CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1506

Author:(McCarty, et al.)

As Amended Ver:August 25, 2020

Majority vote

SUMMARY:

Provides that a state prosecutor shall conduct an investigation of any officer-involved shooting that resulted in the death of an unarmed civilian, as specified. Directs the Attorney General, beginning July 1, 2023, to operate a Police Practices Division within the Department of Justice (DOJ), to, upon request of a local law enforcement agency, review the use of deadly force policies of that law enforcement agency.

The Senate Amendments

Delete the Assembly version of this bill and instead:

1. Specify that a state prosecutor shall investigate incidents of an officer-involved shooting resulting in the death of an unarmed civilian.
2. State that the Attorney General is the state prosecutor unless otherwise specified or named.
3. Specify that a state prosecutor is authorized to do all of the following:
   1. Investigate and gather facts in incidents involving a shooting by a peace officer that results in the death of an unarmed civilian;
   2. For all investigations conducted, prepare and submit a written report. The written report shall include, at a minimum, the following information:
      1. A statement of the facts;
      2. A detailed analysis and conclusion for each investigatory issue; and 
      3. Recommendations to modify the policies and practices of the law enforcement agency, as applicable;
   3. And, if criminal charges against the involved officer are found to be warranted, initiate and prosecute a criminal action against the officer.
4. Require the state prosecutor to post and maintain on a public internet website each written report prepared by the state prosecutor pursuant to this bill, appropriately redacting any information in the report that is required by law to be kept confidential.
5. State that beginning on July 1, 2023, the Attorney General shall operate a Police Practices Division within DOJ to, upon request of a local law enforcement agency, review the use of deadly force policies of that law enforcement agency.
6. Specify that the Police Practices Division shall make specific and customized recommendations to any law enforcement agency that requests a review, based on those policies identified as recommended best practices.
7. Clarify that the provision of this bill do not limit the Attorney General's authority under the California Constitution or any applicable state law.
8. Specify that DOJ's implementation of this bill is subject to an appropriation by the Legislature.
9. State that "deadly weapon" includes, but it not limited to, any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles or metal knuckles, for purposes of this bill.
10. Specify that an "unarmed civilian" includes anyone who is not in possession of a deadly weapon.

COMMENTS:

According to the Author:

"In California over the past few months, there have been several high profile acts of deadly force at the hands of law enforcement. In a few incidents, there have been calls for independent investigations by the Attorney General. However, all of these requests were denied by the CA Department of Justice.

Now more than ever there needs to be a uniform standard for local law enforcement officials and district attorneys to call for independent investigations into police killings. Police shouldn't police themselves, and the current system is fraught with conflicts of interest.

I first called for this legislation in 2015 with AB 86 and in 2017 with AB 284. Since 2015, we have seen over 800 people shot and killed by police in California, and just one independent investigation. Enough is enough. I have reintroduced a new law to standardize independent investigation requests for police deadly force. It is time for accountability and transparency on this issue."

Arguments in Support:

According to the City of Sacramento, "AB 1506 would allow local law enforcement agencies and district attorneys to more regularly request the attorney general to launch a formal review of situations where an officer used force that resulted in death or harm. The DOJ would have to review the incident and, upon its conclusion, could pursue prosecution should that force be found unwarranted. AB 1506 would also create a new police practices division by 2023 in the department that would specifically handle requests by local agencies to review policies and practices related to use-of-force. "The City of Sacramento and our Police Department have taken multiple steps over the years to increase oversight and transparency. For example, the Mayor and City Council recently voted to create an Inspector General position in the Office of Public Safety Accountability with full independence and authority to investigate officer-involved shootings and use-of-force incidents that result in serious bodily injury or death. Additionally, in March 2018, Chief of Police Daniel Hahn requested DOJ conduct an independent investigation into the officer-involved shooting death of Stephon Clark. The DOJ completed that investigation on March 5, 2019 and released recommendations for the Sacramento Police Department to adopt."

Arguments in Opposition:

According to California State Sheriffs' Association,

"Unfortunately, this bill suffers from significant policy and procedure challenges. AB 1506 bypasses local investigatory processes, including established agreements to have outside agencies investigate officer-involved uses of force. Additionally, it is unclear whether a state prosecutor investigation required or permitted by this bill would take the place of, or be in addition to, a local investigation.

"By allowing city councils and boards of supervisors to request investigations, AB 1506 unnecessarily politicizes very difficult situations that are already subject to a very high level of review at multiple levels. Additionally, the bill includes no direction or requirement that an entity that requests an investigation be geographically proximate or share some level of jurisdiction. For example, as proposed to be amended, a city council of a tiny city in Southern California could ask the Attorney General to investigate an incident involving a deputy sheriff from a Bay Area county.

"The Attorney General is not resourced or equipped to take on the duties contemplated by this bill and the local reimbursement language is insufficient to remedy that. The bill is also unclear as to which local agency would pay for an investigation – the requesting agency or the agency employing the officer involved in the incident. In the case of an investigation mandated by this bill and in a situation where the local agency conducts its own investigation, the local agency could end up paying for two investigations."

FISCAL COMMENTS:

According to the Senate Appropriations Committee:

1. The Department of Justice (DOJ) estimates an ongoing annual cost in the tens of millions of dollars, potentially upwards of $80 million, associated with this measure. (General Fund)
2. Unknown costs, potentially in the tens of thousands of dollars to the hundreds of thousands of dollars annually in the aggregate, for local jurisdictions to reimburse the state prosecutor for conducting investigations of the death of unarmed civilians involving officer-involved uses of force. Actual costs would depend on the number of investigations conducted and the cost of each investigation, which would vary depending on the facts and circumstances surrounding each incident. Local costs to comply with this measure would be subject to reimbursement by the state to the extent that the Commission on State Mandates determines that this bill imposes a state-mandated local program. While the commission likely would find the reimbursement requirement for investigations related to unarmed civilian deaths a state mandate, it is unclear if the same conclusion would be reached for investigations requested by a local entity. (General Fund, local funds)
3. This measure could result in additional unknown, potentially-major one-time costs in the tens of millions of dollars to the extent that a state prosecutor separate from the Attorney General is established and needs to be set up and operationalized. These costs would include equipment, furniture, and other startup expenses. Ongoing costs associated with a state prosecutor separate from the Attorney General likely would be similar to ongoing costs reported by DOJ to conduct the investigations. (General Fund)

VOTES:

ASM EDUCATION: 4-1-1

YES: O'Donnell, Kalra, McCarty, Smith

NO: Kiley

ABS, ABST OR NV: Weber

ASM APPROPRIATIONS: 11-2-5

YES: Gonzalez, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Gabriel, Eduardo Garcia, Quirk, Robert Rivas

NO: Brough, Maienschein

ABS, ABST OR NV: Bigelow, Diep, Fong, Obernolte, Petrie-Norris

ASM NATURAL RESOURCES: 11-0-0

YES: Friedman, Flora, Chau, Eggman, Cristina Garcia, Limón, Mathis, McCarty, Melendez, Muratsuchi, Mark Stone

ASSEMBLY FLOOR: 71-0-9

YES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Burke, Calderon, Carrillo, Chau, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Megan Dahle, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Muratsuchi, Nazarian, O'Donnell, Obernolte, Patterson, Quirk, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

ABS, ABST OR NV: Brough, Cervantes, Chen, Daly, Diep, Grayson, Mullin, Petrie-Norris, Quirk-Silva

SENATE FLOOR: 33-1-6

YES: Allen, Archuleta, Atkins, Bates, Beall, Bradford, Caballero, Dahle, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Moorlach, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

NO: Nielsen

ABS, ABST OR NV: Borgeas, Chang, Grove, Jones, Melendez, Morrell

UPDATED:

VERSION: August 25, 2020

CONSULTANT: David Billingsley / PUB. S. / (916) 319-3744 FN: 0003492

 THIRD READING  

Bill No: AB 1506

Author: McCarty (D), Bauer-Kahan (D), Berman (D), Bloom (D), Bonta (D), Burke (D), Carrillo (D), Chiu (D), Chu (D), Eggman (D), Friedman (D), Gabriel (D), Cristina Garcia (D), Gipson (D), Gloria (D), Gonzalez (D), Grayson (D), Holden (D), Irwin (D), Jones-Sawyer (D), Kalra (D), Kamlager (D), Levine (D), Medina (D), Muratsuchi (D), Quirk (D), Reyes (D), Luz Rivas (D), Robert Rivas (D), Santiago (D), Mark Stone (D), Ting (D), Weber (D) and Wicks (D), et al.

Amended: 8/25/20 in Senate

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 6-0, 8/12/20

AYES: Skinner, Moorlach, Bradford, Jackson, Mitchell, Wiener

NO VOTE RECORDED: Morrell

SENATE APPROPRIATIONS COMMITTEE: 5-1, 8/20/20

AYES: Portantino, Bradford, Hill, Leyva, Wieckowski

NOES: Jones

NO VOTE RECORDED: Bates

ASSEMBLY FLOOR: 71-0, 1/21/20 - See last page for vote

SUBJECT: Police use of force

SOURCE: Author

DIGEST:

This bill requires a state prosecutor to investigate peace officer-involved use of force that results in the death of an unarmed civilian.

Senate Floor Amendments of 8/25/20 (1) clarify that the “state prosecutor” is the California Attorney General unless otherwise specified and named; (2) defines “unarmed civilian” as anyone who is in possession of a deadly weapon; (3) defines “deadly weapon” as, including but not limited to, any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles; (4) removes the ability of law enforcement, prosecutors or local officials to request the state prosecutor investigate; (5) limits the state prosecutor investigations to shootings by peace officers; and (6) remove the reimbursement provision for the state prosecutor to collect costs from the local government.

ANALYSIS:

Existing law:

1. Specifies that subject to the powers and duties of the Governor, the Attorney General shall be the chief law officer of the State. (Cal. Const., Art. 5, § 13.)
2. States that it shall be the duty of the Attorney General to see that the laws of the State are uniformly and adequately enforced. (Cal. Const., Art. 5, § 13.)
3. Provides that the Attorney General shall have direct supervision over every district attorney and sheriff and over such other law enforcement officers as may be designated by law, in all matters pertaining to the duties of their respective offices, and may require any of said officers to make reports concerning the investigation, detection, prosecution, and punishment of crime in their perspective jurisdictions as to the Attorney General may seem advisable. (Cal. Const., Art. 5, § 13.)
4. States that whenever in the opinion of the Attorney General any law of the State is not being adequately enforced in any county, it shall be the duty of the Attorney General to prosecute any violation of law of which the superior court shall have jurisdiction, and in such cases the Attorney General shall have all the powers of a district attorney. When required by the public interest or directed by the Governor, the Attorney General shall assist any district attorney in the discharge of the duties of that office. (Cal. Const., Art. 5, § 13.)
5. Specifies that the Attorney General has direct supervision over the district attorneys of the several counties of the State and may require of them written reports as to the condition of public business entrusted to their charge. (Gov. Code, § 12550.)
6. Provides that when the Attorney General deems it advisable or necessary in the public interest, or when directed to do so by the Governor, he shall assist any district attorney in the discharge of his duties, and may, where he deems it necessary, take full charge of any investigation or prosecution of violations of law of which the superior court has jurisdiction. In this respect he has all the powers of a district attorney, including the power to issue or cause to be issued subpoenas or other process. (Gov. Code, § 12550.)
7. States that if a district attorney is disqualified to conduct any criminal prosecution within the county, the Attorney General may employ special counsel to conduct the prosecution. The attorney's fee in such case is a legal charge against the state. (Gov. Code, § 12550.)
8. States that if a district attorney is disqualified to conduct any criminal prosecution within the county, the Attorney General may employ special counsel to conduct the prosecution. The attorney's fee in such case is a legal charge against the State. (Gov. Code, § 12553.)
9. States that when requested to do so by the grand jury of any county, the Attorney General may employ special counsel and special investigators, whose duty it shall be to investigate and present the evidence in such investigation to such grand jury. (Pen. Code, § 936.)
10. Provides that when a grand jury request special counsel, services of such special counsel and special investigators shall be a count charge of such county. (Pen. Code, § 936.)
11. Specifies that the district attorney is the public prosecutor, except as otherwise provided by law. (Gov. Code, § 25600.)
12. States that a public prosecutor shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses. (Gov. Code, § 25600.)
13. 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).)
14. 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).)
15. 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).)
16. Specifies that all complaints retained may be maintained either in the peace or custodial officer's general personnel file or in a separate file designated by the department or agency as provided by department or agency policy, in accordance with all applicable requirements of law. (Pen. Code, § 832.5, subd. (b).)
17. 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).)
18. 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).)
19. Requires the department or 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).)

This bill:

1. Requires a state prosecutor to investigate incidents of an officer-involved shooting resulting in the death of an unarmed civilian.
   
