by David Leonhardi
In lieu of a President’s Report this month, I’ve asked that the below summary of Senate Bill 2 from the DSA’s Political Strategist Darryl Lucien be printed instead. Darryl’s summary does a great job clarifying the tenets of the bill. Please send any additional questions or requests for clarification to info@dsasd.org.
Summary
Grants new powers to the Commission on Peace Officers Standards and Training (POST) by creating a process to investigate and determine the fitness of a person to be a peace officer, and to suspend or revoke the certification of peace officers who are found to have engaged in “serious misconduct.”
Serious Misconduct
Requires the definition of “serious misconduct” to include the following:
- Dishonesty, as specified;
- Abuse of power, as specified;
- Physical abuse, as specified;
- Sexual assault, as specified;
- 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, as specified;
- 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;
- Participation in a law enforcement gang, as specified;
- Failure to cooperate with an investigation into potential police misconduct, as specified;
- Failure to intercede when present and observing another officer using force that is clearly beyond that which is necessary, as specified.
Division of Accountability Review
SB 2 creates a new Division within POST that will be tasked with reviewing disciplinary files forwarded to POST from law enforcement agencies that have sustained findings of decertificable misconduct.
SB also provides that the Division of accountability will have the authority to review any agency or other investigative authority file, as well as to conduct additional investigation, if necessary, and specifies that the authority to review such files is limited for purposes of decertification.
Decertification Board
The bill creates an advisory Decertification Board comprised of nine members who meet the following criteria:
- Two peace officers
- Four public members who have substantial experience working at nonprofit, community-based, or academic institutions on issues related to police accountability.
- Two members of the public, with strong consideration given to individuals who have been subject to wrongful use of force likely to cause death or serious bodily injury by a peace officer, or who are surviving family members of a person killed by the wrongful use of deadly force by a peace officer.
- One attorney, who is not a former peace officer, with substantial professional experience involving oversight of peace officers.
The decertification board may request that the Division of accountability review an investigative file or recommend that POST direct the Division of accountability to investigate any potential grounds for decertification of a peace officer, based upon a majority vote.
The Decertification board shall only recommend revocation if the factual basis for revocation is established by clear and convincing evidence.
POST Commission
The Commission consists of 15 appointees, 13 of whom are currently law enforcement or former law enforcement officers. POST is required to review all recommendations made by the decertification board and provides that POST’s decision to adopt a recommendation by the board to seek revocation shall require a two-thirds vote of commissioners present. The decision to decertify must be based on whether the record, in its entirety, supports the conclusion that serious misconduct has been established by clear and convincing evidence.
Retroactivity
Requires, beginning no later than January 1, 2023, that each law enforcement agency be responsible for the completion of investigations of allegations of serious misconduct by a peace officer, regardless of their employment status. Authorizes officers certificates to be revoked retroactively if the officer is found to have committed the following types of offenses:
- Dishonesty
- Physical abuse that results in great bodily injury or death
- Sexual assault
Legal Standard for Decertification
The evidentiary standard that must be met to decertify an officer is “clear and convincing evidence,” which is a much higher burden of proof than the standard customarily used by departments, “preponderance of evidence.”