BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1586|
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THIRD READING
Bill No: AB 1586
Author: Swanson (D)
Amended: 6/9/10 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 6/15/10
AYES: Leno, Cogdill, Cedillo, Hancock, Huff, Steinberg,
Wright
ASSEMBLY FLOOR : 67-0, 1/25/10 - See last page for vote
SUBJECT : Bay Area Rapid Transit District: independent
police auditor
SOURCE : Bay Area Rapid Transit District Board of
Directors
DIGEST : This bill (1) authorizes 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)
requires that, if the BART Board does establish a police
auditor's office, the powers and duties of the auditor
would be as specified.
ANALYSIS : 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. (Section 28600
of the Public Utilities Code [PUC])
CONTINUED
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Existing law provides that the board of directors is the
legislative body of the district and shall determine all
questions of district policy. (PUC Section 28762)
Existing law provides that the district may do any and all
things necessary to carry out the purposes of this part.
(PUC 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 specified. (PUC 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. (PUC Section 28768)
This bill authorizes 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 requires that, if the BART Board does establish a
police auditor's office, the auditor would have the
following powers and duties:
1. 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.
2. To reach independent findings as to the validity of each
complaint.
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3. 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/her activities as permitted
by law.
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
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BART PD's substandard practices/procedures for the use of
force investigations and personnel complaint investigations
may have contributed to the outcomes of 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.
The greater the degree of transparency by BART PD, the
better the agency will become. External audits and the
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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 )
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/16/10)
Bay Area Rapid Transit District Board of Directors (source)
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
ARGUMENTS IN SUPPORT : 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."
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Blakeslee, Block, Blumenfield, Bradford,
Brownley, Buchanan, Chesbro, Conway, Cook, Coto, De La
Torre, De Leon, DeVore, Emmerson, Eng, Evans, Feuer,
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Fletcher, Fong, Fuentes, Fuller, Gaines, Galgiani,
Garrick, Gilmore, Hagman, Hayashi, Hernandez, Hill,
Huber, Huffman, Jeffries, Jones, Knight, Lieu, Logue,
Mendoza, Miller, Monning, Nava, Niello, Nielsen, John A.
Perez, V. Manuel Perez, Portantino, Ruskin, Salas,
Saldana, Silva, Skinner, Smyth, Solorio, Audra
Strickland, Swanson, Torlakson, Torres, Torrico, Tran,
Villines, Yamada, Bass
NO VOTE RECORDED: Tom Berryhill, Caballero, Charles
Calderon, Carter, Davis, Furutani, Hall, Harkey, Bonnie
Lowenthal, Ma, Nestande
RJG:mw 6/16/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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