Aaron Read and Randy Perry
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/