Existing law requires a department or agency that employs peace officers to establish a procedure to investigate complaints by members of the public against those officers. Existing law requires the department or agency to provide written notification to the complaining party of the disposition of a complaint made pursuant to those provisions within 30 days of the disposition.

This bill would also require a department or agency to provide written notification to the complaining party of the current procedural status of an ongoing complaint investigation at least every 45 days. The bill would require a department or agency that employs peace officers to make available for public inspection the rules and procedures that have been adopted by that department or agency for imposing discipline and providing for the administrative appeal of an adverse decision by a peace officer. By imposing additional duties on local agencies, the bill would impose a state-mandated local program.

Existing law requires each law enforcement agency to annually furnish to the Department of Justice a report of specified incidents when a peace officer is involved in the use of force, including an incident involving the shooting of a civilian by a peace officer.

This bill would require each county district attorneys office that conducts an investigation into an incident involving the shooting of a civilian by a peace officer to report the findings of that investigation on a publicly accessible Internet Web site within 30 days of the conclusion of the investigation. The bill would also require each department or agency that employs peace officers to post reports about serious uses of force by peace officers on its Internet Web site within 30 days of completing any investigation or adjudication related to the use of force and to, at least quarterly, post a report on its Internet Web site containing aggregate statistical information on serious uses of force for which any investigation, adjudication, or both have been completed. By imposing additional reporting duties on local law enforcement agencies, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law requires a department or agency that employs peace officers or custodial officers to establish a procedure to investigate complaints by members of the public against those officers. Existing law establishes retention requirements and access privileges, as specified, for those complaints and related reports or findings.

This bill would state the intent of the Legislature to enact legislation on peace officer transparency.

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

AB 1428 (Low) - Peace officers: transparency

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 1428 would require specified information to be posted by district attorneys’ offices and law enforcement agencies related to serious use of force by peace officers, as specified, and would require an agency to provide complaint status notifications, as specified.

Fiscal Impact:

• State entities: Costs would range from the millions of dollars annually (General Fund, special fund) to minor and absorbable for various state entities that employ peace officer to post information and relay information as specified by this bill. See comments below.
• Local entities: Unknown, potentially-major costs in the millions of dollars annually (General Fund/local funds) that likely are subject to state reimbursement as a local mandate. It would cost between $1,500 and $2,000 annually to a local law enforcement agency that employs about 200 peace officers to implement the requirements of this bill. If an average of $2,000 is incurred by each local agency affected by this bill, which is a conservative estimate given the much higher costs incurred by large-jurisdiction police departments and sheriffs’ offices, this bill could result in costs over $1.1 million to the over 550 cities, counties, and special districts that employ peace officers.

Background:

Existing law requires a department or agency that employs peace officers to establish a procedure to investigate complaints by members of the public against those officers. The department or agency is required to provide written notification to the complaining party of the disposition of a complaint made pursuant to those provisions within thirty days of the disposition. Additionally, each law enforcement agency is required to furnish annually to DOJ a report of specified incidents when a peace officer is involved in the use of force, including an incident involving the shooting of a civilian by a peace officer.

Proposed Law:

This bill would:

• Require a department or agency that employs peace officers to provide written notification to a member of the public who makes a complaint against a peace officer of the current procedural status of an ongoing complaint investigation at least every forty-five days.
• Require a department or agency that employs peace officers to make available for public inspection the rules and procedures that have been adopted by that department or agency for imposing discipline and providing for the administrative appeal of an adverse decision by a peace officer.

Related Legislation:

AB 887 (Cooper, 2017) would require that specified information be provided to a peace officer prior to questioning on an administrative disciplinary action. AB 887 is pending in this Committee.

AB 1298 (Santiago, 2017) would require proof based on clear and convincing evidence in order to sustain an administrative disciplinary action against a public safety officer for making a false statement AB 1298 is pending in the Senate Committee on Public Safety.

AB 71 (Rodriguez, Ch. 462, Stats. 2015) requires each law enforcement agency to furnish annually to DOJ a report of specified instances when a peace officer employed by that agency is involved in a use of force incident.

Staff Comments:

The Department of Forestry and Fire Protection (CAL FIRE), which currently does not track the number of citizen contacts by its peace officers (or other employees), anticipates initial one-time costs of almost $4.7 million (General Fund) and almost $3.8 million annually thereafter. Cost estimates to CAL FIRE include the purchase of a records management system to track contacts for approximately $300,000 and a $60,000 annual subscription to access the system, the addition of one temporary staff (Senior Information Systems Analyst) for system procurement purposes, and the addition of twenty-seven permanent staff (Staff Services Analysts) for contact tracking, data compiling, and reporting purposes. The department anticipates staffing costs of approximately $4.4 million initially and of $3.7 million ongoing.

The Department of Corrections and Rehabilitation anticipates contracting costs of approximately $1.4 million (General Fund) for the development of a fully-automated reporting module in the Strategic Offender Management System and personnel costs of $206,000 annually (General Fund) for two Associate Governmental Program Analysts, one for each parole regional office.

The California Highway Patrol estimates the fiscal impact of AB 1428 to the department is about $100,000 in personnel costs (Motor Vehicle Account) to organize, transfer, and post the required information. The Department of Justice anticipates minor and absorbable costs to implement the provisions of this bill.

Recommended Amendments:

When referring to members of the public, this bill uses the terms “citizen” (as in citizen contact) and “civilian.” The author may wish to use one term, civilian, consistently throughout AB 1428 to avoid any potential confusion or misinterpretation about which contacts are included within the scope of this bill.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: AB 1428 Hearing Date: June 27, 2017

Subject: Peace Officers: Transparency

HISTORY

Source: California Association of Highway Patrolmen

Peace Officer Research Association of California

Prior Legislation: AB 71 (Rodriguez) Ch. 462, Stats. of 2015

AB 619 (Weber) 2015, failed Assembly Appropriations

AB 953 (Weber) Ch. 466, Stats. of 2015

Support: Association for Los Angeles Deputy Sheriffs; Association of Deputy District Attorneys; California Association of Code Enforcement Officers; California College and University Police Chiefs Association; California Narcotic Officers Association; California Reserve Peace Officers Association; Los Angeles County Probation Officers Union; Los Angeles County Professional Peace Officers Association; Los Angeles Police Protective League; Riverside Sheriffs’ Association

Opposition: Alliance for Boys and Men of Color; American Civil Liberties Union; California State Sheriffs’ Association; California News Publishers Association; Courage Campaign; PACT: People Acting in Community Together

Assembly Floor Vote: 76 - 0

PURPOSE

The purpose of this bill is to require district attorneys and law enforcement agencies to post information about specified serious uses of force by police officers on the internet. Additionally this bill allows a law enforcement agency to establish a mediation program to resolve biased policing complaints.

Existing law requires each department or agency in this state that employs peace officers to establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies, and shall make a written description of the procedure available to the public. (Pen. Code, § 832.5, subd. (a)(1).)

