By: Michael L. Rains
As I prepare this article, there is no doubt that Senate Bill 2 is going to become law when signed by Governor Newsom. In fact, by the time this article is published, it may have been signed. In a nutshell, this new law establishes a requirement that peace officers in California be “certified” by POST to serve in that capacity, and provides a new mechanism by which POST may review an officer’s alleged commission of “serious misconduct.” Of major significance is the ability of POST to now make a determination on whether to suspend or revoke the officer’s certification.
Although the Bill is primarily devoted to certification/decertification of California peace officers, it also amends Civil Code section 52.1, known as the “Tom Bane Civil Rights Act.” The Bill amends existing, and creates several new, Penal and Government Code sections. I will attempt to describe the major changes impacting California law enforcement officers as a result of this new law. I might add that PORAC President Brian Marvel recently released a PORAC member alert highlighting some last minute changes to the language of SB 2 that were secured through negotiations between its author and PORAC’s legislative team. Those negotiations resulted in significant changes which makes this new law much more palatable to current law enforcement officers than it would have been otherwise.
Amendment to the Tom Bane Civil Rights Act (Civil Code Section 52.1)
The Bane Act is California’s version of the Federal Civil Rights Act found in 42 U.S.C section 1983 and is not a new law. It authorizes the State Attorney General, a District Attorney or City Attorney to initiate an action for injunctive relief and permits private individuals to bring civil actions against individuals, including police officers, who “interfere with the exercise or enjoyment of rights secured by the Constitution or laws of California or the United States by “threat, intimidation or coercion.” There was a widespread misunderstanding amongst officers that the proposed amendments to the Bane Act would eliminate “qualified immunity” for police officers.
In fact, “qualified immunity” is a doctrine which relates only to Federal Civil Rights liability, and not to a California peace officer’s civil liability under the Bane Act or other state laws. The important thing officers should know about the Bane Act and its amendments is that (1) the person bringing an action under this law against a police officer still has to prove that the officer’s actions interfered with a constitutional right of an individual and (2) public agencies are still mandated by law to defend and indemnify officers sued under this law, and to indemnify officers for general and special damages. Further, the discretion which currently exists for public agencies to indemnify officers for punitive damages remains unchanged.
Amendments to Penal Code Section 832.7 Increase the Categories of Peace Officer Personnel Records which may be Publicly Disclosed
Penal Code section 832.7, when first amended effective January 1, 2020, authorized
public disclosure of peace officer personnel records in four separate categories: (1) discharge of a firearm at a person; (2) other uses of force resulting in death or great bodily injury; (3) a sustained finding that an officer committed a sexual assault involving a member of the public; and (4) a sustained finding that an officer was dishonest with respect to the reporting, investigation, or prosecution of a crime.
SB 2 amends Penal Code section 832.7 to include public disclosure of peace officer personnel records in the following additional categories: (1) a sustained finding of a complaint alleging unreasonable/excessive force; (2) a sustained finding that an officer failed to intervene against another officer using excessive/unreasonable force; (3) a sustained finding by an agency or oversight agency that a peace officer made statements or engaged in writings or online posts or gestures involving prejudice/discrimination against individuals based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, gender identity, sexual orientation or several other bases; and (4) a sustained finding that an officer made an unlawful arrest or conducted an unlawful search.
POST Certification of Officers and Proceedings by POST to Suspend or Revoke an Officer’s POST Certification for the Commission of “Serious Misconduct”
The new law amends Penal Code section 13503, which describes the powers of POST. It adds section 13509.5, creating the “Peace Officer Standards Accountability Division” (“Division”) which it describes in only general terms as “… staffed with a sufficient number of experienced and able employees that are capable” in handling decertification investigations, prosecutions, and administrative proceedings.
It also adds Penal Code section 13509.6 creating a “Peace Officer Standards Accountability Advisory Board” (“Board”), the primary purpose of which is to “make recommendations on the decertification” (and I assume suspension) of peace officers to the POST Commission (“Commission”).
Under the language of this section, there are nine members of the Board, only two of which may be a current or former peace officer with “substantial experience” at a command rank or in Internal Affairs investigations or disciplinary proceedings against peace officers. Both are appointed by the Governor. The remaining seven members of the Board are described as follows:
- Two members (not former peace officers) who have “substantial experience working at non-profit or academic institutions on issues related to police accountability.” One appointed by the Governor, and one by the Speaker of the Assembly.
- Two members (not 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 appointed by the Senate Rules Committee.
- Two members (not former peace officers) appointed by the Governor, “with strong consideration given to individuals who have been subjected 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”; and
- One attorney member (not a former peace officer) with “substantial professional experience involving oversight of peace officers, appointed by the Governor.”
