California’s Racial Justice Act: Be Aware and Informed

JOHN E.B. MYERS
Visiting Professor of Law
UC Law San Francisco

Efforts to combat racism in the United States span the nation’s history. The post–Civil War amendments to the U.S. Constitution abolished slavery (13th Amendment) and guaranteed equal protection of the law (14th Amendment). In 1871, Congress passed Title 42, Section 1983, of the U.S. Code, the Ku Klux Klan Act, to fight the Klan and protect civil rights. Section 1983 allows citizens to sue government officials — including law enforcement — for violations of constitutional rights. California’s Tom Bane Civil Rights Act became law in 1987, allowing lawsuits against law enforcement. In 2020, the California Legislature added a new tool in the fight against perceived bias, the Racial Justice Act (RJA) (Penal Code §745). The RJA applies at all stages of the criminal justice process and to judges, attorneys, expert witnesses, jurors and law enforcement. This article focuses on law enforcement. It is important for officers employed in California to understand the RJA and how it can impact them in their employment.

 RJA’s Five-Step Process

The RJA has five steps: (1) a criminal defendant files a motion in court claiming an officer “exhibited bias or animus toward the defendant because of the defendant’s race, ethnicity, or national origin”¹; (2) the defendant presents enough evidence to establish a prima facie case of bias²; (3) if the defendant proves a prima facie case, the judge orders discovery regarding the issue; (4) following discovery, the judge holds a hearing at which the defendant must prove bias by a preponderance of the evidence; and (5) if the defendant is successful at the hearing, the judge orders a remedy.  

Prima Facie Case

The Legislature deliberately made it easy for defendants to establish a prima facie case of bias. The defendant presents facts that, if true, establish a likelihood of bias. The defendant does not have to prove their facts are true: only that their facts might be true. Statistical evidence that minorities are stopped or arrested at rates higher than their proportion of the population can be sufficient for a prima facie case. Unless the defendant’s evidence is obviously false, the judge accepts the defendant’s evidence and ignores evidence that there was no bias.³

 Discovery

When a defendant’s evidence establishes a prima facie case, the judge orders the government to produce “all evidence relevant to a potential violation” of the RJA. Discovery under the RJA is likely to be broader than the discovery already available to defendants under California’s Reciprocal Discovery Act⁴ and Brady v. Maryland.⁵

 Hearing on Motion

Following discovery, the court holds a hearing at which the defendant must prove intentional or implicit bias by a preponderance of the evidence. An officer who was not intentionally biased — who did everything by the book and with no conscious influence of race — can nevertheless be found to have violated the RJA through implicit bias. As the Court of Appeal put it in Bonds v. Superior Court,⁶ “[A] defendant can seek relief regardless of whether the discrimination is purposeful or unintentional.”⁷

 Remedy

When a defendant prevails at an RJA hearing, the judge imposes a remedy. The judge could dismiss an enhancement (e.g., use of a firearm during carjacking, PC § 12022.53[a][5]), reduce a felony to a misdemeanor or grant “any other remedy not prohibited by another law.”⁸ Under the RJA, defense attorneys will often ask judges to suppress evidence (guns, drugs) found during searches that do not violate the Fourth Amendment, as a remedy.  

 Pros and Cons of the RJA

In enacting the RJA, the State Legislature has explained, “Because racial bias in the criminal legal system is the result of centuries of historical and embedded racial injustice, it requires bold, concerted, and ongoing efforts to undo.”⁹ Today, police academies, sheriffs, police chiefs and POST devote considerable resources to training on bias, particularly implicit bias. The question remains, however: Do the benefits of the RJA in its present form outweigh the problems it creates? 

 RJA Discovery: An Unwise Windfall for the Defense?

As mentioned above, California provides extensive statutory and constitutional discovery for defendants in criminal cases. If defense attorneys can get additional discovery — discovery that will impose significant burdens on prosecutors and law enforcement — defense attorneys will seek the discovery. That’s their job. Given how easy it is under the RJA to establish a prima facie case and to obtain additional discovery, it is difficult to see why defense attorneys would not file RJA motions in all cases involving minority defendants. Indeed, it would likely be ineffective assistance of counsel for a defense attorney to fail to file an RJA motion.

