BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 953 Hearing Date: July 7, 2015
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|Author: |Weber |
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|Version: |June 30, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JRD |
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Subject: Law Enforcement: Racial Profiling
HISTORY
Source: American Civil Liberties Union of California;
California State Conference of the NAACP; Youth
Justice Coalition; Asian Americans Advancing Justice -
Sacramento; PICO California; Reform California;
Dignity & Power Now
Prior Legislation:AB 2133 (Torrico) - died Assembly Public
Safety, 2006
AB 788 (Firebaugh) - died in Assembly, 2001
SB 1102 (Murray) - Chapter 684, Statutes of 2000
SB 78 (Murray) - vetoed, 1999
AB 1264 (Murray) - vetoed, 1998
Support: Advancing Justice; Advancement Project; AIDS Project
Los Angeles; Alliance for Boys and Men of Color;
American Federation of State, County and Municipal
Employees; API Equality-LA; Asian Law Alliance; Asian
Pacific Islander Legal Outreach; Bay Area Youth
Summit; Board of Rabbis of Southern California; Brown
Boi Project; California Black Health Network;
California Immigrant Policy Center; California Nurses
Association; California Partnership; California State
Council of Service Employees International; City of
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West Hollywood; Children's Defense Fund-California;
Community Coalition; Council on American-Islamic
Relations; Courage Campaign; Dignity & Power Now; Drug
Policy Alliance; Ella Baker Center for Human Rights;
Empowering Pacific Islander Communities; Equal Justice
Society; FACTS Education Fund and Faire Chance
Project; Friends Committee of Legislation of
California; The Greenlining Institute; Immigrant Legal
Resource Center; Immigrant Youth Coalition; Islamic
Shura Council; Interfaith Center for Worker Justice;
Japanese American Citizens League; Justice for
Immigrants Coalition of Inland Southern California;
the K.W. Lee Center for Leadership; LA Progressive;
Lawyers' Committee for Civil Rights of the San
Francisco Bay Area; Legal Services for Prisoners with
Children; Los Angeles Black Worker Center; Los Angeles
LGBT Center; Los Angeles Regional Reentry Project;
Los Angeles Urban League; Mexican American Legal
Defense and Education Fund (MALDEF); National Center
for Lesbian Rights; National Lawyers Guild; National
Asian Pacific American Women's Forum; A New Path;
PACT: People Acting in Community Together; PolicyLink;
Progressive Christians Uniting; San Francisco Public
Defender; San Diego Immigrant Rights Consortium; San
Diego LGBT Community Center; South Asian Network;
Priority Africa Network; Southeast Asia Resource
Action Center
Opposition:California State Sheriffs' Association; Association
for Los Angeles Deputy Sheriffs; California College
and University Police Chiefs Association; California
Correctional Supervisors Organization; California
Narcotic Officers Association; California Police
Chiefs Association; California Association of Highway
Patrolmen; Los Angeles Police Protective League;
Riverside Sheriffs Association
Assembly Floor Vote: 45 - 27
PURPOSE
The purpose of this bill is to: 1) modify the definition of
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"racial profiling;" 2) require local law enforcement agencies to
report specified information on stops to the Attorney General's
office; and, 3) establish the Racial and Identity Profiling
Advisory Board (RIPA).
Existing law prohibits a law enforcement officer from engaging
in racial profiling. (Penal Code § 13519.4(f).)
Existing law defines "racial profiling," as "the practice of
detaining a suspect based on a broad set of criteria which casts
suspicion on an entire class of people without any
individualized suspicion of the particular person being
stopped." (Penal Code § 13519.4(e).)
Existing law requires that the course of basic training for law
enforcement officers include adequate instruction on racial and
cultural diversity in order to foster mutual respect and
cooperation between law enforcement and members of all racial
and cultural groups. (Penal Code § 13519.4(b).)
Existing law requires the DOJ to present to the Governor, on or
before July 1st, an annual report containing the criminal
statistics of the preceding calendar year. (Penal Code §
13010(g).)
