November 2021 Warning Bells article

 

Is SB2 Good for You?

Not hardly.  This act changes the law to allow POST to decertify you as a peace officer for various acts of misconduct.  It can neutralize the penalty decision of a Board of Rights or the Chief of Police, and not in a good way.  It was signed by the governor and is on the books.  The full act can be read here.  This gives the state greater power over local law enforcement.
Senator Bradford wrote the bill.  It was originally much more detrimental than the final signed form because the League spent hours in Sacramento lobbying the legislators resulting in some of the more onerous sections to be removed.
Let’s go through the main points.  It is something you very much need to know to guide your actions in the future.  It literally can mean your job.  If you read nothing else, at least pay attention to Section 13.
Section 1-the name of the act:  The act will be known as the Kenneth Ross Jr. Police Decertification Act of 2021.  Ross was killed in a police shooting on 4-11-18 after Gardena officers received calls of multiple shots being fired at a business.  Ross ran from the officers.  During the foot pursuit he was shot by an officer.  The officer was cleared by the District Attorney.  The officer believed Ross was going to fire at him.  A 9mm handgun was recovered from Ross’ pocket loaded with 2 rounds and 3 loaded magazines were in his backpack.  Controversy arose over whether the officer’s observations justified shooting.  Senator Bradford responded with SB2.
Section 2-legislative findings:  The legislature makes “findings” that assist in interpreting the language in the bill for future court cases.  Among other things they find that there is a strong interest that officers do not abuse their authority; California is one of only 4 states that do not allow officers to be decertified for misconduct; California officers have some of the highest rates of killing in the nation and 3 out of 4 people killed are minorities; that the state should insure that officers who abuse their authority are removed from the streets; that decertification shall be under independent civilian control; that California law immunities too often lead to officers escaping accountability.  You get the drift.
Section 3-state immunity provisions are eliminated for officers: “The state immunity provisions provided in Sections 821.6, 844.6, and 845.6 of the Government Code shall not apply to any cause of action brought against any peace officer or custodial officer.”  It is unknown how this will play out.  The sections allowing for indemnification of employees of a public entity were left intact.
Section 4-those barred from being a police officer is expanded:  Section 1029 of the Government Code is being amended.  You may be familiar with this section because it bars anyone convicted of a felony from being a law enforcement officer.  It adds several additional categories that will make a person ineligible to be an officer such as:
1)a person discharged from the military for any offense which would be a felony in California,
2) eligibility to be an officer will not be regained if after conviction a court vacates, expunges, dismisses, or reverses the conviction unless there is a finding the person was factually innocent,
3) a person convicted under a “clear and convincing” standard of proof in any administrative, military, or judicial process of certain provisions of the Penal Code having to do with falsifying a document, perjury, false evidence, false statements in a police report, bribery, falsifying evidence, intimidation of a witness, influencing witness testimony, willful refusing to receive or arrest a person charged with a crime, including dozens of other sections related to these sections.
4) anyone who has had their POST certificate revoked, voluntarily surrendered, or has been denied a certificate.
5) any officer who is listed in any federal data base who has had their certification revoked.
Section 5-access to peace officer records:  The Commission on POST is added to 837.2 PC as one of the entities to which the confidentiality of peace officer records does not apply.  They join the grand jury, district attorney, and attorney general who have access to personnel records.
Section 5.5-adds records subject to California Public Records Act:  AB 1421 has been expanded to include:
1) a sustained finding involving a complaint that alleges unreasonable or excessive force,
2) a sustained finding that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive,
3) “Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in conduct including, but not limited to, verbal statements, writings, online posts, recordings, and gestures, involving prejudice or discrimination against a person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status,”
4) “Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that the peace officer made an unlawful arrest or conducted an unlawful search.”
Section 6-POST given more powers:  POST is given the power to investigate and determine the fitness of any person to serve as a peace officer and to audit any law enforcement agency without cause and at any time.
Section 7-POST limitations cancelled:  Section 13506 of the Penal Code restricting POST from cancelling a certificate was eliminated.
Section 8-an investigation division is created in POST:  a division staffed with a sufficient number of experienced employees capable of handling complex decertification investigations, prosecutions, and administrative proceedings against peace officer will be created.  They will be responsible for reviewing investigations conducted by agencies, conduct additional investigations, and present findings.  The commission shall establish procedures for accepting complaints from members of the public.
Section 9-a board will be created to recommend decertification:  POST will establish the Peace Officer Standards Accountability Advisory Board by January 1, 2023 to make recommendations for decertification.  The board shall have nine members:

• One member shall be a peace officer or former peace officer with substantial experience at a command rank to be appointed by the Governor,
• One member shall be a peace officer or former peace officer with substantial experience at a management rank in internal affairs proceedings to be appointed by the Governor,
• Two members shall be members of the public who shall not be former peace officers, who have substantial experience working at nonprofit or academic institutions on issues related to police accountability. One appointed by the Governor and one by the Speaker of the Assembly.
• Two members shall be members of the public, who shall not be former peace officers, who have substantial experience working at community-based organizations on issues related to police accountability. One appointed by the Governor and one by the Senate Rules Committee.
• Two members shall be members of the public, who shall not be former peace officers, with strong consideration given to individuals 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. Both 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.

