Capitol Beat – PORAC’s Priorities

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

By the time you read this, the Legislature will likely be in summer recess. When they return on August 6, there will only be four weeks left of the 2017–2018 legislative session. PORAC, along with Aaron Read & Associates (ARA), will be busy over the next several weeks working to support, oppose or amend legislation. (See the complete list of PORAC’s active support, active oppose and sponsored bills in the bill chart on the next page.) As mentioned in our previous article, law enforcement is primarily on the defensive this legislative session, opposing critical bills that would negatively impact our officers. Here is a list of some of the current issues that we are opposing:

AB 284 (McCarty, D-Sacramento): This bill inserts the California Department of Justice (DOJ) into the process of studying peace officer–involved shootings (OIS) resulting in a serious injury or death. AB 284 requires the attorney general to do a two-year study of past officer-involved shootings resulting in serious injury or death to determine whether there is a need for change in shooting policy and to make recommendations. The study would look at shootings from January 1, 2015, to December 31, 2016. PORAC played an active role in opposing this bill from the beginning. One of our arguments was that we didn’t believe legislation was needed for this issue. Under current law, the attorney general can already go in on an investigation. For this reason, Assembly Member McCarty made the decision to turn his bill into a budget augmentation of $10 million. We met with the Senate budget staff to continue our efforts to stop the request from being funded. We were recently informed that the Senate denied the McCarty budget proposal. As of right now, the funding for the DOJ OIS Investigation program is dead.

AB 748 (Ting, D-San Francisco): This bill requires the release of body-camera footage within 120 days, regardless of whether there is still an active, ongoing investigation, disallowing the use of redaction technology to obscure specific portions of the recording for law enforcement purposes and prohibiting the use of biometric technology on the video. At the time this article was written, we had just been handed amendments to AB 748 that purport to align with LAPD’s new video release policies. The amendments attempt to remove the negative impact this bill could have on ongoing investigations by allowing for extensions. PORAC’s lawyers are analyzing the amendments, and we will follow up when we have more information. AB 748 is currently awaiting a hearing in the Senate Judiciary Committee.

AB 931 (Weber, D-San Diego): This bill would limit the use of deadly force by a peace officer to situations where it is “necessary” to prevent imminent and serious bodily injury or death to the officer or to a third party. It would prohibit the use of deadly force by a peace officer in a situation where an individual poses a risk only to themselves. AB 931 would also limit the use of deadly force by a peace officer against a person fleeing from arrest or imprisonment to only those situations in which the officer has probable cause to believe that the person has committed, or intends to commit, a felony involving serious bodily injury or death, and there is an imminent risk of serious bodily injury or death to the officer or to another person if the subject is not immediately apprehended. Amendments are being proposed; however, as of this writing, they are not yet in print. PORAC’s leaders and panel attorneys, along with ARA, have been in many meetings over the last couple of months to develop a strategy on how best to defeat this bill. AB 931, in its current form, is detrimental to law enforcement and puts officers and the public at risk. This is our number one issue this year, and every effort is being put forth to keep the bill from moving forward. We will keep you informed as the situation progresses.

SB 1421 (Skinner, D-Berkeley): This bill permits inspection of specified peace officer and custodial officer records pursuant to the California Public Records Act (CPRA). SB 1421 provides that records related to reports, investigations or findings may be subject to disclosure if they involve the following: incidents involving the discharge of a firearm or electronic control weapons by an officer, incidents involving strikes of impact weapons or projectiles to the head or neck area, incidents of deadly force or serious bodily injury by an officer, incidents of sustained sexual assault by an officer or incidents relating to sustained findings of dishonesty by a peace officer. PORAC has met with Senator Skinner, her staff and the bill’s sponsors on many occasions and are working with her office on potential amendments. Stay tuned for more information. In the meantime, PORAC remains opposed.

Primary Election

As you know, the June 5 primary election is behind us. Incumbent legislators in both houses who were up for re-election advanced to the general election, which will be held on November 6.  

Capitol Beat – Our Biggest Battle Yet

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

On May 8, PORAC leadership walked the halls of the Capitol for their annual Legislative Day. In past years, PORAC members met with their local policymakers to discuss PORAC’s sponsored, supported and opposed legislation. This year, however, we narrowed our focus down to three bills that, if passed, could greatly impact the safety of our officers and the public. It is important for legislators to understand what peace officers in California are facing, and we encourage you to join us in being a voice for your association as we continue to advocate for PORAC members. Below are two of the three bills discussed during Legislative Day. PORAC has sat down with their panel attorneys, stakeholders and policymakers on many occasions to discuss each of the measures explained below.

