Capitol Beat – RIPA in the Real World

Aaron Read and Randy Perry
Legislative Advocates
Aaron Read & Associates, LLC

In October 2015, AB 953, the Racial and Identity Profiling Act (RIPA), authored by Assembly Member Shirley Weber, was signed into law. This dangerous and poorly crafted measure was strongly opposed by PORAC since it was first introduced, but the political dynamic has changed so much since Ferguson that the amount of support for the bill was staggering. The author claimed that her bill “would prevent profiling by, among other things, clarifying and modernizing California’s current prohibition against profiling to better account for the ways in which profiling occurs, establishing a uniform system for collecting and analyzing data on law enforcement–community interactions, and establishing an advisory board that investigates profiling patterns and practices and provides recommendations on how to curb its harmful impact.” The language is more rose-colored than the real-world implications.

Aaron Read & Associates testified on behalf of PORAC, making two salient points. First, that the bill would codify, for the first time in history of law enforcement, the mandatory profiling of citizens by law enforcement. Second, that AB 953 would clarify that the aggregate information being collected had no way to individually identify an officer gathering the stop data.

The Department of Justice did not waste any time establishing the board. The chosen board includes attorneys, community and spiritual leaders, university professors, civil rights activists and current law enforcement officials. Among the 18 board members, President Mike Durant has been selected as the only rank-and-file representative and one of only four law enforcement representatives. This recognition speaks volumes as to where PORAC stands as a law enforcement leader in California. Yet our voice is hard to hear on a board where the majority appears less than concerned about the safety and security of our officers. Already, the subjective RIPA Advisory Board has gone substantially beyond the requirements of AB 953.

Law enforcement obviously has grave concerns with the direction of the RIPA Board and the adverse impact of the DOJ’s proposed regulations relating to stop data. PORAC leadership, Legal Defense Administrator Ed Fishman, Mike Rains from Rains Lucia Stern St. Phalle & Silver, Aaron Read & Associates, and Marketplace Communications worked together to examine the proposed regulations and respond with a letter and talking points for the January board meeting. To summarize, law enforcement has the following concerns with the RIPA regulations.

The DOJ did not give sufficient consideration to the potential economic and public safety impacts of these regulations. The RIPA requirements have significantly expanded the amount of data required to be collected at each stop. It may appear on first blush that 10 to 15 minutes of an officer’s time to report the required data forms will not have major impact, but if you consider the total number of stops conducted each year, the statewide aggregate time complying with these proposed regulations cannot be discounted. We fully understand that the data collection minimally required by AB 953 is the law; however, the potential consequences need to be considered before proceeding with the regulations.

Additionally, the promise of officer confidentiality is being compromised with what the DOJ is calling a unique identifying number. Prior to AB 953 becoming law, PORAC and other stakeholders were repeatedly assured that the individual identifying information regarding officers would never be released or made available to the public. This is critical for the protection and safety of any individual officer and their family, as the data collected may be misconstrued or taken out of all reasonable contexts. Although the legislation makes clear that individual officer identification must remain undisclosed through the aggregate data published by the DOJ, that same information is not similarly protected through court orders or public records requests filed with the individual agency.

President Durant eloquently raised this issue at the January board. Durant made a motion to have the Attorney General opine as to whether or not the unique identifying numbers and their related personnel would be subject to public disclosure. While Durant’s motion originally passed, a substitute motion was later made and passed to reverse President Durant’s original motion. This sudden shift, in the matter of an hour, unequivocally demonstrates the partiality of the board. We have an uphill battle ahead, with clear enmity directed toward the men and women of law enforcement.

We know that law enforcement officers do their best to protect and serve. While we believe that many of the issues raised are real and deserve addressing, we continue to make significant strides to create solutions that will work in the real world.

The disappointing results of the January RIPA Board meeting force PORAC and the other law enforcement board members to seek the Attorney General’s opinion outside of the RIPA process. Because the regulations are still in the drafting and approval process, PORAC will continue to work to guarantee that officer’s privacy and safety are considered in the final regulations relating to stop data.