鈥淚f he drops his hands again I am going to shoot him.鈥 Zeferino dropped his hands and a total of 13 shots from 3 officers were fired, 8 of which hit Zeferino who was killed. One of the other subjects was also hit by police gunfire, hospitalized, and survived. No subject weapons were recovered. The entire incident lasted less than one minute.

Jackie Lacey鈥檚 office closed their investigation relying on the justification from a use of force expert that it was a 鈥渢ense situation with rapidly evolving circumstances鈥 and that the shooting could not be analyzed in hindsight. That conclusion seemingly defies the very purpose of the District Attorney鈥檚 role in reviewing the legality of police use of force.

Simply stated, the failure to comply with a command from an officer is not a justification for deadly force. The officers never assessed whether there was an alternate explanation for Zeferino鈥檚 failure to comply such as intoxication or cognitive impairment. In the absence of a threat, the officers had a duty to investigate the men further and could have retreated, waited for back-up, and tried to figure out what was happening. Moreover, once again, DA Lacey points to the fact that one of Zeferino鈥檚 hands 鈥渨as no longer visible鈥 and concludes, 鈥渢hus, it is reasonable to believe that the officers lost sight of Zeferino鈥檚 right hand and believed he was going to reach for a weapon.鈥 What鈥檚 more, as video of the incident details both of Zeferino鈥檚 hands were in fact visible at the time shots were fired.

I fundamentally disagree with DA Lacey鈥檚 position that they were, 鈥渘ot required to hold fire in order to ascertain whether Zeferino would, in fact, injure or kill them.鈥 None of the subjects acted aggressively, and in the absence of an imminent threat, there was no objectively reasonable basis to believe that he had a weapon. Mere conjecture and suspicion cannot justify using deadly force, as such a conclusion sets the precedent that, even in the absence of a tangible threat, a police officer can shoot and kill someone for failing to follow a command merely because there is a remote possibility that the person might have a weapon, pull it out, point, and shoot. If that were the standard, every call for service would allow for such a possibility, and, thus, enable the use of deadly force regardless of the circumstances. Such a precedent is inappropriate and is a far broader authorization to use force than the law allows.

Ultimately, the police and DA鈥檚 post-hoc argument that Zeferino was ignoring instructions鈥搘ith his hand dropping to his pocket and waist鈥揹oes not justify lethal force especially when no weapon was suspected. He never reached in his pocket or waistband. Further, Zeferino had dropped his hands twice before and raised them back up without being shot, without previously reaching for a non-existent weapon, and was holding his baseball hat in his hands when he was ultimately repeatedly shot. There are therefore serious questions as to the objective reasonableness of imminent fear of death or serious bodily injury to the officers. As stated by Officer Mendez, they shot Zeferino because he failed to keep his arms in the air and was not complying with their demands.

3. Hector Morejon, Long Beach Police Department, 2015. No video available.

According to public records, Long Beach police officers responded to the scene of a possible trespass. While the area was known to have gang activity, the officers had no information or reason to believe anyone inside the residence was in danger or that there was a need for an emergency response. Nonetheless, while the officers were waiting for the property manager to give them access to the property, Officer Meyer, without notifying his partner, left to investigate further.

Despite the absence of any threat, Meyer walked down an alley, drew his service weapon and surreptitiously approached an open window. Meyer activated the flashlight on his service weapon and pointed the gun in through a window. He did not announce his presence, identify himself as a police officer, nor did he give any commands to the occupants of the residence. Instead, he pulled back the blinds and scanned the room with his firearm.

Meyer said that when he looked in the window Hector Morejon turned toward him, raised his right arm and took a 鈥渇iring stance.鈥 Meyer states that at that moment he was afraid Morejon was about to shoot him and therefore discharged his service weapon in self-defense.

No weapon was found inside the residence, immediately adjacent to the residence or on Morejon鈥檚 person. Further, the autopsy report establishes that Morejon was shot in the back.

Jackie Lacey focused almost exclusively on the lack of credibility of the witnesses inside the residence in declining to prosecute this case. Oddly, her declination ignores the physical evidence which directly casts a doubt on the credibility of statements made by Officer Meyer that, 鈥淢orejon turned quickly to his right while 鈥榮imultaneously turning at me and raising and extending his right arm in my direction in one movement.鈥欌 Or that, 鈥淢eyer saw a 鈥榙ark object鈥 protruding from Morejon鈥檚 right hand and saw Morejon take a 鈥榝iring stance.鈥欌

Taking a firing stance required Morejon to face Officer Meyer, and that does not square with a bullet entering Morejon in the back. The report stated that the shooting officer was reckless in his tactics, and likely provoked the decedent鈥檚 response. The investigation was closed nonetheless.