Existing law allows each department or agency that employs custodial officers, to establish a procedure to investigate complaints by members of the public against those custodial officers employed by these departments or agencies, provided however, that any procedure so established shall comply with the provisions of this section and with other provisions as specified. (Pen. Code, § 832.5, subd. (a)(2).)

This bill specifies that law enforcement agencies shall make procedures for the investigation of complaints by the public available on a publicly accessible Internet Web site.

This bill states that each department or agency in this state that employs peace officers shall make available for public inspection the rules and procedures that have been adopted by that department or agency for imposing discipline upon, and providing for the administrative appeal of an adverse decision by, a peace officer.

Existing law requires complaints and any reports or findings relating to these complaints be retained for a period of at least five years. (Pen. Code, § 832.5, subd. (b).)

Existing law specifies prior to any official determination regarding promotion, transfer, or disciplinary action by an officer's employing department or agency, the complaints, as specified, shall be removed from the officer's general personnel file and placed in separate file designated by the department or agency, in accordance with all applicable requirements of law. (Pen. Code, § 832.5, subd. (b).)

Existing law prohibits complaints by members of the public that are determined by the peace or custodial officer's employing agency to be frivolous, or unfounded or exonerated, or any portion of a complaint that is determined to be frivolous, unfounded, or exonerated, from being maintained in that officer's general personnel file. However, these complaints shall be retained in other, separate files that shall be deemed personnel records for purposes of the California Public Records Act (Pen. Code, § 832.5, subd. (c).)

Existing law allows a department or agency that employs peace or custodial officers to release factual information concerning a disciplinary investigation if the officer who is the subject of the disciplinary investigation, or the officer's agent or representative, publicly makes a statement he or she knows to be false concerning the investigation or the imposition of disciplinary action. (Pen. Code, § 832.7, subd. (d).)

Existing law specifies that information may not be disclosed by the peace or custodial officer's employer unless the false statement was published by an established medium of communication, such as television, radio, or a newspaper. (Pen. Code, § 832.7, subd. (d).)

Existing law requires the law enforcement agency to provide written notification to the complaining party of the disposition of the complaint within 30 days of the disposition. (Pen. Code, § 832.7, subd. (e)(1).)

Existing law states that each law enforcement agency shall annually furnish to the Department of Justice, a report of all instances when a peace officer employed by that agency is involved in any of the following: (Government Code, § 12525.2, subd. (a).)

• An incident involving the shooting of a civilian by a peace officer;
• An incident involving the shooting of a peace officer by a civilian;
• An incident in which the use of force by a peace officer against a civilian results in serious bodily injury or death; and
• An incident in which use of force by a civilian against a peace officer results in serious bodily injury or death.
  

Existing law specifies that each year, the Department of Justice shall include a summary of information contained in the use of force reports received through the department's OpenJustice Web portal. (Government Code, § 12525.2, subd. (c).)

Existing law includes within Department of Justice’s annual reporting requirements the number of citizens' complaints received by law enforcement agencies which shall indicate the total number of these complaints, the number alleging criminal conduct of either a felony or misdemeanor, and the number sustained in each category. (Pen. Code, § 13012, subd. (e).)

This bill allows a law enforcement agency to establish a mediation program to resolve biased policing complaints against any of its peace officers, as specified.

This bill states that the goal of a mediation program is communication and understanding between peace officers and individuals who believe they have been the victim of biased policing and shall be an informal, confidential process in which the complainant and accused peace officer meet in person and, with the assistance of a neutral mediator, discuss the alleged misconduct with the goal of arriving at a mutually agreeable resolution.

This bill requires an agency that elects to establish a mediation program, to establish rules that define which biased policing complaints qualify for mediation.

This bill specifies that complaints involving the use of force, the arrest of a complainant, an assault on an employee, the filing of a lawsuit, injury to a person, damage to property, or allegations of criminal misconduct shall not be considered for mediation.

This bill states that the complainant and the peace officer may voluntarily agree to participate in any mediation program and an inference shall not be established against either party based on a decision to participate in the mediation program.

This bill provides mediation conducted as part of this bill shall be confidential and parties shall sign a confidentiality agreement, as specified.

This bill states that mediation participants shall not be required to arrive at a formal resolution of a complaint.

This bill provides that upon completion of mediation, the agency or department shall close the complaint against the peace officer and shall not take any further action against the officer.

This bill provides that if a mediation is scheduled and a peace officer fails to appear without just cause, as determined by the mediator, the biased policing complaint shall be referred back to the agency or department for processing according to that agency’s or department’s procedure for investigating complaints.

This bill specifies that if a mediation is scheduled and the complainant fails to appear without just cause, as determined by the mediator, the agency or department shall contact the complainant to reschedule the mediation.

This bill states that if the complainant fails to appear a second time without just cause, as determined by the mediator, the agency or department shall close the complaint against the peace officer and shall not take any further action against the officer. This section does not prevent or preclude an officer from being subject to prosecution of a serious crime or from being subject of a civil remedy or lawsuit.

This bill requires the law enforcement agency to provide written notification to the complaining party of the current procedural status of the ongoing complaint investigation at least every 45 days, until final disposition.

This bill states that the notification provided above, shall advise the complaining party of the procedural status only, and shall not reveal or disclose any substantive information that is otherwise determined to be confidential personnel records.

This bill states that each district attorney’s office that conducts an investigation into an incident involving the shooting of a civilian by a peace officer shall report the findings of that investigation on a publicly accessible Internet Web site within 30 days of the conclusion of the investigation.

This bill specifies that each law enforcement agency shall post reports about serious uses of force by peace officers on its Internet Web site within 30 days of completing any investigation or adjudication related to the use of force.

This bill requires the report by the law enforcement agency meet all of the following requirements:

• The report shall include a general statement describing the incident and a determination of whether the use of force complied with agency or department policy regarding the use of force;
• The report shall not identify the peace officer involved in the serious use of force or contain information that could be used to identify the officer;
• The report shall not reveal the contents of confidential statements made by the officer in a personnel investigation; and
• The report shall not violate specified confidentiality provisions.
  

This bill specifies that, at least quarterly, each law enforcement agency shall post a report on its Internet Web site containing aggregate statistical information on serious uses of force for which any investigation or adjudication have been completed.

This bill specifies that the quarterly report shall comply with all of the following requirements:

• The report shall contain statistical information related to, at a minimum, the type of force used, the final disposition of investigations and adjudications, the race of both the peace officer and the civilian, the weapons involved, the degree of injury suffered by the peace officer and the civilian, and whether the officer attempted to use less than serious force;
• The report shall include the percentage of serious uses of force in relation to the total number of citizen contacts during the reporting period and the percentage of serious uses of force in relation to the number of arrests during the reporting period;
• The report shall not identify by name a peace officer involved in a serious use of force; and
• The report shall not violate specified confidentiality provisions.