2. Specifies that the state prosecutor is the Attorney General unless otherwise named or specified.
   
3. Allows the state prosecutor to do all of the following:
   
   1. Investigate and gather facts in an incident involving a shooting by a peace officer that results in the death of an unarmed civilian.
   2. Prepare and submit a written report, which must include specified information, for all investigations conducted.
   3. Initiate and prosecute a criminal action against the officer if criminal charges against the involved officer are found to be warranted.
      
4. Requires the state prosecutor to post and maintain on a public website each written report prepared by the state prosecutor pursuant to this measure, appropriately redacting any information in the report that is required by law to be kept confidential.
   
5. Requires the Attorney General, beginning on July 1, 2023 to operate a Police Practices Division within the Department of Justice (DOJ) to, upon request of a local law enforcement agency, review the use of deadly force policies of that law enforcement agency.
   
6. Specifies that AB 1506 does not limit the Attorney General’s authority under the California Constitution or any applicable state law.

Background

In 2012, Connecticut passed a statute governing the procedure for the investigation of the use of deadly force by a police officer. The statute provided for the appointment of an individual to conduct the investigation, other than prosecutorial official from the judicial district where the incident occurred. Upon the conclusion of the investigation of the incident, a report must be filed that contains the following: (1) The circumstances of the incident, (2) a determination of whether the use of deadly physical force by the peace officer was appropriate, and (3) any future action to the taken by the Division of Criminal Justice as a result of the incident. (CT Gen Stat § 51-277 (2012).)

In Wisconsin, AB 409 was signed into law by Gov. Walker in April 2014. That law requires that an investigation must be performed by an independent review panel when a police officer is involved in the death of a civilian. The panel must consist of two individuals from outside of the police agency involved. In addition, the family of the victim must be informed of their legal rights.

President’s Task Force on 21^st Century Policing (2015) 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 on a variety of issues related to police practices.

One of the areas explored by the Task Force was oversight. The Task Force developed the following actions items (among others) in connection with cases that involved police use of force resulting in a death, or police shootings resulting in death or injury:

• 2.2.2 Action Item: These policies should also mandate external and independent criminal investigation in cases of police use of force resulting in death, officer-involved shooting resulting in injury or death, or in-custody deaths.
  
  One way this can be accomplished is by the creation of multi-agency force investigation task forces comprising state and local investigators. Other ways to structure this investigative process include referring to neighboring jurisdictions or to the next higher levels of government (many small departments may already have state agencies handle investigations), but in order to restore and maintain trust, this independence is crucial.
  
  In written testimony to the task force, James Palmer of the Wisconsin Professional Police Association offered an example in that state’s statutes requiring that agency written policies “require an investigation that is conducted by at least two investigators . . . neither of whom is employed by a law enforcement agency that employs a law enforcement officer involved in the officer – involved death.” Furthermore, in order to establish and maintain internal legitimacy and procedural justice, these investigations should be performed by law enforcement agencies with adequate training, knowledge, and experience investigating police use of force. (Interim Report of the President’s Task Force on 21st Century Policing (2015), p. 21.)
• 2.2.3 Action Item: The task force encourages policies that mandate the use of external and independent prosecutors in cases of police use of force resulting in death, officer-involved shootings resulting in injury or death, or in-custody deaths.

Strong systems and policies that encourage use of an independent prosecutor for reviewing police uses of force and for prosecution in cases of inappropriate deadly force and in-custody death will demonstrate the transparency to the public that can lead to mutual trust between community and law enforcement. (Interim Report of the President’s Task Force on 21st Century Policing (2015, p. 22.)

• 2.2.5 Action Item: Polices on use of force should clearly state what types of information will be released, when, and in what situation, to maintain transparency.
  
  This should also include procedures on the release of a summary statement regarding the circumstances of the incident by the department as soon as possible and within 24 hours. The intent of this directive should be to share as much information as possible without compromising the integrity of the investigation or anyone’s rights. (Interim Report of the President’s Task Force on 21st Century Policing (2015, p. 22.)

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to Senate Appropriations Committee:

• The Department of Justice (DOJ) estimates an ongoing annual cost in the tens of millions of dollars, potentially upwards of $80 million, associated with this measure. (General Fund)
• Unknown costs, potentially in the tens of thousands of dollars to the hundreds of thousands of dollars annually in the aggregate, for local jurisdictions to reimburse the state prosecutor for conducting investigations of the death of unarmed civilians involving officer-involved uses of force. Actual costs would depend on the number of investigations conducted and the cost of each investigation, which would vary depending on the facts and circumstances surrounding each incident. Local costs to comply with this measure would be subject to reimbursement by the state to the extent that the Commission on State Mandates determines that this bill imposes a state-mandated local program. While the commission likely would find the reimbursement requirement for investigations related to unarmed civilian deaths a state mandate, it is unclear if the same conclusion would be reached for investigations requested by a local entity. (General Fund, local funds)
• This measure could result in additional unknown, potentially-major one-time costs in the tens of millions of dollars to the extent that a state prosecutor separate from the Attorney General is established and needs to be set up and operationalized. These costs would include equipment, furniture, and other startup expenses. Ongoing costs associated with a state prosecutor separate from the Attorney General likely would be similar to ongoing costs reported by DOJ to conduct the investigations. (General Fund)

SUPPORT: (Verified 8/28/20)

AT&T

California Public Defenders Association

California Teachers Association

City of Alameda

City of Glendora

City of Long Beach

City of Sacramento

Consumer Attorneys of California

League of California Cities

Los Angeles County District Attorney’s Office

National Association of Social Workers – California

Planned Parenthood Affiliates of California

Sacramento County District Attorney’s Office

Salesforce

San Diego County District Attorney’s Office

Yolo County District Attorney

OPPOSITION: (Verified 8/28/20)

California Attorneys for Criminal Justice

California Police Chiefs Association

California State Sheriffs Association

Communities United for Restorative Youth Justice

PORAC

ASSEMBLY FLOOR: 71-0, 1/21/20

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Burke, Calderon, Carrillo, Chau, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Megan Dahle, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Brough, Cervantes, Chen, Daly, Diep, Grayson, Mullin, Petrie-Norris, Quirk-Silva

Prepared by: Gabe Caswell / PUB. S. /

8/28/20 8:55:30

**** END ****

 THIRD READING  

Bill No: AB 1506

Author: McCarty (D), Bauer-Kahan (D), Berman (D), Bloom (D), Bonta (D), Burke (D), Carrillo (D), Chiu (D), Chu (D), Eggman (D), Friedman (D), Gabriel (D), Cristina Garcia (D), Gipson (D), Gloria (D), Gonzalez (D), Grayson (D), Holden (D), Irwin (D), Jones-Sawyer (D), Kalra (D), Kamlager (D), Levine (D), Medina (D), Muratsuchi (D), Quirk (D), Reyes (D), Luz Rivas (D), Robert Rivas (D), Santiago (D), Mark Stone (D), Ting (D), Weber (D) and Wicks (D), et al.

Amended: 8/17/20 in Senate

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 6-0, 8/12/20

AYES: Skinner, Moorlach, Bradford, Jackson, Mitchell, Wiener

NO VOTE RECORDED: Morrell

SENATE APPROPRIATIONS COMMITTEE: 5-1, 8/20/20

AYES: Portantino, Bradford, Hill, Leyva, Wieckowski

NOES: Jones

NO VOTE RECORDED: Bates

ASSEMBLY FLOOR: 71-0, 1/21/20 - See last page for vote

SUBJECT: Police use of force

SOURCE: Author

DIGEST:

This bill requires a state prosecutor to investigate peace officer-involved use of force that results in the death of an unarmed civilian.

ANALYSIS:

Existing law:

1. Specifies that subject to the powers and duties of the Governor, the Attorney General shall be the chief law officer of the State. (Cal. Const., Art. 5, § 13.)
2. States that it shall be the duty of the Attorney General to see that the laws of the State are uniformly and adequately enforced. (Cal. Const., Art. 5, § 13.)
3. Provides that the Attorney General shall have direct supervision over every district attorney and sheriff and over such other law enforcement officers as may be designated by law, in all matters pertaining to the duties of their respective offices, and may require any of said officers to make reports concerning the investigation, detection, prosecution, and punishment of crime in their perspective jurisdictions as to the Attorney General may seem advisable. (Cal. Const., Art. 5, § 13.)
4. States that whenever in the opinion of the Attorney General any law of the State is not being adequately enforced in any county, it shall be the duty of the Attorney General to prosecute any violation of law of which the superior court shall have jurisdiction, and in such cases the Attorney General shall have all the powers of a district attorney. When required by the public interest or directed by the Governor, the Attorney General shall assist any district attorney in the discharge of the duties of that office. (Cal. Const., Art. 5, § 13.)
5. Specifies that the Attorney General has direct supervision over the district attorneys of the several counties of the State and may require of them written reports as to the condition of public business entrusted to their charge. (Gov. Code, § 12550.)
6. Provides that when the Attorney General deems it advisable or necessary in the public interest, or when directed to do so by the Governor, he shall assist any district attorney in the discharge of his duties, and may, where he deems it necessary, take full charge of any investigation or prosecution of violations of law of which the superior court has jurisdiction. In this respect he has all the powers of a district attorney, including the power to issue or cause to be issued subpoenas or other process. (Gov. Code, § 12550.)
7. States that if a district attorney is disqualified to conduct any criminal prosecution within the county, the Attorney General may employ special counsel to conduct the prosecution. The attorney's fee in such case is a legal charge against the state. (Gov. Code, § 12550.)
8. States that if a district attorney is disqualified to conduct any criminal prosecution within the county, the Attorney General may employ special counsel to conduct the prosecution. The attorney's fee in such case is a legal charge against the State. (Gov. Code, § 12553.)
9. States that when requested to do so by the grand jury of any county, the Attorney General may employ special counsel and special investigators, whose duty it shall be to investigate and present the evidence in such investigation to such grand jury. (Pen. Code, § 936.)
10. Provides that when a grand jury request special counsel, services of such special counsel and special investigators shall be a count charge of such county. (Pen. Code, § 936.)
11. Specifies that the district attorney is the public prosecutor, except as otherwise provided by law. (Gov. Code, § 25600.)
12. States that a public prosecutor shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses. (Gov. Code, § 25600.)
13. 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).)
14. 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).)
15. 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).)
16. Specifies that all complaints retained may be maintained either in the peace or custodial officer's general personnel file or in a separate file designated by the department or agency as provided by department or agency policy, in accordance with all applicable requirements of law. (Pen. Code, § 832.5, subd. (b).)
17. 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).)
18. 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).)
19. Requires the department or 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).)

This bill:

1. Requires a state prosecutor to investigate incidents of officer-involved use of force that results in the death of an unarmed civilian.
   
2. Requires the state prosecutor to also conduct an investigation on an incident involving the use of force by a peace officer that results in the death of a civilian upon the request from any of the following entities:
   
   1. Local law enforcement agency.
   2. District attorney.
   3. City council.
   4. City or county board of supervisors.
      
3. Allows the state prosecutor to do all of the following:
   
   1. Investigate and gather facts in all incidents involving the use of force by a peace officer that result in the death of an unarmed civilian.
   2. Investigate and gather facts in an incident involving the use of force by a peace officer that results in the death of a civilian upon request from one in the list of local entities specified entities.
   3. Prepare and submit a written report, which must include specified information, for all investigations conducted.
   4. Initiate and prosecute a criminal action against the officer if criminal charges against the involved officer are found to be warranted.
4. Allows the seeking of reimbursement, in full or in part, from the local entity for appropriate costs associated with the investigation.
   
5. Requires the state prosecutor to post and maintain on a public website each written report prepared by the state prosecutor pursuant to this measure, appropriately redacting any information in the report that is required by law to be kept confidential.
   
6. Requires the Attorney General, beginning on July 1, 2023 to operate a Police Practices Division within the Department of Justice (DOJ) to, upon request of a local law enforcement agency, review the use of deadly force policies of that law enforcement agency.
   
7. Specifies that AB 1506 does not limit the Attorney General’s authority under the California Constitution or any applicable state law.
   
8. Requires DOJ to implement the requirements of this measure existing department funding if an appropriation is not made by the Legislature.

Background

In 2012, Connecticut passed a statute governing the procedure for the investigation of the use of deadly force by a police officer. The statute provided for the appointment of an individual to conduct the investigation, other than prosecutorial official from the judicial district where the incident occurred. Upon the conclusion of the investigation of the incident, a report must be filed that contains the following: (1) The circumstances of the incident, (2) a determination of whether the use of deadly physical force by the peace officer was appropriate, and (3) any future action to the taken by the Division of Criminal Justice as a result of the incident. (CT Gen Stat § 51-277 (2012).)

In Wisconsin, AB 409 was signed into law by Gov. Walker in April 2014. That law requires that an investigation must be performed by an independent review panel when a police officer is involved in the death of a civilian. The panel must consist of two individuals from outside of the police agency involved. In addition, the family of the victim must be informed of their legal rights.

