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By PORAC | August 1, 2016 | Posted in PORAC LDF News

New Laws Mandate Reporting Complaints and Use-Of-Force Incidents

Rains Lucia Stern, PC

I would much rather write about overturning unfair discipline or the acquittal of a peace officer client accused of criminal behavior than summarize newly enacted legislation. However, two new pieces of legislation that have recently come to the attention of our office seem to have been a surprise to many of our clients and their law enforcement agencies — hence, this article. I want to briefly summarize the two new pieces of legislation and share our thoughts about them.

AB 953: Collection and Reporting of Citizen Complaints Against Peace Officers
This bill, which amends Penal Code § 13012 and went into effect on January 1, 2016, was originally introduced by Assembly Member Shirley Weber from San Diego. It requires law enforcement agencies to collect and report, on an annual basis, information concerning citizen complaints against peace officers. Agencies are required, commencing January 1, 2016, to classify citizen complaints against peace officers into one of four categories:

  1. Non-criminal behavior
  2. Misdemeanor criminal offense
  3. Felony criminal offense
  4. Racial or identity profiling

In addition to tabulating and submitting to the California State Department of Justice (DOJ) on an annual basis the number of complaints made in each of these classifications, law enforcement organizations are required to report on the following disposition categories:

  1.  Sustained
  2. Not sustained
  3. Exonerated
  4. Unfounded
  5. Pending

Finally, police and sheriffs’ departments will be required under the law to keep a separate record of these complaints made from inmates admitted to a “local detention facility.” The statute defines “local detention facility” as “any city or county facility used for the confinement, for more than 24 hours, of adults, or of both adults and minors.” Most municipal police agencies that have only temporary detention facilities and transport prisoners to the local county jail for booking do not have a “local detention facility” as defined by this statute.

My partner, Rocky Lucia, and I reviewed this recent legislation carefully in order to advise one of our law enforcement labor clients for purposes of negotiating changes in that agency’s internal affairs investigations and reporting policy. As we sorted through the legislation, several issues that either require emphasis or create questions arose.

First, most police agencies do not currently classify complaints against law enforcement officers as either “non-criminal,” “misdemeanor,” “felony” or “racial or identity profiling.” This legislation sets up those four specific categories. Agencies should try to initiate a procedure immediately so that they do not have to go back at the end of the calendar year and retroactively try to review the complaints received and place them in one of these four categories.

Second, complaints could conceivably be considered both non-criminal and alleging racial or identity profiling. It would have been nice if the Legislature made it clear that the term “non-criminal” was to include any such allegations with the exception of non-criminal complaints alleging racial or identity profiling. We do not believe it is accurate for an agency to count a single complaint of racial or identity profiling under both the “non-criminal” and the “racial or identity profiling” categories.

Third, we emphasize that the new legislation (Penal Code § 13012) speaks only to the collection and reporting of citizen complaints. Obviously, there are such things as internally generated or department-initiated complaints against peace officers. This legislation does not seek or, apparently, require the recording and reporting of internally or department-generated complaints against peace officers — it speaks only to “citizen complaints.”

Fourth, if the complaint involves either racial or identity profiling, the law enforcement agency must classify the complaint into other subcategories:

  1.  Race or ethnicity (including color)
  2. Nationality
  3. Age
  4. Religion
  5. Gender
  6.  Gender expression
  7. Sexual orientation
  8. Mental disability
  9. Physical disability

After careful review and analysis, we have determined that there is a serious flaw in the law concerning reporting of investigation dispositions. As I initially read the new legislation and the DOJ information bulletin accompanying it, I was struck by the fact that the legislation does not call for the reporting of internal affairs investigations that are determined to be “frivolous.” Although the new legislation makes reference to “citizen complaints received by law enforcement agencies under Section 832.5,” it fails to recognize that Section 832.5 permits agencies to classify citizen complaints as (among other things) “unfounded” or “frivolous.” Under case law concerning statutory construction, it is clear that the Legislature, by including both of those terms in Penal Code § 832.5, recognized that there was a difference between a finding of “unfounded” and a finding of “frivolous.” A suitable example of a frivolous complaint might be where a citizen complains that a peace officer hit them before placing handcuffs on them, but camera evidence of the encounter demonstrates that there was no physical contact whatsoever before the handcuffs were applied. That should be labeled a frivolous complaint.