This bill defines, for purposes of this bill, “serious use of force” as a use of force that results in serious injury, involves the discharge of a firearm, or involves a headstrike with a blunt object.

COMMENTS

1. Need for This Bill

According to the author:

Transparency and accountability is essential to positive police-community relationships. In California, many of the largest law enforcement organizations in the state came together to discuss some of the challenges facing the law enforcement profession relating to community relations, accountability and transparency. The working group agreed that changes need to be made in order to strengthen public trust, enhance government accountability and improve public policy. AB 1428 helps address these recommendations by shedding light on police agencies internal and external investigations, including citizen’s complaints, officer involved shootings, and uses of force. AB 1428 also seeks to increase accountability and communication between the law enforcement agencies and the general public.

2. Disclosure of Officer Names or Identifying Information in Serious Cases

AB 1428 adds a new section to the California Penal Code. The newly added Penal Code § 832.19 would require reports be posted by the district attorney or an agency or department regarding shootings of civilians or a serious use of force by a peace officer. However, in the newly created Penal Code § 832.19, subd. (b)(2)(B) “the report shall not identify the peace officer involved in the serious use of force or contain information that could be used to identify the officer.”

The opponents to the bill argue that the prohibition on the disclosure of the officer’s name would undermine a California Supreme Court ruling in Long Beach Police Officers Association v. City of Long Beach, 59 Cal.4th 59 (2014). The opponents argue that the Supreme Court held that the public has a presumptive right to access the names of officers involved in shootings and that the presumption can only be overcome with a sufficient particularized showing of a threat of harm can be made. The opposition points to the fact that AB 1428 subverts the balancing test put forth in Long Beach by prohibiting a district attorney or law enforcement agency from disclosing the identities of the officers involved in a shooting without having to demonstrate a particularized showing of threat of harm.

3. San Francisco Police Department Mediation Program

San Francisco Police Department has had a mediation program for a select category of police complaints since 1995. (Mediation Program Report to the San Francisco Police Commission, Office of Citizen Complaints, March 18, 2009.)

The San Francisco Police Department does not allow mediation in cases where there are allegations of racial slurs. This bill allows mediation in cases in cases involving an allegation of “biased policing.” There is no further definition of biased policing, and it is unclear exactly what type of complaints that might cover. This bill does list a number of allegations including, use of force, arrest, and damage to property which would not eligible for mediation.

Under the San Francisco Police Department regulations for mediation, cases which are sent to mediation will be handled exclusively through this process. No other investigation will occur, and all parties are required to abide by these rules. This is true regardless of whether a resolution has been reached which is satisfactory to the citizen.

In San Francisco, mediation will not be available to officers who have any of the following in their files:1) Sustained case within the past year; 2) A prior mediation within the past six months; 3) Three mediations within the past two years.

This bill does not provide any limitations on an officer’s participation in mediation based on a history of prior complaints.

The report found that the Mediation Program provides benefits that were unavailable under the investigative process track, including:

• Time Savings. Mediation allows cases to be processed more expeditiously. In 2008, mediation cases were open a median of 67 days and an average of 86 days, while investigated cases were open a median of 162 days and an average of 216 days.
• Cost Savings. The Office of Citizen Complaints (OCC) currently has a roster of 89 volunteer mediators who conduct the mediations without charge. The mediation process saves the OCC, the City of San Francisco and ultimately the taxpayers, resources in terms of the time and financial resources that would be spent in processing an investigation, in cases that would best benefit the parties by providing them a forum to discuss the issues in a non-confrontational setting.
• Greater Satisfaction for Complainants and Officers. Based on Exit Surveys received in 2008, 96% of the parties who participated in mediation were Satisfied
  or Very Satisfied with the mediation process ; 96% felt that the mediation location provided a safe environment; 99% felt they had an opportunity to be heard ; 90% felt the other party fully participated ; 96% felt the mediators accurately identified and addressed the core issues ; and 93% felt the complaint was totally or partially resolved .

A number of law agencies in California currently have mediation programs. Those agencies include Pasadena, San Jose, and Los Angeles. Nothing in state law currently prohibits the establishment of such programs, and jurisdictions are certainly choosing to develop and use mediation programs. Given that, the language of this bill is not necessary to allow law enforcement to develop mediation programs.

4. Opponents’ Concerns with the Mediation Program in This Bill

Opponents to AB 1428 argue that the mediation programs put forward in this bill actually impede police discipline and accountability. According to the American Civil Liberties Union, the bill requires police departments to close the complaint at the conclusion of the mediation, regardless of whether a resolution has been reached. According to the ACLU:

The purported goal of the complaint resolution program specified in AB 1428 is “to establish communication and understanding between peace officers and individuals who believe they have been the victim of biased policing” by creating a process by which “the complainant and accused peace officer meet in person … [to] discuss the alleged misconduct with the goal of arriving at a mutually agreeable resolution.” Despite this assertion, the bill requires the department to close the complaint at the completion of the meeting — regardless of whether a resolution has been reached that is satisfactory to the complainant. Mandatory closure of every complaint is not only inconsistent with the asserted goal of the bill, it is inconsistent with long-established mediation principles recognizing that the purpose of mediation is to assist the parties in voluntarily reaching a mutually acceptable agreement.^[1]

Any valid mediation program must provide an option for a full investigation if the complainant is unhappy with the outcome of the meeting with the officer. As the US Department of Justice has noted, the possibility that the mediation may fail to dispose of the complaint is key to any mediation process. “If the two parties cannot reach a satisfactory agreement, the mediation is officially unsuccessful. Mediation may fail because one or both sides decide that no satisfactory resolution has been reached. The option of terminating a mediation session is the most important safeguard for ensuring that both sides make a sincere effort. The officer cannot stonewall and refuse to acknowledge what the complainant is saying. Equally important, the complainant cannot use the session simply to berate the officer.”^[2] Under AB 1428, however, every complaint would be automatically dismissed with the simple expedient of one meeting, even if the officer failed to participate in good faith.

Additionally, opponents argue that the bill fails to guarantee a neutral “mediator” by not outlining any standard for selection of a neutral arbitrator. Furthermore, the opposition points out that the bill goes beyond existing mediation confidentiality rules by prohibiting any disclosure of statements, notes, or documents made during the course of the meeting.^[3] Finally, the opponents argue that the bill fails to restrict participation in mediation for officers with a history of civilian complaints, which they state is contrary to the recommendation of police mediation experts. The ACLU further points out that “according to the U.S. Department of Justice, such officers should be ineligible for mediation in order to prevent officers from avoiding departmental discipline for repeated misconduct.^[4] For example, in many other jurisdictions, including New York City, Minneapolis, Washington, DC, and San Francisco, officers are ineligible for mediation if they have recent mediations or sustained complaints.^[5]”

5. Argument in Support

According to the Peace Officers Research Association of California (PORAC):

In the wake of Ferguson, there is an undeniable tension between peace officers and the public with whom they serve. Law enforcement agencies across our state and country are coming together to reach out to their communities in order to strengthen public trust and to put a face behind the badge.