 
Hmmm.  Does the medical review board for doctors include 2 patients who have had the wrong leg sawed off during an operation?
Section 10-changes the heading in Article 2:  Now Field Services, Standards, and Certification.
Section 11-adds language to the purpose of POST:  “upholding” minimum standards is added.
Section 12-changes to the certification program:  POST certificates are now property of the commission.  A unique tracking number will be created for each officer for tracking purposes.  The commission has authority to suspend, revoke, or cancel any certificate.  Only persons with a certificate can be employed as peace officers.
Section 13-grounds for decertification:  This section is where the rubber meets the road.  The following acts of misconduct are what the commission will base decertification upon.

1. 1. Dishonesty relating to the reporting, investigation, or prosecution of a crime or in the reporting of, or investigation of a misconduct investigation,
2. 2. False statements, intentionally filing false reports, tampering with, falsifying, destroying, or concealing evidence.
3. 3. Tampering with data recorded by a body-worn camera or other recording device to conceal misconduct.
4. 4. Abuse of power, including but not limited to, knowingly obtaining a false confession or false arrest.
5. 5. Physical abuse, including, but not limited to, the excessive or unreasonable use of force.
6. 6. Sexual assault.
7. 7. Demonstrating bias on the basis of race, national origin, religion, gender identity or expression, housing status, sexual orientation, mental or physical disability, or other protected status in violation of law or department policy or inconsistent with the obligation to carry out duties in a fair and unbiased manner.
8. 8. Acts that violate the law and are sufficiently egregious or repeated as to be inconsistent with a peace officer’s obligation to uphold the law or respect the rights of members of the public.
9. 9. Participation in a law enforcement gang that intentionally violates the law or fundamental principles of professional policing.
10. 10. Failure to cooperate with an investigation into potential police misconduct.
11. 11. Failure to intercede when present and observing another officer using force that is clearly beyond that which is necessary.

An action by an agency or decision resulting from an appeal of an agency’s action does not preclude the commission from investigating or decertifying an officer.  Also, the commission has the power to temporarily suspend an officer’s certificate during the investigation of serious misconduct.
As to the question of how far back the commission can go into an officer’s record depends on the nature of the conduct.  The commission can only go back and decertify an officer for conduct that occurred before January 1, 2022, in the following types of misconduct:

1. 1. Dishonesty relating to the reporting, investigation, or prosecution of a crime, or relating to the reporting of, or investigation of misconduct by, a peace officer or custodial officer, including, but not limited to, false statements, intentionally filing false reports, tampering with, falsifying, destroying, or concealing evidence, perjury, and tampering with data recorded by a body-worn camera or other recording device for purposes of concealing misconduct.
2. 2. Sexual assault.
3. 3. Physical abuse, including, but not limited to, the excessive or unreasonable use of force resulting in serious bodily injury or death.
4. 4. If the employing agency makes a final determination regarding its investigation of the misconduct after January 1, 2022.
5. 5. The commission is not prevented from considering prior misconduct in determining whether revocation is appropriate. In other words, priors can be considered regardless of when they were adjudicated.

        Section 14-procedure when finding grounds for revocation:  The following steps are required when the division decides to decertify an officer.

1. 1. The officer must be promptly notified of the decision, the reasons for the decision, and notification on how to appeal the decision.
2. 2. The officer has 30 days to file a request for a review of the determination with the board.
3. 3. The board will review the findings of the investigation division and will recommend revocation if the factual basis is established by clear and convincing evidence.  The board may also recommend revocation for a period of time.  They must issue a written decision.
4. 4. The commission shall review all recommendations made by the board and shall require a two-thirds vote to support the board’s conclusion that serious misconduct has been established by clear and convincing evidence.
5. 5. If action is to be taken against the officer, the division shall initiate proceedings for a formal hearing before an administrative law judge per the Administrative Procedure Act.
6. 6. The records of the appeal shall be public.
7. 7. The commission shall publish the names of any peace officer whose certification is suspended or revoke and the basis to the National Decertification Index.

     Section 15-reporting requirements of local agencies:  Beginning January 1, 2023, agencies within 10 days shall report the below events to the commission:

1. 1. The appointment, termination, or separation from employment of any peace officer.
2. 2. Any complaint, charge, or allegation of misconduct that could render a peace officer subject to suspension or revocation of certification.
3. 3. Any finding or recommendation that an officer engaged in any conduct that could render a peace officer to suspension or revocation of certification.
4. 4. The final disposition of any investigation that determines a peace officer engaged in conduct that could render a peace officer subject to suspension or revocation of certification.
5. 5. Any civil judgment, settlement, or court finding against a peace officer that or agency based on conduct that could render a peace officer subject to suspension or revocation of certification.
6. 6. Agencies must share their investigation materials with the commission.
7. 7. Before employing an officer, who has been previously employed as an officer, the agency must contact the commission to inquire as to why the officer left the previous agency.
8. 8. The commission shall notify the head of the agency that employs an officer of the facts and findings of the commission.

     Section 16-commission reporting requirements:  The commission shall prepare an annual report on its activities, actions, certification, hearings, and decertification.
Obviously, this is just a summary of a 13,975-word legal bill now made into a statute.  I encourage you to read it yourself.  These are just the highlights.  This bill will create a sea change in law enforcement in California.  The state now has major control of local agencies regarding their discipline of officers.
Be legally careful out there.