There is no evidence the Legislature gave any thought to whether the cost in time and money of responding to an avalanche of RJA discovery requests will reduce racism. What is certain is that lawyers will act like lawyers and ask for the moon. Consider the discovery request in People v. Allen.¹⁰ The officer was on patrol when he spotted a fast-moving car making an abrupt stop at a stoplight. The officer followed the car, which made a turn and immediately parked. As the officer passed the car, he observed tinted windows; then the driver did a U-turn and drove away. The officer decided to initiate a traffic stop. The driver refused orders to roll down the window and turn off the car. The driver became verbally aggressive, rolled up the window completely and stopped communicating with the officer. Additional officers arrived. One of them banged on the windshield. Seconds later, that officer unholstered his firearm and pointed it at the ground. The driver then drove away at a high rate of speed. A year earlier, the driver had led police on a chase at speeds up to 120 miles an hour. Charged with felony evading and reckless driving, the driver filed a motion under the RJA, claiming the second officer’s decision to draw his weapon was racist. The trial judge concluded there was no connection between unholstering the weapon and race. The Court of Appeal ruled the trial judge was wrong, and discovery was ordered. The driver’s lawyer asked for an order that the District Attorney gather data on all times the officer unholstered his duty weapon, investigated or made an arrest for resisting arrest, or used or threatened force. Defense counsel also asked that the officer be ordered to disclose any instances where he unholstered his weapon and did not document it in a written report. The driver supported his discovery request with statistics that in San Diego County, police stop Black drivers out of proportion to their numbers in the population.

The traffic stop in People v. Allen was lawful under the Fourth Amendment. There was no doubt the driver violated the law by fleeing. The trial judge saw no connection between drawing a firearm in a dangerous situation and race. Yet, under the RJA, the state must pore through an officer’s career to document every occasion when they drew their weapon or used or threatened force. Decide for yourself whether such broad discovery helps reduce bias or amounts to a waste of government time and money.  

 The RJA Punishes Lawful Behavior

The small number of RJA appellate cases to date reveal an uncomfortable reality for cops. Even when cops do everything by the book — full compliance with the Fourth Amendment and department policy — they can be accused of racism in RJA proceedings. For example, under the Fourth Amendment, pretext traffic stops are legal.¹¹ Suppose a deputy conducts a legal traffic stop and, unrelated to the reason for the stop, discovers a gun that had been used to murder a child. With the RJA, the defendant can claim that the stop — legal under the Fourth Amendment — was racist. The defendant does not have to prove the deputy was consciously or unconsciously biased. All the defendant has to do is offer statistical evidence of disproportionate stops in the area. That done, the RJA requires the court to impose a remedy, and defense counsel will surely ask the court to suppress the gun.

Under Terry v. Ohio,¹² a police officer with reasonable suspicion that a detained person is armed and dangerous can perform a limited pat search for weapons. A long line of court decisions state that in evaluating reasonable suspicion to search, officers can consider the fact that a suspect is wearing baggy clothes that could hide a weapon.¹³ In Hernandez v. Superior Court,¹⁴ the defendant was wearing baggy clothing. The defendant filed an RJA claim against the searching officer, citing as evidence of bias a news report from National Public Radio that wearing baggy clothing is a proxy for race. The Court of Appeal agreed with the defendant, writing, “Despite [the officer’s] asserted reasons for conducting a pat search, i.e., lighting and baggy clothing, there remains the possibility that the officer’s actions were a product of an implicit bias that associated things the officer did know, including the clothing Hernandez was wearing, with his race.”

Consider the facts in Finley v. Superior Court.¹⁵ The officer observed a Buick parked in a high-crime area of San Francisco. He ran the license plate, which came back to an Acura, then turned on his emergency lights. During the stop, the driver, Finley, told the officer he had purchased the Buick a couple of weeks earlier. Finley provided documents establishing the Buick was not stolen. The officer ran Finley’s name and discovered he was on federal probation with a search clause, so he searched the car and discovered a loaded handgun without a serial number. The officer did exactly what the Fourth Amendment allows. He did everything by the book. Nevertheless, Finley filed an RJA motion claiming the stop was based on Finley’s race. At the prima facie stage, in support of his motion, Finley cited, among other things: (1) the officer ran Finley’s plate for “no apparent logical non-racial reason;” (2) the officer’s justification that Finley was parked “in a high-crime area is a notorious reference to neighborhoods with a high concentration of Black people;” (3) the officer ran Finley’s name; (4) a sergeant on scene told other officers he did not want to discuss the situation on camera; and (5) Black people in San Francisco are more likely to be stopped than other groups. Under the RJA, the judge considers only evidence presented by the defendant and ignores contrary evidence. In this case, the Superior Court judge apparently made the mistake of believing the officer. The Court of Appeals overturned the Superior Court and ruled in Finley’s favor, ordering an RJA hearing.

The takeaway for law enforcement is clear: Do everything lawfully, act for non-racist reasons, follow department policies. It doesn’t matter. You can still be accused of racism. 

