Complying With Updates To Calif. Police Reform Laws

Reprinted with permission from Law360

In recent years, the California Legislature has passed a raft of new laws
intended to recalibrate the relationship between the public and the law
enforcement profession, focused on the use of force, accountability,
transparency and diversity.

These changes to the law — many of which are newly effective this year —
will require agencies to make significant adjustments, but proactive steps
can make compliance less daunting.

S.B. 2 Affects Disciplinary Decisions and Imposes Reporting
Obligations

Until 2022, the California Commission on Peace Officer Standards and
Training, or POST, was a voluntary and incentive-based program.

S.B. 2, which was enacted on Sept. 30, 2021, transformed POST into a
licensing agency with the authority to both grant and revoke certificates
that are mandatory for peace officer employment at any agency in the
state.

POST has the discretion to revoke an officer’s certificate for any of nine
types of so-called serious misconduct:

• 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;
• Abuse of power, including, but not limited to, intimidating witnesses, knowingly
  obtaining a false confession, and knowingly making a false arrest;
• Physical abuse, including, but not limited to, the excessive or unreasonable use of
  force;
• Sexual assault, as described in subdivision (b) of Section 832.7;
• 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 a peace
  officer’s obligation to carry out their duties in a fair and unbiased manner;
• 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, as determined by the commission;
• Participation in a law enforcement gang;
  Paul Knothe
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• Failure to cooperate with an investigation into potential police misconduct; and/or
• Failure to intercede when present and observing another officer using force that is
  clearly beyond that which is necessary.

POST, in determining whether to decertify an officer, is not bound by the employing
agency’s disciplinary decision. This means that where an agency has decided to give an
officer a lengthy suspension and a second chance, POST could still revoke the officer’s
eligibility, necessitating the separation of the officer.

An agency would be well advised to place a currently employed officer on paid
administrative leave if POST initiates the lengthy proceedings that could lead to
decertification: The liability and public outcry could be significant if the officer were to be
involved in an incident while decertification proceedings were pending.

To avoid this limbo, agencies should consider the prospect of decertification when deciding
whether to suspend or terminate an officer who has committed serious misconduct.

Effective Jan. 1, 2023, in order to enforce the eligibility requirements, S.B. 2 mandates that
agencies report every complaint of nine specified categories of specified serious misconduct
to POST within 10 days of the allegation.

This requirement applies to all allegations, whether the complainant is identified and
whether the allegation is credible.

Where the allegation is implausible on its face, the best thing an agency can do to bring the
accused officer peace of mind is to work expeditiously as possible to complete the
investigation, and ideally report the allegation and the resolution to POST together.

In addition, the statute requires agencies to report:

• The hiring or separation — including involuntary termination, resignation and
  retirement — of any peace officer;
• Any finding or recommendation by a civilian oversight entity that an officer engaged
  in conduct that could render him subject to suspension or revocation of his or her
  certificate;
• The final disposition of any investigation that determines a peace officer engaged in
  conduct that could subject him or her to decertification or a suspended certificate; or
• Any civil judgment or court finding against a peace officer or agency based on
  allegations of officer misconduct that could render him or her subject to suspension
  or revocation of certification.

This creates a substantial administrative burden, and large agencies may consider having
dedicated personnel allocated to the task of determining which complaints constitute
allegations of serious misconduct, and reporting those allegations to POST.

S.B. 2 further requires that agencies complete their investigation of every allegation of
serious misconduct, regardless of the employment status of the subject officer.

This will limit the use of resignation in lieu of termination, heretofore a common tool for an
agency to rid itself of a problematic officer without the risk and expense of an administrative
appeal or petition for writ of mandate, in which an arbitrator or court could potentially order
the officer reinstated.

Because the agency must complete the investigation, and report its conclusions to POST,
officers will have little incentive to resign, and will be more likely to take their chances in an
appeal.

While this increases the burden on the employing agency, and the expense of attorney fees,
it serves the legislative goal of preventing an officer who has committed serious misconduct
from simply resurfacing at another agency.

S.B. 2 further requires agencies to retroactively report any instance of a qualifying event
that took place between Jan. 1, 2020, and Jan. 1, 2023. While the deadline for this
retroactive reporting is July 1, 2023, many agencies may have a significant backlog of
reportable events. If an agency has not begun reviewing its records for retroactive
reporting, it would be wise to start now.

In addition to the burden of reporting and completing investigations into serious
misconduct, the agency must retain, and make available for inspection by POST, its
investigation records for at least two years after making the report, including physical
evidence, witness statements, analysis and agency conclusions. POST is empowered to
audit an agency’s records at any time.

