On September 30, 2021, Governor Gavin Newsom approved and signed SB 2 and SB 16.1 SB 2 created a procedure for decertification for peace officers and the withdrawal / denial of qualified immunity for claims or actions brought under the Tom Bane Civil Rights Act (section 52.1 of the Civil Code). SB 16 affects the retention of peace officer employment records and access to employment records.
The following are general summaries of notable changes in the law that may affect law enforcement agencies and peace officers.
SB 2 aimed to establish an “independent civilian” commission of nine people to oversee agents who commit misconduct and to modify the qualified immunity generally granted to agents and agencies.
Article 52.1 of the Civil Code
SB 2 added article 52.1 (n) of the Civil Code. Subsection (n) states that the immunity provisions of Sections 821.6 (personal liability for malicious acts), 844.6 (injury to prisoners and compensation) and 845.6 (medical care of prisoners) of the Government Code are is not applicable to actions (brought under the Tom Bane Civil Rights Act) for claims against individual agents and / or their agency.
In addition, subsection (o) states that the compensation provisions under Article 825 of the Government Code (tender indemnity), Article 825.2 of the Government Code (payment on claim), Section 825.4 of the Government Code (Public Entity Compensation) and Section 825.6 of the Government Code (Recovery for Compensation) apply to causes of action brought under this section or the Tom Bane Civil Rights Act.
Government Code Article 1029
Section 1029 of the Government Code has been expanded to include other people who cannot become peace officers. These new changes included the release from the military on trial for felony; conviction for misdemeanor reduced to a felony; conviction of certain offenses (forgery, theft, mutilation, falsification of records, bribes and corruption, perjury and subornation of perjury, falsification of evidence, influence, intimidation or threat of witnesses, refusal to receive or arrest persons charged); and be listed on the National Decertification Index of the International Association of Directors of Law Enforcement Standards and Training or in a similar database.
Article 832.7 of the Criminal Code
SB 2 granted the Commission on Standards and Training of Peace Officers the authority to access an officer’s confidential personal files.
Article 13503 of the Criminal Code
Previously, the Commission did not have the power to adopt rules to cancel certificates. SB 2 authorized the Commission to adopt decertification rules.
Article 13509.5 of the Criminal Code
Within the Commission on Standards and Training of Peace Officers, SB 2 established a Peace Officer Standards Accountability Division. The responsibilities of the Division are to review the investigation, conduct an investigation, present findings and recommendations and initiate proceedings to suspend or revoke a certification under the direction of the Commission.
Article 13509.6 of the Criminal Code
SB 2 authorized the Governor to establish the Peace Officer Accountability Advisory Council, which will make recommendations on revocation of accreditation. The Council is made up of nine members: a peace officer; two from non-profit or academic organizations in the area of police accountability; two from community organizations in the area of police accountability; two who were subjected to excessive use of force or surviving family members; and a lawyer with experience in overseeing peace officers. The President of the Assembly and the Governor choose the members of the Council for a three-year term.
Article 13510 of the Criminal Code
Previously, section 13510 authorized the Commission to establish rules on minimum standards and qualifications for peace officers. The amendment now authorizes the Commission to enforce the rules. The Commission is likely to have the power to enforce its rules.
Article 13510.1 of the Criminal Code
Previously, the Commission had established a certification program for the California Highway Patrol; SB 2 removed references to the California High Patrol.
SB 2 expanded the definition of a peace officer, for whom the Commission may regulate, to include peace officers employed by various entities, including Department of Consumer Affairs, Dental Board of California, Director of Forestry and Fire Protection, Department of Motor Vehicles, California Horse Racing Board, State Fire Marshal, Food Inspectors, Division of Labor Standards Enforcement, State Departments of Health Care Services, Public Health, Social Services, Department of Toxic Substances Control, Office of Statewide Health Planning and Development, Public Employees ‘Retirement System, Department of Insurance, Department of Housing and Community Development, Office of the Controller, Department of Business Oversight, Contractors’ State License Board, Office of Emergency Services, Secretary of State, California State Lottery, Employment Development Department, California Science Center, Franchise Tax Council, Department of Managed Health Care, Department of Summer at the CES Development Service, State Department of State Hospitals, California Health and Human Services Agency, California Community College, school districts, San Francisco Bay Area Rapid Transit District, port or port police, transportation police officers in common, airport law enforcement officer and railway police officer.