PORAC has teamed up with other major law enforcement groups in California to discuss some of the challenges facing the law enforcement profession relating to community relations, accountability and transparency. The working group agrees that change is necessary and we developed an approach that will provide transparency and accountability in policing while carefully balancing privacy rights and safety of both citizens and law enforcement officers.

This bill will offer real and tangible solutions. Specifically, this bill:

• Requires each department or agency to provide written notification as to the status of on-going complaint investigation;
  
• Requires all county district attorneys who conduct an investigation of an officer involved shooting to publically report the findings of that investigation;
  
• Requires each department or agency to post reports about serious uses of force by their officers;
  
• Authorizes an agency or department that employs peace officers to establish a mediation program to resolve biased policing complaints;
  
• Requires each department or agency to publically post the regulations and procedures for investigating complaints made by members of the public, and the disciplinary process for each department.

AB 1428 sheds light on police agency’s internal and external investigations, including citizen’s complaints, officer involved shootings, and uses of force. This bill seeks to increase accountability and communication between law enforcement and the general public.

6. Argument in Opposition

According to the California News Publishers Association:

I am writing on behalf of the California News Publishers Association to inform you that the Association regretfully opposes your Assembly Bill 1428, which, among other things, would prohibit the disclosure of any identifying information about a peace officer involved in the shooting of a civilian or in an incident involving a serious use of force.

Specifically, AB 1428 would add new California Penal Code Section 832.19 which would require reports to be posted by the district attorney or an agency or department regarding shootings of civilians or a serious use of force by a peace officer. In proposed subsection (b)(2)(B), however, the bill would require that “the report shall not identify the peace officer involved in the serious use of force or contain information that could be used to identify the officer.”

The prohibition on the disclosure of the identity of the peace officer would subvert the California Supreme Court’s ruling in Long Beach Police Officers Association v. City of Long Beach, 59 Cal.4th 59 (2014), in which the Court held that the public has a presumptive right to access the names of officers involved in shootings. This presumption can be overcome only when a sufficient particularized showing of threat of harm can be made by the department.

The Court, in its decision, balanced the significant public interest the community has in obtaining the identity of officers involved in the use of deadly force against the officers’ right of privacy. In articulating the standard that an agency must apply, the Court rejected the notion that an agency could simply prohibit disclosure of the names in a plenary fashion and instead required a case specific analysis.

AB 1428, though, would accomplish precisely what the Supreme Court rejected in the Long Beach case by prohibiting a district attorney or law enforcement agency from disclosing the identities of the officers involved in a shooting without having to demonstrate a particularized showing of threat of harm.

The approach taken by the bill wholly dismisses the interest of the public in accessing the identities of officers and the thoughtful test that Supreme Court created to balance the interests at issue.

We think the Supreme Court best described the public interest in disclosure of this information in Long Beach at page 74:

“Moreover, when it comes to the disclosure of a peace officer's name, the public's substantial interest in the conduct of its peace officers outweighs, in most cases, the officer's personal privacy interest. As we noted in Commission on Peace Officer Standards: "Peace officers `hold one of the most powerful positions in our society; our dependence on them is high and the potential for abuse of power is far from insignificant.' (City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411, 1428 [44 Cal.Rptr.2d 74].) A police officer `possesses both the authority and the ability to exercise force. Misuse of [this] authority can result in significant deprivation of constitutional rights and personal freedoms, not to mention bodily injury and financial loss.' (Gray v. Udevitz (10^th Cir. 1981) 656 F.2d. 588, 591.)" (Commission on Peace Officer Standards supra, 42 Cal 4^th at pp. 299-300.) Thus, the public's significant interest in the conduct of its peace officers "diminishes and counterbalances" an officer's privacy interest in keeping his or her name confidential. (Id. at p. 299.)”

CNPA believes the standard established by the Supreme Court in Long Beach appropriately balances public access to the identities of officers involved in shootings and the privacy interests of the officer or his or her family when circumstances warrant on a case-by-case basis.

That AB 1428 is cast as a “transparency” bill is particularly ironic in light of the fact that it sacrifices the public’s right to know about officer involved shootings in order to shield law enforcement activities from public scrutiny even in instances where the officers involved face no threats of harm.

-- END –

1. E.g. Evidence Code section 1115(a), defining “mediation.” ↑

2. U.S. Department of Justice, Office of Community Oriented Policing Services, Mediating Citizen Complaints Against Police Officers: A Guide for Police and Community Leaders, at 34 (2002). At: https://ric-zai-inc.com/Publications/cops-w0725-pub.pdf ↑

3. See, e.g., Evidence Code section 703.5. ↑

4. Ibid, at 19. ↑

5. Ibid. See also San Francisco Office of Citizen Complaints Mediation Rules, at: https://d3n8a8pro7vhmx.cloudfront.net/nacole/pages/112/attachments/original/1458089069/9-OCC-Mediation-Rules.pdf?1458089069 ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 1428

Author:(Low)

As Amended Ver:March 28, 2017

Majority vote

SUMMARY: Requires district attorneys and law enforcement agencies to post information about specified serious uses of force by police officers on the internet. Allows a law enforcement agency to establish a mediation program to resolve biased policing complaints. Specifically, this bill:

1. Specifies that law enforcement agencies shall make procedures for the investigation of complaints by the public available on a publicly accessible Internet Web site.
2. States that each department or agency in this state that employs peace officers shall make available for public inspection the rules and procedures that have been adopted by that department or agency for imposing discipline upon, and providing for the administrative appeal of an adverse decision by a peace officer.
3. Allows a law enforcement agency to establish a mediation program to resolve biased policing complaints against any of its peace officers, as specified.
4. States that the goal of a mediation program is communication and understanding between peace officers and individuals who believe they have been the victim of biased policing and shall be an informal, confidential process in which the complainant and accused peace officer meet in person and, with the assistance of a neutral mediator, discuss the alleged misconduct with the goal of arriving at a mutually agreeable resolution.
5. Requires an agency that elects to establish a mediation program, to establish rules that define which biased policing complaints qualify for mediation.
6. Specifies that complaints involving the use of force, the arrest of a complainant, an assault on an employee, the filing of a lawsuit, injury to a person, damage to property, or allegations of criminal misconduct shall not be considered for mediation.
7. States that the complainant and the peace officer may voluntarily agree to participate in any mediation program and an inference shall not be established against either party based on a decision to participate in the mediation program.
8. Provides that mediation conducted as part of this bill shall be confidential and parties shall sign a confidentiality agreement, as specified.
9. States that mediation participants shall not be required to arrive at a formal resolution of a complaint.
10. Upon completion of mediation, the agency or department shall close the complaint against the peace officer and shall not take any further action against the officer.
11. Provides that if a mediation is scheduled and a peace officer fails to appear without just cause, as determined by the mediator, the biased policing complaint shall be referred back to the agency or department for processing according to that agency's or department's procedure for investigating complaints.
12. Specifies that if a mediation is scheduled and the complainant fails to appear without just cause, as determined by the mediator, the agency or department shall contact the complainant to reschedule the mediation.
13. States that if the complainant fails to appear a second time without just cause, as determined by the mediator, the agency or department shall close the complaint against the peace officer and shall not take any further action against the officer.
14. Specifies that this bill does not prevent or preclude an officer from being subject to prosecution of a serious crime or from being subject of a civil remedy or lawsuit.
15. Requires the law enforcement agency to provide written notification to the complaining party of the current procedural status of the ongoing complaint investigation at least every 45 days, until final disposition.
16. States that the notification provided above, shall advise the complaining party of the procedural status only, and shall not reveal or disclose any substantive information that is otherwise determined to be confidential personnel records.
17. States that each district attorney's office that conducts an investigation into an incident involving the shooting of a civilian by a peace officer shall report the findings of that investigation on a publicly accessible Internet Web site within 30 days of the conclusion of the investigation.
18. Specifies that each law enforcement agency shall post reports about serious uses of force by peace officers on its Internet Web site within 30 days of completing any investigation or adjudication related to the use of force.
19. Requires the report by the law enforcement agency meet all of the following requirements:
    1. The report shall include a general statement describing the incident and a determination of whether the use of force complied with agency or department policy regarding the use of force;
    2. The report shall not identify the peace officer involved in the serious use of force or contain information that could be used to identify the officer;
    3. The report shall not reveal the contents of confidential statements made by the officer in a personnel investigation; and
    4. The report shall not violate specified confidentiality provisions.
20. Specifies that, at least quarterly, each law enforcement agency shall post a report on its Internet Web site containing aggregate statistical information on serious uses of force for which any investigation or adjudication have been completed.
21. Specifies that the quarterly report shall comply with all of the following requirements:
    1. The report shall contain statistical information related to, at a minimum, the type of force used, the final disposition of investigations and adjudications, the race of both the peace officer and the civilian, the weapons involved, the degree of injury suffered by the peace officer and the civilian, and whether the officer attempted to use less than serious force;
    2. The report shall include the percentage of serious uses of force in relation to the total number of citizen contacts during the reporting period and the percentage of serious uses of force in relation to the number of arrests during the reporting period;
    3. The report shall not identify by name a peace officer involved in a serious use of force; and
    4. The report shall not violate specified confidentiality provisions.
22. Defines, for purposes of this bill, "serious use of force" as a use of force that results in serious injury, involves the discharge of a firearm, or involves a headstrike with a blunt object.

EXISTING LAW:

1. Requires each department or agency in this state that employs peace officers to establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies, and shall make a written description of the procedure available to the public.
2. Prohibits complaints by members of the public that are determined by the peace or custodial officer's employing agency to be frivolous, or unfounded or exonerated, or any portion of a complaint that is determined to be frivolous, unfounded, or exonerated, from being maintained in that officer's general personnel file. However, these complaints shall be retained in other, separate files that shall be deemed personnel records for purposes of the California Public Records Act
3. Allows a department or agency that employs peace or custodial officers to release factual information concerning a disciplinary investigation if the officer who is the subject of the disciplinary investigation, or the officer's agent or representative, publicly makes a statement he or she knows to be false concerning the investigation or the imposition of disciplinary action.
4. Specifies that information may not be disclosed by the peace or custodial officer's employer unless the false statement was published by an established medium of communication, such as television, radio, or a newspaper.
5. Requires the law enforcement agency to provide written notification to the complaining party of the disposition of the complaint within 30 days of the disposition.
6. States that each law enforcement agency shall annually furnish to the Department of Justice, a report of all instances when a peace officer employed by that agency is involved in any of the following:
   1. An incident involving the shooting of a civilian by a peace officer;
   2. An incident involving 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; and
   4. An incident in which use of force by a civilian against a peace officer results in serious bodily injury or death.
7. Specifies that each year, the Department of Justice shall include a summary of information contained in the use of force reports received through the department's OpenJustice Web portal.
8. Includes within Department of Justice's annual reporting requirements the number of citizens' complaints received by law enforcement agencies which shall indicate the total number of these complaints, the number alleging criminal conduct of either a felony or misdemeanor, and the number sustained in each category.

FISCAL EFFECT: According to the Assembly Appropriations Committee:

1. Minor costs to state agencies that employ law enforcement personnel to post on a publicly accessible Internet Web site the required rules and procedures.
2. Moderate reimbursable state-mandated costs (GF) to counties, cities, and some special districts and school districts that employ law enforcement personnel.

County agencies that employ law enforcement personnel, such as district attorney's office and the sheriff's office, will be required to provide additional information to complaining parties, post information on the internet on their rules and procedures and additional quarterly statistical information. District attorney's offices will need to post on the internet their findings regarding officer involved shooting investigations.

Cities and special districts and school districts that employ law enforcement personnel will also need to publish, their rules and procedures required of all law enforcement agencies. In addition, these law enforcement agencies are also required to provide additional quarterly information, and provide periodic updates to the complaining party.

While it is difficult to project the number of complaints and the number of investigations that will result, at a minimum, at least 500 agencies will be required to post their rules and procedures, and these agencies will need to provide quarterly reports – whether or not any use of force occurs. If half the agencies submit a mandate claim for at least $1,000 ($250 per quarter), the GF cost will be at least $250,000, this does not include cost for the increased updates, nor the permissive mediation program authorized in this bill.

COMMENTS: According to the author, "Transparency and accountability is essential to positive police-community relationships. In California, many of the largest law enforcement organizations in the state came together to discuss some of the challenges facing the law enforcement profession relating to community relations, accountability and transparency. The working group agreed that changes need to be made in order to strengthen public trust, enhance government accountability and improve public policy. AB 1428 helps address these recommendations by shedding light on police agencies internal and external investigations, including citizen's complaints, officer involved shootings, and uses of force. AB 1428 also seeks to increase accountability and communication between the law enforcement agencies and the general public."

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0000582

Date of Hearing: May 17, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 1428

Author:(Low) – As Amended Ver:March 28, 2017

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill requires district attorneys and law enforcement agencies to post information on the internet about specified serious uses of force by police officers, and law enforcement agencies to post on the internet specified information related to rules and procedures adopted by these agencies. This bill also allows a law enforcement agency to establish a mediation program to resolve biased policing complaints. Specifically, this bill:

1. Requires departments and agencies employing peace officers to make available for public inspection, the rules and procedures adopted for imposing discipline on, and providing administrative appeal of an adverse decision by, a peace officer.
2. Authorizes such departments and agencies to establish, through collective bargaining applicable to the Meyers-Milias-Brown Act (MMBA) or Ralph C. Dills Act (Dills Act), a confidential mediation program to resolve complaints regarding police bias against its peace officers. But requires an agency that elects to establish a mediation program, to establish rules that define which biased policing complaints qualify for mediation.
3. Requires the law enforcement agency to provide written notification to the complaining party of the current procedural status of the ongoing complaint investigation at least every 45 days, until final disposition, and within 30 days of final disposition.
4. Requires a district attorney’s office that conducts an investigation into an incident involving the shooting of a civilian by a peace officer to report the findings of that investigation on a publicly accessible Internet Web site within 30 days of the conclusion of the investigation; and requires this office to post quarterly specific statistical information regarding the use of force, such as disposition of investigations, weapons involved, race of civilian and officer involved, and degree of injury suffered.

