District Attorney Under Fire for Policy That Considers Looters' 'Needs' When Determining Charges

A California district attorney wants prosecutors to consider the “personal need[s]” of people arrested for alleged looting when determining how to charge them.

The mandate from District Attorney Diana Becton of Contra Costa County in the San Francisco Bay Area does not let suspected looters off the hook entirely.

However, it does give prosecutors several factors to consider in deciding whether a person should be charged with burglary, petty theft or grand theft, or with “looting.”

“In order to promote consistent and equitable filing practices the follow analysis is to be applied when giving consideration to filing of PC 463,” according to a copy of the guidelines released to East County Today.

When evaluating someone suspected of looting, a government attorney must ask the question: “Was this theft offense substantially motivated by the state of emergency, or simply a theft offense which occurred contemporaneous to the declared state of emergency?”

Among the factors to be considered in answering this question are the following: “Was the target business open or closed to the public during the state of emergency?” and “What was the manner and means by which the suspect gained entry to the target business?”

Other factors include, “What was the nature/quantity/value of the goods targeted?” and “Was the theft was committed for financial gain or personal need?”

The final factor, according to Becton’s office, reads: “Is there an articulable reason why another statute wouldn’t adequately address the particular incident?”

The policy is taking flak from the mayor of Antioch, which is one of the county’s biggest cities.

“When I read the policy, it was disturbing,” Antioch Mayor Sean Wright told East County Today.

“I understand the difference between protesting and looting. Peaceful protesting is OK, looting is not. For the district attorney to put out that kind of plan is irresponsible and where do you exactly draw the line on need because these are people’s businesses that are being impacted and livelihoods that are being destroyed,” Wright said.

Steve Aiello, president of the Antioch Police Officers Association, also panned the county’s guidelines, which, according to Snopes, were issued in June.

“It’s reckless for the district attorney’s office to have this type of policy because it hurts the community, local business and business owners. It shows the district attorney’s office is picking and choosing the types of crimes it will prosecute versus just following the laws on the books,” Aiello told the local outlet.

“At what point, does our district attorney’s office advocate for the victims.

“If it’s not the district attorney’s office, who then becomes the advocate and safety net for the victims and ensuring restitution is made,” he added.

Becton’s spokesman, Scott Alonso, defended the DA’s new stance on suspected looting crimes.

“The guidelines were put in place by DA Becton and her senior leadership team because of the pandemic. It is really important to underscore these guidelines are because of the COVID-19 shelter in place,” he told East County Today.

“We look at if the theft is because there is a state of emergency — or is this simply an offense contemporaneous to the state of emergency. We wanted to ensure consistency across the office in considering any criminal charges for alleged violations of PC 463,” Alonso added.

PC 463 is a reference to California Penal Code Section 463, which outlines definitions and punishments for the crime of looting.

The statue states: “Every person who violates Section 459, punishable as a second-degree burglary pursuant to subdivision (b) of Section 461, during and within an affected county in a ‘state of emergency’ or a ‘local emergency,’ or under an ‘evacuation order,’ resulting from an earthquake, fire, flood, riot, or other natural or manmade disaster shall be guilty of the crime of looting.”

The section adds looting is “punishable by imprisonment in a county jail for one year.”