Tuesday, September 14, 2021

The Passage of Senate Bill 2 and the Fight to Protect Due Process in Law Enforcement Decertification

The State Assembly and Senate recently passed Senate Bill 2 (SB 2), and it now awaits to be signed into law by the Governor. SB 2, introduced by Senators Bradford and Atkins, will establish a nine-member Advisory Board that will review “serious misconduct” by peace officers and make recommendations to suspend or revoke a peace officer’s POST certification. SB 2 also made slight changes to the Thomas Bane Civil Rights Act. SB 2 will not go into effect until 2023 because the definition of “serious misconduct” has not been adopted and the Advisory Board needs to be selected. 

Notwithstanding Senator Bradford’s testimony to the contrary, SB 2 originally set up a system where a politically charged and biased Advisory Board was given unchecked power to revoke the certifications of officers even when their own agency, an arbitrator, or a court did not sustain misconduct. Senator Bradford testified that the Advisory Board only made recommendations and the ultimate determination would be left to POST. While technically true, these claims were highly misleading. As originally drafted, SB 2 would have mandated that POST adopt any recommendation that the Advisory Board made if there was any evidence supporting the recommendation. 

Heightening the legitimate concerns of officers, SB 2 contained vague and over-broad definitions of “serious misconduct” and the composition of the Advisory Board guaranteed that officers would not receive a fair evaluation. While POST’s independent judgment has been restored, the final version of SB 2 still provides an Advisory Board where seven of nine members lack any subject matter knowledge of police practices and any impartiality. For example, four of the board members are made up of community activists focusing on police misconduct and family members who are victims of “police violence” (an inherently subjective term). 

SB 2 creates significant changes for peace officers, but it should not give you nightmares. PORAC, David E. Mastagni, Tim Talbot, and other law enforcement stakeholders throughout California worked tirelessly to secure vital amendments. Although SB 2 will become law, our victories in the legislative process will help ensure the due process rights of officers throughout California. 

Decertification Process 

The nine-member Advisory Board is comprised of the following: 

· 1 Current or former officer with command experience. 

· 1 Current or former officer with management rank experience in internal affairs. 

· 2 Members from the public with experience working at nonprofit or academic institutions on issues related to police accountability. 

· 2 Members from the public with experience working at community-based organizations on issues related to police accountability. 

· 2 Members from the public, with strong consideration given to individuals who have been subject to wrongful use of force likely to cause death or serious bodily injury by a peace officer, or who are surviving family members of a person killed by the wrongful use of deadly force by a peace officer. 

· 1 Attorney with experience involving oversight of peace officers. 

Only the first two members can be current or former officers, which means that most of the people who will recommend pulling your certification have never been in a police uniform! 

However, the Advisory Board’s recommendation is just that, a recommendation. POST remains as the final decision maker as to whether your certification will be revoked. PORAC secured several last minute, crucial amendments. The amendments provide that the POST Commission must make its own determination based on the entire record and not just the Advisory Board’s recommendation. Moreover, the Advisory Board’s recommendation must be supported by clear and convincing evidence. Revocation also requires a 2/3 super majority vote of the POST Commission. PORAC also secured an amendment that requires the Advisory Board members to complete a 40-hour decertification training course, as developed by POST, which will minimally include the decertification process, internal investigations, evidentiary standards, use of force standards and training, and local disciplinary processes. 

SB 2 originally allowed the Advisory Board to retroactively substitute their judgment for prior determinations made at every level of the government and our court systems. The final version still allows the Advisory Board to reconsider past critical incidents in which an officer is cleared of serious misconduct, but significantly narrows the Advisory Board's retroactive jurisdiction to acts of dishonesty, sexual assault and certain deadly force applications.

The original bill also provided that the Advisory Board was not constrained by any prior adjudications or appeals of allegations of “serious misconduct.” The final version still includes this language but adds an important phrase providing that the legal principles of collateral estoppel will apply. This means that if there was a factual or legal adjudication on the merits clearing the officer in a prior proceeding, that finding will be binding on the POST Commission. 

Bane Civil Rights Act 

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 some legislators wanted to eliminate qualified immunity, they cannot because qualified immunity only apply to federal civil suits, e.g. 1983 actions.  Instead the bill eliminated 3 rarely claimed state law providing immunity. Federal qualified immunity remains.  More importantly, if an officer is sued for conduct arising from the course ans scope of their employment, the public entity must provide the officer a defense and indemnity. 


While the law enforcement community welcomes accountability and transparency, these goals cannot be accomplished by violating due process and creating an unfair, biased system designed to unfairly remove officers from their chosen profession. The struggle to retain basic due process and fairness for law enforcement is not over.  The POST Commission will be vested with authority to promulgate regulations clarifying the scope of this bill, including the right to representation during POST investigations.  The Legislature will also likely pass clean up legislation next session to clarify ambiguities and correct drafting errors.   Mastagni Holstedt, A.P.C. will continue working with PORAC and other California law enforcement stakeholders to protect the rights of officers statewide.