Existing law mandates that the annual report contain statistics
showing all of the following:
The amount and the types of offenses known to the 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;
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The administrative actions taken by law enforcement,
prosecutorial, judicial, penal, and correctional agencies,
including those in the juvenile justice system, in dealing
with minors who are the subject of a petition or hearing in
the juvenile court to transfer their case to the
jurisdiction of an adult criminal court or whose cases are
directly filed or otherwise initiated in an adult criminal
court; and,
The number of citizens' complaints received by law
enforcement agencies, as specified. The statistics must
indicate the total number of these complaints, the number
alleging criminal conduct of either a felony or
misdemeanor, and the number sustained in each category.
The report shall not contain a reference to any individual
agency but shall be by gross numbers only.
(Penal Code § 13012.)
Existing law requires state and local law enforcement agencies
to report statistical data to the DOJ at those times and in the
manner that the Attorney General prescribes. (Penal Code §
13020.)
This bill requires, beginning March 1, 2018, each state and
local agency that employs peace officers to annually report to
the Attorney General's office data on all stops, as specified,
conducted by that agency's peace officers for the preceding
calendar year.
This bill requires the reporting to include the following
information for each stop:
The reason for the stop;
The result of the stop, such as no action, warning,
citation, property seizure, or arrest;
If a warning or citation was issued, the warning
provided or violation cited;
If an arrest was made, the offense charged;
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The perceived race or ethnicity, gender, and approximate
age of the person stopped. The identification of these
characteristics shall be based on the observation and
perception of the peace officer making the stop. For auto
stops, this requirement applies only to the driver unless
actions taken by the officer apply in relation to a
passenger, in which case his or her characteristics shall
also be reported.
Actions taken by the officer during the stop, including,
but not limited to, the following:
o Whether the officer asked for consent to search the
person, and if so, whether consent was provided;
o Whether the officer searched the person or any
property, and if so, the basis for the search, and the
type of contraband or evidence discovered, if any; and
o Whether the officer seized any property and, if so,
the type of property that was seized, and the basis for
seizing the property.
This bill provides that if more than one peace officer performs
a stop, only one officer is required to collect and report the
necessary information.
This bill prohibits state and local law enforcement agencies
from reporting the name, address, social security number, or
other unique personal identifying information of persons
stopped, searched, or subjected to a property seizure.
This bill states that, notwithstanding any other law, the data
reported shall be made available to the public to the extent
which release is permissible under state law, with the exception
of badge number, or other unique identifying information of the
officer involved.
This bill requires the Attorney General, to issue regulations
for the collection and reporting of the required data by January
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1, 2017. The Attorney General should consult with specified
stakeholders in issuing the regulations.
This bill mandates that the regulations specify all data to be
reported, and provide standards, definitions, and technical
specifications to ensure uniform reporting practices. To the
extent possible, the regulations should also be compatible with
any similar federal data collection or reporting program.
This bill requires each state and local law enforcement agency
to publicly report the data on an annual basis beginning on July
1, 2018. The report should be posted on the law enforcement
agency's Web site, and in the event the agency does not have a
Web site, it shall be posted on the Department of Justice (DOJ)
Web site.
This bill requires retention of the reported data for at least
five years.
This bill mandates that the Attorney General annually analyze
the data collected and report its findings from the first
analysis by January 1, 2019. Reports are to be posted on the
DOJ Web site.
This bill specifies that all data and reports made under these
provisions are public records, as specified, and are open to
public inspection.
This bill limits the definition of a "peace officer" for
purposes of this section to "members of the California Highway
Patrol, a city or county law enforcement agency and California
state or university educational institutions." And, the
definition explicitly states that peace officer, as used in this
section, do not include probation officers and officers in a
custodial setting.
This bill defines "stop" for purposes of this section, as "any
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detention by a peace officer of a person, or any peace officer
interaction with a person in which the peace officer conducts a
search, including a consensual search, of the person's body or
property in the person's possession or control."
