P.O.S.T. Estimates a $40 Million Annual Cost to Administer Peace Officer Decertification (S.B. 731)

During the August 26, 2020, Commission on Peace Officer Standards and Training (POST) Zoom meeting, the Commission discussed the impacts of Senate Bill 731 (Bradford). SB 731 as currently drafted empanels a Board to review peace officer misconduct under the supervision of the POST Commission.  While a decertification process is broadly supported by law enforcement, SB 731 contains several controversial provisions that violate long standing principals of due process, fairness, and impartiality. 

David E. Mastagni testified against the Bill at today’s hearing, expressing support a fair decertification process, but pointing out the flaws infecting this legislation.  For instance, the details of the revocation procedure represent a stark departure from the decertification procedures utilized in other states, such as Florida and Georgia. SB 731 subjects officers to double jeopardy and potential inconsistent determinations.  The sweeping scope of the investigative Board’s authority is not even constrained by a finding of innocence by the employing agency or the court determinations overturning Agency findings of misconduct. 

The Board must be comprised of a majority of individuals with no expertise in police practices or use of force, and who lack impartiality.  For example, the Board must include a person or surviving family member of a person subjected to wrongful use of force likely to cause death or serious bodily injury by a peace officer and four (4) members who are members of community-based organizations on issues related to police misconduct or of non-profits working on police misconduct issues.  Under the rule of law, impartiality is required of those vested with authority to determine a person’s fate or livelihood.  The ability of this Board to be objective, uninfluenced by emotion or surmise, and not to prejudge an investigation based on personal experiences is questionable at best.  Moreover, officers have no POBR rights under the POST process and are entitled only to a “review” of it determination.  Similarly, the POST Commission is stripped of meaningful oversights, as the Bill mandates the Commission “shall adopt the board’s recommendation unless it is without a reasonable basis.” 

During today’s POST meeting, Executive Director Alvarez explained that investigations and decertification would require a major expansion of POST infrastructure.

Director Alvarez expects that this major expansion would require POST to more than double its staff size and open two new offices in Southern California and the Bay Area. The staffing and buildings alone were estimated to cost $40 million dollars. The staff and location increases are expected because the certification program would require a new platform to collect misconduct complaints and secure information obtained during the investigations. One Commissioner mentioned that this estimate doesn’t even account for the huge legal costs associated with this type of certification system.

The Commission expected time for a transition because a budget increase this large would require approval by the Senate Appropriations Committee. However, during a concurrent Senate Public Safety Committee meeting, SB 731 was not sent to the appropriations committee despite the legislation exceeding the threshold for spending without approval by the appropriations committee.

Law Enforcement supports a decertification process which strikes the proper balance by holding bad officers accountable while maintaining fundamental principles of due process and fairness.  After working for months to establish such a licensing system, law enforcement was very disappointed to see the newest version of the bill which eliminated meaningful due process and fairness.  Notably, at the Judiciary hearing today, several of the Assembly Members who voted for the Bill expressed grave reservations and asked Senator Bradford to consider further amendments to address their concerns.      

Uber and Lyft Ordered to Reclassify Drivers as Employees

On August 10, 2020, San Francisco Superior Court Judge Ethan Schulman ordered Uber and Lyft to reclassify its drivers from independent contractors to employees. Meaning, California drivers could be entitled to employee benefits like health care, sick leave, and overtime.

Monday’s order comes after California Attorney General Xavier Becerra and a coalition of city attorneys filed for a preliminary injunction to force the two ride-hailing companies to comply with California Labor Law A.B. 5. A.B. 5 went into effect in January 2020 and codified the “ABC test” from the California Supreme Court’s ruling in Dynamex Operations West, Inc. v. Superior Court. Under this test, companies must prove that their workers are free from company control and perform work outside the usual course of the company’s business in order to classify workers as independent contractors rather than employees.  

The injunction was requested as part of a lawsuit filed in May that alleges the companies are misclassifying their workers in violation of the law. Uber and Lyft requested to stay litigation pending a constitutional challenge to A.B. 5. The companies also asked the judge to hold off on making any decisions pending the outcome of an initiative on the November ballot that would exempt transportation network companies from the bill’s requirements.

In granting the preliminary injunction, the court reasoned that Uber and Lyft drivers are not performing work outside the normal scope of the companies’ business. Judge Schulman was not persuaded by Uber and Lyft’s insistence that they are not in the business of transporting passengers, but rather are “multi-sided platforms” that operate as “matchmakers” to facilitate transactions between drivers and passengers. The judge recognized that drivers are central to Uber and Lyft’s transportation business, and thus cannot be considered merely independent contractors.

California Attorney General Xavier Becerra called the judge's preliminary order a victory for drivers. San Francisco City Attorney Dennis Herrera said, “Uber and Lyft’s long history of flouting the law is over,” while San Diego City Attorney Mara Elliott called the decision “a milestone in protecting workers and their families from exploitation.”

The preliminary injunction ordering the companies to reclassify their driver’s will go into effect 10 days after the ruling. Uber and Lyft have stated that they will appeal

9th Circuit Holds California's 10-Round Limitation on Magazines Unconstitutional

On August 14, 2020, the Ninth Circuit Court of Appeals invalidated California's law which "barred its citizens from owning so-called “large capacity magazines” (LCMs) that hold more than ten rounds of ammunition."  Duncan v. Becerra held “California’s near-categorical ban of LCMs strikes at the core of the Second Amendment — the right to armed self-defense", and that "even well-intentioned laws must pass constitutional muster."

Its analysis may have a broader impact on proposed legislative measures to restrict California peace officers' right of self-defense, as the appellate court ruled that "[a]rmed self-defense is a fundamental right rooted in tradition and the text of the Second Amendment."  The court noted that the ban criminalizes ownership of magazines that come standard in most handguns which are staples of self-defense and is so sweeping that half of the magazines in American are now illegal in California. The law threatened law-abiding Californians with up to a year in jail for continued possession of magazines, even if legally owned for years.

While acknowledging the State's wide latitude to regulate firearms and curb gun violence, "the Second Amendment limits the state’s ability to second-guess a citizen’s choice of arms if it imposes a substantial burden on her right to self-defense."  The court found many Californians find solace in the protection of a handgun with an LCM, such as individuals who live in remote areas, high crime areas, or communities that distrust law enforcement. “The Second Amendment is a fundamental constitutional right guaranteed to the people — especially those who may not be equally protected by the state,” U.S. Circuit Judge Kenneth Lee wrote.