Friday, April 30, 2021

S.B. 2 Narrowly Advanced Through the Senate Judiciary Committee on April 27, 2021

Focusing almost exclusively on concerns with the expansion of liability under S.B. 2's amendments to the Bane Act, the Senate Judiciary Committee narrowly advances the Bill on Tuesday April 27, 2021.  While Senators, including Anna Caballero, expressed concerns over the lack of meaningful due process in the decertification sections of the Bill, the hearing focused on the Bill's elimination of the requirement that plaintiffs prove specific intent to violate a civil right. 

The Bane Act is a statute that was intended to address hate crimes by providing enhanced liability, such as attorney fees with Lodestar multipliers which can approach $1000.00/hr, for intentional violations of civil rights. Under the Bane Act, a Plaintiff must also prove the officer “intentionally interfered with or attempted to interfere with civil rights by threats, intimidation, or coercion.” SB 2 would replace this requirement with essentially a negligence standard, i.e., general intent to engage in the conduct without the intent to do anything wrongful. 

Although civil tort remedies already exist for negligence, battery, wrongful death, etc., trial attorneys are advocating for this change primarily to gain access to attorney’s fees that are not available in most civil actions.  In fact, attorney's fees under the Bane Act often dwarf the actual recovery to the plaintiffs, thereby enriching the lawyers at the expense of public services.  Importantly, these changes would apply to all public employees.  In fact, much of the Bane Act jurisprudence involves lawsuits against teachers and social workers.

David E. Mastagni testified at the hearing to explain the unintended consequences of opening the flood gates of liability any time a public employee makes a mistake.  You can watch the testimony HERE starting at 40:45.   David also raised an example of a teacher sued under the Bane Act for failing to provide a nut free environment.  No liability under Bane was found in that case because no one ever threatened or intentionally exposed the student to nut products.  Under SB 2, the court might have reached a different conclusion.  

Senator Bradford steadfastly refused any amendments to moderate his proposed expansion of liability. He rejected compromise proposals from his colleagues to expand liability to include deliberate indifference or reckless disregard for a constitutional right, but not lower the standard to mere negligence.  Senator Tom Umberg, D-Orange County, expressed concerns over the expansive increase in liability, describing the Bill as not "fully cooked."  Umberg, who had unsuccessfully attempted to broker compromise amendments from Bradford, said the proposal to lower the existing intent bar from “specific” to “general” could cause confusion and declined to vote.

The bill passed out of the Judiciary Committee 7-2 after being put on call for over 6 hours. Many of the committee members expressed concern with the Bill as submitted while agreeing that a decertification process needs to be put in place and suggested that the bill be held, as it needs some work.  The Committee advanced the Bill only after Bradford relented and promised to amend the sections of the Bill eliminating the intent requirement.  Multiple senators warned they would oppose the bill if Bradford refuses to accept the changes to the liability language. With Tuesday’s result, SB 2 will advance to a fiscal committee before a potential floor vote. 

Law enforcement stakeholders support a fair license decertification process that respects due process and avoids double jeopardy.  As Brian Marvel, President of the Peace Officers Research Association of California (PORAC) explained:  “PORAC supports the spirit and intent of a licensure program  reflected in Bradford’s SB 2 – we cannot allow officers who demonstrate gross misconduct to continue to be members of the law enforcement profession; their licenses must be revoked. However, SB 2 reaches far beyond the police licensing process and includes policies that would be incredibly burdensome on cities and counties that employ peace officers, and would potentially penalize even the most respectful officers for placing themselves in harm’s way to keep our families and communities safe.” PORAC concerns with SB 2 are more fully articulated HERE.

David E. Mastagni was interviewed and quoted in the Los Angeles Times in May 1, 2021, article titled "Most States Have a System for Ousting Bad Cops. In California Legislation Is Struggling", by Anita Chaabria. He explained how enhanced liability for attorney's fees would drain municipalities and why the decertification process in the bill violates due process.  He was also recently quoted in the New York Times article "Split-Second Decisions: How a Supreme Court Cases Shaped Modern Policing", April 25, 2021, by David D. KirkpatrickHe explained, "With the benefit and luxury of hindsight and time and tranquility, you could get any kind of use-of-force or police-practices expert or even an attorney to say that there was something else that an officer could have done. Then the officer is stripped retroactively of the right to self-defense.”