FISCAL EFFECT:

1. Minor costs to state agencies that employ law enforcement personnel to post on a publicly accessible Internet Web site the required rules and procedures.
2. Moderate reimbursable state-mandated costs (GF) to counties, cities, and some special districts and school districts that employ law enforcement personnel.

County agencies that employ law enforcement personnel, such as district attorney’s office and the sheriff’s office, will be required to provide additional information to complaining parties, post information on the internet on their rules and procedures and additional quarterly statistical information. District attorney’s offices will need to post on the internet their findings regarding officer involved shooting investigations.

Cities and special districts and school districts that employ law enforcement personnel will also need to publish, their rules and procedures required of all law enforcement agencies. In addition, these law enforcement agencies are also required to provide additional quarterly information, and provide periodic updates to the complaining party.

While it is difficult to project the number of complaints and the number of investigations that will result, at a minimum, at least 500 agencies will be required to post their rules and procedures, and these agencies will need to provide quarterly reports – whether or not any use of force occurs. If half the agencies submit a mandate claim for at least $1,000 ($250 per quarter), the GF cost will be at least $250,000, this does not include cost for the increased updates, nor the permissive mediation program authorized in this bill.

COMMENTS:

1. Purpose. According to the author, AB 1428 helps shed light on police agencies internal and external investigations, including citizen’s complaints, officer involved shootings, and uses of force. This bill seeks to increase accountability and communication between the law enforcement agencies and the general public.”
2. Background. Current law requires each department or agency in this state that employs peace officers to establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies, and to have written description of the procedure available to the public. Current law also requires a department or agency that employs peace or custodial officers to release factual information concerning a disciplinary investigation if the officer who is the subject of the disciplinary investigation and requires the law enforcement agency to provide written notification to the complaining party of the disposition of the complaint within 30 days of the disposition.

Current law includes, within Department of Justice’s (DOJ’s) annual reporting requirements, provisions for data the number of citizens' complaints received by law enforcement agencies which indicate the total number of these complaints, the number alleging criminal conduct of either a felony or misdemeanor, and the number sustained in each category. And specifies that each year, the DOJ is required to include a summary of information contained in the use of force reports received through the department's OpenJustice Web portal

Based on their investigation, the President’s (Obama) Task Force on 21^st Century Policing included the following thoughts and recommendations for law enforcement to foster a culture of transparency:

1. 1.3 Recommendation: Law enforcement agencies should establish a culture of transparency and accountability in order to build public trust and legitimacy. This will help ensure decision making is understood and in accord with stated policy.
2. 1.3.1 Action Item: To embrace a culture of transparency, law enforcement agencies should make all department policies available for public review and regularly post on the department’s website information about stops, summonses, arrests, reported crime, and other law enforcement data aggregated by demographics.
3. 1.3.2 Action Item: When serious incidents occur, including those involving alleged police misconduct, agencies should communicate with citizens and the media swiftly, openly, and neutrally, respecting areas where the law requires confidentiality.

AB 1428 is consistent with these recommendations.

1. Support. In support, the Peace Officers Research Association of California (PORAC), states “In the wake of Ferguson, there is an undeniable tension between peace officers and the public with whom they serve. Law enforcement agencies across our state and country are coming together to reach out to their communities in order to strengthen public trust and to put a face behind the badge.
2. Related Legislation. AB 1298 (Santiago), requires proof based on clear and convincing evidence when any peace officer is under investigation and subject to administrative discipline, on the allegation of making a false statement. AB 1298 is on the Assembly Floor.
   

AB 887 (Cooper), describes the information to be provided to a peace officer prior to questioning on an administrative disciplinary action. States that specified communications between peace officers and their union representatives are confidential. AB 887 is in Senate Public Safety.

1. Prior Legislation. AB 953 (Weber), Chapter 466, Statutes of 2015, modified the definition of "racial profiling", required local law enforcement agencies to report specified information on stops to the AG's office, and established the Racial and Identity Profiling Advisory Board (RIPA).

AB 619 (Weber), of the 2015-2016 Legislative Session, would have required law enforcement agencies to report use of force incidents to the Attorney General (AG) and requires the AG to annually issue a report containing this information. AB 619 was held in this Committee on Suspense.

AB 71 (Rodriguez), Chapter 462, Statutes of 2015, requires local law enforcement agencies to annually furnish a report to DOJ of all instances when a peace officer is involved in shootings that occur in his or her jurisdiction where an individual or a peace officer is injured or killed and require DOJ to include a summary of the information received in its annual crime report.

Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081

Date of Hearing:

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 1428

Author:(Low) – As Amended Ver:March 28, 2017

SUMMARY:

Requires district attorneys and law enforcement agencies to post information about specified serious uses of force by police officers on the internet. Allows a law enforcement agency to establish a mediation program to resolve biased policing complaints. Specifically, this bill:

1. Specifies that law enforcement agencies shall make procedures for the investigation of complaints by the public available on a publicly accessible Internet Web site.
   
2. States that each department or agency in this state that employs peace officers shall make available for public inspection the rules and procedures that have been adopted by that department or agency for imposing discipline upon, and providing for the administrative appeal of an adverse decision by, a peace officer.
   
3. Allows a law enforcement agency to establish a mediation program to resolve biased policing complaints against any of its peace officers, as specified.
   
4. States that the goal of a mediation program is communication and understanding between peace officers and individuals who believe they have been the victim of biased policing and shall be an informal, confidential process in which the complainant and accused peace officer meet in person and, with the assistance of a neutral mediator, discuss the alleged misconduct with the goal of arriving at a mutually agreeable resolution.
   
5. Requires an agency that elects to establish a mediation program, to establish rules that define which biased policing complaints qualify for mediation.
   
6. Specifies that complaints involving the use of force, the arrest of a complainant, an assault on an employee, the filing of a lawsuit, injury to a person, damage to property, or allegations of criminal misconduct shall not be considered for mediation.
   
7. States that the complainant and the peace officer may voluntarily agree to participate in any mediation program and an inference shall not be established against either party based on a decision to participate in the mediation program.
   
8. Provides mediation conducted as part of this bill shall be confidential and parties shall sign a confidentiality agreement, as specified.
   
