BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 1586 (Swanson) 6
As Amended June 9, 2010
Hearing date: June 15, 2010
Public Utilities Code
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BART POLICE INDEPENDENT AUDITOR
HISTORY
Source: Bay Area Rapid Transit District Board of Directors
Prior Legislation: AB 312 (Ammiano) - 2009, died in Assembly
Appropriations Committee
Support: BART Police Managers Association; California
Association of Black Lawyers; City of El Cerrito;
Lakeshore Avenue Baptist Church; Oakland Community
Organizations; Peace Officers Research Association of
California
Opposition:None known
Assembly Floor Vote: Ayes 67 - Noes 0
KEY ISSUES
SHOULD THE BOARD OF DIRECTORS OF THE BAY AREA RAPID TRANSIT DISTRICT
BE AUTHORIZED TO ESTABLISH AN OFFICE OF "INDEPENDENT POLICE AUDITOR"
TO INVESTIGATE COMPLAINTS AGAINST DISTRICT POLICE PERSONNEL?
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SHOULD THE POWERS AND DUTIES OF THE AUDITOR BE DEFINED AS SPECIFIED,
IF THE BART BOARD DOES ESTABLISH A POLICE AUDITOR'S OFFICE?
PURPOSE
The purpose of this bill is to (1) authorize the Board of
Directors of the Bay Area Rapid Transit District (BART) to
establish an office of "independent police auditor" to
investigate complaints against district police personnel; and
(2) require that, if the BART Board does establish a police
auditor's office, the powers and duties of the auditor would be
as specified.
Existing law provides for the creation of the San Francisco BART
District, comprising the territory lying within the boundaries
of the Counties of Alameda, Contra Costa, Marin, San Francisco,
and San Mateo. (Public Utilities Code Section 28600.)
Existing law provides that the board of directors is the
legislative body of the district and shall determine all
questions of district policy. (Public Utilities Code Section
28762.)
Existing law provides that the district may do any and all
things necessary to carry out the purposes of this part.
(Public Utilities Code Section 28763.)
Existing law provides that the district is authorized to
maintain a police department. The employees of the district
that are appointed as members of such department by the general
manager and duly sworn are peace officers; provided that such
officers shall not exercise their powers or authority except as
specified. The district shall adhere to the standards for
recruitment and training of peace officers established by the
Commission on Peace Officer Standards and Training, as
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specified. (Public Utilities Code Section 28767.5.)
Existing law provides that the board of directors may contract
for or employ any professional services required by the district
or for the performance of work or services for the district
which, in the board of director's opinion, cannot satisfactorily
be performed by the officers or employees of the district.
(Public Utilities Code Section 28768.)
This bill would authorize the BART Board to establish an office
of "independent police auditor," reporting directly to the
Board, to investigate complaints filed against district police
personnel.
This bill would require that, if the BART Board does establish a
police auditor's office, the auditor would have the following
powers and duties:
To investigate complaints or allegations of on-duty
misconduct or off-duty unlawful activity by district police
personnel, within the independent police auditor's purview
as it is set by the board.
To reach independent findings as to the validity of each
complaint.
To recommend appropriate disciplinary action against
district police personnel for those complaints determined
to be sustained.
This bill provides that the board shall organize, reorganize,
and manage the office of the independent police auditor and
that, notwithstanding the authority granted the general manager,
the board may, by resolution, authorize a citizen review board
to participate in recommending appropriate disciplinary action.
This bill provides that, if created, the independent police
auditor shall prepare, in accordance with the rules of the
office, reports of his or her activities as permitted by law.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
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laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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According to the author:
This legislation is necessary to give the public a
role in the disciplinary process for unlawful and
unprofessional conduct by BART police officials, which
will prevent incidents like the Oscar Grant killing.
2. Background: The Killing of Oscar Grant and The Meyers Nave
Report
In the aftermath of the shooting death of Oscar Grant by a BART
police officer on New Years Day 2009, the BART board
commissioned the Meyers Nave law firm to conduct an independent
investigation of BART police practices on that occasion. The
report found "the tactics of BART PD at the field level were
seriously deficient." The report contained numerous
recommendations for improving BART Police practices. These
included the handling of complaints against BART Police
personnel and outside oversight of complaints against BART
Police personnel:
XI. DUTY TO REPORT
BART PD should require officers to report their own
use of force, as well as that observed of others. The
tightly confined definition of a reportable use of
force now required may contribute to not reporting all
force used. BART police policy should be amended to
specifically include a statement that officers have a
duty to report all pertinent facts known to them,
including potential uses of force by their peers.
Further, failure to report misconduct should itself be
viewed as serious misconduct by BART PD.
