California Legislature—2015–16 Regular Session

Assembly Bill No. 1953

Introduced by Assembly Member Weber

February 12, 2016

An act to amend Section 8332 of the Government Code, to amend Sections 148.6, 832.18, 13010.5, 13012, and 13012.5 of the Penal Code, and to amend Section 41603 of the Vehicle Code, relating to public safety.

LEGISLATIVE COUNSEL’S DIGEST

AB 1953, as introduced, Weber. Peace officers: civilian complaints.

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 to make a written description of the procedure available to the public. Existing law also refers to these complaints as citizens’ complaints. Existing law sets forth specified policies and procedures relating to citizens’ complaints. Among other things, existing law makes it a misdemeanor to file an allegation of misconduct against a peace officer knowing the allegation to be false. Existing law requires a law enforcement agency accepting an allegation of misconduct against a peace officer to require the complainant to read and sign a specified advisory that describes, generally, the law and procedure governing citizens’ complaints. Existing law also requires the Department of Justice to prepare and present to the Governor, on or before July 1, an annual report containing the criminal statistics of the preceding calendar year, including, among other statistics, the total number of citizen complaints alleging racial or identity profiling, as specified.

This bill would delete references to citizens’ complaints and instead refer to civilians’ complaints.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 8332 of the Government Code is amended
to read:

8332.  

It is the intent of the Legislature that this chapter begin delete shall end delete
begin insert does end insert not apply to the Reporting of Improper Governmental
Activities Act (Article 3 (commencing with Section 8547) of
Chapter 6.5) or the procedures established to investigate begin delete citizens’ end delete
begin insert civilians end insert begin insert ’ end insert complaints against peace officers as required by Section
832.5 of the Penal Code.

SEC. 2.  

Section 148.6 of the Penal Code is amended to read:

148.6.  

(a) (1) Every person who files any allegation of
misconduct against any peace officer, as defined in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2, knowing the
allegation to be false, is guilty of a misdemeanor.

(2)  begin delete Any end delete begin insert A end insert law enforcement agency accepting an allegation of
misconduct against a peace officer shall require the complainant
to read and sign the following advisory, all in boldface type:
YOU HAVE THE RIGHT TO MAKE A COMPLAINT AGAINST
A POLICE OFFICER FOR ANY IMPROPER POLICE
CONDUCT. CALIFORNIA LAW REQUIRES THIS AGENCY
TO HAVE A PROCEDURE TO INVESTIGATE begin delete CITIZENS’ end delete
begin insert CIVILIANS end insert begin insert ’ end insert COMPLAINTS. YOU HAVE A RIGHT TO A
WRITTEN DESCRIPTION OF THIS PROCEDURE. THIS
AGENCY MAY FIND AFTER INVESTIGATION THAT THERE
IS NOT ENOUGH EVIDENCE TO WARRANT ACTION ON
YOUR COMPLAINT; EVEN IF THAT IS THE CASE, YOU
HAVE THE RIGHT TO MAKE THE COMPLAINT AND HAVE
IT INVESTIGATED IF YOU BELIEVE AN OFFICER
BEHAVED IMPROPERLY. begin delete CITIZEN end delete begin insert CIVILIAN end insert COMPLAINTS
AND ANY REPORTS OR FINDINGS RELATING TO
COMPLAINTS MUST BE RETAINED BY THIS AGENCY FOR
AT LEAST FIVE YEARS.
IT IS AGAINST THE LAW TO MAKE A COMPLAINT THAT
YOU KNOW TO BE FALSE. IF YOU MAKE A COMPLAINT
AGAINST AN OFFICER KNOWING THAT IT IS FALSE, YOU
CAN BE PROSECUTED ON A MISDEMEANOR CHARGE.

 

I have read and understood the above statement.
Complainant

 

(3) The advisory shall be available in multiple languages.

(b) Every person who files a civil claim against a peace officer
or a lien against his or her property, knowing the claim or lien to
be false and with the intent to harass or dissuade the officer from
carrying out his or her official duties, is guilty of a misdemeanor.
This section applies only to claims pertaining to actions that arise
in the course and scope of the peace officer’s duties.

SEC. 3.  

Section 832.18 of the Penal Code is amended to read:

832.18.  

(a) It is the intent of the Legislature to establish
policies and procedures to address issues related to the
downloading and storage data recorded by a body-worn camera
worn by a peace officer. These policies and procedures shall be
based on best practices.

(b) When establishing policies and procedures for the
implementation and operation of a body-worn camera system, law
enforcement agencies, departments, or entities shall consider the
following best practices regarding the downloading and storage
of body-worn camera data:

(1) Designate the person responsible for downloading the
recorded data from the body-worn camera. If the storage system
does not have automatic downloading capability, the officer’s
supervisor should take immediate physical custody of the camera
and should be responsible for downloading the data in the case of
an incident involving the use of force by an officer, an
officer-involved shooting, or other serious incident.

