Governor Newsom Signs Numerous Police Reform Bills, Imposing Restrictions and Increasing Transparency

On September 30, 2021, Governor Newsom signed into law a number of major legislative bills intended to enact state-wide policing reforms.

Of these bills, Senate Bill 2, which creates a state-wide system for investigating and decertifying peace officers for serious misconduct, has attracted the majority of the media’s attention. That bill is discussed at length in a previous LCW bulletin, available here. But public entities should take care not to overlook the other police reform bills the Governor signed at the same time, which will also have a significant impact on the operations of California’s more than 500 law enforcement agencies.

SB 16 – Increasing Transparency Regarding Peace Officer Misconduct Records

Senate Bill 16 aims to increase the level of transparency into allegations and investigations of peace officer misconduct. It does so by making five significant changes to the law, along with conforming changes to related statutes:

1. Expanded Disclosure of Peace Officer Personnel Records.

SB 16 expands on a previous bill, Senate Bill 1421, in creating exceptions to the general rule that peace officer personnel records are confidential and not subject to disclosure. Under Penal Code section 832.7, as amended by SB 1421, previously confidential peace officer personnel records are subject to disclosure under the Public Records Act if they relate to: (1) an officer-involved shooting, (2) use of force by a peace officer resulting in death or great bodily injury, (3) a sustained finding of dishonesty, or (4) a sustained finding of sexual assault by a peace officer. SB 16 expands this list, making the following records public:

• Records of a sustained finding that an officer used unreasonable or excessive force;
• Records of a sustained finding that an officer failed to intervene against another officer using unreasonable or excessive force;
• Records relating to sustained findings of unlawful arrest or unlawful searches;
• Records relating to sustained findings that a peace officer or custodial officer engaged in conduct involving prejudice or discrimination on the basis of certain legally protected classes.

The bill also provides that agencies are required to release records relating to a covered incident in which the officer resigned before the agency concluded its investigation. Given that most of the covered categories of incidents require a “sustained finding,” defined as “a final determination . . . following an investigation and opportunity for an administrative appeal pursuant to Sections 3304 and 3304.5 of the Government Code,” it is not clear how this provision will apply in practice. LCW recommends consulting with trusted legal counsel regarding records that might fall under this section.

SB 16 also contains provisions regarding the logistics of producing disclosable records:

The bill specifies that when records are sought through the Public Records Act, which allows agencies to charge the requesting party for the cost of copying, those costs shall not include the costs of searching for, editing, or redacting the records, an issue that had been litigated in the courts.

It specifies that except where a longer period of withholding is specifically permitted under Section 832.7, records subject to disclosure must be provided at the earliest possible time, no later than 45 days from the date of a request for their disclosure.

• The bill specifies that for purposes of releasing covered records, the attorney-client privilege does not protect any of the following:
  • “Factual information” provided by the public agency to the attorney;
  • “Factual information” discovered in any investigation conducted by, or on behalf of, the public entity’s attorney
  • Billing records related to work done by the attorney, except for records that relate to ongoing litigation, or that disclose information for the purpose of legal consultation

2. Pre-Employment Background Check Requirement

Under existing law, specifically Section 832.12 of the Penal Code, every law enforcement agency in California is required to maintain records of misconduct investigations involving that agency’s peace officers. Peace officers who apply for employment with another agency are required to give written permission for the hiring agency to view his or her personnel file. SB 16 adds to this provision and requires that, before hiring a peace officer, the hiring department or agency must request and review that file.

3. Record-retention Requirement

Existing law requires all law enforcement agencies to establish a procedure to investigate complaints by members of the public against their employees, and requires agencies to keep records of such complaints and any related reports or findings for at least five years.

SB 16 amends the law to expand this retention requirement. Under SB 16, if there was not a sustained finding of misconduct, then the records must be retained for at least five years, but if there was a sustained finding of misconduct, then the records must be retained for at least fifteen years. In addition, the bill prohibits agencies from destroying any record while a request related to that record is being processed, or while any process or litigation is ongoing to determine whether that record is subject to release.