President’s Task Force on 21^st Century Policing (2015) 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 on a variety of issues related to police practices.

One of the areas explored by the Task Force was oversight. The Task Force developed the following actions items (among others) in connection with cases that involved police use of force resulting in a death, or police shootings resulting in death or injury:

• 2.2.2 Action Item: These policies should also mandate external and independent criminal investigation in cases of police use of force resulting in death, officer-involved shooting resulting in injury or death, or in-custody deaths.
  
  One way this can be accomplished is by the creation of multi-agency force investigation task forces comprising state and local investigators. Other ways to structure this investigative process include referring to neighboring jurisdictions or to the next higher levels of government (many small departments may already have state agencies handle investigations), but in order to restore and maintain trust, this independence is crucial.
  
  In written testimony to the task force, James Palmer of the Wisconsin Professional Police Association offered an example in that state’s statutes requiring that agency written policies “require an investigation that is conducted by at least two investigators . . . neither of whom is employed by a law enforcement agency that employs a law enforcement officer involved in the officer – involved death.” Furthermore, in order to establish and maintain internal legitimacy and procedural justice, these investigations should be performed by law enforcement agencies with adequate training, knowledge, and experience investigating police use of force. (Interim Report of the President’s Task Force on 21st Century Policing (2015), p. 21.)
• 2.2.3 Action Item: The task force encourages policies that mandate the use of external and independent prosecutors in cases of police use of force resulting in death, officer-involved shootings resulting in injury or death, or in-custody deaths.

Strong systems and policies that encourage use of an independent prosecutor for reviewing police uses of force and for prosecution in cases of inappropriate deadly force and in-custody death will demonstrate the transparency to the public that can lead to mutual trust between community and law enforcement. (Interim Report of the President’s Task Force on 21st Century Policing (2015, p. 22.)

• 2.2.5 Action Item: Polices on use of force should clearly state what types of information will be released, when, and in what situation, to maintain transparency.
  
  This should also include procedures on the release of a summary statement regarding the circumstances of the incident by the department as soon as possible and within 24 hours. The intent of this directive should be to share as much information as possible without compromising the integrity of the investigation or anyone’s rights. (Interim Report of the President’s Task Force on 21st Century Policing (2015, p. 22.)

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to Senate Appropriations Committee:

• The Department of Justice (DOJ) estimates an ongoing annual cost in the tens of millions of dollars, potentially upwards of $80 million, associated with this measure. (General Fund)
• Unknown costs, potentially in the tens of thousands of dollars to the hundreds of thousands of dollars annually in the aggregate, for local jurisdictions to reimburse the state prosecutor for conducting investigations of the death of unarmed civilians involving officer-involved uses of force. Actual costs would depend on the number of investigations conducted and the cost of each investigation, which would vary depending on the facts and circumstances surrounding each incident. Local costs to comply with this measure would be subject to reimbursement by the state to the extent that the Commission on State Mandates determines that this bill imposes a state-mandated local program. While the commission likely would find the reimbursement requirement for investigations related to unarmed civilian deaths a state mandate, it is unclear if the same conclusion would be reached for investigations requested by a local entity. (General Fund, local funds)
• This measure could result in additional unknown, potentially-major one-time costs in the tens of millions of dollars to the extent that a state prosecutor separate from the Attorney General is established and needs to be set up and operationalized. These costs would include equipment, furniture, and other startup expenses. Ongoing costs associated with a state prosecutor separate from the Attorney General likely would be similar to ongoing costs reported by DOJ to conduct the investigations. (General Fund)

SUPPORT: (Verified 8/24/20)

AT&T

California Public Defenders Association

California Teachers Association

City of Alameda

City of Glendora

City of Long Beach

City of Sacramento

Consumer Attorneys of California

League of California Cities

Los Angeles County District Attorney’s Office

National Association of Social Workers – California

Planned Parenthood Affiliates of California

Sacramento County District Attorney’s Office

Salesforce

Yolo County District Attorney

OPPOSITION: (Verified 8/24/20)

California Attorneys for Criminal Justice

California Police Chiefs Association

California State Sheriffs Association

Communities United for Restorative Youth Justice

PORAC

San Diego County District Attorney’s Office

ASSEMBLY FLOOR: 71-0, 1/21/20

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Burke, Calderon, Carrillo, Chau, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Megan Dahle, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Brough, Cervantes, Chen, Daly, Diep, Grayson, Mullin, Petrie-Norris, Quirk-Silva

Prepared by: Gabe Caswell / PUB. S. /

8/24/20 13:06:08

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 1506 (McCarty) - Police use of force

Bill Summary:

AB 1506 would require a state prosecutor to investigate peace officer-involved use of force that results in the death of an unarmed civilian.

Fiscal Impact:

• The Department of Justice (DOJ) estimates an ongoing annual cost in the tens of millions of dollars, potentially upwards of $80 million, associated with this measure. (General Fund)
• Unknown costs, potentially in the tens of thousands of dollars to the hundreds of thousands of dollars annually in the aggregate, for local jurisdictions to reimburse the state prosecutor for conducting investigations of the death of unarmed civilians involving officer-involved uses of force. Actual costs would depend on the number of investigations conducted and the cost of each investigation, which would vary depending on the facts and circumstances surrounding each incident. Local costs to comply with this measure would be subject to reimbursement by the state to the extent that the Commission on State Mandates determines that this bill imposes a state-mandated local program. While the commission likely would find the reimbursement requirement for investigations related to unarmed civilian deaths a state mandate, it is unclear if the same conclusion would be reached for investigations requested by a local entity. (General Fund, local funds)
• This measure could result in additional unknown, potentially-major one-time costs in the tens of millions of dollars to the extent that a state prosecutor separate from the Attorney General is established and needs to be set up and operationalized. These costs would include equipment, furniture, and other startup expenses. Ongoing costs associated with a state prosecutor separate from the Attorney General likely would be similar to ongoing costs reported by DOJ to conduct the investigations. (General Fund)

Background:

The California Constitution provides that, subject to the powers and duties of the Governor, the Attorney General is the chief law officer of the state, is responsible to see that the laws are uniformly and adequately enforced, and has direct supervision over every district attorney, sheriff, and other law enforcement officers in matters pertaining to the duties of their respective offices. The Attorney General may, as they seem advisable, require any of these officers to report on the investigation, detection, prosecution, and punishment of crime in their perspective jurisdictions. Whenever the Attorney General believes that state law is not being enforced adequately, the Attorney General, having the powers of a district attorney, must prosecute any violation of law. Moreover, when required by the public interest or directed by the Governor, the Attorney General must assist any district attorney in the discharge of their duties. (Cal. Const., art. X, § 13.)

Existing statutory law provides that, except as otherwise provided by law, the district attorney is the public prosecutor and is to attend the courts, and within their discretion, initiate and conduct on behalf of the people all prosecutions for public offenses. But, when the Attorney General deems it advisable or necessary in the public interest, or when directed by the Governor, they must assist any district attorney in the discharge of their duties and may, where the Attorney General deems it necessary, take full charge of any investigation or prosecution of violations of law. In this respect, the Attorney General has all the powers of a district attorney, including the power to issue or cause to be issued subpoenas or other process. Furthermore, if a district attorney is disqualified to conduct a criminal prosecution within the county, the Attorney General may employ special counsel to conduct the prosecution, with the attorney's fee in such case charged to the state. The Attorney General additionally may employ special counsel and special investigators to investigate and present evidence upon the request of a grand jury, with costs charged to the county.

Proposed Law:

This bill would:

• Require a state prosecutor to investigate incidents of officer-involved use of force that results in the death of an unarmed civilian.
• Require the state prosecutor to also conduct an investigation on an incident involving the use of force by a peace officer that results in the death of a civilian upon the request from any of the following entities:
  • Local law enforcement agency
  • District attorney
  • City council
  • City or county board of supervisors
• Allow the state prosecutor to do all of the following:
  • Investigate and gather facts in all incidents involving the use of force by a peace officer that result in the death of an unarmed civilian.
  • Investigate and gather facts in an incident involving the use of force by a peace officer that results in the death of a civilian upon request from one in the list of local entities specified entities.
  • Prepare and submit a written report, which must include specified information, for all investigations conducted.
  • Initiate and prosecute a criminal action against the officer if criminal charges against the involved officer are found to be warranted.
• Allow the seeking of reimbursement, in full or in part, from the local entity for appropriate costs associated with the investigation.
• Require the state prosecutor to post and maintain on a public website each written report prepared by the state prosecutor pursuant to this measure, appropriately redacting any information in the report that is required by law to be kept confidential.
• Require the Attorney General, beginning on July 1, 2023 to operate a Police Practices Division within DOJ to, upon request of a local law enforcement agency, review the use of deadly force policies of that law enforcement agency.
• Specify that AB 1506 does not limit the Attorney General’s authority under the California Constitution or any applicable state law.
• Require DOJ to implement the requirements of this measure existing department funding if an appropriation is not made by the Legislature.

Related Legislation:

AB 2917 (McCarty, 2019-2020 Reg. Sess.) would have require the Attorney General, commencing on July 1, 2023, to create a program within DOJ to review the policies on the use of deadly force of a law enforcement agency that requests a review and to make recommendations. AB 2917 was never heard in the Assembly Committee on Public Safety.

AB 284 (McCarty, 2017-2018 Reg. Sess.) would have required DOJ, upon appropriation, to conduct a study of peace officer-involved shootings resulting in death or serious injury within a specified two-year period. AB 284 was held on the Suspense File of this Committee.

AB 86 (McCarty, 2015-2016 Reg. Sess.) would have required DOJ to commence an independent investigation if a peace officer uses deadly force in the performance of their duties that results in the death of an individual. AB 86 was held on the Suspense File of the Assembly Committee on Appropriations.

Staff Comments: According to the 2018 Use of Force Incident Reporting (which appears to be the most recent year for which information is available publicly), there were 630 incidents involving the use of force that resulted in serious bodily injury or death of a civilian or a peace officer. These incidents involved 679 civilians and 1,562 officers. Specific to the civilians, some of the types of force that were used included the discharge of a firearm (282 in total with 225 hits and 57 misses), other control holds/takedowns (112), electronic control devices (82), canine contacts (48), carotid restraint control holds (37), blunt impact weapons (27), chemical spray (14), and impact projectiles (11). According to DOJ, the number of civilian deaths from incidents involving an officer’s use of force averages at 156 per year in California.

The courts have stated that investigations relating to criminal offenses “is a responsibility which is inseparable from the district attorney's prosecutorial function.” (Hicks v. Board of Supervisors (1977) 69 Cal.App.3d 228, 241.) Put another way, subject to the Attorney General’s supervision, “[t]he district attorney's discretionary functions extend from the investigation and gathering of evidence relating to criminal offenses, through the crucial decisions of whom to charge and what charges to bring [Citation.], to the numerous choices the prosecutor makes at trial regarding whether to seek, oppose, accept, or challenge judicial actions and rulings. [Citation.]” (People v. Eubanks (1996) 14 Cal.4th 580, 589 [internal quotation marks omitted].) As the Attorney General has direct supervision over, and the powers of, a district attorney, it reasons that the investigation of criminal offenses is inseparable from the Attorney General’s prosecutorial discretion as well.

The California Constitution grants the Attorney General with broad discretion on which cases to take up, subjecting their independent decision only to a directive from the Governor or as otherwise specified. (See Background, above.) AB 1506 would require the investigation^[1] of civilian deaths, automatically if the person is “unarmed” or upon the request of one in a list of local entities, that results from an incident of an officer-involved use of force. Although recent amendments to this measure would place the legislative mandate of investigation on “[a] state prosecutor,” this does not remove the onus on the Attorney General, the only state prosecutor in California currently. As the California Constitution provides the Attorney General discretion to perform these acts, the requirements of AB 1506 could raise constitutional issues (such as separation of powers).

This bill would allow a number of local public entities to request the state prosecutor to conduct an investigation. While likely not the intent, a broad reading of AB 1506 could, for example, allow a city council to request an investigation by the state prosecutor of an incident that takes place outside of its city boundaries. The author may wish to if clarify if the authority of local entities to request an investigation is limited only to incidents that occur within the jurisdiction of the requesting entity. Additionally, While AB 1506 specifies “unarmed” civilians in proposed Government Code section 12525.3, subdivision (a)(1), it is unclear who would fall within that category as the term is not defined. For example, it is unclear if this term would exclude any person who resists an officer with anything other than their own body, such as a person who throws paint at an officer. The author may wish to define this term.