S.B. 16 Expands Public Access to Peace Officer Personnel Records and Requires
Rapid Response

Following the California Supreme Court’s 1974 decision in Pitchess v. Superior Court[1], the
Legislature enacted a regime, through the so-called Pitchess statutes, that kept most peace
officer personnel records strictly confidential in the absence of a court order for their
release.

In 2019, in response to public calls for increased transparency, the Legislature enacted S.B.
1421, which removed four categories of peace officer personnel records from the
protections of the Pitchess regime and made them available to the public pursuant to a
request under the California Public Records Act, or CPRA.

S.B. 16 continues the trend started by S.B. 1421, away from confidentiality and towards
public access to peace officer personnel records.

The categories of records made public by S.B. 1421 were those regarding:

• Discharges of an officer’s firearm at a person;
• Use of force by a peace officer resulting in death or great bodily injury;
• A sustained finding of dishonesty; and
• A sustained finding of sexual assault, including any on-duty sexual act or attempt by
  an officer to initiate a sexual act with a member of the public.
  S.B. 16, also enacted on Sept. 30, 2021, expands the types of peace officer personnel
  records subject to disclosure to include sustained findings of an officer’s:
• Use of unreasonable or excessive force;
• Failure to intervene against another officer using unreasonable or excessive force;
• Execution of unlawful arrest or search; and
• Engagement in conduct involving prejudice or discrimination on the basis of certain
  legally protected classes.

Although each of the four categories added by S.B. 16 requires a sustained finding of the
qualifying act, it specifically requires records relating to qualified incidents be released even
if the officer resigned before the investigation into the alleged incident concluded.

Creating a significant challenge for agencies, S.B. 16 requires that these eight categories of
peace officer personnel records be provided to the requester “at the earliest possible time
and no later than 45 days from the date of a request for their disclosure.”

For other types of public records, the CPRA requires only that the public agency issue an
initial response within 10 days, which can be extended by another 14 days, in which it must
provide an estimated date on which the records will be made available.

The eight S.B. 1421/S.B. 16 records are the only types of public records that must be
actually produced on a prescribed timeline.

Complying with this timeline is no trivial task. The statute contains only narrow exceptions
to this strict 45-day deadline for active criminal or administrative investigations and
contains no exception for voluminous records requests.

Therefore, if a requester sought all records in a police department’s possession within the
eight categories, it would have a month and a half to locate, review, appropriately redact
and produce them all.

The stakes are high: If the agency fails to release a record it should, it has violated the
CPRA and could be ordered to pay the requester’s attorney fees, but if it releases a record it
should not have, it has violated to the Pitchess statutes and has exposure to civil and
potentially criminal liability.

Agencies can mitigate this burden somewhat by adopting records management systems that
organize records in accord with the statutory categories. When responding to CPRA requests
under S.B. 1421, many agencies found that because their preexisting systems did not
correspond to the four statutory categories, they had to manually review the files to
determine if they were made public by the new laws.

Further, agencies should train staff, especially those who regularly handle CPRA requests,
that requests for qualifying peace officer personnel records have a different and very strict
45-day deadline to complete.

Another option that some agencies have chosen is to determine at the time of creating a
record whether it is public under the S.B. 1421/S.B. 16 revisions to the law, and if it is,
proactively post an appropriately redacted version to the department website.

S.B. 960 Expands Applicant Pool, But Complicates Background Check Procedures

Under previous law, only U.S. citizens or persons who were qualified and had applied to
become citizens were eligible to be hired as peace officers. S.B. 960, effective Jan. 1, 2023,
expands the pool of eligible peace officer applicants by eliminating the citizenship
requirements.

Now, an applicant need only be legally authorized to work in the U.S., as interpreted and
applied under federal law. S.B. 960 retains the other minimum requirements for peace
officers, such as a good moral character determination and criminal background checks.

Practically, agencies may find it more difficult to conduct sufficient background
investigations of applicants who spend considerable time living in other countries. However,
shying away from such applicants would expose agencies to liability for discrimination on
the basis of national origin.

Instead, agencies should explore all measures, including cooperation with local law
enforcement abroad, to complete thorough background investigations of job candidates who
are not citizens.

The reshaping of the relationship between the public and the law enforcement profession
shows no sign of slowing. Agencies should work to stay compliant with the changing legal
requirements.

[1] Pitchess v. Superior Court, 11 Cal. 3d 534 (1974).