BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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0
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AB 807 (Ammiano)
As Amended April 11, 2013
Hearing date: June 25, 2013
Penal Code
MK:mc
CRIMINAL JUSTICE STATISTICS
HISTORY
Source: American Civil Liberties Union; California Newspaper
Publishers Association
Prior Legislation:SB 1261 (McClintock) - Chapter 306, Stats.
2006
Support: California Attorneys for Criminal Justice
Opposition:California Law Enforcement Association of Records
Supervisors, Inc.; California State Sheriffs'
Association
Assembly Floor Vote: Ayes 65 - Noes 9
KEY ISSUE
SHOULD THE DEPARTMENT OF JUSTICE 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?
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PURPOSE
The purpose of this bill is to require the Department of Justice
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.
Existing law 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 �� 832.7(a) and 6254(f).)
Existing law requires the Department of Justice (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 �� 13010 and 13010.5.)
Existing law specifies that the DOJ annual report contains
statistics regarding the amount and types of offenses known to
public authorities; personal and social characteristics of
criminals and delinquents; 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 � 13012.)
Existing law 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 �
13020.)
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Existing law 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 � 832.5.)
This bill 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:
citizens' complaints, as specified;
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
complaints against the personnel of a department or
agency that employs peace officers in which the identity of
the complainant is unknown.
This bill 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:
"Excessive force," which means a complaint regarding the
use or threatened use of excessive force against a person;
"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;
"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;
"Improper search," which means a complaint that the
search of a person or property was improper;
"Other criminal violation," which means a complaint
regarding the commission of an illegal act not otherwise
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specified;
"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;
"Demeanor," which means a complaint that the personnel's
bearing, gestures, language, or other characteristics or
actions were inappropriate; or
"Other rule violation," which means a complaint for
conduct that violates agency rules, but that is not
encompassed in one of the above categories.
This bill requires DOJ to report within each category of
complaint described above the number of complaints with each of
the following disposition categories:
"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;
"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;
"Not sustained," which means that the investigation
failed to disclose sufficient evidence to clearly prove or
disprove the allegation in the complaint; and
"Unfounded," which means that the investigation clearly
established that the allegation is not true.
This bill 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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
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United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
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the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
The California Supreme Court's decision in Copley Press
v. Superior Court, 39 Cal. App. 4th 1272 (2006),
interpreted the Peace Officer's Bill of Rights to
prohibit the disclosure of information from a peace
officer's personnel file. The current peace officer
disciplinary process is completely shrouded in secrecy.
Public access to the "official record" is nearly
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non-existent despite the overwhelming interest. The
information vacuum has left the public bereft of
official information associated with officer misconduct
and has left many questioning whether community law
enforcement agency disciplinary systems are too lax or
too harsh; whether they are applied consistently and
fairly; whether serially violent and malicious officers
are weeded from the ranks and whether disciplined
officers will become embittered in the process or learn
from their mistakes.
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2. Copley Press, Inc.
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). In Copley, 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. The Court considered
whether CPRA requires disclosure of records of a county civil
service commission relating to a peace officer's disciplinary
matter. The Court majority concluded that the commission's
files were confidential files of the 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. The dissenting opinion
argued that 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. 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 privacy rights,
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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 � 6250.)
4. Statistical Data on Law Enforcement Complaints
In addition to the criminal justice information already
collected and reported annually by DOJ, this bill would require
that DOJ collect information received by individual law
enforcement agencies. The bill will require that the complaints
be categorized by specified types of complaints. The statistics
shall also indicate whether the complaints were sustained,
exonerated or not sustained. The DOJ shall also keep
information on the total number of felony and misdemeanor
convictions incurred by peace officers for conduct occurring on
or off duty.
This bill intends to seek a balance between the public right to
know how their law enforcement agencies are performing and a
peace officer's right to keep personnel records confidential.
5. Support
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.
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
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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 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."
6. Opposition
California Law Enforcement Association of Record Supervisors,
Inc., opposes stating:
Local law enforcement agencies are grappling with
significant budget cuts over the last several years
while trying to maintain critical services. Adding
this additional
reporting requirement would only further divert limited
resources away from providing current services and add
additional costs that would be incurred for counties to
capture and report this additional information.
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