Governor Signs SB 2, Creating Police Decertification Process and Expanding Civil Liability Exposure

On September 30, 2021, Governor Gavin Newsom signed into law Senate Bill 2 (“SB 2”), a bill that will significantly affect law enforcement agencies across the state. The bill’s stated intent is to increase accountability for misconduct by peace officers and makes five significant changes:

• It will create a process for the Commission on Peace Officer Standards and Training (“POST”) to revoke certifications for peace officers such that those individuals will be disqualified from peace officer employment in California;
• It expands the list of circumstances that will disqualify a person from employment as a peace officer;
• It will require law enforcement agencies to investigate all complaints or claims of serious misconduct by peace officers regardless of whether the subject officer(s) is still employed by the agency;
• It will require law enforcement agencies to report to POST all complaints, claims, allegations, and findings of serious misconduct;
• It will remove some immunity provisions for peace officers and their employing agencies in civil rights lawsuits brought under the Tom Bane Civil Rights Act.

These changes are outlined in further detail below. Some aspects of the law will take effect on January 1, 2022. Other provisions have a later effective date.

Peace Officer Decertification

Under existing law, POST sets certain minimum standards for recruitment and training of peace officers, and develops curriculum for training courses. In addition, POST has established a professional certificate program for peace officers in order to foster education, experience, and best practices in the profession. 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 significantly expands POST’s authority in a variety of ways.

Most notably, SB 2 requires law enforcement agencies to employ as peace officers only those individuals who hold a current and valid Basic certificate from POST, except for provisional employment for up to 24 months of individuals awaiting certification. It also requires POST to revoke certification when an individual has become ineligible to hold office as a peace officer under Government Code section 1029, or when an individual has been terminated for cause for, or otherwise engaged in, “serious misconduct”.

SB 2 leaves the precise definition of “serious misconduct” open to regulatory interpretation by POST. However, the bill specifies that the term shall at a minimum, include all of the following:

• 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 making 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;
• Demonstrating bias on the basis of any legally protected status, in violation of law or department policy, or in a manner 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 POST;
• Participation in a “law enforcement gang”;
• Failure to cooperate with an investigation into potential police misconduct; and
• Failure to intercede when present and observing another officer using force that is clearly beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances,

Second, it 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, with the responsibility to review investigations conducted by law enforcement agencies, and to conduct its own investigations into misconduct that could provide grounds for suspension or revocation of a peace officer’s certification. The Division will also 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 recording peace officers or law enforcement agencies. The bill also amends Penal Code Section 832.7 (also known as the Pitchess statute) to allow disclosure to POST of otherwise-confidential peace officer personnel records.

Third, SB 2 directs the Governor to establish a Peace Officers Standards Accountability Board by no later than January 1, 2023. The purpose of the Board will be to hear the findings and recommendations from the investigative division and make recommendations on decertification to the POST commission. The Board will consist of nine members serving three-year terms, all but two of whom are appointed by the Governor:

• One peace officer or former peace officer with command experience.
• One peace officer or former peace officer with management experience in internal investigations or disciplinary proceedings of peace officers.
• Two members of the public with experience in police accountability issues working at nonprofit or academic institutions, one of which is appointed by the Speaker of the Assembly.
• Two members of the public with experience in police accountability issues working in community-based organizations, one of which is appointed by the Senate Rules Committee.
• Two additional members of the public, with “strong consideration” given to individuals who have been subject to wrongful use of force by a peace officer or surviving family members of a person killed by wrongful use of force by a peace officer.
• One attorney with professional experience involving oversight of police officers.

The six members of the public and the attorney member may not be former peace officers.

A separate provision of SB 2 requires POST to notify the head of a law enforcement agency any time the commission launches an investigation into one of the agency’s officers (unless notification would interfere with the investigation), any time such investigation finds grounds to initiate decertification proceedings, any time the commission decides to take action, and any time a hearing results in actual decertification or suspension.

