State misses deadline for peace officer bias screening rules

Effective January 1, 2021, Assembly Bill 846 amended California Government Code Section 1031 to require that candidates for jobs as peace officers -- a term that includes police officers, deputy sheriffs and some similar positions -- be determined to be free of bias on the grounds of race or ethnicity, gender, nationality, religion, disability or sexual orientation. The new law required the state's Commission on Peace Officer Standards and Training -- aka POST -- to update its regulations to prescribe bias screening materials by January 1, 2022.

POST promulgated proposed regulations in September 2021 but was unable to implement final regulations by the statutory deadline. On December 16, 2021, POST announced that the regulations had not received approval from the Office of Administrative Law and that it would work to address the issues raised in a public comment letter. The letter, submitted by the California attorney general's Racial and Identity Profiling Advisory (RIPA) Board, sought to add to but not fundamentally change POST's proposed regulations. POST recommended that, in the interim, agencies hiring peace officers use the proposed regulations as a guideline in complying with the statutory obligation to only hire officers found to be bias-free. It does not appear that POST will be able to finalize its regulations before May.

Proposed Regulations

POST's September 2021 proposed regulations, drafted following consultation with a panel of subject-matter experts and stakeholders including psychological evaluators, background investigators, law enforcement representatives, and other interested groups, would require use of a "Bias Assessment Framework." The framework identifies three "constructs" to be evaluated: Biased Behaviors, Biased Attitudes and Bias-Relevant Traits and Attributes. To assess these constructs, the framework requires use of three data sources: Background and Personal History, Written Instruments and Psychological Interview.

Biased Behaviors

The framework requires that this construct be evaluated based on the background investigation of the applicant and states that these investigations "should include a broad range of diverse references and developed references including workplace (e.g., supervisors, co-workers), family members, neighbors, close personal relationships, social and family friends, teachers, military colleagues, and other contacts." This construct is also to be examined by use of responses to written questionnaire and the psychological interview.

In addition to evaluating any biased behavior in a candidate's history, the framework requires consideration of mitigating or protective factors evidenced in the candidate's background investigation or psychological interview (but not questionnaire responses). Thus, the fact that a candidate has biased behavior in his or her past will not necessarily be disqualifying if there is evidence he or she has changed and would not be likely to engage in such behaviors in the exercise of peace officer powers.

Biased Attitudes

Biased Attitudes, as distinguished from Biased Behaviors, are not assessed on the basis of the background investigation. Written instruments can only be used as part of the psychological interview. As such, the psychological interview is the only real data source for this construct. Psychological evaluators are to both assess biased attitudes and attitudes in opposition to bias against the relevant protected classes.

Since the passage of AB 846, observers have wondered whether POST would require use of implicit bias tests such as Harvard's Implicit Association Test. The framework does not require use of any written instruments in the assessment of the Biased Attitudes construct, specifically stating "[p]ublished measures of biased attitudes are available but have not been validated for personnel selection." However, it continues, "[t]hey may be useful in the context of the psychological interview." Thus, while these tests are not to be used on a standalone basis, psychological evaluators will have discretion to utilize them as part of an examination.

Bias-Relevant Traits and Attributes

The third construct is something of an undefined catch-all, and the framework specifically provides, "[w]hen there is clear and direct evidence of unmitigated biased behaviors or attitudes, other factors are not relevant for assessing the bias of a peace officer candidate. However, when direct evidence of explicit or implicit bias is unavailable, ambiguous, or relatively weak, it may be useful to consider related factors[.]" These factors, therefore, will only apply to those candidates for whom there is not current evidence of biased behaviors or attitudes.

What are these traits and attributes? The framework lists "related factors such as neutral or favorable intergroup contact, motivations to respond without prejudice, perceptions of social norms about prejudice, and executive function." It appears these factors are intended primarily to allow mitigation of unclear evidence of bias, as the framework continues, "[t]hese factors also generally contribute to more equitable behavior and fair treatment of others, and thus can mitigate tendencies to act in discriminatory ways even when some evidence of bias is detected."

DOJ's RIPA Board Comment Letter

On October 25, 2021, the California attorney general's RIPA Board submitted a comment letter recommending additional requirements be included in the final regulations. These include:

Mandatory Assessment of Candidate Social Media Activity

Although the framework allows consideration of social media postings as "aggravating or facilitative factors" that may be considered, it does specifically require social media searches as part of the assessment of a candidate. Noting the fact that information probative of bias can frequently been found on applicants' public social media posts, RIPA asked that this consideration be made mandatory.

Mandatory Express, Detailed Findings

POST's proposed regulation would require that background investigators and psychological evaluators use the framework to assess the three constructs referenced above, but it does not specifically require their assessments to document specific findings as to each construct. The RIPA letter recommends that the evaluators be required to specify findings as to each construct, including stating which data sources or facts were relied on in making this determination.

Current Status

POST has not yet published proposed regulations revised to address the RIPA comment letter. The promulgation of records to comply with AB 846 was not on the agenda for POST's commission meeting or advisory committee meeting earlier this week.

POST's next commission meeting is scheduled for May 25-26, 2022, and it is expected that new proposed regulations will be on the agenda for that meeting.

Conclusion

California's AB 846 is a byproduct of a growing public sentiment that action is needed to ensure that encounters between police and members of minority communities are not affected by bias. A thorough assessment of an officer's propensity for bias as part of the hiring process should effectively reduce bias in policing, but the implementation of that assessment appears to have been more complicated than first thought. California will eventually finalize these bias screening criteria, but until then public safety agencies can and should rely on POST's draft regulations. 