4. Christopher Deandre Mitchell, Torrance Police Department, 2018. Video available here.

According to public records, Christopher Deandre Mitchell was in a suspected stolen vehicle in a parking lot. Torrance PD Officers arrived on the scene and approached the driver鈥檚 side of the vehicle. As can be seen in body camera footage, Officer Concannon approached the driver鈥檚 side with a flashlight on. Within a few seconds of contact with Mitchell, Officer Concannon orders Mitchell, 鈥淒on鈥檛 move!鈥 and then within a few seconds yells a contrary and confusing command, 鈥淕et out of the car!鈥 According to DA Lacey, 鈥淎bout one second after repeating [the get out of the car] command, the first shot was fired.鈥 An air rifle was recovered from the scene.

According to DA Lacey, the shooting was justified, in part, because Mitchell failed to follow directions, because of his efforts to conceal the object in his lap, because of the physical appearance of the object, and because of the movement of his hands toward the object. DA Lacey therefore deemed it reasonable for the officers to believe that the object was a firearm and to respond with deadly force.

As the video depicts, the scene of the incident was very dark. Officer Concannon鈥檚 flashlight was not on during the shooting because the officer reported that he turned it off and switched to a two-handed firing position. At no point during the confrontation did either officer report to their colleague that they had identified a weapon, as is standard protocol when an officer sees a gun in order to notify their partner of the perceived threat. Nonetheless, both officers later reported their perceptions that Mitchell was armed or that they had identified a weapon.

While both officers described seeing the stock of a long firearm between Mitchell鈥檚 legs after the shooting, DA Lacey鈥檚 declination includes no discussion of the omission at the time of the encounter. This has implications for the officers鈥 perceptions of an imminent threat at the time they used deadly force.

Furthermore, the declination does not make an effort to reconcile Officer Concannon鈥檚 commands not to move, directing Mitchell to get out of the car, and then shooting him one second later when the decedent moved. In order to comply with Officer Concannon鈥檚 command to exit the vehicle, Mitchell would have had to move his entire body, including his hands.

Additionally, in regard to the alleged threat posed by the long gun between Mitchell鈥檚 legs; using it would have posed a challenge. Mitchell, who was calm and did not act aggressively throughout the encounter, would have needed to pull the long gun out from between his legs, rotate it to his rear over his left shoulder while seated to point it at Officer Concannon, who was standing behind him to his left at the 7 to 8 o鈥檆lock position, potentially cock it, point it, and shoot it. Common-sense dictates that it would have taken time to awkwardly move a long gun in this manner to a rear-facing position to fire.

Finally, the report failed to address why the officer instructed Mitchell to get out of a vehicle if they knew that he had a weapon. These facts raise multiple questions as to the objective reasonableness of their perceptions of an imminent threat and their corresponding decision to use deadly force.

II. Cases I have concerns with that are beyond the statute of limitations or that remain open:

1. Marlene Pinnock, California Highway Patrol, 2014. Video available here.

According to public records, Marlene Pinnock was walking on a busy freeway during rush hour. Officer Andrew approached Pinnock, and forced her to the ground to restrain her from moving and remove her from danger. The issue in this case is the amount of force used to subdue Pinnock. I believe that once Officer Andrew brought Pinnock to the ground there was no need to use additional force by punching her ten times.

In support of her declination, DA Lacey stated that Officer Andrew, 鈥渦sed reasonable force to effect the arrest, to prevent escape, and to overcome resistance to prevent Pinnock from killing herself or another, or injuring herself or another.鈥 Moreover, DA Lacey indicates that Pinnock was being combative and non-cooperative.

There is no doubt that Ms. Pinnock was not complying with orders to exit the freeway properly and safely, and that Officer Andrew was rightly agitated and frustrated. It appears that, as a result of his frustration鈥揳nd even after Pinnock was on the ground鈥揾e proceeded to punch her repeatedly to the head and shoulders. If Officer Andrews was attempting to protect Ms. Pinnock, that protection ended when he threw her on the ground and began to punch her ten times, pausing once before continuing the battery.

While DA Lacey鈥檚 report points to Pinnock鈥檚 resistance, that resistance appears to be her defending herself against multiple punches to the head. There are also serious questions about the proportionality of Officer Andrew鈥檚 use of force compared to Pinnock鈥檚 alleged resistance. While this case cannot be criminally charged due to statute of limitations having expired, it is one of many examples in which DA Lacey鈥檚 office failed to evaluate the objective reasonableness of an officer鈥檚 actions.

