BILL ANALYSIS �
AB 807
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Date of Hearing: April 9, 2013
Counsel: Shaun Naidu
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 807 (Ammiano) - As Amended: March 21, 2013
As Proposed to be Amended in Committee
SUMMARY : Requires the Department of Justice (DOJ) to include
in its annual report on criminal statistics additional
statistical information relating to complaints received by law
enforcement agencies and criminal convictions of peace officers.
Specifically, this bill :
1)Requires the DOJ to include in its annual report to the
Governor statistical information, for each individual law
enforcement agency, relating to the following types of
complaints received by law enforcement agencies:
a) Citizens' complaints, as specified;
b) Complaints against the personnel of a department or
agency that employs peace officers that are made by that
personnel's supervisor or by the personnel of another
department or agency that employs peace officers; and
c) Complaints against the personnel of a department or
agency that employs peace officers in which the identity of
the complainant is unknown.
2)Requires the DOJ to categorize each complaint described above
into one of the following categories and report the number of
complaints within each category for each individual law
enforcement agency:
a) "Excessive force," which means a complaint regarding the
use or threatened use of excessive force against a person;
b) "Improper arrest," which means a complaint that the
restraint of a person's liberty was improper or unjust or
violated a person's civil liberties;
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c) "Improper entry," which means a complaint that the entry
into a building or onto property was improper or that
excessive force was used against property to gain entrance
into a building or onto property;
d) "Improper search," which means a complaint that the
search of a person or property was improper;
e) "Other criminal violation," which means a complaint
regarding the commission of an illegal act not otherwise
specified;
f) "Differential treatment," which means a complaint that
the taking, failure to take, or method of police action was
predicated upon irrelevant factors, including, but not
limited to, race, appearance, age, or sex;
g) "Demeanor," which means a complaint that the personnel's
bearing, gestures, language, or other characteristics or
actions were inappropriate; or
h) "Other rule violation," which means a complaint for
conduct that violates agency rules, but that is not
encompassed in one of the above categories.
3)Requires DOJ to report within each category of complaint
described above the number of complaints with each of the
following disposition categories:
a) "Sustained," which means that the investigation
disclosed sufficient evidence to prove the truth of the
allegation in the complaint by a preponderance of the
evidence;
b) "Exonerated," which means that the investigation clearly
established that the personnel's actions alleged in the
complaint are not a violation of law or agency policy;
c) "Not sustained," which means that the investigation
failed to disclose sufficient evidence to clearly prove or
disprove the allegation in the complaint; and
d) "Unfounded," which means that the investigation clearly
established that the allegation is not true.
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4)Requires DOJ to include in its annual report to the Governor
the total number of felony and misdemeanor convictions
incurred by peace officers for conduct occurring on- and
off-duty.
EXISTING LAW :
1)Provides that, except as specified, peace officer personnel
records and records maintained by any state or local agency as
specified are confidential and that records of complaints to
any state or local police agency, except as specified, are not
required to be disclosed to the public. [Penal Code Sections
832.7(a) and 6254(f).]
2)Requires DOJ to collect and to present an annual report to the
Governor of, among other statistics, the total, gross number
of citizens' complaints received by law enforcement agencies,
without referencing any individual agency. [Penal Code
Sections 13010 and 13010.5.]
3)Specifies that the DOJ annual report contains statistics
regarding the amount and types of offenses known to public
authorities; the personal and social characteristics of
criminals and delinquents; the administrative actions taken by
law enforcement, judicial, penal, and correctional agencies or
institutions, including those in the juvenile justice system,
in dealing with criminals or delinquents; and the number of
citizens' complaints received by law enforcement agencies, as
specified. [Penal Code Section 13012.]
4)Requires every person and agency that deals with crimes or
criminals or with delinquency or delinquents to maintain
specified records and report statistical data to the DOJ when
requested by the Attorney General. [Penal Code Section
13020.]
5)Requires every department or agency in California 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 make a written description
of the procedure available to the public. [Penal Code Section
832.5.]
