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California Senate Bill 2: police reforms

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(I wrote this analysis for two reasons: First, the bill is very important in that it would create a new statewide agency, with unprecedented new powers, to oversee all uniformed peace officers in the State, and secondly because several organizations I’m working with asked me to. All interpretations are my own, and I apologize if I got anything wrong.)

This Bill is sponsored by Senate Democrats.

Its primary external sponsors are:

Alliance for Boys and Men of Color

ACLU of California

Anti-Police Terror Project

Black Lives Matter Los Angeles California

Families United 4 Justice

Communities United for Restorative Youth

Justice PolicyLink

STOP Coalition

UDW (United Domestic Workers Union)/AFSCME Local 3930

Youth Justice Coalition

In addition, dozens of other nonprofits and organizations are listed as “Supporters.”

Status: Introduced on Dec. 7, 2020. The next hearing is before the Senate Public Safety Committee on April 27, 2021.

In a nutshell, Law enforcement officers convicted of serious crimes or fired for misconduct could be stripped of their badges under new policing reforms. The Bill would end longstanding police immunity provisions that shield cops from lawsuits. It also would considerably tighten or reform the hiring process to weed out bad actors.

The general purpose is to strengthen the process of revoking police officer certificates (i.e., of firing cops) for misconduct. It establishes minimum standards for training of peace officers and applies to all California cities, counties and districts (e.g. East Bay Regional Park District).

The bill establishes a statewide Commission to set standards and conduct investigations. It would have the power “to secure the cooperation of every department, agency, or instrumentality in the state government,” which would make it a formidable agency indeed. The deadline for establishing the Commission and constituting its Board is Jan. 1, 2023. It would meet in public at least four times a year, although its work would be ongoing and perpetual.

The Board would consist of nine individuals:

• One current or former peace officer, with Command experience, appointed by the Governor.

• One current or former peace officer, with Management experience, appointed by the Governor.

• Two members of the public, both with experience in non-profits or academia in issues of police misconduct, one appointed by the Governor and the other by the Speaker of the Assembly.

• Two members of the public, both with experience in community organizing in issues of police misconduct, one appointed by the Governor and the other by the Senate Rules Committee.

• Two members of the public “who have been subject to wrongful use of force…or who are surviving family members of a person killed by wrongful use of force…”. Both shall be appointed by the Governor.

• One attorney, appointed by the Governor, “with substantial professional experience involving oversight of peace officers.”

Membership is for three years.

The Bill would restrict persons from serving as peace officers who have been convicted of “bribery, perjury or falsification of records,” or individuals who have been disqualified as a peace officer elsewhere, or have been convicted of “a felony” (presumably any felony), or who were discharged from the military for a felony. (The language here is a little vague.) The Bill contains numerous specific instances of other persons who are not eligible to become peace officers even if they have never been convicted of a felony, e.g. someone found not guilty by reason of insanity, or who is addicted to narcotics. The sole exception to this would occur “in time of disaster,” when local agencies would be allowed to (temporarily?) hire felons.

The Commission can investigate the “fitness” of officer candidates, and establish a “certificate” or “proof of eligibility,” to issue or deny certification.

The Commission also can impose new requirements on local hiring agencies.

The Bill has a “civil rights” component, namely, to secure citizens’ Constitutional rights from a peace officer who “interferes by threat, intimidation, or coercion with the exercise of those rights. This interference need not be intentional [italics mine]. The interference may arise through “indifference” or “reckless disregard” of the person’s rights.

Violations result in a civil penalty of $25,000 by the Attorney-General.

In addition, citizens may sue the officer for “injunctive relief,” in “a civil action for damages” in Superior Court. The Court may also award the plaintiff “reasonable attorney’s fees.” In certain cases, the violator may be “imprisoned.”

“Speech alone is not sufficient to support an action, unless the speech threatens violence.” BUT “if the person or persons against whom the threat is directed reasonably fears that, because of the speech, violence can be committed against them,” then said speech is prosecutable.

IMPORTANT: “State immunity provisions” that previously protected peace officers from being sued for doing their jobs “shall not apply” (i.e., shall no longer apply) to peace officers.

PERSONNEL RECORDS

The Bill would allow certain personnel records of peace officers or applicants to be “made available for public inspection” that had previously been confidential, e.g. gun discharges, actions that caused bodily injury or death, and certain sexual assault practices. This latter (sexual assault) is broadened in definition, to include “the propositioning for or commission of any sexual act while on duty is considered a sexual assault.” (My hunch is that the Celeste Guap case lies behind this.) These records are defined in a very broad manner.

USE OF FORCE

The Bill gives cops something they wanted: “disclosure [of the records, including video] may be delayed for up to 60 days from the date the use of force occurred or until the district attorney determines whether to file criminal charges related to the use of force, whichever occurs sooner.” Even beyond 60 days, the records may be withheld from public consumption if release would interfere with an active investigation of use-of-force. The regulations concerning release of records in use-of-force instances are actually quite complex and seem to provide fertile ground for legal battles. The Bill seems unable to deal with the political fallout following use-of-force allegations, when activists, plaintiff’s attorneys, victims’ families and the media will demand immediate release of records, especially body cam videos, while defense attorneys will argue for delay.

THE OPPOSITION TO SB2:

Mainly police officer and sheriff organizations, including:

Association of Los Angeles Deputy Sheriffs

Association of Orange County Deputy Sheriff’s

California Association of Highway Patrolmen

California Coalition of School Safety Professionals

California Fraternal Order of Police

California Police Chiefs Association

and dozens of other police organizations.

Their main concerns: “Removing government immunity would create lingering doubt in officers’ minds during chaotic situations, knowing potential missteps could result in civil lawsuits.” i.e., if a cop is worried about being fired and sued, he might be less diligent in getting involved in a chaotic situation, such as chasing a fleeing suspect. Cops worry about the “speech” component (cf. above), in which a victim’s fear of the consequences of a cop’s speech can make that speech “prosecutable.” (i.e., anyone can be afraid that anything a cop says is hostile and threatening, and can therefore sue.) Cops also are concerned with the “non-intentionality” clause of the civil rights provision: you can violate someone’s civil rights even if you didn’t intend to. Cops and police unions finally are concerned with the composition of the Commission’s Board, feeling that it could be stacked with anti-police sentiment.

MY OWN FEELING:

The Bill contains nothing particularly odious, from the point of view of a cop supporter. It’s understandable that police unions would be against it, because they’re always opposed to more regulation of cops. But in the final analysis, and from a reasonable point of view, most of SB2’s recommendations make sense, or are at the very least tolerable. Besides, “reform” is in the air. The Bill is going to pass the Legislature, and Gov. Newsom has made public remarks supporting it. There’s little point in fighting the inevitable.

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