Don’t Give Them the Stick: Why Training Culture Is Your Best Defense

JON CABRERA
Contract Investigator and Consultant
KC Law Group

Strategic preparation is the primary safeguard for law enforcement professionals operating within the complex legal landscape of California. Sid Heal, a respected authority in tactical science, famously stated, “Don’t give them the stick to beat you with.” This principle emphasizes the necessity of minimizing avenues for the opposition to exploit an officer’s performance or decision-making.

In contemporary policing, the application of physical force during an arrest is subject to unparalleled scrutiny. While the initial use of force often captures public attention, the legal and administrative consequences that follow are where an officer’s career and freedom are most at risk. In California, these consequences are now dictated by stringent legislative standards such as Senate Bill 2 (SB 2) and Assembly Bill 392 (AB 392).

The Triple Scrutiny: Intersection of Administrative, Criminal and Civil Investigations

Immediately following a use-of-force incident, multiple independent investigations are typically initiated. These processes occur simultaneously yet serve distinct legal functions.

1. Administrative and internal investigations: Internal affairs or administrative reviews determine whether an officer adhered to department policy. In California, these proceedings are governed by the Public Safety Officers Procedural Bill of Rights Act (POBRA), found in Government Code § 3300 et seq.

• • POBRA provides specific procedural protections regarding interrogations, representation and the timeline for discipline.
  • Administrative findings can result in punitive actions ranging from written reprimands to termination.

2. Criminal investigations: If the force used is interpreted as potentially excessive or outside the scope of the law, a criminal investigation may follow. This focuses on whether the officer violated statutes such as Penal Code § 149 (assault under color of authority).
3. Civil litigation: Civil suits are nearly certain in significant use-of-force events. These proceedings often involve federal civil rights claims under 42 U.S.C. § 1983 or state tort claims. In these matters, the department’s training records and policies become primary exhibits.

Statutory Standards: AB 392 and the “Necessary” Standard

The legal threshold for using force in California was fundamentally altered by AB 392, which amended Penal Code § 835a. Officers must understand that the standard has moved beyond “reasonable” to a more rigorous “necessary” standard.

• • Total circumstances: Reviewing bodies must consider the “totality of the circumstances,” which includes the conduct of both the officer and the subject leading up to the use of force.
  • Objective reasonableness: The force must be objectively reasonable given the facts known to the officer at the time.
  • De-escalation requirements: Under PC 835a, the availability of de-escalation tactics and less-lethal alternatives is a critical factor in determining if deadly force was “necessary.”

Failure to document training in these specific areas provides “the stick” to plaintiffs and prosecutors. If an officer’s records do not reflect proficiency in de-escalation or the use of less-lethal tools, the “necessary” standard becomes difficult to defend.

The Regulatory Hammer: SB 2 and POST Decertification

The most significant shift in California law enforcement accountability is SB 2.
This legislation established a statewide framework for the Commission on Peace Officer Standards and Training (POST) to certify and decertify officers.

• • Career-ending vulnerability: Under SB 2, serious misconduct, including the use of excessive force or failing to follow force standards set in Penal Code § 835a, can lead to the permanent revocation of an officer’s peace officer certification.
  • Statewide consequence: Once decertified, an individual is prohibited from serving as a peace officer anywhere in the state of California.
  • Record scrutiny: POST investigators have the authority to review all personnel and training records during a decertification hearing.

Discovery of Records: Pitchess Motions and Evidence Code § 1043

A common tactic in both criminal defense and civil litigation is the filing of a Pitchess motion under Evidence Code § 1043. This motion allows the opposition to access an officer’s confidential personnel and training records.

• • Good cause: The moving party must show “good cause” for the discovery of the records.
  • Training deficiencies: Training records are frequently targeted to demonstrate a pattern of poor performance or a lack of competency in “hard skills” such as driving, firearms proficiency or defensive tactics.
  • In-camera review: A judge will review the records in chambers to determine what information is relevant to the litigation.