Interestingly, the amended statutory language specifies that records covered by these requirements include “all complaints and any reports currently in the possession of the department or agency.” This language appears to be intended to mean that, once SB 16 takes effect on January 1, 2022, all covered records must be retained for five or fifteen years, as applicable, starting on that date, regardless of how long the agency may have kept the records previously.

4. Individual Use-of-force Reporting Requirement

In addition to the above, SB 16 adds a requirement that every person employed as a peace officer shall “immediately” report all uses of force by that officer to their employing department or agency.  The new law does not define what constitutes a “use of force,” which may raise some issues regarding when reporting may be required.  For example, at present, if an officer applies a wristlock in detaining a subject, many agencies would not require the officer to make a report.  However, a wristlock would likely qualify as a “use of force” and may need to be reported under the new law.

5. Expanded Use of Peace Officer Records in Litigation

In general, a party to criminal or civil litigation who seeks discovery or disclosure of confidential personnel records of peace officers and custodial officers (i.e. records not subject to mandatory disclosure under Penal Code 832.7) must file a written motion known as a “Pitchess” motion with the relevant court or administrative body showing good cause for disclosure of the records. If the reviewing court finds good cause for discovery, it reviews the pertinent documents in chambers and discloses only the information that falls within statutorily defined relevance standards.  Under existing law, the court is required to exclude complaints concerning conduct that occurred more than five years before the event that is the subject of litigation. SB 16 removes the five-year limitation.

AB 26 – Minimum Standards for Law Enforcement Use-of-Force Policies

In 2019, the California Legislature enacted Government Code section 7286, which requires all law enforcement agencies in the state to maintain policies that provide a minimum standard on the use of force. These policies must include, among other elements, a requirement that peace officers make a report of potential excessive force to a superior officer when the observe another officer using force they believe to be beyond what is necessary. They must also require an officer to intercede when present and observing another officer using clearly excessive force.

Assembly Bill 26 expands on this statute by adding several additional minimum requirements for agencies’ use-of-force policies, effective January 1, 2022:

• Agencies’ policies must now require officers to “immediately” make reports of potential excessive force.
• Polices must prohibit agency employees from retaliating against an officer that reports a suspected violation of law or regulation to a supervisor or other person with authority to investigate the alleged violation. For purposes of this requirement, “retaliation” includes demotion, failure to promote, denial of access to training and professional development opportunities, denial of access to resources necessary for an officer to properly perform their duties, intimidation, harassment, or the threat of injury while on or off duty.
• When an abuse-of-force complaint against an officer is substantiated, agency policies must include procedures that prohibit that officer from training other officers for at least three years.
• Agency policies must require that an officer who has received the necessary training on the requirement to intercede against clearly excessive force, and who fails to intercede when required, is subject to discipline up to and including that imposed against the officer that used the excessive force.

AB 48 – Restricts use of less-lethal munitions to disperse protests

Assembly Bill 48 enacts restrictions on the types of force law enforcement can use in response to protests. As a general rule, the bill prohibits the use of “kinetic energy projectiles” and “chemical agents” to disperse any assembly, protest, or demonstration, except in compliance with several requirements.

For purposes of this bill, “kinetic energy projectiles” refers to any kind of less-lethal munition that may cause bodily injury through the transfer of kinetic energy and blunt force, such as rubber or plastic bullets or “beanbag” rounds. “Chemical agents” refers to chemicals that produce temporary irritation or disabling physical effects, such as tear gas, pepper balls, and pepper spray.

Specifically, in order for law enforcement to lawfully use these tools to disperse a protest, AB 48 requires that all of the following requirements are met:

• They must only be deployed by a peace officer that has received POST-approved training on their proper use for crowd control.
• The use must be objectively reasonable to defend against a threat to life or serious bodily injury to an individual, or to bring an objectively dangerous and unlawful situation safely and effectively under control.
• De-escalation techniques and other alternatives to use of force must have been attempted, when reasonable, and must have failed if attempted.
• Repeated, audible announcements must have been made announcing the intent to use kinetic energy projectiles or chemical agents and the type to be used, when it is objectively reasonable to do so. These announcements must be made from various locations if necessary, and be delivered in multiple languages when appropriate.
• Persons must be given an objectively reasonable opportunity to disperse and leave the scene.
• Law enforcement must have made an objectively reasonable effort to identify persons who are, or who are not, engaged in violent acts, with kinetic energy projectiles or chemical agents targeted towards those individuals who are engaged in violent acts. Projectiles must not be aimed indiscriminately into a crowd or group.
• These munitions must only be deployed with a frequency, intensity, and manner that is proportional to the threat and objectively reasonable.
• Officers must minimize the possible incidental impact their use of force may have on bystanders, medical personnel, journalists, or other unintended targets.
• Medical assistance must be promptly provided or procured for injured persons, when it is reasonable and safe to do so.
• Kinetic energy projectiles must not be aimed at the head, neck, or vital organs.
• Kinetic energy projectiles and chemical agents must not be used solely due to a violation of curfew, verbal threat, or noncompliance with a law enforcement directive.
• Only a commanding officer at the scene may authorize the use of tear gas.

In addition, AB 48 requires all law enforcement agencies to publish a summary of any incident where a peace officer employed by that agency uses a kinetic energy projectile or chemical agent for crowd control. These summaries must be published on the agency’s website within 60 days, or 90 days if the agency has “just cause” for the delay. The summary must include only the following, to the extent known at the time of the report:

• A description of the assembly, protest, demonstration, or incident, including the approximate crowd size and number of officers involved;
• The type of kinetic energy projectile or chemical agent deployed;
• The number of rounds or quantity of chemical agent used;
• The number of documented injuries as a result of the deployment;
• The justification for the deployment, including any de-escalation tactics or protocols or other measures taken at the time to avoid the necessity of deploying the kinetic energy projectile or chemical agent.

AB 48 also amends an existing law requiring law enforcement agencies to make annual reports to the California Department of justice regarding officer-involved shootings and incidents where use of force by or against a peace officer results in serious bodily injury or death. Under AB 48, law enforcement agencies are required to make these reports on a monthly basis instead.

AB 89 – Raises Minimum Age for Peace Officers; Launches Development of a Policing Degree at California Community Colleges

Assembly Bill 89, also titled the Peace Officers Education and Age Conditions for Employment (PEACE) Act, was enacted to implement reforms to minimize the use of deadly force, based on legislative findings derived from research on early-adulthood cognitive development, and the effect of education on peace officers’ work performance.

Most significantly, AB 89 raises the minimum age of employment for most types of state and local peace officers from 18 to 21. The increased minimum age does not apply to anyone who is already employed as a peace officer in California, or to anyone who is enrolled in a basic police academy as of December 31, 2021. The bill also does not apply to certain types of specialized peace officers, such as park rangers, security officers, and some correctional officers.

The bill also directs the Chancellor of the California Community Colleges, with the advice of the Commission on Peace Officer Standards and Training (POST) and other stakeholders, to develop a “modern policing degree” program focusing on courses such as psychology, communications, history, ethnic studies, law, and other courses determined to develop critical thinking and emotional intelligence. The bill requires the Chancellor to submit a report to the Legislature by June 1, 2023 with recommendations on the adoption of such a program.

Perhaps curiously, the bill also directs POST to adopt a new minimum educational requirement for peace officers within two years after the Chancellor’s report; however, due to an apparent legislative drafting error, the bill does not give POST any clear statutory authority to do so. Based on the bill’s drafting history, it appears the Legislature’s intent is to eventually require all new peace officers to have at least either a bachelor’s degree or the newly-developed modern policing degree. Since the bill gives POST until 2025 to adopt this requirement, it is likely there will be some clean-up legislation clarifying this aspect of the bill.

AB 481 – Restricts Law Enforcement Purchases and Use of Military Equipment

Assembly Bill 481 is intended to increase transparency, accountability, and oversight surrounding the acquisition and use of military equipment by state and local law enforcement, including but not limited to armored or weaponized vehicles, large-caliber firearms, explosive projectile launchers, explosive breaching tools, or “flashbang” grenades.