This bill revises the content of the DOJ annual report on
criminal statistics to report the total number of each of the
following citizen complaints:
Citizen complaints against law enforcement personnel;
Citizen complaints alleging criminal conduct of either a
felony or misdemeanor;
Citizen complaints alleging racial or identity
profiling, disaggregated by the specific type of racial or
identity profiling alleged.
This bill specifies that the statistics on citizen complaints
must identify their dispositions as being sustained, exonerated,
not sustained, unfounded, as specified.
This bill revises legislative findings and declarations
regarding racial and identity profiling.
This bill renames "racial profiling" as "racial or identity
profiling" and redefines it as "consideration of or reliance on,
to any degree, actual or perceived race, color, ethnicity,
national origin, age, religion, gender identity or expression,
sexual orientation, or mental or physical disability in deciding
which persons to subject to a stop or in deciding upon the scope
and substance of law enforcement activities following a stop,
except that an officer may consider or rely on characteristics
listed in a specific suspect description. The activities
include, but are not limited to, traffic or pedestrian stops, or
actions during a stop, such as, asking questions, frisks,
consensual and nonconsensual searches of a person or any
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property, seizing any property, removing vehicle occupants
during a traffic stop, issuing a citation, and making an
arrest."
This bill requires any peace officer who has a complaint of
racial or identity profiling that is sustained to participate in
training to correct racial and identity profiling at least every
six months for two years.
This bill mandates the Attorney General establish RIPA beginning
July 1, 2016, for the purpose of eliminating racial and identity
profiling, and improving diversity and racial sensitivity in law
enforcement.
This bill provides that RIPA shall include the following
members:
The Attorney General, or a designee;
The President of the California Public Defenders
Association, or a designee;
The President of the California Police Chiefs
Association, or a designee;
The President of the California State Sheriffs'
Association, or a designee;
The President of the Peace Officers Research Association
of California, or a designee;
The Commissioner of the California Association of
Highway Patrolmen, or a designee;
The Chair of the California Legislative Black Caucus, or
designee;
The Chair of the California Latino Legislative Caucus,
or designee;
The Chair of the California Asian and Pacific Islander
Legislative Caucus, or designee;
The Chair of the California Lesbian, Gay, Bisexual, and
Transgender Legislative Caucus, or designee;
A university professor who specializes in policing, and
racial and identity equity;
Two representatives of civil or human rights tax-exempt
organizations who specialize in civil and human rights and
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criminal justice;
Two representatives of community organizations
specializing in civil or human rights and criminal justice
and who work with victims of racial and identity profiling;
Two clergy members who specialize in addressing and
reducing racial and identity bias toward individuals and
groups or practices; and,
Up to two other members that the Attorney General may
prescribe.
This bill tasks RIPA with the following:
Analyzing data reported, as specified;
Analyzing law enforcement training on racial and
identity profiling;
Work in partnership with state and local law enforcement
agencies to review and analyze racial and identity
profiling policies and practices;
Issuing an annual report the first of which shall be
issued by January 1, 2018, and posting the reports on its
Internet Web site; and,
Holding at least three annual public meetings to discuss
racial and identity profiling and potential reforms, as
specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
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143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity." (
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for Legislation
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According to the author:
AB 953 will help eliminate the harmful and unjust
practice of racial and identity profiling, and improve
the relationship between law enforcement and the
communities they serve. AB 953 promotes equal
protection and prevents unreasonable searches and
seizures.
Peace officers risk their lives every day, and the
people of California greatly appreciate their hard
work and dedication to public safety. At the same
time, a recent poll shows that 55% of Californians and
85% of African-Americans in California believe that
"blacks and other minorities do not receive equal
treatment in the criminal justice system."<1> Racial
and identity profiling significantly contributes to
this lack of confidence in our justice system.