-- END --

1. While this bill does not specify explicitly that the investigations are of criminal conduct, that is the general presumption. (See, e.g., the author’s statement on the need for AB 1506 in the analysis of the bill by the Senate Committee on Public Safety [stating, when referring to recommendations by a presidential taskforce on policing, that “the task force encouraged policies that mandate the use of external and independent prosecutors in cases of police use-of-force resulting in death, officer-involved shootings resulting in injury or death, or in-custody deaths.” (italics added)].) ↑

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2019 - 2020 Regular

Bill No: AB 1506 Hearing Date: August 12, 2020

Subject: Police Use of Force

HISTORY

Source: Author

Prior Legislation: AB 2917 (McCarty), never heard in Senate Public Safety

AB 284 (McCarty), 2017, failed in Senate Appropriations

AB 86 (McCarty), 2015, failed in Assembly Appropriation.

SB 227 (Mitchell), Ch. 175, Stats. 2015

Support: AT&T; California Public Defenders Association; California Teachers Association; City of Alameda; City of Glendora; City of Long Beach; City of Sacramento; Consumer Attorneys of California; League of California Cities; Los Angeles County District Attorney’s Office; National Association of Social Workers - California; Planned Parenthood Affiliates of California; Sacramento County District Attorney’s Office; Salesforce; San Diego County District Attorney’s Office; Yolo County District Attorney

Opposition: California Attorneys for Criminal Justice; Communities United for Restorative Youth Justice

Assembly Floor Vote: Not relevant

PURPOSE

The purpose of this legislation is to allow law enforcement agencies and district attorneys to request a new division of the Attorney General’s office to investigate, report on, and potentially prosecute a criminal case when there is an officer involved shooting that results in a death of a member of the public.

Existing law specifies that subject to the powers and duties of the Governor, the Attorney General shall be the chief law officer of the State. (Cal. Const., Art. 5, § 13.)

Existing law states that it shall be the duty of the Attorney General to see that the laws of the State are uniformly and adequately enforced. (Cal. Const., Art. 5, § 13.)

Existing law provides that the Attorney General shall have direct supervision over every district attorney and sheriff and over such other law enforcement officers as may be designated by law, in all matters pertaining to the duties of their respective offices, and may require any of said officers to make reports concerning the investigation, detection, prosecution, and punishment of crime in their perspective jurisdictions as to the Attorney General may seem advisable. (Cal. Const., Art. 5, § 13.)

Existing law states that whenever in the opinion of the Attorney General any law of the State is not being adequately enforced in any county, it shall be the duty of the Attorney General to prosecute any violation of law of which the superior court shall have jurisdiction, and in such cases the Attorney General shall have all the powers of a district attorney. When required by the public interest or directed by the Governor, the Attorney General shall assist any district attorney in the discharge of the duties of that office. (Cal. Const., Art. 5, § 13.)

Existing law specifies that the Attorney General has direct supervision over the district attorneys of the several counties of the State and may require of them written reports as to the condition of public business entrusted to their charge. (Gov. Code, § 12550.)

Existing law provides that when the Attorney General deems it advisable or necessary in the public interest, or when directed to do so by the Governor, he shall assist any district attorney in the discharge of his duties, and may, where he deems it necessary, take full charge of any investigation or prosecution of violations of law of which the superior court has jurisdiction. In this respect he has all the powers of a district attorney, including the power to issue or cause to be issued subpoenas or other process. (Gov. Code, § 12550.)

Existing law states that if a district attorney is disqualified to conduct any criminal prosecution within the county, the Attorney General may employ special counsel to conduct the prosecution. The attorney's fee in such case is a legal charge against the state. (Gov. Code, § 12550.)

Existing law states that if a district attorney is disqualified to conduct any criminal prosecution within the county, the Attorney General may employ special counsel to conduct the prosecution. The attorney's fee in such case is a legal charge against the State. (Gov. Code, § 12553.)

Existing law states that when requested to do so by the grand jury of any county, the Attorney General may employ special counsel and special investigators, whose duty it shall be to investigate and present the evidence in such investigation to such grand jury. (Pen. Code, § 936.)

Existing law provides that when a grand jury request special counsel, services of such special counsel and special investigators shall be a count charge of such county. (Pen. Code, § 936.)

Existing law specifies that the district attorney is the public prosecutor, except as otherwise provided by law. (Gov. Code, § 25600.)

Existing law states that a public prosecutor shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses. (Gov. Code, § 25600.)

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).)

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 that all complaints retained may be maintained either in the peace or custodial officer's general personnel file or in a separate file designated by the department or agency as provided by department or agency policy, 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 requires the department or 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).)

This bill establishes within the Department of Justice (DOJ), an independent division to investigate incidents of officer-involved use of force resulting in the death of a civilian.

This bill names the new division as the “Statewide Officer-Involved Deadly Force Investigation Division.”

This bill specifies that the division shall consist of three separate teams located in northern, central, and southern California.

This bill states that when asked by local law enforcement or the district attorney the division shall investigate and gather facts in incidents involving the use of force by a peace officer that results in the death of a civilian.

This bill states that when the division is asked by local law enforcement or the district attorney they shall prepare and submit a written report to the entity requesting the independent review containing, at minimum, the following information:

• A statement of facts.
• A detailed analysis and conclusion for each investigatory issue.
• Recommendations to modify the policies and practices of the law enforcement agency if applicable.

The bill states that if criminal charges against the involved officer are found to be warranted, the division shall initiate and prosecute a criminal action against the officer.

The bill requires that the Attorney General shall post and maintain on the DOJ website each written report prepared by the division, appropriately redacting any information in the report that is required by law to be kept confidential.

The bill states that, commencing July 1, 2023, the Attorney General shall operate a Police Practices Division within the DOJ to, upon the request of a law enforcement agency, review the use of deadly force policies of that law enforcement agency, based on best practices.

COMMENTS

1. Need for This Bill

According to the author:

In California alone, there have been almost 800 fatal shootings by police since 2015, yet less than five independent investigations have been conducted.

While the vast majority of law enforcement officers, from county prosecutors to police officers, act in accordance with appropriate professional and ethical standards, the current process of local district attorneys investigating local police is fraught with bias and conflicts of interest. Since prosecutors and police officers are essentially colleagues, it raises questions about the impartiality of “findings”. In 2016 a Stanford Law School study, “At Arm’s Length: Improving Criminal Investigations of Police Shootings,” determined that police departments and district attorneys lack the independence and incentive to investigate one of their own.

In addition, a 2015 report of The U.S. Conference of Mayors Working Group of Mayors and Police Chiefs on Police-Community Relations also called for independent investigations.

Further, the lack of accountability and transparency has created enormous mistrust between law enforcement and the residents they aim to protect and serve. The current appetite for reform, both at the national and local level, to create a fairer and more transparent process for deadly force cases is huge and immediate.

In March 2015, the Obama Administration released the “President’s Task Force on 21^st Century Policing,” with recommendations and action items to strengthen community policing and trust among law enforcement and the communities they serve. The report calls for increasing transparency and eliminating or minimizing bias for law enforcement agencies. In addition, the task force encouraged policies that mandate the use of external and independent prosecutors in cases of police use-of-force resulting in death, officer-involved shootings resulting in injury or death, or in-custody deaths.

Law enforcement audits are equally important to prevent these tragic deaths. In the last few years, local entities including Sacramento, San Francisco and Vallejo, requested audits by the AG’s office of their law enforcement agencies’ “patterns and practices”. These audits have been well received and resulted in positive changes based on the AG’s recommendations. These improvements and changes in policy ensure greater protections and safety for police officers and the communities they serve.

Wisconsin, New York, Illinois, New Jersey and Connecticut have enacted policies to require independent investigations when a police officer is involved in the death of a civilian. In the wake of the killing of George Floyd at the hands of a Minneapolis police officer, AB 1506 would provide independent, accountable and transparent oversight of police deadly-force.

2. Models in Other U.S. States

In 2012, Connecticut passed a statute governing the procedure for the investigation of the use of deadly force by a police officer. The statute provided for the appointment of an individual to conduct the investigation, other than prosecutorial official from the judicial district where the incident occurred. Upon the conclusion of the investigation of the incident, a report must be filed that contains the following: (1) The circumstances of the incident, (2) a determination of whether the use of deadly physical force by the peace officer was appropriate, and (3) any future action to the taken by the Division of Criminal Justice as a result of the incident. (CT Gen Stat § 51-277 (2012).)

In Wisconsin, AB 409 was signed into law by Gov. Walker in April 2014. That law requires that an investigation must be performed by an independent review panel when a police officer is involved in the death of a civilian. The panel must consist of two individuals from outside of the police agency involved. In addition, the family of the victim must be informed of their legal rights.

3. 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 on a variety of issues related to police practices.

One of the areas explored by the Task Force was oversight. The Task Force developed the following actions items (among others) in connection with cases that involved police use of force resulting in a death, or police shootings resulting in death or injury:

2.2.2 Action Item: These policies should also mandate external and independent criminal investigation in cases of police use of force resulting in death, officer-involved shooting resulting in injury or death, or in-custody deaths.

One way this can be accomplished is by the creation of multi-agency force investigation task forces comprising state and local investigators. Other ways to structure this investigative process include referring to neighboring jurisdictions or to the next higher levels of government (many small departments may already have state agencies handle investigations), but in order to restore and maintain trust, this independence is crucial.

In written testimony to the task force, James Palmer of the Wisconsin Professional Police Association offered an example in that state’s statutes requiring that agency written policies “require an investigation that is conducted by at least two investigators . . . neither of whom is employed by a law enforcement agency that employs a law enforcement officer involved in the officer – involved death.” Furthermore, in order to establish and maintain internal legitimacy and procedural justice, these investigations should be performed by law enforcement agencies with adequate training, knowledge, and experience investigating police use of force. (Interim Report of the President’s Task Force on 21^st Century Policing (2015), p. 21.)

2.2.3 Action Item: The task force encourages policies that mandate the use of external and independent prosecutors in cases of police use of force resulting in death, officer-involved shootings resulting in injury or death, or in-custody deaths.

Strong systems and policies that encourage use of an independent prosecutor for reviewing police uses of force and for prosecution in cases of inappropriate deadly force and in-custody death will demonstrate the transparency to the public that can lead to mutual trust between community and law enforcement. (Interim Report of the President’s Task Force on 21^st Century Policing (2015, p. 22.)

2.2.5 Action Item: Polices on use of force should clearly state what types of information will be released, when, and in what situation, to maintain transparency.

This should also include procedures on the release of a summary statement regarding the circumstances of the incident by the department as soon as possible and within 24 hours. The intent of this directive should be to share as much information as possible without compromising the integrity of the investigation or anyone’s rights. (Interim Report of the President’s Task Force on 21^st Century Policing (2015, p. 22.)

4. The Provisions of This Bill are Only Triggered When Requested by a Law

Enforcement Agency or a Prosecutor’s Office

Unlike the “2.2.3 Action Item” in President Obama’s Task Force on 21^st Century Policing, this bill does not “mandate the use of external and independent prosecutors in cases of police use of force resulting in death…”

On the contrary, this bill doesn’t mandate any investigation by an independent agency unless requested by the law enforcement agency involved, or by the local district attorney. Possible alternatives to this could be to automatically trigger an independent review every time police use of force results in the death of a member of the public, as recommended by the President’s Task Force. Or, as a compromise, at least allowing an independent governing body make the request. Potentially local city councils or boards of supervisors could fill that role.

5. Argument in Support

According to the California Public Defenders Association:

AB 1506 would create a division within the Department of Justice (DOJ) to upon request by a law enforcement agency a) review the agency’s “use of force” policies and make recommendations and b) conduct an independent investigation of any officer involved shooting or other use of force that resulted in the death of a civilian. AB 1506 also authorizes DOJ to prosecute any officer who, pursuant to the investigation, is found to have violated state law. This is an urgently needed bill, which would lend credibility to the investigations of police officer involved killings of civilians.

The data shows that police in California killed, in the line of duty, more than 610 people in California in the five-year period between 2009 and 2014. In Los Angeles County, since the year 2000 nearly 900 people, (80% of whom were Black and Brown persons) have died at the hands of law enforcement. Since the year 2000 only two officers were charged as the result of the shooting of a civilian while on duty. In virtually all of the cases, the Los Angeles County District Attorney deemed the use of force resulting in the death of the civilian legally justified. In a much smaller county, Solano County, the Vallejo Police Department (alone) has killed 19 people since 2010. In 2012, Vallejo officers fatally shot 6 people. Vallejo is a small city of 122,000 people. No Vallejo police officer has been charged for an on duty shooting or use of force causing the death of a civilian. Some of the Vallejo officers killed again, even before the Solano County District Attorney had made a decision about prosecution in the first killing. Nevertheless, the Solano County District Attorney has found that all the deaths of civilians at the hands of Vallejo officers since 2010 were legally justified.

The District Attorney and the law enforcement officers in any given county must work hand in hand to investigate and prosecute crime. Many District Attorneys rely on the endorsements and financial support of Police Chiefs, Sheriffs and Police Officer Associations for their elections. Given this interdependence, relying on the local District Attorney to complete a transparent, reliable and truly independent investigation undermines trust in the entire justice system.

