There has been a large amount of media coverage and commentary on Senate Bill 2. So, we wanted to provide a complete legal analysis that you and/or your association can utilize to answer any questions or concerns.
SB 2 passed by a margin of 46-18 in the California State Assembly on Friday, September 3, 2021. The next step is heading to the Governor’s desk to be signed into law. This new law will make many changes to the Civil Code, Government Code, and Penal Code. But what exactly will it do?
- SB 2 will establish a decertification procedure
This bill will create a statewide system to automatically decertify officers who are terminated for specific misconduct, including excessive force, sexual misconduct, and dishonesty. The Commission on Peace Officer Standards and Training (POST) will have new authority to independently investigate peace officers and determine peace officer fitness. In addition, POST will be able to investigate other allegations of misconduct and decertify officers who resign before they are fired.
a. An important factor to keep in mind is that a peace officer can be decertified even if they are NOT fired by their agency. SB2 will assign POST to set clear standards for conduct that would subject an officer to decertification. This conduct can include: sexual assault, racial bias, unauthorized use of force, and falsifying evidence.
b. In addition to decertification, the bill would require all local law enforcement agencies to report officers that they terminate to the state. Furthermore, all local law enforcement agencies would have to contact the state and learn why an officer left their previous position prior to hiring that officer.
c. With regard to the decertification process, SB 2 would create a 9 member panel that will oversee the process. The board will include 7 members of the public, 2 of which are reserved for people impacted by police violence, and 2 members with prior law enforcement/public safety experience. One key amendment that was made to the bill now requires that each member of the board complete a 40-hour decertification training course, as developed by POST. This will include subjects regarding the decertification process, internal investigations, evidentiary standards, use of force standards, training and local disciplinary processes. Furthermore, POST may only revoke an officer’s license based on the higher clear and convincing standard and only with a 2/3 majority vote of the board.
d. Another key component of SB 2 is that it expands the scope of what kind of conviction would make a potential candidate peace officer ineligible to be certified for POST. Specifically, a person who has been convicted of a felony will be prohibited from regaining eligibility for peace officer employment unless the court finds the person to be factually innocent of the crime for which they were convicted at the time of entry of the order.
2. The new law will not eliminate Qualified Immunity, but it will make certain changes to it
Qualified immunity, as it stands now, applies only in federal courts for federal claims, and the California legislature cannot take it away. However, in State Court matters, SB 2 essentially restores the Bane Act and guarantees that a civilian can take action in State Court. To be clear, the Bane Act, as amended by this bill, would only apply when the officer intentionally interferes with an individuals civil rights by threat, intimidation, or coercion.
a. While SB 2 would limit liability to peace officers who are found to violate the law through intentional conduct, it would not apply to accidents or mere negligence. Peace officers would still maintain their immunity for discretionary acts that occur within the scope of their employment. While the initial draft of SB 2 would have removed the requirement that the peace officer had the intent to violate an individual’s civil rights, the recent amendments to the bill have removed that language.
Goyette, Ruano & Thompson has decades of experience with representing peace officers and public safety personnel in California. The situation at hand is rapidly evolving, so please check back for updates and additional or subsequent posts regarding SB 2, law enforcement reform, and how it will impact you & your agency.
If you have any questions or comments, or are in need of representation, please contact Goyette, Ruano & Thompson at email@example.com or at (916) 851-1900.