 Curb Thy Tongue

In RJA proceedings, defense attorneys look for words that may evidence bias. The Legislature equated “dehumanizing and othering language”¹⁶ with racism, referencing the words “predator,” “monster,” “sociopath,” “terrorist,” “brute,” “thug,” “gangster” and “uncivilized” as racist. The Legislature criticized “gratuitous references to gangs, tattoos, nicknames, or neighborhoods.” The Legislature condemned “racially incendiary or coded words such as ‘ghetto,’ ‘hood,’ ‘baby mama,’ or ‘pimp.’” In Hernandez v. Superior Court, supra., cops were criticized for using the terms “homie” and “primo.”  

Peace officers avoid racist terms. Even in high-stress situations involving fights and weapons, officers generally do an admirable job avoiding disrespectful language. There is often a lot of gratuitous swearing, which drives command staff nuts, but it is quite rare for officers to use racially tinged language. Nevertheless, with body cameras rolling, defense attorneys will scour the record for a single word or phrase that might be evidence of possible bias. Because it is so easy for a defendant to establish a prima facie case under the RJA, and because the judge is not allowed to consider the officer’s reasons for using particular words, any comment, however unintentional, may lead to an RJA discovery order.

 Equating Legitimate Law Enforcement Practices With Racism

California POST teaches what it calls “Principled Policing in the Community” (PPC).¹⁷ Among its many attributes, PPC favors “Monitoring areas of frequent criminal activity.”¹⁸ Because the RJA views law enforcement through a racialized lens, under that law, nearly anything law enforcement does is suspect and could be the product of racism. Thus, in Bonds v. Superior Court,¹⁹ a defense expert witness opined that terms like “proactive enforcement” and “high-crime area” are codes for implicit bias.

 Conclusion

The RJA is based on the idea of eliminating racism from the criminal justice system. Because the RJA views almost everything as potentially racist, however, it is fair to ask whether the Act in its current form does more good than harm. Is it good public policy to allow defendants who committed serious crimes to have the charges reduced or to escape responsibility altogether when there is no evidence of racial bias apart from statistics that have only a tangential, if any, relationship to the case in hand? Or would justice be better served by amending the RJA so that statistical evidence is admissible at the prima facie and the hearing stages of RJA proceedings, but is not sufficient in itself to prove bias?

Does society benefit at the prima facie stage from the RJA rule that the judge is only allowed to consider the defendant’s evidence suggesting possible bias, and must ignore altogether the government’s evidence that race played no role? Would the RJA be improved by allowing a “fair presentation” at the prima facie stage, allowing the judge to consider all the relevant evidence, not just half?

Finally, is it wise to brand officers who are trying to follow the law and treat all people equally and with respect as racists simply because of statistics? Make no mistake, that is what is currently happening under the RJA.

With a few sensible amendments, the RJA could become the powerful tool the Legislature intended. However, as it stands, it makes the jobs of law enforcement officers across California much more challenging.

About the Author

John E.B. Meyers is a visiting professor of law at the University of California College of Law, San Francisco, and has worked as an officer with the University of the Pacific, Stockton, and the City of Ione.

References

1. PC § 745(a)(1).
2. See Finley v. Superior Court (2023) 95 Cal. App. 5th 12 (the meaning of prima facie evidence, explaining that prima facie evidence can be slight, just enough to create a reasonable inference of a fact; prima facie evidence does not have to rule out contrary inferences).
3. See Bonds v. Superior Court (2024) 99 Cal. App. 5th 821. (Officer conducted a traffic stop of defendant and found an illegal concealed firearm. At an RJA hearing, the trial judge believed the officer’s testimony that he could not tell the driver’s race when he stopped the car. The Court of Appeal ruled the trial judge was wrong to credit the officer’s testimony because, even if the officer was telling the truth, the stop might have been based on unintentional bias.)
4. PC § 1054.
5. (1963) 373 U.S. 83.
6. (2024) 99 Cal. App. 5th 821.
7. Id. at 823.
8. PC 745(e)(1)(D).
9. AB 1071, Chapter 721, October 13, 2025, legislative findings, Section (f).
10. (2025) 2025 WestLaw 3525769, Not Reported.
11. Whren v. United States (1996) 517 U.S. 806.
12. (1968) 392 U.S. 1.
13. See, e.g., People v. Collier (2008) 166 Cal. App. 4th 1374, fn 1.
14. (2025) 115 Cal. App. 5th 1120.
15. (2023) 95 Cal. App. 5th 12.
16. AB 1071, Chapter 721, October 13, 2025, legislative findings, Section 1(c).
17. POST Learning Domain 3 (LD-3).
18. Id. at p. 1-11.
19. (2024) 99 Cal. App. 5th 821.