AB 1506 would be a significant step towards ensuring California’s citizens that the investigations of these many deaths is more likely to be independent, fair and just. If the investigations were to be automatic and not limited to the request of a law enforcement agency, this assurance would be even stronger.

6. Argument in Opposition

According to California Attorneys for Criminal Justice:

Incidents of police brutality have plagued communities of color for decades. Until now, policies aimed at reducing this problem have fallen short as reports of police abuse and unjustified deaths at the hands of law enforcement continue to be reported around the country.

This ongoing problem is in part due to a failure to adopt strict accountability and oversight procedures. Law enforcement entities have successfully blocked implementation of civilian review boards if the bodies have legal authority to investigate and subpoena witnesses. Instead, internal reviews are the most common form of oversight.

In cases of police abuse, victims, their families, and community members often, rightfully, distrust the local police and prosecutors to investigate and make appropriate charging decisions due to the intertwined relationship between police and prosecutors. There are countless examples of local prosecutors choosing not to file criminal charges against officers, and often waiting months to announce the decision. Amongst community members, the failure to file charges often increase the distrust of the criminal justice system.

The tragic killing of George Floyd reflects the shortcomings of accountability measures, an inability to deter, and the behavior of individual officers and police departments as a whole. At this moment in our history, we cannot fail again. It is time to take bold, paradigm-shifting action that will usher in a generational change in police-community relations.

Any policy change in this area must fully enact independent oversight of law enforcement, which requires decisions on who to prosecute and should not be in the hands of departments themselves.

CACJ opposes the provision of AB 1506 which gives local law enforcement the ability to choose the prosecutor in a police death case. As drafted, if law enforcement is concerned that a local prosecutor may actually be vigilant in pursuing a case against an officer, then law enforcement can simply take the case away from the local prosecutor and give it to the California Attorney General. While there may be instances when the AG could be an appropriate choice, law enforcement should not be given statutory authority to dictate. Moreover, there is a growing sentiment that elected local prosecutors should come from a more reform-minded perspective, and recently San Francisco elected a public defender to take helm of the DA’s office. If this trend continues, AB 1506 would provide law enforcement with an ability to circumvent a vigilant prosecutor. There are also questions about the independence, perceived or real, of the AG since the office is commonly touted as the “top cop” of California. AB 1506 also does not give the victims or family of victims any say in who investigates and prosecutes a case, which can result in further distrust in the system and outcome of any investigation. At this historical moment in the struggle for police accountability, we should pursue approaches that will better ensure independence, transparency and accountability and that will also engender greater confidence in the process.

To this end CACJ proposes the following amendments:

1. Every allegation of police abuse resulting in death should be referred to a newly created state independent prosecutor office.
2. The independent prosecutor office shall have full and unfettered authority to investigate, make charging decisions, and handle prosecution of individual law enforcement officers. These activities and decisions should be free from interference from the Attorney General’s office.
3. The independent prosecutor office shall be led by someone appointed by a California Justice Commission that is comprised of a cross-section of experts and community members. The prosecutor shall also provide reports to the new CJC and make publicly available any decisions to not bring charges against a law enforcement officer.
4. Law enforcement departments shall NOT have any authority to decide who investigates and prosecutes a case.

With these amendments, CACJ would withdraw its opposition and consider supporting the bill. We have further suggested amendments related to other cases of police abuse.

-- END –

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2019 - 2020 Regular

Bill No: AB 1506 Hearing Date: August 7, 2020

Subject: Police Use of Force

HISTORY

Source: Author

Prior Legislation: AB 2917 (McCarty), never heard in Senate Public Safety

AB 284 (McCarty), 2017, failed in Senate Appropriations

AB 86 (McCarty), 2015, failed in Assembly Appropriation.

SB 227 (Mitchell), Ch. 175, Stats. of 2015

Support: AT&T; California Public Defenders Association; California Teachers Association; City of Alameda; City of Glendora; City of Long Beach; City of Sacramento; Consumer Attorneys of California; League of California Cities; Los Angeles County District Attorney’s Office; National Association of Social Workers - California; Planned Parenthood Affiliates of California; Sacramento County District Attorney’s Office; Salesforce; San Diego County District Attorney’s Office; Yolo County District Attorney

Opposition: California Attorneys for Criminal Justice; Communities United for Restorative Youth Justice

Assembly Floor Vote: Not relevant

PURPOSE

The purpose of this legislation is to allow law enforcement agencies and district attorneys to request a new division of the Attorney General’s office to investigate, report on, and potentially prosecute a criminal case when there is an officer involved shooting that results in a death of a member of the public.

Existing law specifies that subject to the powers and duties of the Governor, the Attorney General shall be the chief law officer of the State. (Cal. Const., Art. 5, § 13.)

Existing law states that it shall be the duty of the Attorney General to see that the laws of the State are uniformly and adequately enforced. (Cal. Const., Art. 5, § 13.)

Existing law provides that the Attorney General shall have direct supervision over every district attorney and sheriff and over such other law enforcement officers as may be designated by law, in all matters pertaining to the duties of their respective offices, and may require any of said officers to make reports concerning the investigation, detection, prosecution, and punishment of crime in their perspective jurisdictions as to the Attorney General may seem advisable. (Cal. Const., Art. 5, § 13.)

Existing law states that whenever in the opinion of the Attorney General any law of the State is not being adequately enforced in any county, it shall be the duty of the Attorney General to prosecute any violation of law of which the superior court shall have jurisdiction, and in such cases the Attorney General shall have all the powers of a district attorney. When required by the public interest or directed by the Governor, the Attorney General shall assist any district attorney in the discharge of the duties of that office. (Cal. Const., Art. 5, § 13.)

Existing law specifies that the Attorney General has direct supervision over the district attorneys of the several counties of the State and may require of them written reports as to the condition of public business entrusted to their charge. (Gov. Code, § 12550.)

Existing law provides that when the Attorney General deems it advisable or necessary in the public interest, or when directed to do so by the Governor, he shall assist any district attorney in the discharge of his duties, and may, where he deems it necessary, take full charge of any investigation or prosecution of violations of law of which the superior court has jurisdiction. In this respect he has all the powers of a district attorney, including the power to issue or cause to be issued subpoenas or other process. (Gov. Code, § 12550.)

Existing law states that if a district attorney is disqualified to conduct any criminal prosecution within the county, the Attorney General may employ special counsel to conduct the prosecution. The attorney's fee in such case is a legal charge against the state. (Gov. Code, § 12550.)

Existing law states that if a district attorney is disqualified to conduct any criminal prosecution within the county, the Attorney General may employ special counsel to conduct the prosecution. The attorney's fee in such case is a legal charge against the State. (Gov. Code, § 12553.)

Existing law states that when requested to do so by the grand jury of any county, the Attorney General may employ special counsel and special investigators, whose duty it shall be to investigate and present the evidence in such investigation to such grand jury. (Pen. Code, § 936.)

Existing law provides that when a grand jury request special counsel, services of such special counsel and special investigators shall be a count charge of such county. (Pen. Code, § 936.)

Existing law specifies that the district attorney is the public prosecutor, except as otherwise provided by law. (Gov. Code, § 25600.)

Existing law states that a public prosecutor shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses. (Gov. Code, § 25600.)

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).)

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 that all complaints retained may be maintained either in the peace or custodial officer's general personnel file or in a separate file designated by the department or agency as provided by department or agency policy, 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 requires the department or 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).)

This bill establishes within the Department of Justice (DOJ), an independent division to investigate incidents of officer-involved use of force resulting in the death of a civilian.

This bill names the new division as the “Statewide Officer-Involved Deadly Force Investigation Division.”

This bill specifies that the division shall consist of three separate teams located in northern, central, and southern California.

This bill states that when asked by local law enforcement or the district attorney the division shall investigate and gather facts in incidents involving the use of force by a peace officer that results in the death of a civilian.

This bill states that when the division is asked by local law enforcement or the district attorney they shall prepare and submit a written report to the entity requesting the independent review containing, at minimum, the following information:

• A statement of facts.
• A detailed analysis and conclusion for each investigatory issue.
• Recommendations to modify the policies and practices of the law enforcement agency if applicable.

The bill states that if criminal charges against the involved officer are found to be warranted, the division shall initiate and prosecute a criminal action against the officer.

The bill requires that the Attorney General shall post and maintain on the DOJ website each written report prepared by the division, appropriately redacting any information in the report that is required by law to be kept confidential.

The bill states that, commencing July 1, 2023, the Attorney General shall operate a Police Practices Division within the DOJ to, upon the request of a law enforcement agency, review the use of deadly force policies of that law enforcement agency, based on best practices.

COMMENTS

1. Need for This Bill

According to the author:

In California alone, there have been almost 800 fatal shootings by police since 2015, yet less than five independent investigations have been conducted.

While the vast majority of law enforcement officers, from county prosecutors to police officers, act in accordance with appropriate professional and ethical standards, the current process of local district attorneys investigating local police is fraught with bias and conflicts of interest. Since prosecutors and police officers are essentially colleagues, it raises questions about the impartiality of “findings”. In 2016 a Stanford Law School study, “At Arm’s Length: Improving Criminal Investigations of Police Shootings,” determined that police departments and district attorneys lack the independence and incentive to investigate one of their own.

In addition, a 2015 report of The U.S. Conference of Mayors Working Group of Mayors and Police Chiefs on Police-Community Relations also called for independent investigations.

Further, the lack of accountability and transparency has created enormous mistrust between law enforcement and the residents they aim to protect and serve. The current appetite for reform, both at the national and local level, to create a fairer and more transparent process for deadly force cases is huge and immediate.

In March 2015, the Obama Administration released the “President’s Task Force on 21^st Century Policing,” with recommendations and action items to strengthen community policing and trust among law enforcement and the communities they serve. The report calls for increasing transparency and eliminating or minimizing bias for law enforcement agencies. In addition, the task force encouraged policies that mandate the use of external and independent prosecutors in cases of police use-of-force resulting in death, officer-involved shootings resulting in injury or death, or in-custody deaths.

Law enforcement audits are equally important to prevent these tragic deaths. In the last few years, local entities including Sacramento, San Francisco and Vallejo, requested audits by the AG’s office of their law enforcement agencies’ “patterns and practices”. These audits have been well received and resulted in positive changes based on the AG’s recommendations. These improvements and changes in policy ensure greater protections and safety for police officers and the communities they serve.

Wisconsin, New York, Illinois, New Jersey and Connecticut have enacted policies to require independent investigations when a police officer is involved in the death of a civilian. In the wake of the killing of George Floyd at the hands of a Minneapolis police officer, AB 1506 would provide independent, accountable and transparent oversight of police deadly-force.

2. Models in Other U.S. States

In 2012, Connecticut passed a statute governing the procedure for the investigation of the use of deadly force by a police officer. The statute provided for the appointment of an individual to conduct the investigation, other than prosecutorial official from the judicial district where the incident occurred. Upon the conclusion of the investigation of the incident, a report must be filed that contains the following: (1) The circumstances of the incident, (2) a determination of whether the use of deadly physical force by the peace officer was appropriate, and (3) any future action to the taken by the Division of Criminal Justice as a result of the incident. (CT Gen Stat § 51-277 (2012).)

In Wisconsin, AB 409 was signed into law by Gov. Walker in April 2014. That law requires that an investigation must be performed by an independent review panel when a police officer is involved in the death of a civilian. The panel must consist of two individuals from outside of the police agency involved. In addition, the family of the victim must be informed of their legal rights.

3. 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 on a variety of issues related to police practices.

One of the areas explored by the Task Force was oversight. The Task Force developed the following actions items (among others) in connection with cases that involved police use of force resulting in a death, or police shootings resulting in death or injury:

2.2.2 Action Item: These policies should also mandate external and independent criminal investigation in cases of police use of force resulting in death, officer-involved shooting resulting in injury or death, or in-custody deaths.

One way this can be accomplished is by the creation of multi-agency force investigation task forces comprising state and local investigators. Other ways to structure this investigative process include referring to neighboring jurisdictions or to the next higher levels of government (many small departments may already have state agencies handle investigations), but in order to restore and maintain trust, this independence is crucial.

In written testimony to the task force, James Palmer of the Wisconsin Professional Police Association offered an example in that state’s statutes requiring that agency written policies “require an investigation that is conducted by at least two investigators . . . neither of whom is employed by a law enforcement agency that employs a law enforcement officer involved in the officer – involved death.” Furthermore, in order to establish and maintain internal legitimacy and procedural justice, these investigations should be performed by law enforcement agencies with adequate training, knowledge, and experience investigating police use of force. (Interim Report of the President’s Task Force on 21^st Century Policing (2015), p. 21.)

2.2.3 Action Item: The task force encourages policies that mandate the use of external and independent prosecutors in cases of police use of force resulting in death, officer-involved shootings resulting in injury or death, or in-custody deaths.