FISCAL EFFECT : Unknown
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COMMENTS :
1)Author's Statement : According to the author, "The vast
majority of police officers are honest, loyal, and hardworking
professionals. The broad-brush strokes of officer brutality
and excessive force sometimes painted by the media are almost
always the product of misconduct by a small minority of
officers. But the misconduct of a few can often taint the
reputation of many.
"Over the past seven years there have been a series of high
high-profile incidents of peace officer misconduct. These
instances challenge law enforcement agencies-even the largest
and most sophisticated agencies-to detect, effectively
intervene in, or prevent instances of officer misconduct and
to remove from the agency those officers who cannot conform
their conduct to the agency's policies and the rule of law.
"The California Supreme Court's decision in Copley Press
interpreted the Peace Officer's Bill of Rights to prohibit the
disclosure of information from the personnel records of a
peace officer requested pursuant to the California Public
Records Act and additionally held that the information is
exempt from disclosure even when held by a civil service
commission that hears appeals after officers have been
disciplined. As a result of the Copley Press decision, all
appeals of officer discipline now occur behind closed doors
and the public has no right of access to the adjudicated
facts, process or outcome. In fact, a commonly held
interpretation of Copley Press is that it prohibits and
removes the discretion of law enforcement agency employers and
civil service commission to disclose facts and outcomes
associated with serious confirmed cases of misconduct even if
the agency or commission believes it is in the highest public
interest to release the information.
"This lack of public access of the official hearings and
records associated with officer misconduct creates the public
perception that some officers have engaged in many instances
of serious and violent misconduct over their careers and are
allowed by their employing agency to continue both their
employment and bad behavior.
"Because public access to the official record associated with
cases of officer misconduct is suppressed from origination to
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outcome by the force of law, the public has no choice but to
get its information as it can, from alleged victims of
official abuse, leaks and the media. This official secrecy
often creates one-sided perceptions about alleged officer
misconduct that cannot be balanced because of the nearly
absolute muzzle placed on law enforcement agencies by state
law. California's policy of official secrecy unfairly creates
widespread public perception that investigations of serious
officer misconduct and the administration of discipline are
handled unfairly, capriciously, inconsistently, and
unprofessionally. The ramifications of this public perception
are extremely damaging to the mission of California law
enforcement agencies and to the safety and morale of officers.
"The DOJ is required to collect minimal information from law
enforcement agencies in order to tabulate, analyze, and
interpret data, and to prepare an annual report presenting
these statistics from previous years. AB 807 would require the
DOJ to include additional statistics relating to complaints
received by law enforcement agencies and outcomes of
discipline proceedings."
2)Background : In Copley Press, Inc. v. Superior Court (County
of San Diego) (2006) 39 Cal.4th 1272, the California Supreme
Court concluded that the Penal Code, as written, exempts peace
officer personnel records from disclosure requirements under
the California Public Records Act (CPRA).
a) Facts : A newspaper in San Diego sought records through
public records request from a public commission. The
records sought were related to the facts and circumstances,
and what discipline was ordered of an officer for failure
to arrest a suspect in a domestic violence incident despite
having probable cause to do so, failure to prepare a
written report documenting the incident, and dishonesty in
falsely indicating in the patrol log that the victim bore
no signs of injury and that the suspect was "gone on
arrival."
b) Issue : The Court considered whether CPRA requires
disclosure of records of a county civil service commission
relating to a peace officer's disciplinary matter.
c) Majority Opinion (Justice Chin) : The Court concluded
that the commission's files were confidential files of the
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employing agency within the meaning of the Penal Code. The
Court also ruled that the press has no constitutional right
of access to peace officer personnel records because the
California Constitution specifically exempts such records
and because there is no First Amendment right to particular
government information.
d) Dissenting Opinion (Justice Werdegar) : The majority
misconstrues the intent of the Penal Code, thereby
overvaluing the peace officer's interest in privacy, and
undervalues the public's interest in disclosure, and
ultimately fails to implement the Legislature's careful
balance of the competing concerns in this area.