(2) Establish when data should be downloaded to ensure the
data is entered into the system in a timely manner, the cameras are
properly maintained and ready for the next use, and for purposes
of tagging and categorizing the data.

(3) Establish specific measures to prevent data tampering,
deleting, and copying, including prohibiting the unauthorized use,
duplication, or distribution of body-worn camera data.

(4) Categorize and tag body-worn camera video at the time the
data is downloaded and classified according to the type of event
or incident captured in the data.

(5) Specifically state the length of time that recorded data is to
be stored.

(A) Unless subparagraph (B) or (C) applies, nonevidentiary data
including video and audio recorded by a body-worn camera should
be retained for a minimum of 60 days, after which it may be erased,
destroyed, or recycled. An agency may keep data for more than
60 days to have it available in case of a begin delete citizen end delete begin insert civilian end insert complaint
and to preserve transparency.

(B)  Evidentiary data including video and audio recorded by a
body-worn camera under this section should be retained for a
minimum of two years under any of the following circumstances:

(i) The recording is of an incident involving the use of force by
a peace officer or an officer-involved shooting.

(ii) The recording is of an incident that leads to the detention
or arrest of an individual.

(iii) The recording is relevant to a formal or informal complaint
against a law enforcement officer or a law enforcement agency.

(C) If evidence that may be relevant to a criminal prosecution
is obtained from a recording made by a body-worn camera under
this section, the law enforcement agency should retain the recording
for any time in addition to that specified in paragraphs (A) and
(B), and in the same manner as is required by law for other
evidence that may be relevant to a criminal prosecution.

(D) In determining a retention schedule, the agency should work
with its legal counsel to determine a retention schedule to ensure
that storage policies and practices are in compliance with all
relevant laws and adequately preserve evidentiary chains of
custody.

(E) Records or logs of access and deletion of data from
body-worn cameras should be retained permanently.

(6) State where the body-worn camera data will be stored,
including, for example, an in-house server which is managed
internally, or an online cloud database which is managed by a
third-party vendor.

(7) If using a third-party vendor to manage the data storage
system, the following factors should be considered to protect the
security and integrity of the data:

(A) Using an experienced and reputable third-party vendor.

(B) Entering into contracts that govern the vendor relationship
and protect the agency’s data.

(C) Using a system that has a built-in audit trail to prevent data
tampering and unauthorized access.

(D) Using a system that has a reliable method for automatically
backing up data for storage.

(E) Consulting with internal legal counsel to ensure the method
of data storage meets legal requirements for chain-of-custody
concerns.

(F) Using a system that includes technical assistance capabilities.

(8) Require that all recorded data from body-worn cameras are
property of their respective law enforcement agency and shall not
be accessed or released for any unauthorized purpose, explicitly
prohibit agency personnel from accessing recorded data for
personal use and from uploading recorded data onto public and
social media Internet Web sites, and include sanctions for violations
of this prohibition.

(c) (1) For purposes of this section, “evidentiary data” refers
to data of an incident or encounter that could prove useful for
investigative purposes, including, but not limited to, a crime, an
arrest or citation, a search, a use of force incident, or a
confrontational encounter with a member of the public. The
retention period for evidentiary data are subject to state evidentiary
laws.

(2) For purposes of this section, “nonevidentiary data” refers
to data that does not necessarily have value to aid in an
investigation or prosecution, such as data of an incident or
encounter that does not lead to an arrest or citation, or data of
general activities the officer might perform while on duty.

(d) Nothing in this section shall be interpreted to limit the
public’s right to access recorded data under the California Public
Records Act (Chapter 3.5 (commencing with Section 6250) of
Division 7 of Title 1 of the Government Code).

SEC. 4.  

Section 13010.5 of the Penal Code is amended to read:

13010.5.  

The department shall collect data pertaining to the
juvenile justice system for criminal history and statistical purposes.
This information shall serve to assist the department in complying
with the reporting requirement of begin delete subdivisions (c) and (d) end delete
begin insert paragraphs (3) and (4) of subdivision (a) end insert of Section 13012,
measuring the extent of juvenile delinquency, determining the
need for and effectiveness of relevant legislation, and identifying
long-term trends in juvenile delinquency. Any data collected
pursuant to this section may include criminal history information
which may be used by the department to comply with the
requirements of Section 602.5 of the Welfare and Institutions Code.

SEC. 5.  

Section 13012 of the Penal Code is amended to read:

13012.  