Strong systems and policies that encourage use of an independent prosecutor for reviewing police uses of force and for prosecution in cases of inappropriate deadly force and in-custody death will demonstrate the transparency to the public that can lead to mutual trust between community and law enforcement. (Interim Report of the President’s Task Force on 21^st Century Policing (2015, p. 22.)

2.2.5 Action Item: Polices on use of force should clearly state what types of information will be released, when, and in what situation, to maintain transparency.

This should also include procedures on the release of a summary statement regarding the circumstances of the incident by the department as soon as possible and within 24 hours. The intent of this directive should be to share as much information as possible without compromising the integrity of the investigation or anyone’s rights. (Interim Report of the President’s Task Force on 21^st Century Policing (2015, p. 22.)

4. The Provisions of This Bill are Only Triggered When Requested by a Law

Enforcement Agency or a Prosecutor’s Office

Unlike the “2.2.3 Action Item” in President Obama’s Task Force on 21^st Century Policing, this bill does not “mandate the use of external and independent prosecutors in cases of police use of force resulting in death…”

On the contrary, this bill doesn’t mandate any investigation by an independent agency unless requested by the law enforcement agency involved, or by the local district attorney. Possible alternatives to this could be to automatically trigger an independent review every time police use of force results in the death of a member of the public, as recommended by the President’s Task Force. Or, as a compromise, at least allowing an independent governing body make the request. Potentially local city councils or boards of supervisors could fill that role.

5. Argument in Support

According to the California Public Defenders Association:

AB 1506 would create a division within the Department of Justice (DOJ) to upon request by a law enforcement agency a) review the agency’s “use of force” policies and make recommendations and b) conduct an independent investigation of any officer involved shooting or other use of force that resulted in the death of a civilian. AB 1506 also authorizes DOJ to prosecute any officer who, pursuant to the investigation, is found to have violated state law. This is an urgently needed bill, which would lend credibility to the investigations of police officer involved killings of civilians.

The data shows that police in California killed, in the line of duty, more than 610 people in California in the five-year period between 2009 and 2014. In Los Angeles County, since the year 2000 nearly 900 people, (80% of whom were Black and Brown persons) have died at the hands of law enforcement. Since the year 2000 only two officers were charged as the result of the shooting of a civilian while on duty. In virtually all of the cases, the Los Angeles County District Attorney deemed the use of force resulting in the death of the civilian legally justified. In a much smaller county, Solano County, the Vallejo Police Department (alone) has killed 19 people since 2010. In 2012, Vallejo officers fatally shot 6 people. Vallejo is a small city of 122,000 people. No Vallejo police officer has been charged for an on duty shooting or use of force causing the death of a civilian. Some of the Vallejo officers killed again, even before the Solano County District Attorney had made a decision about prosecution in the first killing. Nevertheless, the Solano County District Attorney has found that all the deaths of civilians at the hands of Vallejo officers since 2010 were legally justified.

The District Attorney and the law enforcement officers in any given county must work hand in hand to investigate and prosecute crime. Many District Attorneys rely on the endorsements and financial support of Police Chiefs, Sheriffs and Police Officer Associations for their elections. Given this interdependence, relying on the local District Attorney to complete a transparent, reliable and truly independent investigation undermines trust in the entire justice system.

AB 1506 would be a significant step towards ensuring California’s citizens that the investigations of these many deaths is more likely to be independent, fair and just. If the investigations were to be automatic and not limited to the request of a law enforcement agency, this assurance would be even stronger.

6. Argument in Opposition

According to California Attorneys for Criminal Justice:

Incidents of police brutality have plagued communities of color for decades. Until now, policies aimed at reducing this problem have fallen short as reports of police abuse and unjustified deaths at the hands of law enforcement continue to be reported around the country.

This ongoing problem is in part due to a failure to adopt strict accountability and oversight procedures. Law enforcement entities have successfully blocked implementation of civilian review boards if the bodies have legal authority to investigate and subpoena witnesses. Instead, internal reviews are the most common form of oversight.

In cases of police abuse, victims, their families, and community members often, rightfully, distrust the local police and prosecutors to investigate and make appropriate charging decisions due to the intertwined relationship between police and prosecutors. There are countless examples of local prosecutors choosing not to file criminal charges against officers, and often waiting months to announce the decision. Amongst community members, the failure to file charges often increase the distrust of the criminal justice system.

The tragic killing of George Floyd reflects the shortcomings of accountability measures, an inability to deter, and the behavior of individual officers and police departments as a whole. At this moment in our history, we cannot fail again. It is time to take bold, paradigm-shifting action that will usher in a generational change in police-community relations.

Any policy change in this area must fully enact independent oversight of law enforcement, which requires decisions on who to prosecute and should not be in the hands of departments themselves.

CACJ opposes the provision of AB 1506 which gives local law enforcement the ability to choose the prosecutor in a police death case. As drafted, if law enforcement is concerned that a local prosecutor may actually be vigilant in pursuing a case against an officer, then law enforcement can simply take the case away from the local prosecutor and give it to the California Attorney General. While there may be instances when the AG could be an appropriate choice, law enforcement should not be given statutory authority to dictate. Moreover, there is a growing sentiment that elected local prosecutors should come from a more reform-minded perspective, and recently San Francisco elected a public defender to take helm of the DA’s office. If this trend continues, AB 1506 would provide law enforcement with an ability to circumvent a vigilant prosecutor. There are also questions about the independence, perceived or real, of the AG since the office is commonly touted as the “top cop” of California. AB 1506 also does not give the victims or family of victims any say in who investigates and prosecutes a case, which can result in further distrust in the system and outcome of any investigation. At this historical moment in the struggle for police accountability, we should pursue approaches that will better ensure independence, transparency and accountability and that will also engender greater confidence in the process.

To this end CACJ proposes the following amendments:

1. Every allegation of police abuse resulting in death should be referred to a newly created state independent prosecutor office.
2. The independent prosecutor office shall have full and unfettered authority to investigate, make charging decisions, and handle prosecution of individual law enforcement officers. These activities and decisions should be free from interference from the Attorney General’s office.
3. The independent prosecutor office shall be led by someone appointed by a California Justice Commission that is comprised of a cross-section of experts and community members. The prosecutor shall also provide reports to the new CJC and make publicly available any decisions to not bring charges against a law enforcement officer.
4. Law enforcement departments shall NOT have any authority to decide who investigates and prosecutes a case.

With these amendments, CACJ would withdraw its opposition and consider supporting the bill. We have further suggested amendments related to other cases of police abuse.

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 1506

Author:(McCarty)

As Amended Ver:January 15, 2020

2/3 vote. Urgency

SUMMARY:

Exempts additional facilities from the requirement that specified businesses provide recycling or composting bins for commercial or organic waste.

Major Provisions

1. Clarifies that buffet style and self-service restaurants are "full-service restaurants" for purposes of the state's commercial and organic waste recycling laws.
2. Clarifies that commercial and organic waste generators subject to the state's commercial waste recycling law must provide a recycling bin or container within the line of sight, rather than adjacent to, a bin or container for trash.
3. Specifies that the state's commercial and organics recycling laws only apply to permanent, nonmobile, food service facilities with dedicated seating areas that are not full-service restaurants when located in a theme park, amusement park, water park, resort or entertainment complex, zoo, attraction, or similar facility.
4. Allows food facilities located in a theme park, amusement park, water park, resort or entertainment complex, zoo, attraction, or similar facility to implement a process for recycling organic waste from consumers that yields results comparable to or greater in volume and quality to results attained by providing an organic waste recycling bin or container in lieu of providing a bin or container.
5. Repeals an obsolete provision of law and makes related technical and clarifying changes.

COMMENTS:

An estimated 35 million tons of waste are disposed of in California's landfills annually. CalRecycle is tasked with diverting at least 75% of solid waste from landfills statewide by 2020. Local governments have been required to divert 50% of the waste generated within the jurisdiction from landfill disposal since 2000. AB 341 (Chesbro), Chapter 476, Statutes of 2011, requires commercial waste generators, including multi-family dwellings, to arrange for recycling services for the material they generate and requires local governments to implement commercial solid waste recycling programs designed to divert solid waste generated by businesses out of the landfill. A follow up bill, AB 1826 (Chesbro), Chapter 727, Statutes of 2014, requires generators of organic waste (i.e., food waste and yard waste) to arrange for recycling services for that material to keep the material out of the landfill.

SB 1383 (Lara) Chapter 395, Statutes of 2016, requires the Air Resources Board to approve and implement the comprehensive short-lived climate pollutant strategy to achieve, from 2013 levels, a 40% reduction in methane, a 40% reduction in hydrofluorocarbon gases, and a 50% reduction in anthropogenic black carbon, by 2030. In order to accomplish these goals, the bill specifies that the methane emission reduction goals include targets to reduce the landfill disposal of organic waste 50% by 2020 and 75% by 2025 from the 2014 level.

AB 827 (McCarty) Chapter 441, Statutes of 2019, requires commercial waste generators and organic waste generators that provide customers access to the business to provide customers with a commercial solid waste recycling bin or an organic waste recycling bin to collect materials purchased on the premises. AB 827 also requires CalRecycle to develop model signage that the businesses may utilize in implementing these requirements.

According to the Author:

This bill complements our Green Restaurants bill, which will help California reach its ambitious climate goals by having restaurants and other food service [facilities] provide bins for recyclables and compostable waste. This bill is a simple clarification to ensure compliance for amusement parks' mobile food areas.

Arguments in Support:

According to the California Attractions and Parks Association, AB 1506 addresses concerns with AB 827 that surfaced very late in the process last year.

Arguments in Opposition:

None

FISCAL COMMENTS:

Unknown

VOTES:

ASM EDUCATION: 4-1-1

YES: O'Donnell, Kalra, McCarty, Smith

NO: Kiley

ABS, ABST OR NV: Weber

ASM APPROPRIATIONS: 11-2-5

YES: Gonzalez, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Gabriel, Eduardo Garcia, Quirk, Robert Rivas

NO: Brough, Maienschein

ABS, ABST OR NV: Bigelow, Diep, Fong, Obernolte, Petrie-Norris

ASM NATURAL RESOURCES: 11-0-0

YES: Friedman, Flora, Chau, Eggman, Cristina Garcia, Limón, Mathis, McCarty, Melendez, Muratsuchi, Mark Stone

UPDATED:

VERSION: January 15, 2020

CONSULTANT: Elizabeth MacMillan / NAT. RES. / (916) 319-2092 FN: 0002611

Date of Hearing: January 13, 2020

ASSEMBLY COMMITTEE ON NATURAL RESOURCES

Laura Friedman, Chair

ABPCA Bill Id:AB 1506 (

Author:McCarty) – As Amended Ver:January 6, 2020

SUBJECT: Solid waste: commercial and ogranic waste: recycling bins

SUMMARY: Exempts additional facilities from the requirement that specified businesses provide recycling or composting bins for commercial or organic waste.

EXISTING LAW requires, on or before July 1, 2020, commercial waste generators and organic waste generators that provide customers access to the business to provide customers with a recycling bin to collect materials purchased on the premises that are visible, easily accessible, and clearly marked with educational signage indicating what is appropriate to place in the bin. Clarifies that “full service restaurants” are exempted from these requirements.

THIS BILL:

1. Clarifies that buffet style and self-service restaurants are “full-service restaurants” for purposes of the state’s commercial and organic waste recycling laws.
2. Clarifies that commercial and organic waste generators subject to the state’s commercial waste recycling law must provide a recycling bin or container within the line of sight, rather than adjacent to, a bin or container for trash.
3. Specifies that the state’s commercial and organics recycling laws only apply to permanent, nonmobile, food service facilities with dedicated seating areas that are not full-service restaurants when located in a theme park, amusement park, water park, resort or entertainment complex, zoo, attraction, or similar facility.
4. Allows a business subject to the state’s organic waste recycling law to implement a process for recycling organic waste from consumers that yields results comparable to or greater in volume and quality to results attained by providing an organic waste recycling bin or container in lieu of providing a bin or container.
5. Repeals an obsolete provision of law and makes related technical and clarifying changes.

FISCAL EFFECT: Unknown

COMMENTS:

1. Author’s statement:

This bill complements our Green Restaurants bill, which will help California reach its ambitious climate goals by having restaurants and other food service [facilities] provide bins for recyclables and compostable waste. This bill is a simple clarification to ensure compliance for amusement parks’ mobile food areas.

1. Background. An estimated 35 million tons of waste are disposed of in California’s landfills annually. CalRecycle is tasked with diverting at least 75% of solid waste from landfills statewide by 2020. Local governments have been required to divert 50% of the waste generated within the jurisdiction from landfill disposal since 2000. AB 341 (Chesbro), Chapter 476, Statutes of 2011, requires commercial waste generators, including multi-family dwellings, to arrange for recycling services for the material they generate and requires local governments to implement commercial solid waste recycling programs designed to divert solid waste generated by businesses out of the landfill. A follow up bill, AB 1826 (Chesbro), Chapter 727, Statutes of 2014, requires generators of organic waste (i.e., food waste and yard waste) to arrange for recycling services for that material to keep the material out of the landfill.
   