With some exception as to the original members who will be appointed to this Board, the members of the Board are supposed to serve three year terms, and all members must complete a 40 hour “decertification training course developed by the Commission.”
How the Certification/Decertification Process Works Under the New Law
The new law describes the interplay between the following bodies:
- The POST Commission (“Commission”)
- The Peace Officer Standards Accountability Division (“Division”)
- The Peace Officer Standards Accountability Advisory Board (“Board”)
Penal Code section 13510.1, amending the Commission’s powers, requires it to establish a “certification program for peace officers...” That section authorizes the Commission to “suspend, revoke or cancel any certification” of a peace officer. Section 13510.1(g) states that “an agency that employs peace officers shall employ as a peace officer only individuals with current, valid certification …” From the language of this section, it appears that California peace officers are going to need to start applying for the issuance of a POST law enforcement certificate, but the language seems to indicate that such application process does not need to be immediate, and can take place even after January 1, 2023.
The new law adds Penal Code section 13510.8, which authorizes the Commission to suspend or revoke certification of a law enforcement officer who has committed “serious misconduct.” That section defines “serious misconduct” to include the following acts:
- 8(b)(1): dishonesty related to the reporting, investigation or prosecution of a crime
- 8(b)(2): abuse of power, including but not limited to intimidating witnesses, knowingly obtaining a false confession or knowingly making a false statement
- 8(b)(3): physical abuse (unreasonable/excessive use of force)
- 8(b)(4): demonstrating bias based on race, national origin, religion, gender identity, etc.
- 8(b)(7): participation in a law enforcement “gang”
- 8(b)(8): failure to cooperate with an investigation into potential police misconduct
- 8(b)(9): failure to intercede when seeing another officer use excessive force
From my reading of section 13510.8(c)(6), if a department Internal Affairs investigation, or even a disciplinary appeal proceeding available under a Memorandum of Understanding, concludes that an officer did not commit one of these forms of “serious misconduct,” the Commission is not barred from conducting its own investigation, sustaining charges, and decertifying the officer, unless there is a legal determination that factual findings or legal determinations by the officer’s agency or the agency’s appeal process meet the requirements of “collateral estoppel.” This may be difficult for an officer to establish, depending on the particular case.
- How the Commission Receives Complaints of “Serious Misconduct” and Commences an Investigation
Under this law there are seven ways the Commission can receive information concerning an officer’s commission of “serious misconduct,” triggering an investigation:
- Penal Code section 13509.5(d) requires the Commission to “establish procedures for accepting complaints from members of the public … that may be investigated by the Division …”
- Penal Code section 13510.9(a)(2) requires an officer’s employing agency to report to the Commission any complaint or allegation made against an officer that could result in suspension or revocation of an officer’s certification.
- Penal Code section 13510.9(a)(3) requires an officer’s employing agency to report to the Commission any finding or recommendation by a civilian oversight entity, including a civilian review board, civilian police commission, police chief, or civilian inspector general that an officer engaged in conduct subject to suspension or revocation.
- Penal Code section 13510.9(a)(4) requires the officer’s employing agency to report to the Commission the final disposition of an investigation that determines an officer engaged in conduct that could result in suspension or revocation of certification, regardless of the discipline imposed.
NOTE: Beginning January 1, 2023, pursuant to section 13510.8(c)(1), law enforcement agencies are responsible for the completion of investigations of “serious misconduct” even if the officer has resigned employment.
- Penal Code section 13510.9(a)(5) requires the officer’s employing agency to report to the Commission any civil judgment or court finding against a peace officer based on conduct, or settlement of a civil claim against a peace officer or an agency based on allegations of officer conduct that could render a peace officer subject to suspension or revocation of certification by the Commission.
Employing agencies must report to the Commission the information specified in Penal Code section 13510.9(a) by January 1, 2023. Moreover, with respect to the information contained in section 13510.9(a), subsection (2) through (5), agencies must report all events dating back to January 1, 2020.
- Penal Code sections 13510.8(c)(2)(3) and (4) authorize the Division to review agency files in order to commence an investigation against an officer. The language of that section seems to indicate that the Division’s review of an agency’s file can occur either at the request of the Division or as a result of the officer’s agency sending the file on its own initiative to the Division.
- Finally, while it is clear that the Division is charged with conducting an investigation of a peace officer for “serious misconduct,” Penal Code section 13510.8(c)(3) authorizes the Board to request that the Division review an investigative file to determine whether or not to begin an investigation, or recommend that the Commission direct the Division to investigate potential grounds for decertification of an officer.
SB 2, when signed, will become effective January 1, 2022. Penal Code section 13510.8(g), however, provides that the Commission may initiate proceedings to revoke or suspend a peace officer’s certification for serious misconduct which occurred before January 1, 2022, under several limited circumstances:
- For 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.
