California Legislature Passes Senate Bill 2; Increasing Peace Officer and Public Entity Civil Liability & Creating a Decertification Process
On September 8, 2021, the California Senate approved Senate Bill 2 (“SB 2”), which is meant to increase peace officer accountability throughout the state. To that end, if signed by Governor Newsom, the bill would implement the following 4 key changes: (1) Require that law enforcement agencies investigate and report all complaints, claims, allegations, and findings of serious misconduct regardless of the officer’s employment status; (2) Require law enforcement agencies to report all complaints, claims, allegations, and findings of serious misconduct to the Commission on Peace Officer Standards and Training (“Commission”) (3) Create a process for peace officer decertification by the Commission; and (4) Remove some immunity provisions for peace officers and the public entities employing them in lawsuits brought under the Tom Bane Civil Rights Act.
Mandatory Investigation by Law Enforcement Agencies
Beginning January 1, 2023, SB 2 would require all law enforcement agencies employing peace officers to complete investigations into allegations of “serious misconduct” by a peace officer, regardless of that peace officer’s employment status with the agency. While SB 2 does not expressly define “serious misconduct,” it does specifically include dishonesty, abuse of power, physical abuse (including use of excessive force), sexual assault, prejudice or bias based on a protected classification, sufficiently egregious or repeated violations of law, participation in a law enforcement gang, failure to cooperate in an investigation into potential police misconduct, and failure to intercede when present and observing another officer using force that is clearly beyond what is necessary.
Mandatory Reporting by Law Enforcement Agencies
Further, law enforcement agencies must report, among other things, these complaints, claims, allegations, findings, and/or determinations that a peace officer engaged in “serious misconduct” to the Commission within 10 days of the qualifying action. Should it decide to separate a peace officer from employment or appointment, law enforcement agencies would also be required to execute and submit affidavits regarding the separation to the Commission.
This reporting requirement would be retroactive to January 1, 2020. SB 2 would give law enforcement agencies until July 1, 2023, to report any events occurring between January 1, 2020, and January 1, 2023, that trigger their reporting requirement.
California is one of only four states (along with Hawaii, New Jersey, and Rhode Island) to not have a decertification process. SB 2 aims to change that and would create a process by which peace officer certifications may be suspended and/or revoked entirely. The proposed legislation authorizes the Commission to suspend or revoke peace officer certification where the peace officer is found to have engaged in serious misconduct. SB 2 would create the Peace Officer Standards Accountability Advisory Board (“Board”) within the Commission to review findings and make recommendations regarding peace officer certificate suspensions and revocations. The Board would consist of nine members. Of the nine members, two would be former or current peace officers while the other seven consist of civilians, including one attorney with experience in peace officer oversight. Moreover, two civilian members would be chosen with “strong consideration” for individuals who have been subject to excessive force by a peace officer or survives a family member killed by the same.
The Board’s recommendations would then go before the Commission for consideration. To adopt a revocation, the Commission must determine by a two-thirds vote of those present that the record in its entirety supports a conclusion that serious misconduct was established by clear and convincing evidence.
The Board cannot initiate revocation or suspension proceedings for conduct that occurred before January 1, 2022, unless the peace officer engaged in serious misconduct or used deadly force resulting in death or serious bodily injury, or the employing agency concludes its investigation into the peace officer after January 1, 2022.
Limitations on Immunity
Peace officers and the public entities that employ them are currently protected in some civil lawsuits by immunity provisions found in California Government Code sections 821.6, 844.6, and 845.6. SB 2 would amend Civil Code section 52.1 to render those protections inapplicable in lawsuits brought by citizens alleging a violation of their civil rights. Among other things, this includes the right to be free from unreasonable police searches and seizures. Moreover, the proposed legislation would also require public entities to indemnify their employees and former employees pursuant to the guidelines set forth in Government Code section 825.
According to the California Legislature, SB 2 is meant to ensure peace officers are held accountable for engaging in misconduct, by both creating a decertification process and limiting the qualified immunity protecting peace officers from civil liability. However, law enforcement organizations and police unions have voiced concerns that the legislation is too sweeping, and are especially concerned about the Board responsible for recommending decertification which would be made up of mostly inexperienced civilians who may potentially be biased against law enforcement. Should the governor sign SB 2, public entities and law enforcement agencies will likely see an influx of litigation against both them and the peace officers they employ by citizens alleging a violation of their civil rights, including unreasonable searches and seizures. Law enforcement agencies should be diligent in their record keeping, as SB2 will certainly require reporting of complaints, claims, and findings of serious misconduct from as far back as 2020, and permits the Board and Commission to review investigative files from that time as well.