(a) The annual report of the department provided for
in Section 13010 shall contain statistics showing all of the
following:

(1) The amount and the types of offenses known to the public
authorities.

(2) The personal and social characteristics of criminals and
delinquents.

(3) 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.

(4) 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.

(5) (A) The total number of each of the following:

(i)  begin delete Citizen end delete begin insert Civilian end insert complaints received by law enforcement
agencies under Section 832.5.

(ii)  begin delete Citizen end delete begin insert Civilian end insert complaints alleging criminal conduct of
either a felony or misdemeanor.

(iii)  begin delete Citizen end delete begin insert Civilian end insert complaints alleging racial or identity
profiling, as defined in subdivision (e) of Section 13519.4. These
statistics shall be disaggregated by the specific type of racial or
identity profiling alleged, such as based on a consideration of race,
color, ethnicity, national origin, religion, gender identity or
expression, sexual orientation, or mental or physical disability.

(B) The statistics reported under this paragraph shall provide,
for each category of complaint identified under subparagraph (A),
the number of complaints within each of the following disposition
categories:

(i) “Sustained,” which means that the investigation disclosed
sufficient evidence to prove the truth of allegation in the complaint
by preponderance of evidence.

(ii) “Exonerated,” which means that the investigation clearly
established that the actions of the personnel that formed the basis
of the complaint are not a violation of law or agency policy.

(iii) “Not sustained,” which means that the investigation failed
to disclose sufficient evidence to clearly prove or disprove the
allegation in the complaint.

(iv) “Unfounded,” which means that the investigation clearly
established that the allegation is not true.

(C) The reports under subparagraphs (A) and (B) shall be made
available to the public and disaggregated for each individual law
enforcement agency.

(b) It shall be the duty of the department to give adequate
interpretation of the statistics and so to present the information
that it may be of value in guiding the policies of the Legislature
and of those in charge of the apprehension, prosecution, and
treatment of the criminals and delinquents, or concerned with the
prevention of crime and delinquency. The report shall also include
statistics which are comparable with national uniform criminal
statistics published by federal bureaus or departments heretofore
mentioned.

(c) Each year, on an annual basis, the Racial and Identity
Profiling Board (RIPA), established pursuant to paragraph (1) of
subdivision (j) of Section 13519.4, shall analyze the statistics
reported pursuant to subparagraphs (A) and (B) of paragraph (5)
of subdivision (a) of this section. RIPA’s analysis of the complaints
shall be incorporated into its annual report as required by paragraph
(3) of subdivision (j) of Section 13519.4. The reports shall not
disclose the identity of peace officers.

SEC. 6.  

Section 13012.5 of the Penal Code is amended to read:

13012.5.  

(a) The annual report published by the department
under Section 13010 shall, in regard to the contents required by
begin insert paragraph (4) of end insert subdivision begin delete (d) end delete begin insert (a) end insert of Section 13012, include the
following statewide information:

(1) The annual number of fitness hearings held in the juvenile
courts under Section 707 of the Welfare and Institutions Code,
and the outcomes of those hearings including orders to remand to
adult criminal court, cross-referenced with information about the
age, gender, ethnicity, and offense of the minors whose cases are
the subject of those fitness hearings.

(2) The annual number of minors whose cases are filed directly
in adult criminal court under Sections 602.5 and 707 of the Welfare
and Institutions Code, cross-referenced with information about the
age, gender, ethnicity, and offense of the minors whose cases are
filed directly to the adult criminal court.

(3) The outcomes of cases involving minors who are prosecuted
in adult criminal courts, regardless of how adult court jurisdiction
was initiated, including whether the minor was acquitted or
convicted, or whether the case was dismissed and returned to
juvenile court, including sentencing outcomes, cross-referenced
with the age, gender, ethnicity, and offense of the minors subject
to these court actions.

(b) The department’s annual report published under Section
13010 shall include the information described in begin insert paragraph (4) of end insert
subdivision begin delete (d) end delete begin insert (a) end insert of Section 13012, as further delineated by this
section, beginning with the report due on July 1, 2003, for the
preceding calendar year.

SEC. 7.  

Section 41603 of the Vehicle Code is amended to read:

41603.  

No state or local agency employing peace officers or
parking enforcement employees engaged in the enforcement of
this code shall use the number of arrests or citations issued by a
peace officer or parking enforcement employees as the sole
criterion for promotion, demotion, dismissal, or the earning of any
benefit provided by the agency. Those arrests or citations, and
their ultimate dispositions, may only be considered in evaluating
the overall performance of a peace officer or parking enforcement
employees. An evaluation may include, but shall not be limited
to, criteria such as attendance, punctuality, work safety, complaints
by begin delete citizens, end delete begin insert civilians, end insert commendations, demeanor, formal training,
and professional judgment.