9. States that mediation participants shall not be required to arrive at a formal resolution of a complaint.
   
10. Upon completion of mediation, the agency or department shall close the complaint against the peace officer and shall not take any further action against the officer.
    
11. Provides that if a mediation is scheduled and a peace officer fails to appear without just cause, as determined by the mediator, the biased policing complaint shall be referred back to the agency or department for processing according to that agency’s or department’s procedure for investigating complaints.
    
12. Specifies that if a mediation is scheduled and the complainant fails to appear without just cause, as determined by the mediator, the agency or department shall contact the complainant to reschedule the mediation.
    
13. States that if the complainant fails to appear a second time without just cause, as determined by the mediator, the agency or department shall close the complaint against the peace officer and shall not take any further action against the officer. This section does not prevent or preclude an officer from being subject to prosecution of a serious crime or from being subject of a civil remedy or lawsuit.
    
14. Requires the law enforcement agency to provide written notification to the complaining party of the current procedural status of the ongoing complaint investigation at least every 45 days, until final disposition.
    
15. States that the notification provided above, shall advise the complaining party of the procedural status only, and shall not reveal or disclose any substantive information that is otherwise determined to be confidential personnel records.
    
16. States that each district attorney’s office that conducts an investigation into an incident involving the shooting of a civilian by a peace officer shall report the findings of that investigation on a publicly accessible Internet Web site within 30 days of the conclusion of the investigation.
    
17. Specifies that each law enforcement agency shall post reports about serious uses of force by peace officers on its Internet Web site within 30 days of completing any investigation or adjudication related to the use of force.
    
18. Requires the report by the law enforcement agency meet all of the following requirements:
    
    1. The report shall include a general statement describing the incident and a determination of whether the use of force complied with agency or department policy regarding the use of force;
       
    2. The report shall not identify the peace officer involved in the serious use of force or contain information that could be used to identify the officer;
       
    3. The report shall not reveal the contents of confidential statements made by the officer in a personnel investigation; and
       
    4. The report shall not violate specified confidentiality provisions.
       
19. Specifies that, at least quarterly, each law enforcement agency shall post a report on its Internet Web site containing aggregate statistical information on serious uses of force for which any investigation or adjudication have been completed.
    
20. Specifies that the quarterly report shall comply with all of the following requirements:
    
    1. The report shall contain statistical information related to, at a minimum, the type of force used, the final disposition of investigations and adjudications, the race of both the peace officer and the civilian, the weapons involved, the degree of injury suffered by the peace officer and the civilian, and whether the officer attempted to use less than serious force;
       
    2. The report shall include the percentage of serious uses of force in relation to the total number of citizen contacts during the reporting period and the percentage of serious uses of force in relation to the number of arrests during the reporting period;
       
    3. The report shall not identify by name a peace officer involved in a serious use of force; and
       
    4. The report shall not violate specified confidentiality provisions.
21. Defines, for purposes of this bill, “serious use of force” as a use of force that results in serious injury, involves the discharge of a firearm, or involves a headstrike with a blunt object.

EXISTING LAW:

1. Requires each department or agency in this state that employs peace officers to establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies, and shall make a written description of the procedure available to the public. (Pen. Code, § 832.5, subd. (a)(1).)
   
2. Allows each department or agency that employs custodial officers, to establish a procedure to investigate complaints by members of the public against those custodial officers employed by these departments or agencies, provided however, that any procedure so established shall comply with the provisions of this section and with other provisions as specified. (Pen. Code, § 832.5, subd. (a)(2).)
   
3. Requires complaints and any reports or findings relating to these complaints be retained for a period of at least five years. (Pen. Code, § 832.5, subd. (b).)
   
4. Specifies prior to any official determination regarding promotion, transfer, or disciplinary action by an officer's employing department or agency, the complaints, as specified, shall be removed from the officer's general personnel file and placed in separate file designated by the department or agency, in accordance with all applicable requirements of law. (Pen. Code, § 832.5, subd. (b).)
   
5. Prohibits complaints by members of the public that are determined by the peace or custodial officer's employing agency to be frivolous, or unfounded or exonerated, or any portion of a complaint that is determined to be frivolous, unfounded, or exonerated, from being maintained in that officer's general personnel file. However, these complaints shall be retained in other, separate files that shall be deemed personnel records for purposes of the California Public Records Act (Pen. Code, § 832.5, subd. (c).)
   
6. Allows a department or agency that employs peace or custodial officers to release factual information concerning a disciplinary investigation if the officer who is the subject of the disciplinary investigation, or the officer's agent or representative, publicly makes a statement he or she knows to be false concerning the investigation or the imposition of disciplinary action. (Pen. Code, § 832.7, subd. (d).)
   
7. Specifies that information may not be disclosed by the peace or custodial officer's employer unless the false statement was published by an established medium of communication, such as television, radio, or a newspaper. (Pen. Code, § 832.7, subd. (d).)
   
8. Requires the law enforcement agency to provide written notification to the complaining party of the disposition of the complaint within 30 days of the disposition. (Pen. Code, § 832.7, subd. (e)(1).)
   
9. States that each law enforcement agency shall annually furnish to the Department of Justice, a report of all instances when a peace officer employed by that agency is involved in any of the following: (Government Code, § 12525.2, subd. (a).)
   
   1. An incident involving the shooting of a civilian by a peace officer;
      
   2. An incident involving 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; and
      
   4. An incident in which use of force by a civilian against a peace officer results in serious bodily injury or death.
      
10. Specifies that each year, the Department of Justice shall include a summary of information contained in the use of force reports received through the department's OpenJustice Web portal. (Government Code, § 12525.2, subd. (c).)
    
11. Includes within Department of Justice’s annual reporting requirements the number of citizens' complaints received by law enforcement agencies which shall indicate the total number of these complaints, the number alleging criminal conduct of either a felony or misdemeanor, and the number sustained in each category. (Pen. Code, § 13012, subd. (e).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Transparency and accountability is essential to positive police-community relationships. In California, many of the largest law enforcement organizations in the state came together to discuss some of the challenges facing the law enforcement profession relating to community relations, accountability and transparency. The working group agreed that changes need to be made in order to strengthen public trust, enhance government accountability and improve public policy. AB 1428 helps address these recommendations by shedding light on police agencies internal and external investigations, including citizen’s complaints, officer involved shootings, and uses of force. AB 1428 also seeks to increase accountability and communication between the law enforcement agencies and the general public.”
   
2. Final Report of the President’s Task Force on 21^st Century Policing (2015): The Task Force was Co-Chaired by Charles Ramsey, Commissioner, Philadelphia Police Department and Laurie Robinson, Professor, George Mason University. The nine members of the task force included individuals from law enforcement and civil rights communities. The stated goal of the task force was “. . . to strengthen community policing and trust among law enforcement officers and the communities they served, especially in light of recent events around the county that have underscored the need for and importance of lasting collaborative relationships between local police and the public.” (Final Report of the President’s Task Force on 21^st Century Policing (2015), p. v.) Based on based on their investigation, the Task Force provided thoughts and recommendations for law enforcement to foster a culture of transparency.
   
