Capitol Beat – PORAC’s Priorities

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

2018 is the second half of the two-year legislative session, and it is turning out to be quite challenging. The American Civil Liberties Union (ACLU) and other social justice organizations are sponsoring bills that range from bringing the attorney general into officer-involved shootings and the mandatory release of body-camera footage to the release of investigatory files and the severe restriction of the use of deadly force by officers.

In addition to these bills dramatically impacting the law enforcement profession, PORAC is working diligently to push legislation positively impacting the Peace Officers Bill of Rights (POBR) and the workers’ compensation system, as well as legislation to provide protections in California’s newly created Racial and Identity Profiling Advisory (RIPA) regulations.

Actively Opposed Bills

AB 284, Reporting of Officer-Involved Shootings, by Assembly Member Kevin McCarty (D-Sacramento): This bill inserts the California Department of Justice (DOJ) into the process of studying peace officer–involved shootings resulting in death or serious injury. This bill also requires the AG to do a study of past actions to determine whether there is a need for change. AB 284 has been stalled; however, it is not dead. We will update you as information becomes available.

AB 748, Disclosure of Video and Audio Recordings: Peace Officers, by Assembly Member Philip Ting (D-San Francisco): AB 748 requires the release of body-camera footage within 120 days, regardless of whether there is still an active, ongoing investigation. It disallows the use of redaction technology to obscure specific portions of the recording for law enforcement purposes and prohibits the use of biometric technology on the video. PORAC, along with the other law enforcement organizations, will continue to fight this measure. As of this writing, AB 748 is sitting in the Senate Appropriations Committee; however, the issue is still very much alive. The sponsors, the ACLU and the Newspaper Publishers Association, are adamant about receiving this information and demand the video as soon as they can get it.

AB 931, “Police Accountability and Community Protection Act,” by Assembly Member Shirley Weber (D-San Diego): The intent of this bill 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.

AB 3131, Law Enforcement Agencies: Military Equipment — Funding and Acquisition, by Assembly Member Todd Gloria (D-San Diego): This bill would require law enforcement agencies to obtain approval of the applicable governing body, by adoption of a military equipment impact statement and a military equipment use policy, as specified, by ordinance at a regular meeting held pursuant to specified open meeting laws, prior to taking certain actions relating to the funding, acquisition or use of military equipment.

SB 1421, Criminal Procedure and Sentencing, by Senator Nancy Skinner (D-Berkeley): SB 1421 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, serious use of force resulting in death or serious injury, sexual assault, dishonesty, etc.

Actively Supported Bills

AB 2577, Personal Income Taxes: Deductions — Labor Organization Dues, by Assembly Member Adam Gray (D-Merced): For each taxable year beginning on or after January 1, 2018, and before January 1, 2023, this bill would allow, as a deduction from gross income, an amount equal to the amount paid or incurred for member dues paid by a taxpayer during the taxable year to specified labor organizations.

AB 2823, Violent Felonies, by Assembly Member Adrin Nazarian (D-North Hollywood): This bill would define human sex trafficking as a violent felony and expand the scope of violent felonies in cases of sodomy, oral copulation, sexual penetration and rape offenses, including if the victim was unconscious, incapable of giving consent due to intoxication or because of a mental disorder, physical disability and more.

Sponsored Bills

AB 1749, Workers’ Compensation: Off-Duty Peace Officer, by Assembly Member Tom Daly (D-Anaheim): Unlike most professions, law enforcement is uniquely trained in how to react to attacks on the public. Co-sponsored by PORAC, AB 1749 would ensure that California’s workers’ compensation system covers peace officers who acted outside of state boundaries and were injured, regardless of their injuries.

AB 3091, RIPA Legislation, by Assembly Member Shirley Weber (D-San Diego): AB 3091 will clarify the intent of AB 953 by Assembly Member Weber that individual officers not be identified through the data provided for the RIPA report. This bill simply states that the “unique identifying number shall not be subject to the California Public Records Act.”

SB 1086, Workers’ Compensation: Firefighters and Peace Officers, by Senator Toni Atkins (D-San Diego): Co-sponsored by PORAC, this bill extends in perpetuity the window of time during which the family of a public safety officer whose death is attributable to specified work-related illnesses is eligible to collect survivor death benefits. By permanently extending the survivor death benefit eligibility from 240 weeks to 420 weeks, it will ensure that these officers’ grieving families are not deprived of the benefits they deserve due to an arbitrary and unfair timeline.

Capitol Beat – Hitting the Ground Running

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

This January begins the second half of a two-year legislative session. This means that we will see many of our 2017 priority bills moving through committee and floor hearings once again. We will also see other bills amended with brand-new language for us to review and possibly take a position on. However, we are not just sitting around waiting for things to happen. As always, PORAC is proactive when it comes to legislation, and this year, we will be sponsoring new and significant bills that will impact the lives of our members.