Racial and identity profiling occurs when law
enforcement personnel stop, search, seize property
from, or interrogate a person without evidence of
criminal activity. Studies show that profiling often
occurs due to unconscious biases about particular
demographic identities.<2>
AB 953 would prevent profiling by, among other things,
clarifying and modernizing California's current
prohibition against profiling to better account for
the ways in which profiling occurs, establishing a
uniform system for collecting and analyzing data on
law enforcement-community interactions, and
establishing an advisory board that investigates
profiling patterns and practices and provides
recommendations on how to curb its harmful impact.
2. Effect of Legislation
-------------------------
<1> Mark Aaldassare et al., Californians & their government,
(PPIC Jan. 2015).
<2> Tracey G. Gove, Implicit Bias and Law Enforcement, Police
Chief Magazine (Oct. 2011),
.)
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Law enforcement officers are prohibited from engaging in racial
profiling. (Penal Code § 13519.4(f).) "Racial profiling" is
currently defined as the practice of detaining a suspect based
on a broad set of criteria which casts suspicion on an entire
class of people without any individualized suspicion of the
particular person being stopped. (Penal Code § 13519.4(e).)
Although racial profiling is prohibited, studies show that
racial profiling by law enforcement does occur. For example,
according to a report by the Oakland Police Department,
African-Americans, who compose 28 percent of Oakland's
population, accounted for 62 percent of police stops from last
April to November. The figures also showed that stops of
African-Americans were more likely to result in felony arrests.
And, while African-Americans were more likely to be searched
after being stopped, police were no more likely to find
contraband from searching African-Americans than members of
other racial groups. (http://www.mercurynews.com/crime-
courts/ci_25410009/report-blacks-comprise-62-percent-oakland-poli
ce-stops.)
Likewise, in 2010, the Los Angeles Times reported that "The U.S.
Department of Justice has warned the Los Angeles Police
Department that its investigations into racial profiling by
officers are inadequate and that some cops still tolerate the
practice."? "The Justice Department's concerns, which were
conveyed in a recent letter obtained by The Times, are a setback
for the LAPD, which remains under federal oversight on the
issue." The article noted, "Profiling complaints typically
occur after a traffic or pedestrian stop, when the officer is
accused of targeting a person solely because of his or her race,
ethnicity, religious garb or some other form of outward
appearance. About 250 such cases arise each year, but more
damaging is the widely held belief, especially among black and
Latino men, that the practice is commonplace."
(http://articles.latimes.com/2010/nov/14/local/la-me-lapd-bias-20
101114.)
3. Argument in Support
The American Civil Liberties Union of California states, in
part:
. . . AB 953 Would Facilitate the Development of
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Evidenced-Based Policing by Establishing a Uniform
System for Collecting and Reporting Information on
Stops, Searches and Property Seizures
In A Resource Guide on Racial Profiling Data Collection
Systems: Promising Practices and Lessons Learned, the
federal DOJ explains that having a system for collecting
and reporting data on law enforcement stops, searches
and property seizures facilitates the development of
evidenced-based solutions to profiling, and builds
public confidence in law enforcement:
[I]n the long run the systemic collection of
statistics and information regarding law
enforcement activities support community policing
by building trust and respect for the police in
the community. The only way to move the
discussion from rhetoric and accusation to a more
rational dialogue about appropriate enforcement
strategies is to collect the information that
will either allay community concerns about the
activities of the police or help communities
ascertain the scope and magnitude of the
problem.<3>
The federal DOJ's Resource Guide also highlights that
agencies collecting such data now have computerized and
radio-dispatch systems that alleviate the need for
outdated written forms, and allow officers to report
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<3> A Resource Guide on Racial Profiling Data Collection
System: Promising Practices and Lessons Learned at 5 (2000),
available at
http://justice.utah.gov/Documents/Research/Race/DOJResourceGuide.
pdf.