   SB 1383 (Lara) Chapter 395, Statutes of 2016, requires the ARB to approve and implement the comprehensive short-lived climate pollutant strategy to achieve, from 2013 levels, a 40% reduction in methane, a 40% reduction in hydrofluorocarbon gases, and a 50% reduction in anthropogenic black carbon, by 2030. In order to accomplish these goals, the bill specifies that the methane emission reduction goals include targets to reduce the landfill disposal of organic waste 50% by 2020 and 75% by 2025 from the 2014 level.
   
   AB 827 (McCarty) Chapter 441, Statutes of 2019, requires commercial waste generators and organic waste generators that provide customers access to the business to provide customers with a commercial solid waste recycling bin or an organic waste recycling bin to collect materials purchased on the premises. AB 827 also requires CalRecycle to develop model signage that the businesses may utilize in implementing these requirements.
2. Suggested amendment. This bill inadvertently permits all organic waste generators subject to the bill to implement a process for recycling organic waste from customers that “yields results comparable to or greater in volume and quality to results attained by proving an organic waste bin…” According to the author, this provision was intended to apply to covered facilities within amusement parks, where the waste collection is centralized and sorted by employees rather than customers. The committee may wish to amend the bill to clarify that this provision applies only to these facilities. The author has requested the bill be amended to add an urgency clause, because AB 827 goes into effect July 1 of this year. The committee may wish to consider granting that request.

REGISTERED SUPPORT / OPPOSITION:

Support

California Attractions and Parks Association

Opposition

None on file

Analysis Prepared by: Elizabeth MacMillan / NAT. RES. /

ASSEMBLY THIRD READING

ATR Bill Id:AB 1506

Author:(McCarty and O'Donnell)

As Amended Ver:May 17, 2019

Majority vote

SUMMARY:

Establishes a local school district cap on the number of charter schools that can operate.

Major Provisions

1. Eliminates the existing state wide cap on the number of charter schools that can operate.
2. Specifies that a school district, a county office of education, or the state board shall not authorize a charter school above the number of operating charter schools authorized by the respective entity as of January 1, 2020.
3. Specifies that a school district, a county office of education, or the state board may only authorize one charter school after one charter school closes in its respective jurisdiction.
4. Specifies that a school district, a county office of education, or the state board may approve a petition for the establishment of a new charter school within the boundaries of a school district or county office of education only if both of the following are satisfied:
   1. As of January 1, 2020, less than 10 percent of the average daily attendance of pupils attending school within the boundaries of the school district or county office of education in which the charter school would be located are enrolled in charter schools.
   2. Approval of the petition would not result in more than 10 percent of the average daily attendance of pupils attending school within the boundaries of the school district or county office of education in which the charter school would be located being enrolled in charter schools.
5. Prohibits a school district, a county office of education, or the state board to approve a charter petition to establish a classroom-based charter school that will be operated by an entity managing a charter school unless, within 180 days from the submission of the charter petition, the school district, county office of education, or state board has not received a charter petition for a charter school that will be operated in any manner other than by an entity managing a charter school. 
6. Prohibits, commencing January 1, 2020, a school district, a county office of education, or the state board to authorize a new nonclassroom-based charter school.
7. Prohibits the limits and restrictions to be waived by the SBE.

COMMENTS:

The current statewide charter school cap is 2,250 for the 2018-19 school year and it increases by 100 each year. The current number of charter schools operating in California is 1,317. The statewide cap is significantly higher than the number of currently authorized charter schools, because the annual increase of 100 charter schools has never been actualized on an annual basis.

Charter School Saturation Point: According to a 2017 report by In the Public Interest, "A district that already has enough seats for all its students is ineligible for new construction funding. Charter schools, by contrast, are not subject to this constraint, and are frequently built in districts that already have enough seats for the entire projected population. By examining the time and place of school openings, it is possible to gauge the number of charter schools that were built in places where public school construction would not have been authorized. The results are concerning: a total of 447 California charter schools have opened in places where there already were seats available for every student—representing 48% of all schools for which data is available. At least 30% of charter schools were both opened in places that had no need for additional seats and also failed to provide an education superior to that available in nearby public schools."

According to the Author:

"In 1992, California passed the Charter Schools Act, which encouraged innovation for teachers to open schools to better serve students. Initially, 100 total schools were allowed to operate. In 1998, the Legislature passed a bill to increase the total number to 250, with an additional 100 schools authorized each year. AB 1506 will institute a local cap on the number of charter schools that can operate at a given time within a district. By implementing a cap, we will not close charter schools, but will rather maintain the current number of charter schools."

Arguments in Support:

According to San Francisco Unified School District, "Charter schools are a rapidly growing sector of the education system, increasingly targeting low-income areas and communities of color. Unfortunately, this growth has outstripped the pace of research to determine whether students are actually better served in these charter schools, as well as assessments of whether these new charter schools have a detrimental financial impact on other neighborhood schools. Last year, the SFUSD Board of Education unanimously passed a resolution in support of increased oversight, transparency, and accountability for charter schools. AB 1506 aligns with the findings and declarations in that resolution."

Arguments in Opposition:

According to the Charter Schools Development Center, "California's original charter school laws, passed in 1992 capped the number of charter schools in the state at 100, with no more than 10 in any district. These laws were amended in 1998 to raise the statewide cap on the number of charter schools to 250 in 1998-99 and increases the cap by 100 schools each year thereafter. Today the cap on the number of charter schools that may be authorized in the state sits at 2,050 schools, well above the current +/-1,300 schools currently in operation. As such, it's unclear what value an additional cap would add to the Education Code."

FISCAL COMMENTS:

According to the Assembly Appropriations Committee, unknown one-time and ongoing Proposition 98 General Fund cost pressures for (a) charter school authorizers to implement the authorizing changes and enforce the new rules and for (b) charter schools to implement the changes. The state has over 230 separate charter authorizers and 1,300 charter schools. Minor one-time and ongoing General Fund costs for the CDE to provide guidance to charter schools and charter authorizers about the new rules and to post on its website the statewide limit of charter schools authorized to operate in the state.

VOTES:

ASM EDUCATION: 4-1-1

YES: O'Donnell, Kalra, McCarty, Smith

NO: Kiley

ABS, ABST OR NV: Weber

ASM APPROPRIATIONS: 11-2-5

YES: Gonzalez, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Gabriel, Eduardo Garcia, Quirk, Robert Rivas

NO: Brough, Maienschein

ABS, ABST OR NV: Bigelow, Diep, Fong, Obernolte, Petrie-Norris

UPDATED:

VERSION: May 17, 2019

CONSULTANT: Chelsea Kelley / ED. / (916) 319-2087 FN: 0000942

Date of Hearing: May 8, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 1506

Author:(McCarty) – As Amended Ver:April 11, 2019

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

SUMMARY:

This bill authorizes the operation of a maximum total number of charter schools in the state equal to the total number of charter schools authorized and operating as of January 1, 2020. The bill requires the California Department of Education (CDE) to post on its website the statewide limit of charter schools authorized to operate in the state. The bill prohibits a charter authorizer from approving a charter petition if approval would increase the number of operating charter schools operated by those entities as of January 1, 2020, or if approval would increase the total charter school enrollment authorized by the respective entity above the enrollment authorized as of January 1, 2020. It also prohibits a charter school authorized after January 1, 2020, from increasing its enrollment above the number of pupils authorized in its initial charter petition and prohibits the authorization of a new non classroom based charter. The bill allows approval of a charter operated by a nonprofit public benefit charter corporation only if it receives no other petitions for a different type of charter school. The bill specifies that none of the limits or restrictions in this bill’s section of law may be waived by the State Board of Education.

FISCAL EFFECT:

1. Unknown one-time and ongoing Proposition 98 General Fund cost pressures for (a) charter school authorizers to implement the authorizing changes and enforce the new rules and for (b) charter schools to implement the changes. The state has over 230 separate charter authorizers and 1,300 charter schools.
2. Minor one-time and ongoing General Fund costs for the CDE to provide guidance to charter schools and charter authorizers about the new rules and to post on its website the statewide limit of charter schools authorized to operate in the state.

COMMENTS:

1. Purpose. According to the author:

In 1992, California passed the Charter Schools Act, which encouraged innovation for teachers to open schools to better serve students. Initially, 100 total schools were allowed to operate. In 1998, the Legislature passed a bill to increase the total number to 250, with an additional 100 schools authorized each year. AB 1506 will institute a statewide and local cap on the number of charter schools that can operate at a given time within a district. By implementing a cap, we will not close charter schools, but will rather maintain the current number of charter schools.

1. Background. Charter schools are authorized by school district boards, county boards of education or the State Board of Education. A charter school is usually created or organized by a group of teachers, parents and community leaders, a community-based organization or a charter management organization. Specific goals and operating procedures for the charter school are detailed in an agreement (or "charter") between the sponsoring board and charter organizers. A charter school is generally exempt from many laws governing school districts, except where specifically noted.

According to the CDE, in the 2018-19 academic year, there were 1,317 charter schools in California, with an enrollment of over 630,000 students.

The Charter Schools Act of 1992 provides that the maximum total number of charter schools authorized to operate in this state in the 1998-99 school year is 250, and authorizes an additional 100 charter schools to operate in this state in each successive school year. The current statewide charter school cap is 2,250 for the 2018-19 school year. The current number of charter schools operating in California is 1,317. The statewide cap is significantly higher than the number of currently authorized charter schools, because the annual increase of 100 charter schools has never been actualized on an annual basis.

Current law allows a California charter school to incorporate as a nonprofit public benefit charter corporation. Incorporating allows a charter school more legal independence from its charter authorizer and can limit the charter director’s legal liability as it pertains to debts or wrongful acts of the school.

1. Related Legislation. AB 967 (Smith), of this session, requires a charter school to submit its Local Control and Accountability Plan (LCAP) to its charter authorizer for review and approval. It also requires charter schools to comply with various other LCAP requirements that currently apply to school districts and county offices of education. This bill is pending on this committee’s Suspense File.

AB 1505 (O’Donnell), of this session, makes various reforms to charter school authorization, appeals and renewals. The bill is pending before this committee.

AB 1507 (Smith), of this session, eliminates the authorization for a charter school to be located outside the boundaries of its authorizer in specified instances and authorizes a nonclassroom-based charter school to establish one resource center within the jurisdiction of the school district where the charter school is located. The bill is pending a vote on the Assembly floor.

Analysis Prepared by: Natasha Collins / APPR. / (916) 319-2081

Date of Hearing: April 10, 2019

ASSEMBLY COMMITTEE ON EDUCATION

Patrick O'Donnell, Chair

ABPCA Bill Id:AB 1506 (

Author:McCarty and O’Donnell) – As Amended Ver:April 1, 2019

SUBJECT: Charter schools: statewide total

SUMMARY: Establishes a statewide and local cap on the number of charter schools that can operate. Specifically, this bill:

1. Specifies that the maximum total number of charter schools authorized to operate in this state shall be the total number of charter schools authorized and operating as of January 1, 2020.
2. Requires the State Board of Education (SBE) to develop a numbering system for charter schools that identifies each school associated with a charter and that operates within the statewide limit.
3. Requires the California Department of Education (CDE) to post the statewide limit of charter schools authorized to operate in the state on its internet website.
4. Specifies that a school district, a county office of education, or the state board shall not authorize a charter school above the number of operating charter schools authorized by the respective entity as of January 1, 2020.
5. Specifies that a school district, a county office of education, or the state board may only authorize one charter school after one charter school closes in its respective jurisdiction.
6. Specifies that subject to the limitations, and notwithstanding any other law, a school district, a county office of education, or the state board shall give priority to a charter petition submitted to establish a charter school that will not be operated by an entity that is operating another charter school. 
7. Prohibits the limit to be waived by the SBE.

EXISTING LAW:

1. Specifies that in the 1998–99 school year, the maximum total number of charter schools authorized to operate in this state shall be 250. Specifies that in the 1999–2000 school year, and in each successive school year thereafter, an additional 100 charter schools may be authorized to operate. (Education Code 47602)
2. Requires the SBE to assign a number to each charter petition that it grants and to each charter notice it receives, based on the chronological order in which the notice is received. Specifies that each number assigned by the SBE on or after January 1, 2003, shall correspond to a single petition that identifies a charter school that will operate within the geographic and site limitations. Requires the SBE to develop a numbering system for charter schools that identifies each school associated with a charter and that operates within the existing limit on the number of charter schools that can be approved each year. (Education Code 47602)
3. Prohibits a charter to be granted that authorizes the conversion of any private school to a charter school. Specifies that no charter school shall receive any public funds for a pupil if the pupil also attends a private school that charges the pupil’s family for tuition. (Education Code 47602)

FISCAL EFFECT: Unknown

COMMENTS: This bill establishes a statewide cap on the number of charter schools authorized, as of January 1, 2020. Further, the bill prohibits school districts and county offices of education from authorizing more charter schools beyond the number authorized on January 1, 2020. In the future, after one charter school closes in a school district or county office of education, one new charter school can be authorized, so that the number of charter schools operating does not increase.

