Dear Members,
As the 2020-21 Legislative Session enters its final week, there has been a lot of news coverage of Senate Bill 2 (Bradford) – that will establish a state licensure program for the review of sustained findings of serious misconduct for the purpose of determining whether an officer’s license to practice law enforcement should be suspended or revoked. I wanted to take this opportunity to clear the air on what exactly SB 2 does and does not do following the recent amendments that PORAC, together with the California Police Chiefs Association (CPCA) and California Association of Highway Patrolmen (CAHP), negotiated into the bill. Please see our SB 2 side-by-side document that outlines the most notable amendments since the bill was first introduced in this session.
On Friday, September 3, 2021, the California State Assembly voted to pass SB 2 by a margin of 46-18, which means the bill has one final vote on concurrence in the Senate, most likely today, before proceeding to the Governor’s desk to be signed into law. Since the start of this session, PORAC has known that a licensing bill was going to pass and put forward AB 60 as our proactive effort to establish a process that law enforcement could support. When AB 60 was denied a hearing in the Assembly Public Safety Committee, the bill effectively died, leaving SB 2 as the only option. Despite working with the author, bill sponsors, legislators, Governor’s office and Senate President Pro-Tem’s office since the bill was first introduced as SB 731 last year, SB 2 remains a flawed approach to establishing a licensure program in California – one of only four states in the nation without such a process.
However, thanks to the work of PORAC’s advocacy team, which included two incredible LDF panel attorneys, the bill is a far cry from where it was when we started negotiating, and we feel strongly that with the latest amendments, PORAC’s primary concerns have been addressed. In fact, the bill is poised to provide California with arguably the highest threshold in the nation for revocation. While there are still areas of concern, we should be able to clean these up as needed either administratively with POST or through additional legislation next session.
SB 2 Will Not End Qualified Immunity for Peace Officers
Despite the misleading headlines, I want to assure you that SB 2 will not end qualified immunity protection for peace officers. The media is largely and mistakenly conflating the Tom Bane Civil Rights Act and qualified immunity – two very different things.
When SB 2 was first introduced, it sought to alter the Tom Bane Civil Rights Act – California’s hate crime legislation. The Bane Act currently allows for enhanced liability for public officials, including peace officers, who are proven to have intentionally interfered with a citizen’s protected rights. In its original form, SB 2 would have removed the legal requirement that a peace officer actually intend to violate a person’s civil rights – opening the flood gates of litigation against all officers and their employing municipalities any time they are accused of making a mistake. PORAC’s advocates were successful in negotiating the removal of these proposed changes to the Bane Act. Nothing in SB 2 eliminates qualified immunity in federal civil rights lawsuits or alters existing state law providing for the defense and indemnity of public employees. The employing agency still has to indemnify officers and defend them if the allegations relate to course and scope conduct.
POST to Have Final Say on Decisions to Suspend or Revoke
As you know, SB 2 creates an amateurish, politically motivated 9-person advisory board. And while the make-up of that oversight board is obviously biased against the officer, more concerning was the authority SB 2 would have granted to this board by forcing POST to accept the board’s inherently biased recommendations in nearly every instance, regardless of if they disagree. That provision has been removed and new language has been added vesting POST as California’s independent certifying agency with the final determination as to whether an officer deserves to have their license suspended or revoked. The advisory board now serves in a strictly advisory capacity and has no authority to suspend or revoke a peace officer’s license.
One of the Nation’s Highest Thresholds for Suspension or Revocation
The sponsor’s preferred language of the bill would have allowed this advisory board to make a recommendation to revoke an officer’s license based on a finding of any evidence of guilt – limiting POST’s role in the process to a mere binary consideration of whether this board met that incredibly low standard. PORAC’s advocates successfully negotiated amendments to grant POST the authority to review the entire body of evidence – not just the evidence considered by the advisory board – as well as the requirement that POST may only revoke an officer’s license based on the higher clear and convincing standard and only with a 2/3 majority vote.
Remaining Areas of Concern to Clean Up
While PORAC is very pleased the work our advocates and attorneys have done to remove our primary areas of concern with the bill, there are still problem areas that will need to be resolved, and PORAC remains opposed to this legislation despite our knowing that it is likely to pass and be signed into law by the Governor. Unclear definitions of serious misconduct are still subjective and overly broad and POBR has been excluded from the bill text. PORAC’s attorneys are confident that these remaining areas of concern can be addressed either administratively with POST during implementation or through additional legislation next session.
There is no other profession that is legislated like law enforcement. As clashing calls to fund and defund the police echo throughout the country, as officers are deployed to keep the peace during protests targeting our profession, as legislators seek to capitalize on misleading media narratives to advance their agendas, and further their personal agendas, this is no easy time to be a peace officer. I want to thank you all for your incredible patience and support as PORAC works to protect your rights and benefits in the face of an overwhelming volume of bills and policies aimed at fundamentally changing the profession of law enforcement. It isn’t easy, but as long as we are willing to work collaboratively with everyone, especially those we disagree with, PORAC will use our seat at the table to fight for you.
As always, thank you for your support.
Brian R. Marvel
President