- Sexual assault, as described in Penal Code section 832.7.
- The use of deadly force that results in death or serious bodily injury.
- Investigation of serious misconduct where the employing agency makes a final determination after January 1, 2022 (i.e., a pending investigation that is resolved by the employing agency in 2022).
Moreover, the Commission may consider a peace officer’s conduct and service record prior to January 1, 2022 in determining whether revocation is appropriate for serious misconduct committed after the effective date of SB 2.
Proceedings if the Investigation Finds Grounds for Suspension or Revocation of Certification
Under Penal Code section 13510.85(a)(1), if the Division, following investigation, finds grounds for suspension or revocation of an officer’s certificate, it must notify the officer of its determination. The officer then has 30 days to file an appeal.
Under section 13510.85(a)(4) an appeal by an officer will result in a public hearing by the Board. The exact nature of the hearing to be held by the Board is not specified in this law – it is not clear whether or not it is an evidentiary hearing where witnesses are called to testify and are cross-examined, or whether it is a more informal process based upon “offers of proof” or argument. However, the section provides that the Board can only recommend revocation (or I assume suspension) if “serious misconduct” is established by “clear and convincing evidence.”
Under Penal Code section 13510.85(a)(5) the Board’s decision is advisory only – it is then reviewed by the Commission. It is important, however, to recognize that the Commission’s review of the decision by the Board, which is also “public,” requires it to consider more than simply the Board’s decision – the language of subsection (a)(5) requires the Commission to review the record in “its entirety” to determine if serious misconduct has been established by clear and convincing evidence. That means that the Commission’s review would also necessarily include reviewing records, interviews, reports and determinations by the officer’s employing agency and any appellate bodies, boards, commissions or arbitrators that may have considered the matter at the agency level. In order to revoke or presumably suspend an officer’s certification, the Commission must vote to do so by a two-thirds majority.
If the Commission votes to suspend or revoke an officer’s certification under Penal Code section 13510.85(a)(6) the matter is remanded to the Division, which must initiate proceedings for a formal hearing before an administrative law judge in accordance with the Administrative Procedure Act (commencing with Government Code section 11500). The officer can exercise the right to go forward with the administrative hearing or elect to dismiss the appeal at this stage, in which case the Commission’s recommendation becomes final. The decision of the administrative law judge is subject to judicial review by way of writ of administrative mandamus under California Code of Civil Procedure section 1094.5.
Finally, Penal Code section 13510.85(a)(7) prescribes that all hearings before the Board, the review by the Division and the administrative adjudications under the Administrative Procedure Act, together with all records introduced in those matters are public records.
The primary purpose of this analysis of SB 2 has been to acquaint California law enforcement officers with the intricacies created by this new law, and its potential impact upon their law enforcement employment. I have grave concerns about whether law enforcement officers in California, under this law, will receive the decency and legal requirement of fair treatment that was mandated by the California Supreme Court in the seminal case of Pasadena POA v. City of Pasadena (1990) 51 Cal.3d 564, when proceedings to potentially end their law enforcement careers are commenced.
For the agencies which employ law enforcement officers, there has never been a more pressing time than now to ensure that Internal Affairs investigations are conducted “promptly, fairly, and thoroughly,” the precise standard announced by the Supreme Court in Pasadena. This imperative of fairness and thoroughness is essential since those investigations will necessarily become part of the public record that will be subject to review by the Commission, along with findings by the Board and the administrative law judge. That administrative record must be considered before a decertification decision can occur, and will, thereafter, be subject to judicial review.
But, in the final analysis, given the bureaucratic morass created by this new law, I must reluctantly offer a bit of practical advice to those who are unfortunate enough to be swept into the SB 2 gauntlet. As you perform your sworn duties, proceed cautiously and if you become the subject of an investigation that has any chance of SB 2 implications, take the process very, very seriously. Now, more than ever, you are urged to obtain a lawyer at the outset of any administrative investigation, who must prepare for the real possibility that the investigation will lead to the process implemented by these new laws.
The attacks on law enforcement have driven untold numbers of peace officers out of the profession, and I fear that SB 2 will drive many more of you to find another line of work where you are welcomed for what you do, thanked for your exercise of judgment and discretion in life-threatening situations, and treated fairly and equitably if you become accused of employment-related misconduct.
Mike Rains is a principal and founding member of Rains Lucia Stern St. Phalle & Silver, PC. He heads the firm’s Criminal Defense and Legal Defense of Peace Officers Practice Groups. Mike is one of California’s top trial attorneys. He has over 40 years of experience representing peace officers and other high-profile clients in civil and criminal litigation.