By: Brian P. Ross
AB 655, otherwise known as the California Law Enforcement Accountability Reform, or CLEAR Act, is currently wending its way through the California State Legislature. The Act is an attempt to prohibit peace officers in the State from being members of hate groups or from making public expressions of hate. To no one’s surprise, in today’s current political environment, this proposed legislation has provoked widespread comment and analysis, some helpful and some hyperbolic. After all, how can anyone possibly oppose prohibiting members of hate groups from becoming peace officers?
But regardless of whether you agree with the aims of the legislation or not, police unions and their members must be prepared to ensure that their freedoms and rights are protected. Even if the aim of the legislation is noble, the devil is—as always—in the details; and it is those details that may harm officers across the State even if they aren’t secret members of the KKK.
Setting aside for a moment the First Amendment concerns, which are substantial, the first problem with this law is the wording itself and, in particular, its vagueness. What exactly is a “hate group” anyways? It is first important to note that the law has been amended significantly after it was first proposed and received substantial pushback. Before, the law defined a “hate group” in part as an organization that supports or advocates for the “denial of constitutional rights” of “any group of persons based upon race, ethnicity, nationality, religion, gender, gender identity, sexual orientation, or disability.” Not surprisingly, this definition raised serious concerns about its breadth, as it could arguably apply to membership in organized religion or even the Republican Party. The definition was thereafter substantially narrowed such that now, a hate group is one that supports, advocates for, threatens, or practices “genocide of, or violence towards” any of the above groups.
Problem solved? Unfortunately, perhaps not. One of the fundamental principles of law is that punitive statutes cannot be so vague that someone subject to its strictures would not know what is required or prohibited by the law. As the California Supreme Court stated over sixty years ago in Morrison v. State Board of Education:
Civil as well as criminal statutes must be sufficiently clear as to give a fair warning of the conduct prohibited, and they must provide a standard or guide against which conduct can be uniformly judged by courts and administrative agencies. [Citations.] The knowledge that he has erred is of little value to the teacher when gained only upon the imposition of a disciplinary penalty that jeopardizes or eliminates his livelihood.
The Supreme Court later noted in Cranston v. City of Richmond that imposing discipline based on vague rules of conduct may violate due process and that the requirement for explicit standards is important to avoid arbitrary enforcement of those rules and regulations.
AB 655 suffers from significant vagueness such that imposing discipline based on the statute could be a violation of due process. For example, look at the definition of “genocide.” We usually have a pretty concrete idea of what that word means. But AB 655, as currently referenced, defines “genocide” in part as “causing… mental harm to members” of a group “with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group.” This is pretty far afield from how most of us see “genocide.” But even beyond that, the definition is remarkably vague: what is mental harm? How do we define it? How would we establish an intent to destroy in part a group?
Similar problems plague how to define someone as being a “member” of a hate group. AB 655 defines “[m]embership in a hate group” as
being, or holding oneself out as, an official member of a group, and can be indicated by actions or evidence including, without limitation, submitting an application for membership in a group, being listed on an official group membership roster, or publicly wearing or otherwise displaying any tattoo, uniform, insignia, flag, or logo that is reserved for members of the group.
Would liking a Facebook post from a possible hate group qualify? Or attending a rally in which members of a hate group also attend?
These concerns are entirely separate from the more controversial and thorny issue of whether a police officer should have a First Amendment right to membership in a possible hate group. But they are significant concerns that must be addressed. And what about efforts by law enforcement agencies to expand the scope of existing “conduct unbecoming” rules and regulations to justify terminating officers for political and group affiliations that were not unlawful or previously known to the employing law enforcement agency? Many agencies are proposing policies which present similar and, in some cases, more serious legal challenges than AB 655. Until these concerns are addressed, officers in this state will be put under further pressure, being now forced to evaluate their political and group affiliations to ensure compliance with a vague law or overbroad employer policies that may not even pass Constitutional muster.
Brian P. Ross is a senior associate in the Litigation and Collective Bargaining practice groups at Rains Lucia Stern St. Phalle & Silver, PC. Brian’s focus is on general litigation, writs of mandate, and general labor and employment legal issues, with focuses on the Meyers-Milias-Brown Act, the Public Safety Officers Procedural Bill of Rights Acts, and various pension laws affecting public employees.
