California Capitol Watch: Bill to Strengthen Police Accountability Advances

By Eric Gelber

California is one of only four states that does not have a process for revoking peace officer certificates as a result of misconduct. (The others are Hawaii, New Jersey, and Rhode Island.) SB 2 (Bradford) would help ensure that peace officers who abuse their authority are held accountable.

What problem/issue would the bill address?

According to the author: “For years, there have been numerous stories of bad-acting officers committing misconduct and not facing any serious consequences. These officers remain on the force after pleading down to a lesser crime, if prosecuted and convicted at all. Other times, these problematic officers resign or are fired from their employer only to get rehired at another law enforcement agency and continue to commit serious acts of misconduct. California does not have a uniform, statewide mechanism to hold law enforcement officers accountable. Allowing the police to police themselves has proven to be dangerous and leads to added distrust between communities of color and law enforcement.”

SB 2 includes legislative findings and declarations including the following:

• As the Legislature and courts of this state have repeatedly recognized, police officers, sheriffs’ deputies, and other peace officers hold extraordinary powers to detain, to search, to arrest, and to use force, including deadly force. The state has a correspondingly strong interest in ensuring that peace officers do not abuse their authority, including by ensuring that individual peace officers who abuse their authority are held accountable.
• In 2017, 172 Californians were killed by the police, and our state’s police departments have some of the highest rates of killings in the nation. Of the unarmed people California police killed, three out of four were people of color. Black and Latino families and communities of color are disproportionately vulnerable to police violence, creating generations of individual and community trauma.
• More than 200 professions and trades, including doctors, lawyers, and contractors are licensed or certified by the State of California, in order to maintain professional standards and to protect the public. Law enforcement officers are entrusted with extraordinary powers including the power to carry a firearm, to stop and search, to arrest, and to use force. They must be held to the highest standards of accountability, and the state should ensure that officers who abuse their authority by committing serious or repeated misconduct, or otherwise demonstrate a lack of fitness to serve as peace officers, are removed from the streets.
• To ensure public trust that the system for decertification will hold peace officers accountable for misconduct and that California’s standards for law enforcement reflect community values, it is the intent of the Legislature that the entities charged with investigating and rendering decisions on decertification shall be under independent civilian control and maintain independence from law enforcement.
• Civil courts provide a vital avenue for individuals harmed by violations of the law by peace officers to find redress and accountability. But the judicially created doctrine of qualified immunity in federal courts, and broad interpretations of California law immunities and restrictive views on the cause of action under the Tom Bane Civil Rights Act, too often lead to officers escaping accountability in civil courts, even when they have broken the law or violated the rights of members of the public. The civil court process should ensure that peace officers are treated fairly, but that they can be held accountable for violations of the law that harm others, especially the use of excessive force.

What would the bill do?

The Commission on Peace Officer Standards and Training (POST) was established to set minimum standards for the recruitment and training of peace officers, develop training courses and curricula, and establish a professional certificate program that awards different levels of certification based on training, education, experience, and other factors. While POST is authorized to cancel a certificate that was awarded in error or fraudulently obtained, it is prohibited from canceling a properly issued certificate.

SB 2 would grant POST the power to investigate and determine the fitness of any person to serve as a peace officer in the state of California and to audit any law enforcement agency that employs peace officers without cause at any time.

SB 2 would authorize POST to revoke a certificate on grounds including the use of excessive force; sexual assault; making a false arrest; discrimination based on race, national origin, religion, gender identity, housing status, sexual orientation, mental or physical disability or other protected status; falsifying evidence; coercing confessions; the use of drugs while on duty; and participating in a law enforcement gang. The bill would make all records related to the revocation of a peace officer’s certification public and would require that records of an investigation be retained for 30 years.

The bill would require law enforcement agencies to only employ peace officers with current, valid certification or pending certification. As a result, revoking a certificate would mean that a peace officer who loses their job because of serious misconduct would be unable to obtain employment with another department.

SB 2 would also require law enforcement agencies to report to POST: The employment, appointment, or separation from employment of a peace officer; any complaint, charge, allegation, or investigation into the conduct of a peace officer that could render the officer subject to revocation; findings of civil oversight entities; and civil judgements that could affect the officer’s certification.

California’s Tom Bane Civil Rights Act authorizes a cause of action against a person who uses threats, intimidation, or coercion to interfere with the ability of another person in the exercise and enjoyment of any rights guaranteed under the U.S. or California constitutions, or any right guaranteed under federal or state statute. Some courts have restrictively interpreted the Bane Act to require that threats, intimidation, or coercion must be committed with the specific intent to interfere with the person’s rights. Other courts have found that only general intent is required. SB 2 would resolve these conflicting views in favor of not requiring the intent element.

Right now, in California, police officers who plant or fabricate evidence, or lie to have criminal charges filed against innocent people, are immune from liability under the Bane Act. Jails are immune from liability even when jail guards maliciously beat and injure people or withhold needed medical treatment without reason. SB 2 would eliminate these and other specified immunity provisions for peace officers, custodial officers, or public entities employing peace or custodial officers. These include immunity provisions based on liability for injuries caused to persons in custody and failure to obtain medical care for a person in custody.