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stops, searches and seizures in mere seconds.<4>
. . . AB 953 Would Facilitate the Development of
Solutions that Improve Law Enforcement-Community
Relations by Creating a Racial and Identity Profiling
Advisory Board
In light of recommendations from the Police Executive
Research Forum ("PERF") and the federal DOJ's Office of
Community Oriented Policing Services ("COPS"), AB 953
would create a diverse, multi-stakeholder advisory
committee, called the "Racial and Identity Profiling
Advisory Board," composed of social scientists and
policing experts, as well as representatives of law
enforcement, civil rights groups, clergy, and the
Legislature. The Advisory Board would be tasked with
the duty of analyzing data, training programs, and
policies and practices on profiling, and making
recommendations on how to prevent profiling. According
to PERF and COPS, this approach not only provides the
benefit of facilitating "buy in" by law enforcement
officers who collect data, but also helps enhance the
credibility of research efforts, and increases the
likelihood that communities view data reporting and
recommended reforms as legitimate.<5>
In sum, the persistence of profiling in our state
violates the U.S. and California Constitutions by
betraying the fundamental promise of equal protection,
and infringing upon the guarantee that all people shall
be free from unreasonable searches and seizures. It
also misdirects limited resources away from
evidenced-based policing and the efficient pursuit of
individuals who actually pose a threat to public safety,
thus making all Californians less safe. To improve
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<4> A Resource Guide on Racial Profiling Data Collection
System: Promising Practices and Lessons Learned at 5 (2000),
available at
http://justice.utah.gov/Documents/Research/Race/DOJResourceGuide.
pdf.
"The additional time an officer needs to clear a call is
less than three seconds." Id. at 20.
"It is estimated that it will take officers an
additional 20 to 30 seconds to enter the data by making
choices on the computer pulldown menus." Id. at 26.
<5> Lori A. Fridell, By the Numbers: A Guide for Analyzing Race
Data from Vehicle Stops, 38-41 (PERF & COPS 2004); Lori Fridell
et al., Racial Biased Policing: A Principled Response, 102-104
(PERF & COPS 2001).
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public safety, protect the fundamental rights of all
Californians, and advance police-community relations,
the ACLU of California strongly supports the enactment
of AB 953.
4. Argument in Opposition
According to the California State Sheriffs' Association:
The California State Sheriffs' Association (CSSA)
remains opposed to Assembly Bill 953, which would
hinder important police work and enact costly
requirements on law enforcement agencies regarding
racial profiling.
AB 953 significantly expands the definition of racial
profiling such that it prevents an officer from
relying on identifying characteristics in any way in
terms of deciding how to conduct police work.
Specifically, by prohibiting an officer from
considering or relying on, to any degree, a person's
actual or perceived race, color, ethnicity, national
origin, age, religion, gender identity or expression,
sexual orientation, or mental or physical disability
in deciding which persons to subject to a stop or in
deciding upon the scope or substance of law
enforcement activities following a stop, this bill
would prevent an officer from using the fact that a
person appears to be a Caucasian female in deciding
how to respond to a "be on the lookout" order that
indicates that a white woman is suspected to have
committed a crime. If such a person were stopped
because of a traffic violation, the perceived race and
gender characteristics could not be considered in
deciding whether to escalate enforcement activities.
Additionally, AB 953 would require every law
enforcement agency to annually report to the Attorney
General (AG) data on all stops. Some of the data
points that must be collected at every stop include:
the reason for, and result of, the stop; if an arrest
was made, the offense charged; whether the subject was
searched; and the perceived race or ethnicity, gender,
and approximate age of the person stopped, provided
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that the identification of these characteristics shall
be based on the observation and perception of the
peace officer making the stop, and the information
shall not be requested from the person stopped. In
essence, and counterintuitively, the bill seeks to
combat racial profiling by requiring peace officers to
pay very close attention to the race of the people
with whom they interact.
Respectfully, AB 953 will hamstring peace officers and
prevent them from doing their jobs effectively. The
bill is overly broad and will result in negative
impacts on public safety and local budgets. For these
reasons, CSSA must oppose AB 953.
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