AB 931, the “Police Accountability and Community Protection Act”: Active Oppose

The intent of AB 931, by Assembly Member Shirley Weber (D-San Diego), is to authorize police officers to use deadly force only when it is necessary to prevent imminent and serious bodily injury or death. This bill abandons the “reasonableness” standard adopted by the U.S. Supreme Court in Graham v. Connor.

PORAC agrees with the following:

  • The use of deadly force is a serious responsibility that must be exercised judiciously.
  • Every person has a right to be free from excessive force by officers acting under color of law.
  • Peace officers should be trained in a wide range of skills, tactics and tools, including de-escalation tactics and mental health assessment training.

PORAC opposes this bill for the following reasons:

  • The legislation fails to take into account that imposing a new standard for use of deadly force would require that every police officer in the state of California be retrained. The legislation fails to take into consideration the significant time that will be required to develop new training to adjust every officer’s mental and motor programs to the new standard, and fails to contain any funding mechanism for such standards.
  • The legislation defines “necessary” as meaning there is “no reasonable alternative” to the use of deadly force. Whether deadly force was the only reasonable option can only be determined in hindsight and does not allow for the fact that police officers are often forced to make split-second judgments.
  • The cost of a “necessary” standard will be officer hesitation. This will place our communities at greater risk as officers delay their response to a rapidly evolving and dangerous situation in order to review and evaluate a checklist of options before acting to protect the public safety.
  • The existing standard already takes necessity into account. An officer can only use the amount of force that under the totality of circumstances is reasonable. For the force to be reasonable, it must be objectively necessary given everything the officer knew and believed to be true at the time the force decision was made.
  • An increased level of training rather than legislation would accomplish the bill’s mandate that officers consider alternatives, including de-escalation.

SB 1421, Criminal Procedure and Sentencing: Active Oppose

SB 1421, by Senator Nancy Skinner (D-Berkeley), states that an officer’s investigatory files will become public after the entire appeal process has been completed and if the officer’s complaint is sustained. The bill deals with the more-serious types of complaints, such as discharge of a firearm, discharge of a Taser, blow to the head or neck, use of force resulting in death or serious injury, sexual assault or dishonesty.

PORAC opposes this bill for the following reasons:

  • There currently exists an unfair appellate process; disclosing the findings prior to a court fully reviewing and analyzing the matter would unduly prejudice what could be an innocent officer.
  • The current law provides for confusion and uncertainty in the administrative disciplinary process; each department has its own regulations that it follows and some are more fair than others.
  • In a case with mixed allegations (i.e., the department chooses to “load up” the discipline by raising numerous allegations of misconduct, some of which would fall under the categories for disclosure and some of which would not), there is no way to parse out what should and should not be disclosed.
  • Should information about law enforcement discipline be publicized, a wave of habeas corpus petitions from convicted criminals would follow. Criminals previously arrested or investigated by an officer who is the subject of misconduct allegations would inundate the court system and render the court process confusing and unreliable.
  • There would, likewise and for similar reasons, be an increase in civil lawsuits brought against government entities, forcing them to expend a great amount of public funds on defense rather than on more important community needs.
  • Disclosing too much information about use-of-force incidents too early in the investigatory process could impede successful criminal prosecutions against officers.
  • Due to concern that their names might be disclosed, officers may hesitate before acting, creating an officer safety issue.
  • Officers being hesitant to become involved in an incident will potentially decrease the safety of communities (the “Chicago effect”).
  • The others involved in a case — e.g., victims and witnesses (not law enforcement) — would lose their right to privacy or be exposed to the general public in ways they might not want; there are no notifications or opt-outs available in the proposed law. Even if names are redacted, there are often ways the public can ascertain the identities of the involved parties.

The Federal Legislation Status Chart is available at porac.org/advocacy/legislation-overview/  

PORAC Calls Lethal Force Legislation a Dangerous Rush to Judgment

PORAC Calls Lethal Force Legislation a Dangerous Rush to Judgment

AB 931 Written in a Political Vacuum

PORAC Press Release

PORAC has supported policies in the past to increase transparency and enhance community trust. However, Assembly Bill 931 deceptively pretends that creating a checklist of what constitutes necessary force instead of reasonable force is something more than irresponsible legislation. The end result is that the public will be placed at greater risk.
Read More…

CA Legislators AB 931 Press Conference

On Tuesday, April 3rd representatives from the California Assembly announced a plan to restrict law enforcement’s use of deadly force. Click Here to view the full press conference to learn more about the proposed bill.