SB 2 would create the Peace Officer Standards Accountability Division within POST, with primary responsibility for reviewing potential grounds for decertification of peace officers, conducting investigations into serious misconduct that may provide grounds for decertification, and presenting findings and recommendations to a newly established Peace Officer Standards Accountability Advisory Board (Advisory Board) and POST. The purpose of the Advisory Board would be to make recommendations on the decertification of peace officers to POST.

The Advisory Board would consist of nine members, as follows:

• 1 peace officer or former peace officer with substantial experience at a command rank – appointed by the Governor.
• 1 peace officer or former peace officer with substantial experience at a management rank in internal investigations or disciplinary proceeding of peace officers – appointed by the Governor.
• 2 members of the public, who are not former peace officers, who have substantial experience working at nonprofit or academic institutions on issues related to police misconduct – one appointed by the Governor and the other appointed by the Speaker of the Assembly.
• 2 members of the public, who are not former peace officers, who have substantial experience working at community-based organizations on issues related to police misconduct – one appointed by the Governor and one by the Senate Rules Committee.
• 2 members of the public, who are not former peace officers, who have been subject to wrongful use of force likely to cause death or serious bodily injury by a peace officer, or who are surviving family members of a person killed by the wrongful use of deadly force by a peace officer – appointed by the Governor.
• One member shall be an attorney, who shall not be a former peace officer, with substantial professional experience involving oversight of peace officers, appointed by the Governor.

Comments

In support of SB 2, the ACLU notes that “the decertification process increases accountability of peace officers at the statewide level in various ways. The bill requires law enforcement agencies to report to POST all fired officers or officers that resign in lieu of a termination, requires hiring agencies to contact POST and inquire as to the facts and reasons for an officer being separated from their former employer before hiring the officer, and adds the names of decertified officers to a national database.”

The ACLU further notes that “State civil rights protections have become far more important because conservative federal judges have invented the concept of “qualified immunity” to block recovery for violations of rights under federal law. Without robust state civil rights protections, those who are injured, and their families have no way to hold officers accountable. But state protections have likewise been degraded by court interpretations that have watered-down the Bane Act’s original objectives by requiring specific intent, allowing absolute state immunities, and denying any responsibility when victims are killed instead of merely injured.

“SB 2 takes a targeted approach to correcting the most egregious of these immunities. The bill removes the following three immunities: police officer immunity for malicious prosecution, failure to provide medical care to prisoners, and injuries to a prisoner violating their rights often related to excessive use of force. The narrowed language clarifies that the immunities are barred for peace officers or the peace officer’s employer.”

In opposition to SB 2, the Peace Officers’ Research Association of California (PORAC), states that it “fully supports the license revocation of officers who demonstrate gross misconduct in law enforcement.” However, PORAC opposes the bill because it would purportedly “over-ride due process” because the nine-member Advisory Board established to oversee the license revocation process “includes 7 members of the public with no requirements for expertise power or prior experience in the practice of public safety or law enforcement, with one of the seven actually biased against the peace officer, and only 2 members with expertise or prior experience.”

“In addition,” PORAC asserts, “this body will have complete investigatory authority to overturn local agency and District Attorney recommendations and discipline. Ultimately, it will have to end a peace officer’s career with little or no due process for the officer.”

PORAC’s due process concerns are somewhat misplaced. The Peace Officer Standards Accountability Division, not the Advisory Board, has primary responsibility for reviewing potential grounds for decertification of peace officers, conducting investigations into serious misconduct that may provide grounds for decertification, and presenting findings and recommendations to the Advisory Board, which is intended to provide civilian oversight. The Advisory Board only makes recommendations to POST on decertification; POST makes the ultimate decision.

PORAC concludes, “[u]ltimately, this bill creates an inherently amateurish and potentially biased panel to oversee the process of revoking an officer’s license to practice law enforcement, ignoring our country’s tradition of due process and subjecting officers to a biased review of their actions where guilt is assumed, and the deck is stacked against them. Peace officers cannot possibly do their job if there’s always a lingering fear that even if they do the job by the book and up to policy standard, they could still potentially face a civil action. No employee should have to work under those conditions.”

SB 2 is one of several police accountability bills making their way through the Legislature. Others include:

• AB 718 (Cunningham), which would require law enforcement agencies to complete investigations into police misconduct and questionable use of force even after an involved officer has resigned. It would also require a police agency to share the investigation’s findings with another law enforcement agency if the person applies to work as a law enforcement officer in another jurisdiction.
• AB 89 (Jones-Sawyer) that would require law enforcement recruits to either be 25 years old (vs. the current 18) or to have at least a bachelor’s degree.
• AB 750 (Jones-Sawyer) would hold police officers accountable when they make false reports by closing a legal loophole to evade criminal charges by having a second officer write and file the report for them.
• SB 271 (Wiener) would repeal existing law, enacted in 1989, specifying that a person is not eligible to become a candidate for the office of sheriff unless the person has specified peace officer certification.

SB 2 was heard in the Senate Public Safety Committee on April 13^th and passed on a vote of 4-0. It is currently set for hearing on April 27^th in the Senate Judiciary Committee.

Eric Gelber, now retired, is a 1980 graduate of UC Davis School of Law (King Hall). He has nearly four decades of experience monitoring, analyzing, and crafting legislation through positions as a disability rights attorney, Chief Consultant with the Assembly Human Services Committee, and Legislative Director of the California Department of Developmental Services.

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