2. Ryan Twyman, Los Angeles Sheriff’s Department, June 6, 2019. Investigation pending. Video available here.

According to available reports and video of the incident, the Los Angeles County Sheriff鈥檚 Department (LASD) was responding to a tip that Ryan Twyman, who was allegedly wanted for illegal possession of guns, was at the parking lot location depicted in the available video. As the video shows, Sheriff鈥檚 Deputies approached the vehicle with guns drawn and one deputy opened the back door of the vehicle. At that moment, the vehicle reverses and the deputy moves out of the way of the reversing vehicle, momentarily off balance. Deputies then shoot thirty-four bullets into the vehicle as it continues to reverse. In fact, one of the deputies returns to the trunk of his patrol car to obtain a rifle, and then continues to shoot additional rounds into the reversing vehicle.

According to LASD鈥檚 video statement, the officers fired their weapons because the passenger deputy was struck by the open door as the car reversed and they needed to stop the vehicle from 鈥渟eriously injuring the passenger deputy.鈥 However, as can be seen clearly, the deputies were able to move out of the path of the reversing vehicle as they continued to shoot into it.

Twyman was not armed and no weapons were recovered from the scene. The officers were able to get out of the path of the vehicle as it was reversing, and there were no weapons fired from the vehicle.

Relevant to determining the objective reasonableness of the Deputies鈥 actions, LASD鈥檚 policy along with national standards state that firearms shall not be discharged at a stationary or moving vehicle or its occupants unless someone in the vehicle is “imminently threatening a department member or another person present with deadly force by means other than the moving vehicle.” Furthermore, “the moving vehicle itself shall not presumptively constitute a threat that justifies the use of deadly force.”

Both officers were able to move out of the path of the vehicle. Not only did they move out of the way, they then proceeded to fire dozens of additional rounds into the vehicle as it was reversing away from them, and without anyone firing back at them or posing a threat.

3. Andres Guardado, Los Angeles Sheriff’s Department, June 18, 2020. Investigation pending. No video.

What we know thus far in this case is that 18-year-old Andres Guardado, a security guard, was confronted by deputies as he spoke with a passenger in a vehicle blocking a driveway. After being confronted, he ran from officers and was chased into an alley in the back of a building. Both the Los Angeles County Coroner and an independent autopsy have confirmed that Guardado was shot five times in the back, including potentially when he was already face down in a prone position. A 40-caliber semiautomatic was recovered from the scene. It was not fired and it is unclear whether the weapon was Guardado鈥檚, let alone whether he had aimed it at deputies.

There are severe issues of credibility involving Sheriff’s Deputies out of Compton station in light of the ongoing gang scandal. What鈥檚 more, the fact that Guardado was shot five times in the back raises serious doubts as to the necessity of lethal force. The deputies were unlikely facing an imminent threat of death or serious bodily injury if, as the physical evidence suggests, Guardado was not facing them.

4. Eric Briceno, Los Angeles Sheriff鈥檚 Department, March 16, 2020. Investigation pending. Video pending.

According to an autopsy report, initial reporting, and a statement of facts from the plaintiffs in a civil suit, Eric Briceno, 39, lived with his parents in their Maywood home and had suffered from schizophrenia since he was a teenager. On the morning of the incident Briceno and his father had an argument, and Briceno momentarily grabbed his father. There were no injuries, but Briceno鈥檚 mother called 911 having previously been told she could get mental health help for her son by calling 911.

Deputies arrived after Briceno had already left the house, and sheriff’s deputies told his mother to call them when he returned. When Briceno returned around 3:30 p.m. he apologized to his family and went to his room. His mother called sheriff’s deputies to let them know he was home, and that they could come to the house to speak with him. She told sheriff’s deputies that her son was neither armed nor violent.

When the deputies arrived she met them at the door. She told the deputies she would get her son from his bedroom because he always obeyed her, but the sheriff’s deputies pushed past her and went into Eric Briceno鈥檚 bedroom. After Briceno physically resisted the deputies in his bedroom, the deputies began to beat Briceno in the face and head, kneeled on his back, and tased him repeatedly. Briceno cried out that he could not breathe. His mother kept yelling at deputies to stop hitting her son. Briceno, unconscious, suffered a cardiac arrest and died.

