Game-changing legislation concerning peace officer employment and decertification

In 2021, the California Legislature passed a slew of legislation related to peace officer employment. Of the numerous laws passed, one in particular stands out as game-changing legislation which alters the public safety landscape: Senate Bill 2 (SB 2).

This bill imposes many new obligations on law enforcement agencies and substantially expands the Commission on Peace Officer Standards and Training’s (POST) authority, and role with law enforcement agencies effective Jan. 1, 2022. Accordingly, agencies will want to pay close attention to these newly enacted requirements to ensure they are compliant.

1. POST and Peace Officer Decertification

POST sets minimum standards for recruitment and training of peace officers, develops curriculum for training courses, and issues professional certificates for peace officers to hold office. POST has historically had the authority to cancel a certificate that was awarded in error or obtained fraudulently, but could not otherwise cancel a previously-issued certificate. SB 2 now permits POST to revoke existing certificates under certain circumstances and creates a process for peace officer decertification.

Notably, SB 2 requires law enforcement agencies to employ as peace officers only those individuals who hold a current and valid basic certificate from POST or a certificate of eligibility. Under SB 2, POST is required to revoke certification when an individual becomes ineligible to hold office as a peace officer under Government Code Section 1029. Moreover, POST has discretion to revoke a peace officer certification in other instances if the officer engaged in “serious misconduct.” While the precise definition of “serious misconduct” is open to regulatory interpretation by POST, it shall include at a minimum:

1. Dishonesty relating to the reporting, investigation, or prosecution of a crime, or relating to the reporting of, or investigation of misconduct by, a peace officer or custodial officer, including making false statements, intentionally filing false reports, tampering with, falsifying, destroying, or concealing evidence, perjury, and tampering with data recorded by a body-worn camera or other recording device for purposes of concealing misconduct;

2. Abuse of power, including, but not limited to, intimidating witnesses, knowingly obtaining a false confession, and knowingly making a false arrest;

3. Physical abuse, including, but not limited to, the excessive or unreasonable use of force;

4. Sexual assault;

5. Demonstrating bias on the basis of any legally protected status, in violation of law or department policy, or in a manner inconsistent with a peace officer’s obligation to carry out their duties in a fair and unbiased manner;

6. Acts that violate the law and are sufficiently egregious or repeated as to be inconsistent with a peace officer’s obligation to uphold the law or respect the rights of members of the public, as determined by POST;

7. Participation in a “law enforcement gang;”

8. Failure to cooperate with an investigation into potential police misconduct; and

9. Failure to intercede when present and observing another officer using force that is clearly beyond that which is necessary.

SB 2 also authorizes POST to conduct investigations to determine the fitness of any person to serve as a peace officer in California, and to conduct audits of agencies that employ peace officers. To this effect, SB 2 establishes a Peace Officer Standards Accountability Division (Division) within POST, which will review investigations conducted by law enforcement agencies and conduct its own investigations. The Division will have the responsibility to make findings and recommendations to the commission, to conduct administrative proceedings seeking suspension or revocation, and to accept complaints from members of the public.

Additionally, SB 2 directs the Governor to establish a Peace Officers Standards Accountability Board by Jan. 1, 2023. The Board will hear the findings and recommendations from the Division and make recommendations to POST on decertification.

The bill also amends Penal Code Section 832.7 (also known as the Pitchess statute), to allow disclosure to POST of otherwise-confidential peace officer personnel records.

2. Expansion of Criteria Disqualifying Individuals from Holding Office as a Peace Officer

Government Code Section 1029 outlines the circumstances that disqualify an individual from being employed as a peace officer in California. SB 2 expands that list to exclude the following individuals from peace officer employment:

1. An individual discharged from the military after adjudication by a military tribunal for committing an offense that would have been a felony if committed in California;

2. An individual convicted of a felony, including by a guilty plea or a plea of nolo contendere, will remain disqualified even if a later court sets aside, vacates, withdraws, expunges, or otherwise reverses the conviction, unless the court specifically finds the person to be factually innocent of the crime for which they were convicted.

3. An individual convicted of any one of several specific enumerated crimes of dishonesty, or conduct in another jurisdiction that would have constituted one of those crimes if committed in California.

4. An individual adjudicated to have committed acts that would constitute one of those enumerated crimes in an administrative, military, or civil judicial process that requires at least “clear and convincing evidence.”

5. An individual whose POST certificate was revoked (or denied) or who voluntarily surrendered the certification.

6. An individual whose name appears in the National Decertification Index or any similar database designated by the federal government and the individual’s certification as a law enforcement officer was revoked for misconduct, or if the individual engaged in serious misconduct that – had they been employed in California – would have resulted in POST revoking their certificate.

One important thing for agencies to note is that these disqualifying criteria do not only apply to new hires. The amended Section 1029 requires the California Department of Justice to supply POST with any disqualifying felony or misdemeanor conviction data for all persons known to be current or former peace officers. Agencies should ensure that all current peace officers also still qualify for peace officer employment under these new standards.

3. Administrative and Reporting Requirements for Law Enforcement Agencies

SB 2 additionally imposes a number of administrative and reporting requirements for law enforcement agencies. Most of these requirements do not take effect until Jan. 1, 2023, or later. However, agencies should begin preparing to comply with these requirements as soon as possible.

a. Reporting requirements

Beginning Jan. 1, 2023, SB 2 will require all agencies that employ peace officers to submit reports to POST under several specific circumstances, including any time the agency employs, appoints, terminates, or separates from employment any peace officer, including involuntary terminations, resignations, and retirements. Agencies must also report any time a complaint, charge, or allegation of conduct that could result in decertification is made against a peace officer, and any time the final disposition of an investigation determines a peace officer engaged in conduct that could result in decertification, regardless of the discipline imposed (if any). In each case, an agency will have 10 days to make the relevant report, but the bill does not specify a particular form or format for these reports.

Importantly, although the reporting requirement does not begin until January 2023, SB 2 specifically requires agencies to report any instance of a listed event that took place between Jan. 1, 2020 and Jan. 1, 2023. The reporting deadline for those events will be July 1, 2023.

b. Investigation and record-keeping requirements

Beginning Jan. 1, 2023, law enforcement agencies are also required to complete any investigation into allegations of “serious misconduct” by a peace officer regardless of the officer’s employment status. This means that if a peace officer voluntarily resigns, retires, is released from probationary employment, is terminated on unrelated grounds, or separates from employment for any other reason so that no disciplinary action could take place, the agency is still required to complete any pending investigation of serious misconduct.

c. Background check requirement

On the hiring front, any time an agency employs a peace officer who has previously worked as a peace officer for another agency, the hiring agency must contact POST to inquire as to the facts and reasons under which the officer was separated from any previous employing agency. POST is required to respond with any relevant information in its possession.

Due to the structure of the bill language, it is unclear whether this provision took effect on Jan. 1, 2022, or if it is also delayed until Jan. 1, 2023. It is likely POST will issue more guidance on this point, but agencies should have begun making these pre-employment inquiries to POST as of January 2022.

Conclusion

It is clear throughout the provisions of SB 2 that the legislature’s intent is to increase the level of transparency into allegations and investigations of peace officer misconduct, and accountability for such misconduct. Law enforcement agencies should regularly monitor updates on this legislation to ensure continued compliance in this rapidly changing landscape.

James E. Oldendorph is a partner and Ashley N. Sykora is an associate at Liebert Cassidy Whitmore.