Reform in law enforcement: an L&E perspective

Police officers and law enforcement agencies are under heightened public scrutiny now more than ever following the recent deaths of George Floyd, Breonna Taylor and Rayshard Brooks, among others. Tensions have been building for a number of years, and they have culminated in what we all see and hear in our communities: protests, civil unrest and demands for immediate and significant police reform.

The types of reform sought include more transparency in law enforcement, swift discipline and termination of problematic police officers, and calls to defund or abolish police departments entirely. Organizations such as Campaign Zero and its project, "#8cantwait," have proposed specific changes to police use of force policies and procedures, including requiring officers to de-escalate situations, intervene when other officers use excessive force, banning "chokeholds," as well as demands for general community oversight, independent investigations of officer misconduct, and a re-evaluation of police unions and their labor contracts.

However, missing from the discussion of a number of the sought after reforms is an appreciation of the existing legal landscape in which law enforcement administrators must operate. The public and government leaders should appreciate that civil service rules, union contracts, the federal and state constitutions and employment and labor laws enacted by the California Legislature will impact both the pace of reform and what reforms are likely achievable.

Local Agency Civil Service Rules and the Police Officer Discipline Process

Some have questioned how officers who have a history of citizen complaints against them remain employed. Aside from the possibility that not all complaints are meritorious, the public and local agency leaders should understand that constitutional due process protections that have been conferred on most public employees in California are significant reasons why problematic officers cannot be removed from the police force swiftly.

While most employees in the private sector are employed "at-will," civil service systems that most public agencies have set up give public employees a constitutionally recognized "property interest" in their jobs. This means that in most agencies public employees get the equivalent of tenure after a short (usually one year) probationary period. Once an officer has a property interest, he or she cannot be disciplined or terminated without "good cause," and the agency must provide both pre-disciplinary and post-disciplinary due process rights, including a full evidentiary appeal hearing where the employer has the burden of proof. See, e.g., Skelly v. State Personnel Board, 15 Cal. 3d 194 (1975). Administrative appeal hearings frequently span over a period of many months, and the hearing officer or body not only has the power to decide whether misconduct or poor performance was proven, but also whether the agency's level of discipline was too severe. Officers and other public employees can then, if they lose their discipline appeal hearing, seek judicial review in superior court, usually through a petition for writ of administrative mandamus under Code of Civil Procedure Section 1094.5. Like other cases, the superior court's decision can be appealed to the Courts of Appeal, and thus the entire process can take as long as five years to complete.

While local governments could theoretically repeal or modify their civil service systems to eliminate or streamline the process, it is unclear if the political will is there to do this given that these systems apply to other types of public employees as well.

California Labor Laws

The California Legislature has also enacted a number of labor laws that impact law enforcement leaders' ability to make reforms swiftly. For example, the Legislature enacted the Meyers-Milias-Brown Act under the stated goal of promoting stable employer-employee relations. The MMBA allows employees of cities and counties, including peace officers, to unionize. While the MMBA allows unions to negotiate on issues such as salaries and benefits, it also confers the right to demand negotiation on items such as grievance procedures, discipline appeal procedures and how long discipline records can be retained. Similarly, attempts to eliminate a city's police department completely is not something that can occur without going through the bargaining process with the affected unions. See Rialto Police Benefit Assn. v. City of Rialto, 155 Cal. App. 4th 1295 (2007).

The California Public Employment Relations Board recently decided that it has jurisdiction over police unions. See Assoc. of Orange County Deputy Sheriffs v. County of Orange, PERB Decision No. 2657-M. Given that it is relatively easy and inexpensive to file unfair labor practice charges with PERB, law enforcement employers may see an increase in unfair practice charges filed by police unions, and these charges could slow down or otherwise impact reform efforts.

The California Legislature also enacted the Public Safety Officers Procedural Bill of Rights Act. The POBR, also enacted under the stated goal of maintaining stable employer-employee relations, confers rights and protections that must be afforded all peace officers by public entities which employ them, including conditions under which administrative investigations of peace officers must be conducted. Govt. Code Sections 3300-3313. If a law enforcement department does not comply with the POBR, evidence of wrongdoing can be suppressed (i.e., it may not be relied upon to terminate or discipline an officer) or imposed discipline can be completely overturned, resulting in the retention of problematic officers. See, e.g., City of Los Angeles v. Superior Court (Labio), 57 Cal. App. 4th 1506 (1997) (police officer's lie to a supervisor about his whereabouts during an incident ordered suppressed because supervisor did not advise the officer he was suspected of misconduct before questioning him about the incident).

Peace Officer Personnel Records

Balancing the desire to hold officers accountable while simultaneously recognizing that citizens may have complaints about officers that are not always meritorious, decades ago, the California Legislature enacted legislation that requires law enforcement departments to accept and investigate citizen complaints while at the same time making administrative investigations of those complaints for the most part confidential. See Penal Code Sections 832.5-832.8. Thus, until very recently access to peace officer personnel records, which include records of personnel investigations, could only be obtained by a party in a criminal or civil matter through the filing of a "Pitchess" motion. See Evidence Code Sections 1043, et seq. and Pitchess v. State Personnel Board, 11 Cal. 3d 531 (1974). The Pitchess statutes even apply to a district attorney's office or the attorney general unless they are conducting a criminal investigation of an officer. Indeed, prior to the California Supreme Court's recent decision in Association for Los Angeles Deputy Sheriffs v. Superior Court (Los Angeles County Sheriff's Department), 8 Cal. 5th 28 (2019), the Pitchess statutes prevented law enforcement agencies disclosing the names of officers on their "Brady list" to prosecutors so they could, in turn, comply with their constitutional obligations to provide criminal defendants with exculpatory evidence about arresting officers.

The Legislature has been re-thinking the strict confidentiality that it initially afforded to peace officer personnel records, and by all accounts it will continue to do so. Senate Bill 1421, effective Jan. 1, 2019, made four categories of peace officer personnel records no longer confidential. The four categories are records concerning (1) shootings at persons, (2) uses of force resulting in great bodily injury, (3) sustained findings of sexual assaults against members of the public, and (4) sustained findings of certain types of officer dishonesty. Similarly, Assembly Bill 748, effective July 1, 2019, made audio and video from certain types of incidents (shootings at persons and uses of force resulting in great bodily harm) discloseable under the California Public Records Act.

There is now legislation being considered (SB 776) that would expand the disclosure requirements of SB 1421. This legislation, if passed, would make every use of force incident subject to disclosure, eliminate the requirement that a complaint relating to sexual assault or dishonesty be sustained, add new categories of records that are no longer confidential (e.g., records regarding wrongful arrests and searches), mandate the retention of certain records, and add new penalties if a government agency fails to timely comply with CPRA requests.

Clearly, the trend in the legislature is less confidentiality and more transparency. More transparency comes with a cost, however, as cities and counties have already had to absorb the significant costs associated with SB 1421 compliance.

Conclusion

Public agencies with law enforcement departments are in the midst of serious discussions about police reform. For those discussions to be productive, elected officials, agency administrators and the public should understand the legal landscape in which law enforcement departments operate so that meaningful and realistic reforms can be implemented. Setting expectations given the constitutional and legislative requirements that public agencies face should lead to an outcome that all interested stakeholders can support. 