XII. PERSONNEL COMPLAINT INVESTIGATIONS
BART PD's substandard practices/procedures for the use
of force investigations and personnel complaint
investigations may have contributed to the outcomes of
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the New Year's Day incident. If all BART PD officers
knew that BART PD would relentlessly investigate use
of force incidents, including pulling of video and
canvassing the scene, it is doubtful that BART PD
officers would use force when it is not reasonable to
do so. There were no rigorous institutional reporting
mechanisms to require reporting and officers are left
to their own devices and reporting thresholds. And,
there are no obvious consequences for under-reporting
the use of force.
Personnel complaints should be examined and used as a
risk management tool to not only review the actions of
the officers, but the policies of the BART PD.
Further, the pattern of conduct by police officers
should be examined in the adjudication of any
personnel complaint. Officers' conduct over a period
of time will provide BART PD with a very strong sense
of training needs and possibly, the decision to retain
an employee.
XIII. TRANSPARENCY AND ACCOUNTABILITY
The reporting requirements and quality of the reports
by BART PD with respect to force and misconduct do not
invite transparency. An independent evaluator would
have noticed these deficiencies and changes could have
been made before this incident occurred. The lack of
significant reporting of use of force incidents, lack
of critical analysis in personnel complaints, limited
reporting requirements, no on-scene investigations,
etc. contributed to the events on the morning of
January 1, 2009. Best practices require other
actions.
BART should consider retaining a reputable auditing or
oversight firm, with experience in police matters, to
conduct ongoing, meaningful audits and evaluations of
BART PD. These audits and reports should be
considered for availability to the public.
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The greater the degree of transparency by BART PD, the
better the agency will become. External audits and
the responses to those audits are the basis for steady
improvement that all police agencies desire. While
the process is often difficult and burdensome, the
fruit of such efforts will be worth it. The public
will have a greater sense of comfort in the BART PD
and the agency will constantly evolve toward
excellence. If BART opts to develop a review
committee to oversee BART PD policy, the committee
must be highly versed in police issues and be free to
act as independently as is reasonably possible. Such
committees should be fully versed in the use of force
issues such as Graham v. Connor and understand that
policing is a very inexact craft practiced under
rapidly changing and often escalating and chaotic
circumstances.(Public Report, Review of BART PD
Policies, Practices and Procedures Re: New Year's Day
2009. Meyers Nave, August 11, 2009, pages 6-7.
http://bart.gov/docs/Meyers_Nave_Public_Report.pdf )
3. What This Bill Would Do
AB 1586 would authorize the BART board to "establish an office
of independent police auditor, reporting directly to the board,
to investigate complaints filed by members of the public against
district police officers." It would not require establishment
of the auditor but rather permit the BART board to create it, if
the board so chooses. If the board does choose to create such
an auditor's office, the bill states that the powers and duties
of the auditor shall be:
To investigate complaints or allegations of on-duty
misconduct or off-duty unlawful activity by district police
personnel, within the independent police auditor's purview
as it is set by the board.
To reach independent findings as to the validity of each
complaint.
To recommend appropriate disciplinary action against
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district police personnel for those complaints determined
to be sustained.
This bill also states that the board may authorize a citizen
review board to participate in recommending appropriate
disciplinary action.
The BART board has informed Committee staff that it has already
approved a "BART Citizen's Oversight Model" and awaits the
authorization that this bill would confer to implement that
model. This bill simply authorizes the BART board to appoint an
independent police auditor who would report directly to the
board.
AB 1586 enumerates the duties that any such auditor would have,
if one is appointed, and limits the auditor's scope to
investigation of complaints involving on-duty misconduct or
off-duty unlawful activity. Therefore, a complaint involving a
BART officer's conduct while off-duty would not fall within the
auditor's purview if it did not rise to the level of illegal
activity.
SHOULD THE BART BOARD HAVE THE AUTHORITY TO CREATE AN
INDEPENDENT POLICE AUDITOR?
SHOULD THE INDEPENDENT AUDITOR BE AUTHORIZED TO REVIEW
COMPLAINTS REGARDING OFF-DUTY MISCONDUCT NOT AMOUNTING TO A
CRIME?
4. Argument in Support
The Peace Officers Research Association of California states:
Our organization supports this legislation, which will
allow the BART Board of Directors to create a third
party review system, a model similar to the Citizen
Review Programs that have been working successfully in
various cities, such as Berkeley and Oakland. In
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these systems, the Civilian Review Board or Commission
independently investigates complaints against officers
and makes recommendations to the City Administrator.
This bill will give BART the authority to create a
system wherein an Auditor and/or Commission would have
investigatory powers over complaints against officers
and would report those findings and recommendations to
the General Manager of the BART Board. Under this
type of system, the General Manager would have the
full and final authority regarding those
recommendations and the imposition of employee
discipline. It is important to note that the General
Manager works at the will of the Board, ensuring that
the Board would still have its continued input into
employer-employee relations.
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