Governor Gavin Newsom in September signed into law Senate Bill 2 (SB 2), a bill intended to increase accountability for misconduct by peace officers in California.
SB 2 will make five significant changes:
While the law’s overall intent is clear, the details will have to be sorted out.
For instance, the bill lists the grounds for decertification for “serious misconduct,” which includes “[p]hysical abuse, including, but not limited to, the excessive or unreasonable use of force.” However, “unreasonable” use of force and what constitutes “physical abuse” are undefined.
POST is not required to define “serious misconduct” by January 1, 2023. Yet, agencies will have to make disciplinary decisions before then.
Other undefined grounds for decertification include “abuse of power” and “sufficiently egregious” misconduct. Certainly, one can imagine examples such as financial fraud or sex crimes would fall under this category. However, the terms are open-ended enough to raise questions.
An officer may be decertified for “demonstrating bias,” but that term is vague and undefined, especially if SB 2 does not limit an employee’s rights under the First Amendment. Does a comment on a private social media account establish cause for decertification? Or would that be protected under the First Amendment?
These and other issues will need further clarification.
Decertification Grounds
SB 2 significantly expands POST’s authority in a variety of ways.
Currently, POST has the authority to cancel a certificate that was awarded in error or obtained fraudulently, but cannot otherwise cancel a previously-issued certificate.
SB 2 requires POST to revoke certification for those who become ineligible, and allows disqualification from employment as a peace officer based on felony conviction; crimes of dishonesty or corruption; POST certification being revoked, surrendered, or denied; and more.
POST will have the discretion to revoke or suspend the certification of a peace officer who has been terminated for cause, or otherwise engaged in, “serious misconduct,” yet SB 2 leaves the precise definition of “serious misconduct” open to interpretation by POST but requires the definition to include: abuse of power, physical abuse, sexual assault, acts that violate the law, and more.
Decertification Process
SB 2 also authorizes POST to conduct investigations to determine the fitness of any person to serve as a peace officer in California, and to conduct audits of agencies that employ peace officers.
To this end, SB 2 establishes a Peace Officer Standards Accountability Division (Division) within POST, which will review investigations conducted by law enforcement agencies and conduct its own investigations. The Division will have the responsibility to make findings and recommendations to the commission, to conduct administrative proceedings seeking suspension or revocation, and to accept complaints from members of the public. The bill amends the Penal Code Section 832.7 (also known as the Pitchess statute) to allow disclosure to POST of otherwise-confidential peace officer personnel records.
SB 2 directs the Governor to establish a Peace Officers Standards Accountability Board by January 1, 2023. The Board will hear the findings and recommendations from the Division and make recommendations on decertification.
Conclusion
SB 2 is a broad and complex legislative act, with significant ramifications and confers significant authority and discretion to POST.
Every public agency that employs peace officers in California must prepare to ensure they are ready to comply with SB 2.
This article was originally published in Behind the Badge. You can read the article on Behind the Badge‘s website here: https://bit.ly/3tW2xB2