Expansion of Criteria Disqualifying Individuals from Holding Office as a Peace Officer

Currently, under Government Code Section 1029, there are numerous circumstances that will disqualify an individual from holding office or being employed as a peace officer in California. Most notably, a person will be disqualified if they have been convicted of a felony, or convicted of a non-felony offense in another jurisdiction that would have been a felony in California.

SB 2 amends Government Code 1029 to exclude the following individuals from peace officer employment:

• An individual discharged from the military after adjudication by a military tribunal for committing an offense that would have been a felony if committed in California, whether or not the person received a criminal conviction for the offense.
• An individual convicted of a felony, including by a guilty plea or a plea of nolo contendere, will remain disqualified even if a later court sets aside, vacates, withdraws, expunges, or otherwise reverses the conviction, unless the court specifically finds the person to be factually innocent of the crime for which they were convicted.
• An individual convicted of any one of several specific enumerated crimes of dishonesty, or conduct in another jurisdiction that would have constituted one of those crimes if committed in California. The listed crimes include, but are not limited to, bribery, corruption, perjury, falsifying evidence, witness tampering, forging or falsifying government records, tampering with a jury or the jury selection process.
• An individual adjudicated to have committed acts that would constitute one of those enumerated crimes in an administrative, military, or civil judicial process that requires at least “clear and convincing evidence.”
• An individual whose POST certificate was revoked (or denied) or who voluntarily surrendered the certification.
• An individual whose name appears in the National Decertification Index or any similar database designated by the federal government and the individual’s certification as a law enforcement officer was revoked for misconduct, or if the individual engaged in serious misconduct that – had they been employed in California – would have resulted in POST revoking their certificate.

In addition, the amended Section 1029 requires the California Department of Justice to supply POST with any disqualifying felony or misdemeanor conviction data for all persons known to be current or former peace officers.

Administrative and Reporting Requirements for Law Enforcement Agencies

Importantly, in addition to expanding POST’s authority to investigate peace officer misconduct, SB 2 imposes a number of requirements on both state, county, and municipal law enforcement agencies. Most of these requirements do not take effect until January 1, 2023, or later. However, agencies should begin preparing to comply with these requirements as soon as possible.

1. Reporting requirements

Beginning on January 1, 2023, SB 2 will require all agencies that employ peace officers to begin submitting reports to POST any time one of the following occurs:

• The agency employs, appoints, terminates, or separates from employment any peace officer, including involuntary terminations, resignations, and retirements.
• A complaint, charge, or allegation of conduct is made against a peace officer employed by the agency that could result in decertification.
• A civilian oversight entity or review board, civilian police commission, police chief, or civilian inspector general makes a finding or recommendation that a peace officer employed by the agency engaged in conduct that could result in decertification.
• The final disposition of an investigation determines that a peace officer engaged in conduct that could result in decertification, regardless of the discipline imposed (if any).
• A civil judgment or court finding is made against a peace officer based on conduct that could result in decertification, or a settlement is reached in civil case against a peace officer or the employing agency based on allegations of officer conduct that could result in decertification.

In each case, an agency will have 10 days to make the relevant report. For reports regarding separation of a peace officer, the bill requires agencies to execute and submit an “affidavit-of-separation” form under penalty of perjury, which must describe the reason for separation and whether the separation is part of resolving or settling any pending charge or investigation. The officer who was separated “shall be permitted” to respond in writing to the affidavit-of-separation, explaining to POST their own understanding of the facts and reasons for the separation. The statutory language is not clear whether the officer’s response is to be submitted along with the agency’s report, or whether the officer submits it separately, directly to POST.

One key element of these reporting requirements is they do not appear to require that the reportable conduct is egregious enough to make it likely that POST will ultimately decertify the officer. Indeed, in the case of reporting complaints and civil settlements, it is enough that an allegation is made that – if true – could subject a peace officer to decertification, even if the complaint or civil claim is later proved untrue. Thus, the safe approach for any agency would be to take a broad approach to reporting, and leave it to POST to determine whether the facts of any given case are enough to warrant initiating decertification procedures. Where an agency does make a report to POST in good faith, SB 2 provides immunity from civil liability for the disclosure in good faith.