To this end, it requires any law enforcement agency to obtain approval from the agency’s governing body before purchasing, raising funds for, or acquiring military equipment, by any means, including requesting surplus military equipment from the federal government. Agencies are also required to seek governing body approval before collaborating with another law enforcement agency in the deployment or use of military equipment within the governing body’s territorial jurisdiction, or before using any new or existing military equipment in for a purpose, in a manner, or by a person not previously approved by the governing body.

Governing body approval under AB 481 must take the form of an ordinance adopting a publicly released, written military equipment use policy, which must address a number of specific topics, including the type, quantity, capabilities, purposes, and authorized uses of each type of military equipment, the fiscal impact of their acquisition and use, the legal and procedural rules that govern their use, the training required by any officer allowed to use them, the mechanisms in place to ensure policy compliance, and the procedures by which the public may register complaints. The governing body must consider a proposed military equipment use policy in open session, and may only approve a military equipment use policy if it makes various specific findings regarding the necessity of the military equipment and the lack of reasonable alternatives.

For cities that contract with another entity for law enforcement services, such as the County Sheriff, AB 481 gives the city the independent authority to adopt its own military equipment use policy based on local community needs.

For law enforcement agencies that already have existing military equipment, AB 481 provides a temporary exemption, but requires agencies to seek governing body approval for the continued use of that equipment no later than May 1, 2022.

AB 481 also requires any law enforcement agency that receives approval for the use of military equipment to submit annual reports to the governing body regarding the use of the equipment, any complaints received, any internal audits or other information about violations of the military equipment use policy, the cost of such use, and other similar information.

AB 490 – Prohibits Arrest Techniques and Transport Methods That Create Risk of Positional Asphyxia

In 2020, the Legislature enacted a new law, Government Code section 7286.5, which prohibits California law enforcement agencies from authorizing the use of a carotid restraint or choke hold by any peace officer employed by the agency.

AB 490 expands that law to also prohibit agencies from authorizing the use by peace officers of any technique or transport method that involves a substantial risk of positional asphyxia, which the bill defines as situating a person in a manner that compresses their airway and reduces the ability to sustain adequate breathing. This includes, but is not limited to, the use of physical restraints that compresses the airway or impairs a person’s breathing, including the unreasonable application of pressure or body weight against a restrained person’s neck, torso, or back, or positioning a restrained person without reasonable monitoring for signs of asphyxia.

AB 958 – Prohibits Law Enforcement “Gangs”

Assembly Bill 958 is intended to tackle the issue of “gangs” among peace officers that might undermine the professional standards of policing among California’s law enforcement agencies.

The bill defines a “law enforcement gang” as a group of peace officers within a law enforcement agency who identify themselves by a name or association with an identifying symbol, such as matching tattoos, and who engage in a pattern of on-duty behavior that intentionally violates the law or fundamental principles of policing. Such conduct might include any of the following:

• Excluding, harassing, or discriminating against an individual based on a legally protected category;
• Engaging in or promoting conduct that violates the rights of other employees or members of the public;
• Violating agency policy;
• The persistent practice of unlawful detention or use of excessive force in circumstances where it is known to be unjustified;
• Falsifying police reports;
• Fabricating or destroying evidence;
• Targeting persons for enforcement based solely on legally protected characteristics;
• Theft;
• Unauthorized use of alcohol or drugs on duty;
• Unlawful or unauthorized protection of other members from disciplinary actions; or
• Retaliation against other officers who threaten or interfere with the activities of the group.

AB 958 requires law enforcement agencies to maintain a policy that prohibits participation in a law enforcement gang and makes violation of that policy grounds for termination. It also requires local agencies to cooperate in any investigation into law enforcement gangs by the Attorney General, an inspector general, or any other authorized agency. Moreover, except as specifically prohibited by law, AB 958 requires law enforcement agencies to disclose the termination of a peace officer for participation in a law enforcement gang to any other law enforcement agency conducting a pre-employment background investigation of that officer.

This Special Bulletin is published for the benefit of the clients of Liebert Cassidy Whitmore. The information in this Special Bulletin should not be acted upon without professional advice.