Background on Charters: According to the California Department of Education (CDE), in the 2018-19 academic year there were 1,317 charter schools in California, with an enrollment of over 630,000 students. Some charter schools are new, while others are conversions from existing public schools. Charter schools are part of the state's public education system and are funded by public dollars. A charter school is usually created or organized by a group of teachers, parents and community leaders, a community-based organization, or a charter management organization. Charter schools are authorized by school district boards, county boards of education or the State Board of Education. A charter school is generally exempt from most laws governing school districts, except where specifically noted in the law. Specific goals and operating procedures for the charter school are detailed in an agreement (or "charter") between the sponsoring board and charter organizers.

According to the Author: “In 1992, California passed the Charter Schools Act, which encouraged innovation for teachers to open schools to better serve students. Initially, 100 total schools were allowed to operate. In 1998, the Legislature passed a bill to increase the total number to 250, with an additional 100 schools authorized each year. AB 1506 will institute a statewide and local cap on the number of charter schools that can operate at a given time within a district. By implementing a cap, we will not close charter schools, but will rather maintain the current number of charter schools.”

Current Charter School Cap: The current statewide charter school cap is 2,250 for the 2018-19 school year and it increases by 100 each year. The current number of charter schools operating in California is 1,317. The statewide cap is significantly higher than the number of currently authorized charter schools, because the annual increase of 100 charter schools has never been actualized on an annual basis. This essentially makes the statewide cap irrelevant.

Charter School Enrollment: The following research studies demonstrate the charter school enrollment trends.

• Kevin Hesla, Jamison White, and Adam Gerstenfeld. 2019: “California now has five districts with greater than 30% charter enrollment share. In 2017-18, two districts in California passed the 30% charter school enrollment share threshold for the first time: Alum Rock Union Elementary School District and Oakland Unified School District. These districts join Inglewood Unified School District, Franklin-McKinley School District, and Natomas Unified School District. Los Angeles Unified School District tops the nation in both the number of charter schools and the number of students enrolled. In 2017-18, approximately 10% of all California students were enrolled in charter schools.”
• Rebecca David and Kevin Hesla, 2018: In 2017-18, California had approximately 630,300 students enrolled in charter schools – the most in the country next to Texas, which had an estimated 337,000 students in charter schools. In 2017-18, California experienced a 5% growth in both the number of and student enrollment in charter schools.

The graph below illustrates the enrollment growth at charter schools since the 2007-08 school year.

Source: Ricardo Cano CALmatters and California Department of Education

Charter School Saturation Point: According to a 2017 report by In the Public Interest, “A district that already has enough seats for all its students is ineligible for new construction funding. Charter schools, by contrast, are not subject to this constraint, and are frequently built in districts that already have enough seats for the entire projected population. By examining the time and place of school openings, it is possible to gauge the number of charter schools that were built in places where public school construction would not have been authorized. The results are concerning: a total of 447 California charter schools have opened in places where there already were seats available for every student—representing 48% of all schools for which data is available.

At least 30% of charter schools were both opened in places that had no need for additional seats and also failed to provide an education superior to that available in nearby public schools. This number is almost certainly underestimated, but even at this rate, Californians provided these schools combined facilities funding of over $750 million, at a net cost to taxpayers of nearly $400 million.”

Where Are Students Attending Charter Schools?

The majority of California's charter school student population is concentrated in Los Angeles, San Diego and Bay Area counties. The map below shows the density of charter school enrollment across the State.

Source: Ricardo Cano CALmatters and California Department of Education

Charter School Enrollment and Financial Pressure on School Districts: The following research study demonstrates the financial pressure that charter school enrollment has on school districts.

• Gordon Lafer 2018: “Charter schools play a role in financial pressures on school districts. In Spring of 2018, as California school boards finalized their mandatory three-year financial plans—more than 250 school districts were preparing for budget cuts in the upcoming year, with at least 250 more projecting deficits to hit in 2019-20.

By 2016-17, charter schools were costing the Oakland Unified School District a total of $57.3 million per year—a sum several times larger than the entire deficit that shook the system in the fall of 2017. Put another way, the expansion of charter schools meant that there was $1,500 less funding available per year for each child in a traditional Oakland public school. In San Diego, the net cost of charter schools in 2016-17 totaled $65.9 million—more than enough to have avoided the 2018 cuts and restored services lost in earlier years. And in East Side, the net impact of charter schools amounted to a loss of $19.3 million per year, more than enough to avoid the planned round of staff layoffs. In recent years, a growing number of school officials have pointed to increasingly dire fiscal conditions caused by the continued unchecked expansion of charter schools.

Charter schools make it extremely difficult for districts to consolidate schools in the face of falling enrollment. As soon as the district closes a school, a charter school operator is free to open a new school in the same location, or at minimum intensify recruitment efforts targeting the newly dislocated students.

Charter schools themselves are often risky endeavors, and this forces districts to maintain sufficient space to be prepared for potential closures. In the past two decades, over 400 California charter schools have closed; 44 shuttered their doors in 2017-18 alone. And when charter schools close, school districts are legally required to accommodate their students. Thus, the volatility inherent to the charter sector forces school districts to maintain at least a modest cushion of surplus capacity.

For those districts where the overall student population is shrinking, the last thing rational planners would normally do is open more schools. Because the current charter authorization law allows for unlimited expansion even in times of shrinking population, it makes a difficult situation much more dire.”

Arguments in Support: According to San Francisco Unified School District, “Charter schools are a rapidly growing sector of the education system, increasingly targeting low-income areas and communities of color. Unfortunately, this growth has outstripped the pace of research to determine whether students are actually better served in these charter schools, as well as assessments of whether these new charter schools have a detrimental financial impact on other neighborhood schools. Last year, the SFUSD Board of Education unanimously passed a resolution in support of increased oversight, transparency, and accountability for charter schools. AB 1506 aligns with the findings and declarations in that resolution. Establishing a cap on the number of charter schools in the state will give school districts worried about charter school encroachment some breathing room and financial stability.”

Arguments in Opposition: According to the Charter Schools Development Center, “California’s original charter school laws, passed in 1992 capped the number of charter schools in the state at 100, with no more than 10 in any district. These laws were amended in 1998 to raise the statewide cap on the number of charter schools to 250 in 1998-99 and increases the cap by 100 schools each year thereafter. Today the cap on the number of charter schools that may be authorized in the state sits at 2,050 schools, well above the current +/-1,300 schools currently in operation. As such, it’s unclear what value an additional cap would add to the Education Code.”

Committee Amendments: Staff recommends the following amendments:

1. Prohibit the enrollment of a charter school authorized by a school district or county office of education to increase above the number authorized as of January 1, 2020, unless a previously approved petition would expand the number of enrolled pupils at that school.
2. Specify that when a charter school closes in a school district or county office of education, only a classroom-based school, that will not be operated by an entity managing a charter school, may be considered, unless a petitioner that will not be operated by an entity managing a charter school does not submit an application.

Prior Legislation: AB 1982 (Ammiano) from 2010, which failed passage in the Senate Education Committee, would have established a state-wide cap of 1,450 on the number of charter schools that can operate; required the Legislative Analyst’s Office (LAO) to make recommendations regarding the cap by July 1, 2015; prohibited charter school personnel from employing relatives; and, authorized school districts to approve a charter school only if the petition meets specific criteria.

AB 3 X5 (Torlakson) from 2009, deleted the statewide charter school cap and proposed changes to the measurable student outcomes, renewal and revocation procedures for charter schools. This bill was introduced but was not referred to a committee.

REGISTERED SUPPORT / OPPOSITION:

Support

American Federation Of State, County And Municipal Employees, Afl-Cio
California Federation Of Teachers
California State Association Of Electrical Workers
California State Pipe Trades Council
Educators For Democratic Schools
Newhall School District
San Francisco Unified School District
Western States Council Sheet Metal, Air, Rail And Transportation

Individuals

Opposition

Able Charter Schools
Ace Charter Schools
Aerostem Academy (Charter School)
Alliance College-Ready Public Schools
Alma Fuerte Public School
Alpha Public Schools
Alta Public Schools
Apex Academy
Aplus+
Aspire Public Schools
Audeo Charter School
Baypoint Preparatory Academy
Bella Mente Montessori Academy
Bright Star Schools
Bullis Charter School
Caliber Schools
California Charter Schools Association
California Connections Academy
California Pacific Charter Schools
Camino Nuevo Charter Academy
Champs Charter High School Of The Arts
Charter Schools Development Center
Chico Country Day School
Chime Institute
Citizens Of The World Charter School
City Charter Schools
Collegiate Charter High School Of Los Angeles
Community School For Creative Education
Core Charter School
Da Vinci Connect
Da Vinci Schools
Desert Trails Preparatory Academy
Ednovate, Inc.
Education For Change
Edvoice
El Sol Science And Arts Academy
Endeavor College Prep
Environmental Charter Schools
Envision Education
Epic Charter School
Escuela Popular
Excelencia Charter Academy
Excelsior Charter Schools
Extera Public Schools
Fenton Charter Public Schools
Forest Charter School
Gabriella Charter Schools
Gateway College And Career Academy
Girls Athletic Leadership Schools Los Angeles
Goals Academy
Granada Hills Charter High School
Green Dot Public Schools California
Grimmway Schools
Grossmont Secondary School
Guajome Schools
Hawking Steam Charter School
Heritage Peak Charter School
High Tech Los Angeles
Icef Public Schools
Ilead California Charter Schools
Inspire Charter Schools
International School For Science And Culture
Isana Academies
Ivy Academia Entrepreneurial Charter School
James Jordan Middle School
John Muir Charter Schools
Julian Charter School
Kairos Public Schools
Kavod Charter School
Kinetic Academy
Kipp Bayview Academy
Kipp Bayview Elementary
Kipp Bridge Academy
Kipp La Public Schools
La Verne Elementary Preparatory Academy
Language Academy Of Sacramento
Larchmont Charter School
Lashon Academy
Leadership Public Schools
Learn4life Assurance Learning Academy
Leonardo Da Vinci Health Sciences Charter School
Libertas College Preparatory Charter School
Lighthouse Community Public Schools
Literacy First Charter Schools
Los Angeles Academy Of Arts And Enterprise
Los Angeles International Charter School
Los Angeles Leadership Academy
Los Feliz Charter School For The Arts
Magnolia Public Schools
Mirus Secondary School
Multicultural Learning Center
Navigator Schools
New Academy Of Sciences And Arts
New Horizons Charter Academy
New Los Angeles Charter Schools
New West Charter
Norton Science And Language Academy
Nova Academy Early College High School
Oakland Unity High School
Odyssey Charter Schools
Olive Grove Charter School
Orange County Academy Of Sciences And Arts
Orange County Educational Arts Academy
Pacific Charter Institute
Pacoima Charter School
Palisades Charter High School
Para Los Ninos
Partnerships To Uplift Communities Schools
Perseverance Prep
Phoenix Charter Academy
Pivot Charter Schools
Plumas Charter School
Puente Charter School
Resolute Academy
Rio Valley Charter School
Rocketship Public Schools
Rocklin Academy Family Of Schools
Samueli Academy
San Diego Cooperative Charter Schools
San Diego Global Vision Academy
San Jose Conservation Corps & Charter School
Santa Rosa Academy
Scholarship Prep Charter School
Shasta Charter Academy
Sherman Thomas Charter School
Silicon Schools Fund
Soar Charter Academy
Soleil Academy
Springs Charter School
St Hope Public Schools
Stem Prep Schools
Summit Leadership Academy High Desert
Summit Public Schools
Sutter Peak Charter Academy
Sweetwater Secondary School
Sycamore Academy Of Science And Cultural Arts
Sycamore Creek Community Charter School
Taylion Academy
Teach Public Schools
The Academies
The Charter School Of San Diego
The Foundation For Hispanic Education
The Preuss School Ucsd
Thrive Public Schools
Twin Ridges Home Study Charter School
University High School
University Preparatory Academy
Urban Discovery Academy
Valley Charter School
Valley View Charter Prep
Village Charter Academy
Visions In Education
Vista Charter Public Schools
Voices College Bound Language Academies
Vox Collegiate Of Los Angeles
Western Sierra Charter Schools
Westlake Charter School
Wish Charter Schools
Yes Charter Academy
Youth Policy Institute Charter Schools

Individuals

Analysis Prepared by: Chelsea Kelley / ED. / (916) 319-2087