In response to the highly publicized murder of George Floyd by Minneapolis police officers, cities across California and throughout the country have seen countless protests calling for drastic reforms in law enforcement. Lawmakers have responded swiftly by utilizing a little-known practice referred to as the “Gut and Amend”—a process through which language in an active piece of legislation is stripped away and replaced with an entirely new policy proposal.

State CapitolPrior to adjourning for a truncated legislative summer recess, Members from both legislative houses have amended several pieces of legislation aimed at modifying law enforcement’s policies, procedures, and tactics. The flurry of new proposals focuses mainly on the direct interactions that police officers have with citizens (e.g. use of force tactics). But there are other proposals that range from increased transparency through a broad release of police officer personnel records (see SB 776), to a police officer certification/ decertification process and rollbacks of qualified immunity for all public employees, including police officers (see SB 731).

Notably, what has not been directly addressed in the flurry of new proposals are revisions to the Police Officers Bill of Rights [(POBAR) Cal. Govt. Code Sec. 3300-3313] which, among other things, sets guidelines that management must take into account during investigations of officer conduct.

Both houses have adjourned until July 13, 2020 for a shortened summer recess. Conversations around these measures will be ongoing through the remaining weeks of the 2019-20 legislative session. All bills must be acted upon and presented to the Governor for his consideration by August 31, 2020. It is unclear where the administration will land on some of the more controversial proposals. However, on June 5, following dozens of highly protests across California, Governor Newsom announced his support for the immediate elimination of the carotid restraint hold by police officers and indicated that he would like to see legislation that builds upon newly enacted Assembly Bill (AB) 392, which states that police may only use lethal force “when necessary in defense of human life.”

The COVID-19 pandemic has certainly changed the way stakeholders can engage in the public process, with engagement primarily conducted remotely. With so many newly amended pieces of legislation, it will be critical that local agencies work through their lobbyists and advocacy associations in Sacramento to ensure that their concerns and/or positions are conveyed to key decision makers.

Below is a list of measures amended in the past two weeks specific to law enforcement. If you have any questions related to these or other measures not listed, please contact Dane Hutchings with the Renne Public Policy Group.

Senate Bills

SB 731 (Bradford) Public Employment (to be amended July 13, 2020, Once Assembly Returns)

Summary: Under the Tom Bane Civil Rights Act, the measure would provide that a threat, intimidation, or coercion under the act may be inherent in any interference with a civil right and would describe intentional acts for purposes of the act. The bill would, with a specified exception, eliminate immunity provisions for public employees involved in a violation of the act. The bill would also authorize specified persons to bring an action for the death of a person caused by a violation of the act to have qualified immunity waived for all public employees.  This bill would disqualify a person from being employed as a peace officer if that person has been convicted of, or has been adjudicated in an administrative, military, or civil judicial process as having committed, a violation of certain specified crimes against public justice, including the falsification of records, bribery, or perjury. The bill would also disqualify any person who has been issued a certificate by the Commission on Peace Officer Standards and Training and had that certificate revoked by the commission, has voluntarily surrendered the certificate, or has been denied issuance of a certificate. The bill would require a law enforcement employing peace officers to employ only individuals with a current, valid certification or pending certification.

Bill Location: Currently the Bill is in Assembly Insurance Committee. However, it is likely the bill will be referred to Assembly Public Safety once lawmakers return from recess

SB 776 (Skinner) Peace officers: Release of Records. (To be Amended July 13, 2020 Once Assembly Returns)

Summary: Would make every incident involving use of force subject to disclosure. The bill would remove the requirement that a complaint relating to sexual assault or dishonesty be found to be sustained following an investigation in order to be subject to disclosure. The bill would require records relating to sustained findings of wrongful arrests and wrongful searches to be subject to disclosure. The bill would also require the disclosure of records relating to an incident involving prejudice or discrimination on the basis of specified protected classes. The bill would require the retention of all complaints currently in the possession of a department or agency.

