The right, wrong way to create a police decertification process
There’s no problem so terrible that the California Legislature cannot find a way to make it worse.
That’s the story of Senate Bill 2, a legislative effort to create a process for decertifying problem law enforcement officers. California is one of only four states that doesn’t have a decertification system, and there’s a broad consensus, even among law enforcement unions, that this should be remedied.
But leave it to the California Legislature to turn a police reform bill into an open vein that bleeds taxpayer money into the bank accounts of lawyers.
Here’s how it would work on paper: Law enforcement agencies would be required to report cases of serious misconduct to the state Commission on Peace Officer Standards and Training (POST), which would investigate; POST’s findings would be reviewed by a separate advisory board; the advisory board may reject findings that exonerate the officer and may recommend decertification; POST is required to accept the advisory board’s recommendation as long as it is supported by “clear and convincing evidence.”
Here’s how it could work in practice: POST investigates every allegation of serious misconduct and exonerates some officers; an advisory board likely dominated by defund-the-police activists rejects those findings and recommends decertification of those officers; lawyers get involved; cities, counties and law enforcement agencies quickly cave to political pressure and settle the lawsuits; taxpayers get the bill again and again.
To see the problem with government-by-lawsuit, look no further than the homelessness crisis. At the first sign of enforcement of laws against public camping, cities get sued, and they frequently settle those lawsuits. In the 2007 Jones v. Los
Angeles settlement, the city of Los Angeles gave up the power to ban sleeping on the sidewalks. In the 2019 Mitchell v. Los Angeles settlement, the city gave up the power to limit the amount of property that may be stored on the public right-of-way. Typically, such settlements stick taxpayers with the attorneys’ fees, while changing decision-making on the streets in a way that produces negative outcomes for everyone.
Senate Bill 2 could do for policing what the Jones settlement did for sidewalks.
Under SB 2, the nine-member advisory board that would have the power to reject commission findings that exonerated an officer would consist of two members of the public with “substantial experience working at nonprofit or academic institutions on issues related to police misconduct,” two members of the public with “substantial experience working at communitybased organizations on issues related to police misconduct,” two members of the public “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,” one attorney “with substantial professional experience involving oversight of peace officers,” and two current or former peace officers appointed by the governor.
A total of seven members of the board would be appointed by the governor, with one academic appointed by the speaker of the Assembly and one community-based organization member appointed by the Senate Rules Committee. None of the appointees who are “members of the public” may be former peace officers. Oddsmakers would look at that field and rate “decertification” as such a sure thing that casinos might not even accept wagers.
The goal of police reform should be to create a reliable, credible and fair decertification system, in which everyone can have confidence. Empowering an agenda-driven panel to reject findings that exonerate an officer is the wrong solution.
That is, unless you’re an attorney who’s annoyed by court decisions that have made it more difficult to sue cities and law enforcement agencies. Senate Bill 2 is a cookie jar for lawyers.
SB 2 makes lawsuit-friendly changes to the Tom Bane Civil Rights Act, which forbids people from interfering with a person’s constitutional rights by threat, intimidation or coercion. The law is California’s counterpart to the Federal Civil Rights Act. Over the years, federal and state courts have carved out immunities for peace officers under certain circumstances, and that has made it harder for attorneys to win civil rights cases against law enforcement officers and the deep-pocketed entities that employ them. SB 2 would eliminate state law immunities in some cases and remove the need to prove specific intent to violate civil rights.
There has to be a better way.
How are the 40-plus other states that have a decertification process handling these issues?
Utah established a decertification system in the 1980s and has continuously refined it. “POST worked in unison with the Attorney General’s Office to write the rules and implement the law necessary to make a workable program,” the state says on its website, “The POST Council reviewed proposals and protocols monthly for over a year. Eventually, a process was developed and implemented. Some changes have taken place over time and great strides have been made to preserve the reputation of the profession and to protect the rights of the individual.”
Well, that’s one way to do it. Or you could do it the California way, writing a law in Sacramento that stacks the deck against law enforcement officers and enables lawyers to shake down cities for settlements by creating a politically appointed, majority-activist board that can overrule the commission charged with enforcing professional standards in a difficult and dangerous profession.
Senate Bill 2 should be defeated. We can do better.