This incident is extremely troubling because Sheriff鈥檚 Deputies failed to distinguish between a dangerous criminal and a mentally ill individual. Briceno鈥檚 mother, who knew him best, told deputies that her son was not violent and was unarmed, and there was no reason for them to force their way into his bedroom. Furthermore, with the mother telling Sheriff’s Deputies that she would retrieve her son, it is unclear if the Deputies even had consent to enter. With the precipitating incident occurring hours earlier, there were no exigent circumstances sufficient to justify the deputies鈥 entry. Briceno鈥檚 mother was asking for help, not for protection from her son.

5. Dijon Kizzee, Los Angeles Sheriff鈥檚 Department, August 31, 2020. Investigation Pending. Available video of incident here.

The Dijon Kizzee case is of deep concern from start to finish. Kizzee, 29, was stopped for an alleged unidentified bicycle code violation during afternoon hours by a supervising deputy sheriff and his trainee and began to flee. Troublingly, this appears to be a pretext stop of a Black male committing a minor traffic violation on a bicycle.

Statements have been evolving as to whether decedent Kizzee, allegedly hit a deputy, or dropped 鈥渃lothing鈥 or a 鈥渏acket鈥 to the ground. However, statements are consistent that a firearm fell from clothing to the ground and that the officers saw the gun. Nevertheless, the presence of a gun on the ground raises serious questions about an imminent threat and the corresponding necessity of using deadly force against Kizzee. Since the initial statements, deputies have given evolving statements as to whether Kizzee reached for the gun, grabbed the gun, or pointed the gun.

This case also illustrates the folly of allowing law enforcement unions to dictate when deputies have to give recorded statements describing what happened, potentially giving the deputies ample time to prepare their statements in a consistent manner. Delaying the timing of these statements may decrease their reliability, obstruct the truth, and undermine the fair administration of justice.

APPENDIX
About the Law in Police Use of Force Cases

The law gives immense latitude to police to use deadly force. However, a watershed moment that led me to fight for change was the fatal shooting in San Francisco of Mario Woods in 2018 when I was the elected District Attorney. I believed that the Woods shooting was fundamentally unnecessary, and that the involved-officers should have been held criminally liable. However, the law at that time did not legally or ethically support a criminal prosecution.

As a result of my combined experience with the Woods shooting and other cases鈥揳s a police officer, police chief and prosecutor鈥揑 proudly advocated for Assembly Bill 392 to limit the circumstances in which police can use lethal force. District Attorney Jackie Lacey did not support this effort, either because she believed the prior standard which enabled police to use force in more circumstances was appropriate, in order to appease the law enforcement unions that are financially backing her, or both.

Prior to Assembly Bill 392, California law deemed self-defense or defense of others to serve as a complete defense to murder and voluntary manslaughter so long as the officer (1) subjectively believed in the need to resort to force in order to avert a threat of imminent death or great bodily injury, and (2) his perceptions and actions were objectively reasonable under the circumstances.

The subjective prong of the self-defense standard examines the person鈥檚 belief in the need to use force. Contrary to DA Lacey鈥檚 incorrect statements that, 鈥渕any excessive force cases 鈥榖oil down鈥 to what was going on in the mind of the officer involved as the events were unfolding,鈥 prosecutors are seldom able to disprove a person鈥檚 subjective belief in the need to use force. In fact, there is nary a case where an officer facing potential criminal charges indicates that he did not believe he needed to use force. Therefore, the decision in these cases and almost every use of force case that a prosecutor reviews turns on whether an officer鈥檚 belief in the danger presented and the need to use force was objectively reasonable.

Please note that District Attorney Lacey has not released a decision in any deadly force case that occurred during the year 2020. Therefore, the incidents that DA Lacey has declined to prosecute that I am committing to reopen today occurred prior to January 1, 2020, and the new more restrictive legal standards set by Assembly Bill 392 would not apply. However, the Guardado, Kizzee and Briceno cases for which I have significant concerns all occurred after January 1, 2020. They are therefore subject to the standard established by Assembly Bill 392, which redefined the circumstances under which a homicide by a peace officer is deemed justifiable to include when the officer reasonably believes, based on the totality of the circumstances, that deadly force is necessary to defend against an imminent threat of death or serious bodily injury to the officer or to another person, or to apprehend a fleeing person for a felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless the person is immediately apprehended.

I do not take my experiences as an officer or as a prosecutor lightly, and these roles are neither mutually exclusive nor one and the same. While I know first-hand how difficult it is to fire a weapon at another human being, I also know that it is not a foregone conclusion that every police shooting is justified. The theme of Jackie Lacey鈥檚 tenure as District Attorney has been to justify the shootings first and to find the facts to support the conclusion second, while oftentimes ignoring inconsistent or contradictory evidence. That is not a faithful commitment to her role, and that is not the legal standard.

***