BILL NUMBER: AB 1953 INTRODUCED
BILL TEXT
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
shall does 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 citizens' civilians '
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) Any A 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 CITIZENS'
CIVILIANS ' 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. CITIZEN CIVILIAN
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 citizen
civilian 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 subdivisions (c)
and (d) paragraphs (3) and (4) of subdivision (a)
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) Citizen Civilian complaints
received by law enforcement agencies under Section 832.5.
(ii) Citizen Civilian
complaints alleging criminal conduct of either a felony or
misdemeanor.
(iii) Citizen Civilian 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
paragraph (4) of subdivision (d) (a)
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 paragraph (4) of
subdivision (d) (a) 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
citizens, civilians, commendations,
demeanor, formal training, and professional judgment.