Capitol Beat – A Challenging Road Ahead

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

Police transparency has been at the center of discussion, controversy and legislation since the introduction of SB 1286 by Senator Mark Leno (D-San Francisco) in 2017. During that time, we have seen bills introduced requiring the release of investigatory files, opening disciplinary hearings to the public and releasing information from an officer’s personnel file. PORAC, along with other law enforcement groups, has worked diligently to bring our thoughts, concerns and ideas to the table to reach reasonable solutions to address these issues. In 2018, PORAC introduced AB 1428 by Assemblymember Evan Low (D-Campbell) as a result of the highly publicized debate on police transparency. AB 1428 was a comprehensive measure determined to lessen the divide between police and the community by providing reasonable transparency without threatening the safety of officers and their families. The bill did not make it out of the Senate Public Safety Committee.

Fast-forward to today. On January 6, Assemblymember Jordan Cunningham (R-San Luis Obispo County) began the 2020 legislative session with a gut-and-amend on AB 1599, ultimately creating a new bill requiring that if an officer resigns prior to an agency concluding an investigation, all information related to the incident shall be eligible for release to the public. While we agree that there are officers who deserve to face disciplinary actions, law enforcement is under more scrutiny than any other profession. With over 90,000 officers in California, there are very few cases in which an officer is found guilty of misconduct. The current accusatory rhetoric toward our officers is creating an environment in which they are hesitant to do their jobs and recruitment is becoming very difficult. Furthermore, it is creating a greater division between our officers and the public they serve. This is a dangerous position for California to be in.

PORAC opposes AB 1599 for the following reasons:

  • Individuals resign due to other reasons than guilt. Often, they do not want to drag their families through a tumultuous and public investigation.
  • Why is law enforcement singled out in this bill? According to the author’s office, it is because law enforcement is “held to a higher standard.” If this is the position the Legislature is going to take in the area of privacy of personnel files, then the bill should apply to all employees, especially those who work with vulnerable populations. Why doesn’t the bill apply to the Legislature itself?
  • One of the key concerns PORAC has with AB 1599 is the continued encroachment upon the privacy of an officer’s personnel files and the rights of that employee. This is an issue not simply of rights, but of safety for our officers. An accusation does not imply guilt; yet, when the media gets hold of that accusation, the lives of the officer and their family are changed forever.
  • Current law states that all accusations or complaints are to be investigated. An officer’s resignation does not usually change that, especially for sexual assault, where a criminal investigation is likely to ensue. In fact, PORAC’s sponsored bill, AB 1428, as mentioned above, was our proactive approach to clarify this issue. AB 1428 would have put in place rules for reporting the investigation’s progress to the complainant and would require the complainant to receive a final disposition of their complaint. To write into statute that all of these types of “accusations” filed against an officer shall be released because the officer leaves the department, as stated in AB 1599, is the wrong way to seek transparency of complaints. Finally, AB 1599 does nothing to protect the privacy of the victim, nor does it take into consideration other potential issues that may have been addressed in the same investigation.

AB 855 by Assemblymember Kevin McCarty (D-Sacramento)

After all the negotiations in 2019 and hours upon hours of drafting language and amendments relating to peace officers’ use of deadly force, Assemblymember McCarty has introduced language that would create a task force within the Attorney General’s Office to “study the use of deadly force by law enforcement officers and to develop recommendations, including a model written policy, for law enforcement agencies.” The bill would also allow the Department of Justice (DOJ) to review local agency use-of-force policies, as requested by the local agency. PORAC has serious concerns about this bill for many reasons. Chiefly, AB 855 does not spell out the makeup of the task force. For example, if the task force were to resemble the current Racial and Identity Profiling Act (RIPA) task force within the DOJ, it would cause serious concerns, since that task force is made up mostly of representatives from various social justice groups, churches and other non-law-enforcement organizations who have no expertise in local law enforcement use-of-force policies. Also, this body could potentially create a model policy that completely changes the current standard for when an officer may use deadly force. In the Assembly Public Safety Committee hearing on January 14, the author stated that nowhere in the bill does it mandate that these model policies would have to be adopted by local agencies. However, the reality is that once these model policies were made public, or any changes to an agency’s current policy were recommended by the AG, there would be immense public and political pressure to accept the changes, at a minimum. Moreover, the recommended changes could lead to potential lawsuits surrounding existing cases.

PORAC is in discussion with the authors of both AB 1599 and AB 855 to see if there is language we can agree on that would get close to their goals.

As always, if you have any legislative questions or concerns, please do not hesitate to contact the team at Aaron Read & Associates at (916) 448-3444, or email Aaron Read (aread@aaronread.com), Randy Perry (rperry@aaronread.com) or Michele Cervone (mcervone@aaronread.com).