If an officer has failed to meet mandated training requirements or has required remedial training that was never completed, these records become the literal “stick” used to undermine the officer’s credibility and the agency’s liability.

Institutional Training Models: The Three Archetypes

Agencies generally fall into one of three categories regarding their training culture. Each presents unique risks to the officer and the organization.

1. The budget-constrained agency: These organizations provide only the bare minimum of training required by state law.

• • Financial burden: Training is viewed primarily as a cost center rather than a risk-mitigation tool.
  • Organizational malpractice: Failure to provide modern tools and techniques often results in a “revolving door” of personnel and increased exposure to litigation.

2. The reactive agency: These agencies exceed the minimum requirements, but only in response to political pressure or isolated catastrophic events.

• • Hesitation risk: Officers in these environments often operate out of fear of discipline rather than confidence in their skills.
  • Inconsistency: Training is often based on outdated perspectives or knee-jerk reactions to news cycles.

3. The over-burdened agency: These agencies set training requirements so high that they are impossible to meet or lead to employee burnout.

• • Administrative failure: Unrealistic standards create a backlog of uncompleted training, which creates a significant liability when records are subpoenaed.

Core Competencies: The “Hard Skills”

At the foundation of police work are the “hard skills”: driving, shooting and fighting. While administrative errors may result in internal discipline, failure in these three areas often results in death, serious injury or catastrophic legal judgments.

• • Driving: Routine accidents involving stationary objects suggest a lack of ongoing proficiency training.
  • Firearms: Qualification is not training. Officers who barely qualify are at a disadvantage in the high-stress environment of an officer-involved shooting (OIS).
  • Defensive tactics: Minor use-of-force incidents often lead to injuries for both the officer and the subject when the officer lacks regular “mat time.”

Organizational Excellence: The Culture of Training

The “magic formula” of a successful law enforcement agency is a culture of excellence that spans every rank. Performance has a direct correlation to the prevailing culture of the department.

• • Bare-minimum performance: A culture of doing the “bare minimum” ensures that true skill is replaced by luck.
  • Leadership accountability: Expectations must be clearly communicated and enforced across all assignments, from patrol to administration.
  • Long-term cost savings: While training requires an upfront investment in tuition and backfill, the cost of litigation and awarded judgments is significantly higher.

Mitigation Through Independent Review and Personal Accountability

An independent review of an agency’s training programs, tactics and policies is an essential proactive measure. This process identifies deficiencies before they are exploited during a catastrophic event.

However, the responsibility does not rest solely on the agency. Personal accountability is the final line of defense.

• • The gym and the mat: Consistent physical preparation reduces the likelihood of excessive force by increasing an officer’s confidence and capability.
  • The range and the classroom: Continuous education on changing statutes like AB 392 and SB 2 is necessary for professional survival.

Conclusion

In the current legal environment of California, an officer’s training record is either their greatest shield or the most effective weapon used against them. Do not provide the opposition with the means to exploit your performance. Don’t give them the stick.

About the Author

Jon Cabrera of Tri-Det Solutions Group is a contract investigator and consultant for KC Law Group, A Professional Law Corporation. Jon began his law enforcement career in 1993 with the Palm Springs Police Department. He also worked at the Orange County Sheriff’s Department and Riverside Police Department before returning to the Palm Springs Police Department, where he retired as a sergeant. Throughout his career, he has worked a variety of assignments, including patrol, canine handler and detective with a violent crime and gang task force. During this time, he also served as a use-of-force instructor, less-lethal munitions instructor and long-time presenter for the Department’s Community Police Academy. Jon spent several years on the Critical Incident Investigation Team, conducting complex administrative (internal affairs) investigations, and served 16 years on the SWAT team, including four years as team leader. In his “retirement,” Jon continues to volunteer his time with CATO, serving on the board of directors and as an instructor for Critical Incident Leadership for Field Supervisors, various less-lethal disciplines, and reviews and analyses of tactical teams throughout California.