3)Bradshaw Decision (Overturned by Copley) : The Second District
Court of Appeal previously ruled in 1990 that Penal Code
Section 832.7 did not prohibit public disclosure of the
findings of a police department's board of rights disciplinary
hearing recommending suspension of an officer. The officer,
having been previously advised that "shake downs" by persons
impersonating police officers or police officers acting
improperly had been taking place, detained two uniformed
deputy sheriffs as suspects, forcing them to lie face down on
the pavement until their identities were verified. The
statute, which provides that peace officer personnel records
are "confidential" and not to be disclosed in any criminal or
civil proceeding except by appropriate judicial discovery,
specifically refers only to restrictions in civil or criminal
proceedings, and thus does not prohibit a public agency from
disclosing the information to the public. [Bradshaw v. City
of Los Angeles (1990) 221 Cal.App.3d 908.]
As a result of the Supreme Court's ruling in Copley, the
Bradshaw precedent under which the state had been operating
since 1990 was abrogated. The Supreme Court in Copley
expressly disapproved of Bradshaw.
4)Officers' Right to Privacy vs. the Public's Right to
Information : The California Constitution states that there
are certain inalienable rights held by all people, the right
to privacy among them, and that the right of the people to
scrutinize information "concerning the conduct of the people's
business" does not supersede or modify the privacy right with
respect to official performance of a peace officer. [Cal.
Const. Art. I, Sections 1 and 3(b)(3).] Mindful of individual
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privacy rights, the Legislature, in enacting the California
Public Records Act, declared that "access to information
concerning the conduct of the people's business is a
fundamental and necessary right of every person in this
state." [Government Code Section 6250.]
Does AB 807 strike a balance between peace officers' right to
privacy in their personnel records and the public's right to
information? Does the information provided by this bill help
keep law enforcement agencies accountable to the public
without risk of undue adverse consequences to the officer?
5)Police Misconduct Perception : Tasked with enforcing laws, law
enforcement agencies and peace officers are entrusted with
fairly and consistently using their authority and making sure
that official misconduct is dealt with appropriately if and
when it arises. As proponents of AB 807 argue, with the
prohibition to access information relating to police
misconduct complaints and their outcomes, the public is left
to obtain information of any alleged incident from alleged
victims, leaks, or the media, which may be skewed or biased.
Does or could the dynamic under existing law lead to a
perception among the public that investigations of police
misconduct and the administration of discipline are handled
unfairly, inconsistently, or unprofessionally?
6)Arguments in Support :
a) According to the California Newspaper Publishers
Association , "The public needs specific information about
serious instances of police misconduct and how police
agencies deal with it so that it is reassured that those
entrusted with tremendous authority are using their power
fairly and that misconduct is not sanctioned or
sidestepped. Without access to detailed information, the
public's respect for its police agency and its officers is
immeasurably damaged."
b) According to the American Civil Liberties Union of
California , "Current law requires DOJ to publicly produce
an annual report compiling the number of citizen complaints
against peace officers and the number of complaints
sustained. Penal Code 13012(c). Unfortunately, this
report fails to provide the public any meaningful
information about the efficacy of existing policy agency
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disciplinary systems as it is compiled only by gross
numbers and not by individual agencies. This legislation
takes a modest step in rectifying that deficiency"
7)Prior Legislation :
a) SB 1261 (McClintock), Chapter 306, Statutes of 2006,
required the DOJ to create an additional on-line report
containing specified criminal justice information as
reported by individual law enforcement agencies.
b) SB 1390 (Poochigian), Chapter 160, Statutes of 2006,
required the DOJ to publish statistical data regarding
identity theft arrests in DOJ's annual report on crime in
California.
c) SB 1234 (Kuehl), Chapter 700, Statutes of 2004, required
the Attorney General, upon the availability of funding, to
direct local law enforcement agencies to report to the DOJ
information relative to hate crimes.
d) AB 715 (Firebaugh), Chapter 626, Statutes of 2000, added
national origin to the list of victim characteristics that
the Attorney General directs local law enforcement agencies
to report to the DOJ.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union of California
California Attorneys for Criminal Justice
California Newspaper Publishers Association
Opposition
None
Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744
AB 807
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PROPOSED AMENDMENTS TO ASSEMBLY BILL NO. 807
Proposed Amendment 1
On page 3, in line 7, strike out "Citizen's" and insert:
Citizens'
Proposed Amendment 2
On page 3, in line 18, strike out "(ix)" and insert:
(viii)