At PORAC’s Annual Conference of Members in November, the Board of Directors voted to sponsor three brand-new measures, as well as to reintroduce a vetoed bill and work to rectify a bill that was signed into law last year. The team at ARA has submitted the PORAC-approved language to the legislative counsel and will be working with the bill authors on strategy and background information. Once the language is introduced, the bill must sit for 30 days before being assigned to a committee. Below are brief summaries of a few of PORAC’s new sponsored bills.

RIPA Amendments

This bill is authored by Assembly Member Sharon Quirk-Silva (D-Fullerton). As we have reported in past articles, the Racial and Identity Profiling Act (RIPA) was created after AB 953, authored by Assembly Member Shirley Weber, was signed into law. The measure was strongly opposed by PORAC since it was first introduced, but the political dynamic has changed since Ferguson and the amount of support for the bill was staggering. PORAC President Mike Durant was asked to be on the advisory board, and now President Brian Marvel has been sworn in to take over this role.

Assembly Member Weber’s bill promised to keep officers’ identities confidential. However, this is being compromised in the RIPA regulations 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 available to the public. This was 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.

Since PORAC was first formed, we have been determined to protect our officers’ safety and privacy. ARA, along with the PORAC legal team, has drafted language to amend AB 953 to ensure that officers’ identities are not breached and that RIPA upholds officer privacy rights as written in the CPRA.

We have an uphill battle ahead, with clear enmity directed toward the men and women of law enforcement. PORAC will continue to work to guarantee that officers’ privacy and safety are considered as these regulations are implemented.

Out-of-State Workers’ Compensation

Our nation has been hit hard over the last few years as acts of hate and violence are becoming a part of our everyday narrative. Unlike most jobs, law enforcement is uniquely trained on how to react to attacks on the public. This is something that cannot be taken for granted. As we saw in the horrific Las Vegas shooting recently, off-duty peace officers from California heroically responded by personally shielding innocent concertgoers, carrying injured people to safety and returning to the scene repeatedly to escort others out of harm’s way at great risk to themselves. Unfortunately, some of these brave peace officers were injured by gunshots. The issue that has arisen from this event is whether or not California’s workers’ compensation system should cover these peace officers who acted outside of state boundaries and were injured. Some of these workers’ comp claims are being denied by the peace officers’ agencies.

Penal Code Section 830.1 (a) defines the authority of California peace officers. Specifically, it states the following:

The authority of these peace officers extends to any place in the state, as follows:

(1) As to any public offense committed or which there is probable cause to believe has been committed within the political subdivision that employs the peace officer or in which the peace officer serves.

(2) Where the peace officer has the prior consent of the chief of police or chief, director, or chief executive officer of a consolidated municipal public safety agency, or person authorized by him or her to give consent, if the place is within a city, or of the sheriff, or person authorized by him or her to give consent, if the place is within a county.

(3) As to any public offense committed or which there is probable cause to believe has been committed in the peace officer’s presence, and with respect to which there is immediate danger to person or property, or of the escape of the perpetrator of the offense.

PORAC understands that is our responsibility to protect our members as they protect the citizens of our country. There’s no on-and-off switch for an officer’s commitment to “support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic.” Assembly Member Tom Daly (D-Anaheim) has introduced legislation in an attempt to further define the role of a California peace officer and the responsibilities of a peace officer’s employer should they become injured.

Parole Video and Victims

PORAC is teaming up with fellow stakeholders to introduce legislation that provides greater transparency and accountability to the parole process, ensuring that the process does not continue to revictimize the individuals and families of the crime. Officer Archie Buggs of San Diego P.D. was murdered in the line of duty in 1978. His executioner has had four parole hearings since 2012. California’s current parole process continues to revictimize families like Archie’s. This new bill attempts to fix this broken system in the following ways:

  • Provide video of all “lifer” parole hearings, with the proviso that victims or victims’ relatives will have the option to have their video image concealed.
  • Remove the Board of Parole Hearings from the jurisdiction of CDCR and make it into a freestanding agency.
  • Require that the inmate, on the record, demonstrate remorse and insight into the nature of his or her offense.
  • Further, require that the inmate demonstrate the changes he or she has made that demonstrate a departure from his or her prior criminality and state-specific post-release plans.
  • Expand the governor’s authority to overturn or modify a parole grant to include all transactions in which a peace officer was killed. Provide that an inmate whose parole grant was overturned by the governor must wait five years before reapplying.