A certificate or proof of eligibility is considered the “property” of the Commission, which it can suspend, revoke or cancel.
Article 13510.8 of the Criminal Code
Article 13510.8 of the Penal Code lists the grounds for decertification. In addition to ineligibility under article 1029 of the Government Code, a peace officer can be dismissed for: dismissal for cause and “serious misconduct” (dishonesty of the officer or report of another officer; abuse of power ; physical violence [unreasonable or excessive force]; sexual assault; demonstrated bias; flagrant or repeated violation of the law; involvement in law enforcement gangs; refusal to cooperate in an investigation; and non-intervention).
Law enforcement agencies are responsible for investigating serious misconduct, whether or not the officer is employed by the agency. The Peace Officer Standards Accountability Division will review the law enforcement agency’s investigation and may conduct its own investigation.
Article 13510.85 of the Criminal Code
SB 2 grants an officer due process rights, including notice, a right of review, and other procedural rights, including a right to an administrative hearing before an administrative law judge.
Article 13510.9 of the Penal Code
Section 13510.9 contains reporting requirements for law enforcement agencies. These reporting requirements include employment (hiring and termination), complaints, findings of a civilian oversight body, decision of an investigation, civil judgment, and court findings. The Commission can inspect and copy an agency’s investigation, including any evidence.
Agencies will be required to execute and keep a signed “Separation Affidavit” under penalty of perjury. The affidavit will include the reason for the separation, whether through resolution or settlement. An officer can respond to the affidavit of separation.
Law enforcement agencies will be informed of any investigation conducted by the Division (unless this hinders the investigation), the Division’s finding, the Commission’s decision, and the judgment of the Division. an audience.
SB 16 modified or added the following sections:
Section 1045 of the Code of Evidence (closed-door review and 5-year limitation)
Article 832.5 of the Penal Code (retention of complaints for 5 years)
Article 832.7 of the Criminal Code (Law on Public Archives)
Penal Code article 832.12 (written authorization for the employment file); and
Article 832.13 of the Penal Code (immediate reporting of the use of force).
SB 16 describes how law enforcement agencies are to manage, store, organize and maintain the personal files of peace officers. Here are some of the notable changes in the new legislation.
Article 1045 proof code
Previously, the courts, during a closed-door review, only considered conduct that occurred five years after the alleged conduct in question. This 5-year provision has been removed (presumably to comply with the longer 15-year disclosure period allowed under Section 832.5 (b) of the Penal Code below). As a result, records custodians will likely need to retain and provide additional records to the court.
Article 832.5 (b) of the Criminal Code
Previously, law enforcement agencies were required to keep complaints for at least 5 years. The legislation now makes a distinction between unsupported and supported files. Records that are not retained should be retained for at least 5 years.
Retained records should be kept for at least 15 years. While awaiting any request, the recordings cannot be destroyed; a “stay” for litigation may be desirable.
Article 832.7 of the Criminal Code
SB 16 expanded to include additional types of documents subject to public documents law demand:
- Sustained Findings Involving Unreasonable or Excessive Force
- Confirmed finding of an officer’s failure to intervene when another officer uses excessive or unreasonable force
- Sustained finding of an agent engaging in conduct (verbal, written, online posting, recording or gesturing) involving prejudice or discrimination
- Confirmed finding of illegal arrest or illegal search
- Factual information provided to an agency lawyer
- Factual information uncovered by an agency lawyer during an investigation
- Agency lawyer billing records, with certain limitations
Article 832.12 (b) of the Criminal Code
SB 16 now requires a recruiting agency to request and the recruiting department to review an agent’s previous employment record.
(New) article 832.12 (b) of the Criminal Code
Peace officers must report “any” use of force “immediately” to their department or agency.
These new laws will change the duty and responsibility of an organization to respond to public inquiries about peace officers and disciplinary cases.
1 Governor Newsom has also signed other laws affecting law enforcement agencies and officials, including AB 26, AB 48, AB 89, AB 481, AB 490 and AB 958.