Legislating Law Enforcement

Typically law enforcement agencies, with the help of their respective governing City/County/State entity, create their own policies and procedures in procedures in conformity with the Penal Code, case law, and POST guidelines.  This year, numerous bills have been proposed in the California Legislature to impose new requirements on peace officers.  While some of these proposals fill needed gaps in training, others may be problematic for the officers and agencies being sued.

Positive Legislation

Assembly Bill 2504

This bill was introduced in the State Legislature to require the California Commission on Peace Officer Standards and Training (POST) to develop LGBTQ+ specific training for individuals training to become peace officers and dispatchers, and optional training for officers already in service.  This bill was passed by the Legislature, adding Penal Code section 13519.41.

The stated goal of the bill is to create a more inclusive workspace and improve law enforcement’s effectiveness in serving the LGBTQ+ community.  Currently, POST does not have specific training on sexual orientation and gender identity minority groups.  While there is one learning domain on cultural diversity, it makes scant mention of LGBT persons as co-workers or citizens, although rates of domestic violence in same-sex relationships are comparable to opposite-sex relationships.  Hate crimes based on sexual orientation are reportedly rising in California.  This bill will help agencies decrease sexual orientation discrimination and hostile work environment claims related to LGBTQ+ personnel.

Potentially Problematic Legislation

Senate Bill 1421

This bill was proposed to revamp Penal Code section 832.7, a confidentiality law passed decades ago, by opening records from investigations of officer-involved shootings and other major force incidents, along with confirmed cases of sexual assault and dishonesty while on duty.  California’s current laws protect internal investigation records from the public and also deny prosecutors direct access.  Revisions to the penal code section would require the production of certain investigation records upon a public record act request.  This bill was approved by the Legislature but is awaiting the Governor’s signature.

This measure is touted to increase transparency, increase trust between law enforcement and the public, and ensure officers are held accountable.  Opponents state that the decreased confidentiality puts police officers at risk and could unveil whistleblowers whose identities should be protected.

In addition to potential safety risks, this legislation may be problematic in defending use of force lawsuits.  While investigations related to an officer-involved shooting are often turned over in litigation when the incident is at issue, it is done subject to a protective order that keeps the records confidential.  Making the same records available by way of a public records act request means that the IA investigations, their findings, and other previously confidential documents may now be quoted in the newspaper and taint the potential jury pool.

Assembly Bill 748

This bill would require police departments to make body camera footage public within 45 days for most officer-involved shootings and other serious uses of force unless doing so would interfere with an ongoing investigation. It was modeled on the LAPD’s recently implemented policy to release videos online within a similar timeframe.  This bill was approved by the Legislature but is awaiting the Governor’s signature.

 

Similar to the bill increasing access to disciplinary records, this measure is also advocated to increase transparency and increase trust between law enforcement and the public.  Opponents contend the measure would not allow departments to set their own rules for disclosure.  Opponents are also concerned the measure doesn’t adequately value the privacy interests of officers and the public and could endanger officer safety.

This legislation may also be problematic in defending use of force lawsuits.  While video of officer-involved shootings and uses of force are usually turned over in litigation when the incident is at issue, it is done subject to a protective order that keeps the records confidential.  Making the same video publicly available may interfere with an officer’s ability to get a fair trial as the public may see body camera footage without context or information.

Conclusion

The above bills show how legislation can help to move police departments forward in improving training.  However, it can also show how good intentions, such as improving transparency, can pose safety concerns as well as interfere with an officer’s ability to get a fair trial should a use of force matter go to trial.  It is in the best interest of law enforcement agencies and legislators to work together to ensure that new laws balance the interests of all parties.

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