The bill does not specify a particular form or format for these reports, or for the affidavit-of-separation form, but directs POST to issue further guidance and adopt appropriate forms.

Although the reporting requirement does not begin until January 2023, it does apply to events that occurred before January 2023. SB 2 specifically requires agencies to report any instance of a listed event that took place between January 1, 2020, and January 1, 2023. For reports falling in that earlier timeframe, the reporting deadline will be July 1, 2023.

1. Investigation and record-keeping requirements

Beginning on January 1, 2023, all law enforcement agencies are required to complete any investigation into allegations of “serious misconduct” by a peace officer – i.e. conduct that could subject a peace officer to decertification – regardless of the employment status of the officer. This means that if a peace officer voluntarily resigns, retires, is released from probationary employment, is terminated on unrelated grounds, or separates from employment for any other reason so that no disciplinary action could take place, the agency is still required to complete any pending investigation of serious misconduct.

In addition, any time an agency has reported to POST a complaint, charge, or allegation of serious misconduct, the agency must retain the investigation records, including any physical or documentary evidence, witness statements, analysis, and conclusions, for at least two years after making the report. The agency must make these records available for inspection by POST on request.

1. Background check requirement

Any time an agency employs or appoints a peace officer who has previously worked as a peace officer for another agency, the hiring agency is required to contact POST to inquire as to the facts and reasons the officer was separated from any previous employing agency. POST is required to respond with any relevant information in its possession.

Due to the structure of the bill language, it is unclear whether this provision takes effect as of January 1, 2022, or if it is also delayed until January 1, 2023. It is likely POST will issue more guidance on this point. In the absence of additional guidance, it would likely be prudent for agencies to make these pre-employment inquiries to POST beginning in January 2022, even though POST is unlikely to have any responsive information until it begins receiving reports in 2023.

Removal of Immunity for Civil Rights Cases

Under current law, the Tom Bane Civil Rights Act, Civil Code section 52.1, allows individuals to bring a civil claim for damages if their constitutional rights have been interfered with, or attempted to be interfered with. However, current law also contains a number of provisions that provide public employees and government agencies with qualified immunity from liability in civil cases.

SB 2 adds a provision to the Bane Act that would eliminate certain immunity provisions. Specifically, the following immunity provisions would no longer apply to civil actions brought under the Bane Act against peace officers, custodial officers, or directly against a public agency that employs them:

• Government Code Section 821.6, which provides immunity to a public employee “for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”
• Government Code Section 844.6, which provides limited immunity to public entities for injuries to, or caused by, a prisoner (subject to a variety of existing exceptions).
• Government Code Section 845.6, which provides limited immunity to public entities and public employees for injuries caused by a public employee’s failure to obtain medical care for a prisoner in their custody.

Once SB 2 takes effect on January 1, 2022, peace officers, custodial officers, and their employing agencies will no longer be able to claim immunity from Bane Act claims on the basis of these specific provisions. However, other governmental immunity provisions could still apply depending on the facts and allegations of a specific case, and these immunities would still apply in civil actions other than those brought under the Bane Act.

SB 2 also amends the Bane Act to require public entities to provide indemnification to employees or former employees sued under the Act, to the same extent that existing law requires in tort cases.

Conclusion

SB 2 is a broad and complex legislative act, with a number of interlocking aspects. LCW strongly recommends that every public agency that employs peace officers – whether at the state, county, or municipal level – begin preparations now to ensure that they are ready to comply with SB 2 as soon as it takes effect. LCW will be conducting training to assist agencies in developing a better understanding of these new requirements and how to prepare to comply.

This Special Bulletin is published for the benefit of the clients of Liebert Cassidy Whitmore. The information in this Special Bulletin should not be acted upon without professional advice.