Since this new legislation specifically seems to exclude the right of agencies to determine citizen complaints to be frivolous, it appears to be inconsistent with Penal Code § 832.5 and needs to be amended for that reason. We intend to work with PORAC and our contacts with the DOJ to see that the necessary amendments are made to the language concerning the reporting of complaint disposition categories.
AB 71: Collection and Reporting of Use-of-Force Incidents

Assembly Bill 71, also effective January 1, 2016, adds Government Code § 12525.2 pertaining to the collection and reporting of use-of-force incidents. Each law enforcement agency in California must report data responsive to the categories annually.
Under this new legislation, not just any use of force by a peace officer (or against a peace officer) needs to be reported. Instead, the legislation sets up four different categories of use of force that must be reported annually:

  1. An incident that involves the shooting of a civilian by a peace officer
  2. An incident that involves the shooting of a peace officer by a civilian
  3. An incident in which the use of force by a peace officer against a civilian results in serious bodily injury or death
  4. An incident in which the use of force by a civilian against a peace officer results in serious bodily injury or death

Government Code § 12525.2(d) defines “serious bodily injury” as “a bodily injury that involves a substantial risk of death, unconsciousness, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member or organ.”
The reporting requirements of these use-of-force incidents require the agency to report very detailed information, including information concerning:

  1. The primary reason for the contact between the law enforcement officer and the civilian
  2. Information concerning the underlying incident
  3. The total number of civilians involved in the incident
  4. The total number of officers who may have used force or may have been assaulted
  5. Whether the officer perceived the civilian to be armed when the force was applied
  6. Whether the civilian was, in fact, armed and the type of weapon the civilian was armed with
  7. The level of severity of the injury suffered by the civilian or the officer
  8. The types of force used by the officer (baton, taser, firearm, etc.
  9.  The severity of the injury the officer received
  10. Demographics concerning the civilian, including race and gender
  11. Demographics concerning the officer, including race and gender
  12. Observed behavior of the civilian before force was applied

This legislation does not allow agencies to accurately report the total number of assaults committed against law enforcement officers.
In the post-Ferguson era, it should not come as a shock or surprise to see new reporting requirements relating to use of force employed by officers against civilians. Although, at first glance, the provisions of this new law appear to be neutral in the sense that they require the death or serious bodily injury of either a peace officer or a civilian to be reported by each law enforcement agency, we cannot lose sight of the fact that (1) peace officers are equipped with, trained and expected to use force that may result in the death or serious bodily injury of others in certain circumstances, and (2) citizens are not normally permitted to carry firearms and are never authorized to use force that causes either serious bodily injury or death to law enforcement officers.

What the state DOJ will not be able to tell anyone following the enactment of this legislation is the number of instances throughout the year in which law enforcement officers are attacked, assaulted and even injured by civilians (if the assault did not cause serious bodily injury). We will never see statistics for all of the instances in which peace officer victims of the use of force do not die or suffer serious bodily injury.
Certainly, the reporting of any number of instances in which a law enforcement officer has lost his or her life in the line of duty or has suffered a serious bodily injury is going to be a grim statistic for those who care about the safety of law enforcement officers, but it does not give us an accurate picture of the real world of law enforcement officers today. Suppose, hypothetically, that at the end of calendar year 2016, reports generated under this statute show that 15 law enforcement officers have been killed as a result of use-of-force incidents and another 25 have suffered serious bodily injury. I think that, in the final analysis, we really need to know that (hypothetically) another 240 officers were attacked and assaulted but neither died nor suffered serious bodily injury. I think of all the Oakland police officers who were assaulted with a variety of objects and substances during the “Occupy” protests, and the fact that less than a handful of those vicious assaults would be reportable under this law. Thus, in my view, this legislation is the poster child for producing statistics that do not really tell us a true story about the physical assaults endured and the physical violence suffered by peace officers in this state.

About the Author

Mike Rains is a principal and founding member of Rains Lucia Stern. He heads the firm’s Criminal Defense and Legal Defense of Peace Officers Practice Groups. Mike is one of California’s top trial attorneys. He has over 30 years of experience representing peace officers and other high-profile clients in civil and criminal litigation. His practice focuses on criminal trial work in both state and federal courts. Mike also handles civil and labor-related actions, and has served as both defense and plaintiff’s counsel in state and federal court employment cases.