Bill Location: Assembly Committee on Public Safety

SB 1220 (Umberg) Peace and custodial officers. (Amended June 18, 2020)

Summary: Would, on and after January 1, 2022, require any state or local law enforcement agency maintaining personnel records of peace officers and custodial officers to, upon request, provide a prosecuting agency a list of names and badge numbers of officers employed by the agency in the 5 years preceding the request who meet specified criteria, including, among other things, that the officer has had sustained findings for conduct of moral turpitude or group bias or that the officer is on probation for a criminal offense. The bill would require the prosecuting agency to keep this list confidential, except as constitutionally required. The bill would additionally require a prosecuting agency, prior to placing an officer’s name on a Brady list, to notify the officer as soon as practicable and provide the officer an opportunity to present information to the prosecuting agency against the officer’s placement on the list, except as specified.

Bill Location: Assembly Committee on Public Safety

Assembly Bills

AB 66 (Gonzalez) Police. Use of Force.  (Amended June 25, 2020)

Summary: Would prohibit the use of kinetic energy projectiles or chemical weapons, as defined, by any law enforcement agency to disperse an assembly protected by the First Amendment to the United States Constitution, or solely due to a violation of an imposed curfew, verbal threat, or mere noncompliance with a law enforcement directive. The bill would prohibit the use of chloroacetophenone tear gas or 2-chlorobenzalmalononitrile gas by law enforcement agencies. The bill would set standards for the use of kinetic energy projectiles at the scene of a riot, including, among other things, requiring that those weapons only be fired at a specific target who presents a clear and imminent threat to themselves, the officers, or other persons.

Bill Location: Senate Committee on Public Safety

AB 1196 (Gipson) Peace Officer. Use of Force. (Amended June 18, 2020)

Summary: Current law authorizes a peace officer to make an arrest pursuant to a warrant or based upon probable cause, as specified. Under current law, an arrest is made by the actual restraint of the person or by submission to the custody of the arresting officer. Current law authorizes a peace officer to use reasonable force to effect the arrest, to prevent escape, or to overcome resistance. This bill would prohibit a law enforcement agency from authorizing the use of a carotid restraint or a choke hold, as defined.

Bill Location: Senate Committee on Public Safety

AB 1314 (McCarty) Law Enforcement Use of Force Settlements and Judgements: Reporting. (Amended June 26, 2020)

Summary: Current law requires each law enforcement agency to annually furnish specified information to the Department of Justice regarding the use of force by a peace officer. Current law also establishes the Department of the California Highway Patrol within the Transportation Agency. This bill would require municipalities, as defined, to annually post on their internet websites specified information relating to use of force settlements and judgements, including amounts paid, broken down by individual settlement and judgment, information on bonds used to finance use of force settlement and judgment payments, and premiums paid for insurance against use of force settlements or judgements.

Bill Location: Senate Committee on Public Safety

AB 1472 (Stone) Personal Rights. False Reports to Law Enforcement. (Amended June 24, 2020)

Summary: Would create an additional exception to the privilege provisions for any communication between a person and a law enforcement agency in which the person knowingly or recklessly makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention.

Bill Location: Senate Committee on Rules

AB 1506 (McCarty) Police Use of Force. (Amended June 17, 2020)

Summary: Current law requires law enforcement agencies to report to the Department of Justice, as specified, any incident in which a peace officer is involved in a shooting or use of force that results in death or serious bodily injury. This bill would create a division within the Department of Justice to, upon the request of a law enforcement agency, review the use-of-force policy of the agency and make recommendations, as specified.

Bill Location: Senate Committee on Public Safety

AB 1709 (Weber) Law enforcement: use of force. (Amended June 30, 2020)

Summary: This bill would remove the specification that a peace officer making an arrest need not desist in their efforts because of resistance or threatened resistance from the person being arrested. The bill would also require a peace officer to attempt to control an incident through deescalation tactics, as defined, in an effort to reduce or avoid the need to use force, to render medical aid immediately or as soon as feasible, and to intervene to stop a violation of law or an excessive use of force by another peace officer.

Bill Location: Senate Rules Committee