Happy New Law Year to You Officer

21CLETS

As we ring in 2022 on January 1st, we also welcome several new laws that affect law enforcement. Over the last few years several laws have focused on police accountability and criminal justice reform. 2022 will see the most drastic change to law enforcement in the state of California with the implementation of SB2 which adds a licensing component to law enforcement. There are also other significant changes such as AB 89 will lead to additional educational requirements to become a police officer as well as increase the age from 18 to 21. Additionally, AB 481 creates certain requirements for a law enforcement agency regarding the acquisition and use of military equipment making it harder for agencies to obtain and use those resources. Because of the different provisions that are in SB2 I will only focus on that in this article but mention AB 89 and AB481 so that your department can have them in their radar and taking necessary action prior to January 12022. (Like ensuring your 20-year-old new hire begins the academy on or before December 31, 2021.)

SB2

SB2 makes amendments to several existing provisions of law in what law makers have deemed are necessary for police accountability

Amendment to “The Tom Bane Civil Rights Act” (Civ. Code 52.1)

  • Peace officers are NOT immune from liability for instituting or prosecuting a judicial proceeding that lacks probable cause, injury to a prisoner, or failure to take reasonable action when a prisoner requires medical care.

Amendment to Government Code Section 1029

This amendment expands the criteria that disqualifies people from becoming peace officers.

  • An individual to be convicted of a crime immediately upon a guilty or no contest or upon being found guilty at trial.
  • Once this conviction occurs, a person will not regain eligibility to become a peace officer even if the court subsequently sets aside, vacates, withdraws, expunges or otherwise dismisses or reverses the conviction, unless the court makes a finding of factual innocence.

Changes to Penal code section 832.7

Pitchess motion is no longer required when:

  • Sustained finding involving a complaint that alleges unreasonable or excessive force or that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive.
  • Sustained findings that a peace officer made an unlawful arrest or conducted an unlawful search are no longer protected.
  • Where the POST Commission is investigating officer misconduct.
  • Sustained finding involving prejudice or discrimination

SB2 gives the POST Commission the power to decertify peace officers.

If an officer is decertified, they can no longer work as a peace officer in the state of California and are also added to a national list of decertified peace officers, nearly eliminating their chance of working as a peace officer anywhere in the United States.

  • When an officer gets decertified:
  • A peace officer shall have their certification revoked if they become ineligible under Government code 1029.
  • Officers MAY have their certification revoked or suspended if they are
    • terminated from employment for cause or
    • under the following circumstances:
      • Dishonesty;
      • Abuse of Power;
      • Physical Abuse (including excessive or unreasonable force);
      • Sexual Assault;
      • Demonstrating Bias Against a Protected Class;
      • “acts that violate the law and are sufficiently egregious or repeated as to be inconsistent with a peace officer’s obligation to uphold the law or respect the rights of members of the public, as determined by the commission”;
      • Participation in a Law Enforcement Gang;
      • Failure to Cooperate with an Investigation into Potential Police Misconduct
      • Failure to Intercede when Present and Observing Another Officer Using Excessive Force.

How an Officer gets Decertified:

  • An advisory board will be created for the purpose of recommending action to the commission.
  • A peace officer will be entitled to a hearing before the advisory board and the Commission.
  • If an adverse action is recommended by the Commission, the peace officer would be entitled to a hearing before an administrative law judge, who would make determination as to revocation or suspension.
  • The peace officer will have the right to appeal the administrative law judges decision in Superior Court.

The multiple new laws aimed at police officers in 2022 are complex and require departments and individual officers to take steps to ensure they are protected. Much like laws that have been enacted over the last few years, it is imperative that departments, POA’s, and individual officers be proactive before the new year to protect themselves as must as possible.

By: Brandi L. Harper

Managing Partner at Castillo Harper APC which Focuses on Representing First Responders in Administrative, Criminal, Civil, and Family Law Matters.

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