   1.3 Recommendation: Law enforcement agencies should establish a culture of transparency and accountability in order to build public trust and legitimacy. This will help ensure decision making is understood and in accord with stated policy.
   
   1.3.1 Action Item: To embrace a culture of transparency, law enforcement agencies should make all department policies available for public review and regularly post on the department’s website information about stops, summonses, arrests, reported crime, and other law enforcement data aggregated by demographics.
   

1.3.2 Action Item: When serious incidents occur, including those involving alleged police misconduct, agencies should communicate with citizens and the media swiftly, openly, and neutrally, respecting areas where the law requires confidentiality.

This bill would require law enforcement agencies to post the procedure used to investigate citizen complaints on a publicly accessible Internet Web site. This bill would require law enforcement agencies to post reports about serious uses of force by their officer on their Internet Web site within 30 days of the conclusion of the investigation. In addition, this bill would require district attorney’s office that conducts an investigation into an incident involving the shooting of a civilian by a peace officer to report the findings of that investigation on a publicly accessible Internet Web site within 30 days of the conclusion of the investigation.

1. San Francisco Police Department Mediation Program: San Francisco Police Department has had a mediation program for a select category of police complaints since 1995. (Mediation Program Report to the San Francisco Police Commission, Office of Citizen Complaints, March 18, 2009.)
   
   The San Francisco Police Department does not allow mediation in cases where there are allegations of racial slurs. This bill allows mediation in cases in cases involving an allegation of “biased policing.” There is no further definition of biased policing, and it is unclear exactly what type of complaints that might cover. This bill does list a number of allegations including, use of force, arrest, and damage to property which would not eligible for mediation.
   
   Under the San Francisco Police Department regulations for mediation, cases which are sent to mediation will be handled exclusively through this process. No other investigation will occur, and all parties are required to abide by these rules. This is true regardless of whether a resolution has been reached which is satisfactory to the citizen.
   
   In San Francisco, mediation will not be available to officers who have any of the following in their files: 1) Sustained case within the past year; 2) A prior mediation within the past six months; 3) Three mediations within the past two years.
   
   This bill does not provide any limitations on an officer’s participation in mediation based on a history of prior complaints.
   
   The report found that the Mediation Program provides benefits that were unavailable under the investigative process track, including :
   
   1. Time Savings. Mediation allows cases to be processed more expeditiously. In 2008, mediation cases were open a median of 67 days and an average of 86 days, while investigated cases were open a median of 162 days and an average of 216 days.
      
   2. Cost Savings. The Office of Citizen Complaints (OCC) currently has a roster of 89 volunteer mediators who conduct the mediations without charge. The mediation process saves the OCC, the City of San Francisco and ultimately the taxpayers, resources in terms of the time and financial resources that would be spent in processing an investigation, in cases that would best benefit the parties by providing them a forum to discuss the issues in a non-confrontational setting.
      
   3. Greater Satisfaction for Complainants and Officers. Based on Exit Surveys received in 2008, 96% of the parties who participated in mediation were Satisfied
      or Very Satisfied with the mediation process ; 96% felt that the mediation location provided a safe environment; 99% felt they had an opportunity to be heard ; 90% felt the other party fully participated ; 96% felt the mediators accurately identified and addressed the core issues ; and 93% felt the complaint was totally or partially resolved .
      

A number of law agencies in California currently have mediation programs. Those agencies include Pasadena, San Jose, and Los Angeles. Nothing in state law currently prohibits the establishment of such programs, and jurisdictions are certainly choosing to develop and use mediation programs. Given that, the language of this bill is not necessary to allow law enforcement to develop mediation programs.

1. Argument in Support: According to the Peace Officers Research Association of California (PORAC), “In the wake of Ferguson, there is an undeniable tension between peace officers and the public with whom they serve. Law enforcement agencies across our state and country are coming together to reach out to their communities in order to strengthen public trust and to put a face behind the badge.
   
   “PORAC has teamed up with other major law enforcement groups in California to discuss some of the challenges facing the law enforcement profession relating to community relations, accountability and transparency. The working group agrees that change is necessary and we developed an approach that will provide transparency and accountability in policing while carefully balancing privacy rights and safety of both citizens and law enforcement officers.
   
   “This bill will offer real and tangible solutions. Specifically, this bill:
   
   1. Requires each department or agency to provide written notification as to the status of on-going complaint investigation;
      
   2. Requires all county district attorneys who conduct an investigation of an officer involved shooting to publically report the findings of that investigation;
      
   3. Requires each department or agency to post reports about serious uses of force by their officers;
      
   4. Authorizes an agency or department that employs peace officers to establish a mediation program to resolve biased policing complaints;
      
   5. Requires each department or agency to publically post the regulations and procedures for investigating complaints made by members of the public, and the disciplinary process for each department.
      

“AB 1428 sheds light on police agency’s internal and external investigations, including citizen’s complaints, officer involved shootings, and uses of force. This bill seeks to increase accountability and communication between law enforcement and the general public.”

1. Related Legislation:
   
   1. AB 1298 (Santiago), would require proof based on clear and convincing evidence when any peace officer is under investigation and subject to administrative discipline, on the allegation of making a false statement. AB 1298 is set for hearing in the Assembly Public Safety Committee on April 18, 2017.
      
   2. AB 887 (Cooper), describes the information to be provided to a peace officer prior to questioning on an administrative disciplinary action. States that specified communications between peace officers and their union representatives are confidential. AB 887 is set for hearing in the Assembly Public Safety Committee on April 18, 2017.
      
2. Prior Legislation:
   
   1. AB 953 (Weber), Chapter 466, Statutes of 2015, modified the definition of "racial profiling", required local law enforcement agencies to report specified information on stops to the AG's office, and established the Racial and Identity Profiling Advisory Board (RIPA).
      
   2. AB 619 (Weber), of the 2015-2016 Legislative Session, would have required law enforcement agencies to report use of force incidents to the Attorney General (AG) and requires the AG to annually issue a report containing this information. AB 619 was held in the Assembly Appropriations Committee.
      
   3. AB 71 (Rodriguez), Chapter 462, Statutes of 2015, requires local law enforcement agencies to annually furnish a report to DOJ of all instances when a peace officer is involved in shootings that occur in his or her jurisdiction where an individual or a peace officer is injured or killed and require DOJ to include a summary of the information received in its annual crime report.

REGISTERED SUPPORT / OPPOSITION:

Support

Association for Los Angeles Deputy Sheriffs
Association of Deputy District Attorneys
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Narcotic Officers Association
Los Angeles County Probation Officers Union, AFSCME Local 685
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Peace Officers Research Association of California
Riverside Sheriffs’ Association

Opposition

None

Analysis Prepared by:

David Billingsley / PUB. S. /