              Require the Board of Parole Hearings to release the video and audio of the hearing to the public, prominently displayed on its website, within five business days after the hearing.

Capitol Beat – PORAC Priorities in 2017

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

PORAC-Sponsored Bill: AB 1428, Transparency for Law Enforcement

The California Newspaper Publishers Association (CNPA) and American Civil Liberties Union (ACLU), in addition to other social justice organizations, have been shopping around various legislative proposals to lawmakers and their staff that would open up the internal affairs and district attorney investigations of peace officers. The problem is that these proposals would attempt this by requiring the release of investigatory files, opening disciplinary hearings to the public and releasing information from an officer’s personnel file. PORAC strongly disagrees with this approach, as it does not take into consideration an officer’s privacy or safety. Last year, rank-and-file law enforcement formed a working group and created transparency language that we feel will reasonably bring the public in on the process of complaint investigations and inquiries regarding officer-involved shootings and serious uses of force.

At the time this article was written, the transparency bill was not yet in print. However, because of the breadth of the content of the bill, it will likely be double-referred. This means that rather than going to one policy committee, the fiscal committee and then the floor, it will go to two policy committees, the fiscal committee and then the floor. It will likely be assigned to the judiciary and public safety committees before moving to the fiscal committee — if it is successful.

Once the bill is out in print, we will be setting up meetings with legislators and staff to educate them and discuss the details and purpose of the bill. 

Assembly Member Evan Low, who has stood by PORAC’s side through many issues during his tenure, has agreed to author the bill, and Assembly Member Gipson has signed on as the principal co-author. Additionally, Assembly Members Bigelow, Cooper, Lackey and Santiago, along with Senator Wilk, have all signed on as co-authors. Below is a brief outline of AB 1428 (Low), sponsored by PORAC, CAHP, LAPPL and ALADS.

AB 1428:

  • Requires each department or agency to provide written notification to a complaining party as to the status of the ongoing complaint investigation, at least every 45 days until final disposition
  • Requires all county district attorneys who conduct an investigation of an officer-involved shooting to report the findings of that investigation on their website within 30 days of the conclusion of the investigation
  • Requires each department or agency that employs peace officers to post reports on its website about serious uses of force by its officers within 30 days of completing any investigation
  • Requires each department or agency to post, at least quarterly, a report on its website containing aggregate statistical information on serious uses of force by its officers
  • Authorizes an agency or department that employs peace officers to establish a mediation program to resolve biased policing complaints; this program would allow complainants to speak directly to the officer(s) they filed the complaint about
  • Requires each department or agency that employs peace officers to post on its website its procedures for investigating complaints by members of the public against its personnel
  • Requires each department or agency that employs peace officers to make available for public inspection the rules and procedures that it has adopted for imposing discipline upon its peace officers and providing for the administrative appeal of an adverse decision

RIPA Proposed Regulations

Another priority for PORAC this session relates to legislation passed last year, AB 953 (Weber), which requires peace officers to collect racial identity information for each stop they make. The bill also created the Racial and Identity Profiling Advisory (RIPA) Board within the Department of Justice, and tasked it with recommending the regulations and types of data collected by officers.  

Currently, the Attorney General is in the process of reviewing the regulations recommended by the RIPA Board. PORAC is asking that the AG remove the language relating to the use of a “unique identifier” for each individual officer and to reduce the number of data points required to be collected by an officer at each stop. Finally, PORAC believes the type of stops where this data is collected should not include calls for service or violations committed in the officer’s presence. We are hopeful that Attorney General Becerra will agree.

SB 54: “Sanctuary State”

Senate President Pro Tem Kevin de León is attempting to keep law enforcement agencies from cooperating with federal immigration agents with his introduction of SB 54. This bill is one of the highest-profile bills in California, as it goes directly against President Trump’s crackdown on illegal immigration.

SB 54 would place certain restrictions on state and local government entities in their interactions with federal immigration authorities. PORAC opposes this measure for three critical reasons:

  1. The bill requires a local law enforcement agency to report to the Department of Justice if they are involved in special immigration task forces. These task forces can be costly and possibly non-reimbursable. Additionally, federal funding to our local agencies could be put at risk.
  2. SB 54 plans to remove people with immigrant status from California jails and place them in an outside detention facility — thus separating them from their families, communities and networks, and creating even more difficulties in the family unit.
  3. The breakdown of local, state and federal partnerships will prevent our officers from being able to do their jobs; therefore, violent criminals will remain on the streets and our families will be in danger.

PORAC’s main concern is public safety. We protect all Californians, immigrants and nonimmigrants alike. By targeting immigrants who are not criminals, we violate all that we stand for and lose the trust we have within our communities.  

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.