Credit: Thomas Hawk | Flickr
Introduction
In 2021, California joined 47 other states by reinstating a police officer decertification process when Governor Gavin Newsom signed SB-2 into law. This Act expressly established a process for California’s Peace Officer Standards and Training Commission (POST), the Commission charged with licensing all officers within the state, to revoke officer certifications that are necessary to serve any police agency as well as established mandatory reporting requirements for all agencies within the state. It was mainly enacted in response to the 2021 George Floyd killing and is generally consistent with other police reforms throughout the nation in recent years. Although the law and its overall purpose are public goods for the state, it may act to impair other cities’ abilities to adequately serve its communities as it comes at a time when California’s officer employment rate and the population are on a consistent decline with no indication of stopping.
SB-2’s Attempt to Address the State’s “Wandering Officer” Dilemma
Post-Decertification for Officer Misconduct
SB-2 made drastic changes within POST when signed in 2021. Before SB-2, POST only had the authority to cancel an officer’s certificate “awarded in error or obtained fraudulently.” SB-2 significantly changed this by granting POST the authority to revoke any officer’s certification for engaging in conduct that disqualifies them from serving as an officer within the state. It also expanded the types of disqualifying behavior, including conduct committed before and after SB-2’s enactment. It also created a 9-member Peace Officer Standards Accountability Division (“Division”) within POST. The Division was officially established when Governor Newsom signed SB-2 into law and has the authority to issue regulations governing the decertification process and review cases of potential misconduct. Upon hearing findings and recommendations from its investigative arm, the Division can recommend decertification to POST’s certification commission. However, eight of the Division's nine members still need appointments by the Governor, who was supposed to complete such appointments by January 1st, 2023.
Prior to SB-2, the only real disqualifying act of an officer was committing either a felony in California or a non-felony in another state that would be a felony in California. SB-2 dramatically expanded this by creating numerous other officer behaviors that warrant disqualification and decertification, most notably by “otherwise engaging in serious misconduct.” Although the term is left relatively open for interpretation by the corresponding regulations that the Division will issue, the minimum acts of misconduct included are things such as making a false statement or intentionally filing false reports, tampering with evidence, abusing an officer’s position of power (intimidating witnesses or unreasonable use of force), “demonstrating bias based on any legally protected status,” or committing any other unlaw acts that are “sufficiently egregious or repeated.” If any of these are present, POST is required to revoke such officer’s certification, which prevents them from being able to reapply for and serve on any other police agency within the state.
Agencies' Duties to Investigate and Report Officer Misconduct
SB also established mandatory agency reporting requirements to help support the decertification procedures. Effective January 2023, all law enforcement agencies within the state must investigate all claims of serious misconduct by its officers regardless of whether the officer(s) still works for the agency. This is true even if the officer voluntarily resigns or retires from the agency. It also compels agencies to report to POST any complaint, charge, or investigation into the conduct of one of its officers that could subject the officer to revocation or suspension from the agency. Suppose an officer is terminated from an agency. In that case, the agency must produce an “affidavit-of-separation form” for POST within ten days of the termination and describe under penalty of perjury the reason for the officer’s termination. These reporting requirements are retroactive and require agencies to report any officer misconduct from January 2020 until current, to aid in the decertification efforts. Thus, officers are still subject to potential decertification and discipline for past acts of misconduct, even if they did not result in discipline from the agency when it was committed.
Benefits of Improving Public Trust and Increasing Transparency
The decertification process and mandatory agency reporting effectively address SB-2’s primary goals of curbing the state’s “wandering officer” issue to improve the public’s trust in its law enforcement force. “Wandering officer” refers to officers in the state who had been fired for misconduct and could reapply for a position with a new agency since their certification had not been revoked for the transgression. Although California has one of the most progressive criminal justice systems in the nation, as noted by State Senator Steven Bradford in a 2021 press release, “for too long, [these] problematic officers that commit heinous acts in one department are either not held accountable and continue to be a problem for that community, or are punished, but able to find employment in another department.” This “rinse and repeat accountability” of officers has led to a continuous erosion of community and public trust in the state police force. This lack of faith was demonstrated in a PPIC Statewide survey conducted in February 2023, where 46% of Californians thought police are “excellent or good” at controlling crime in the community. An overall 16% decrease from 2020, and the disparity is even more prominent when broken down by racial distinctions. (31% of black and 46% of Latino Californians believe officers do a good job). By creating a mechanism for the state to remove officers from the streets that have committed serious misconduct, the decertification and reporting processes aim to continue improving public confidence in the state’s officers and ensure the public knows competent, honorable officers are the ones serving and protecting their communities.
It also increases the transparency of misconduct in the state, further supporting the move to improve public trust in the state’s law enforcement. Any reports of misconduct made by agencies to POST become public records that citizens can quickly look up. Additionally, any officer decertifications become public records upon POST revoking the officer’s ability to serve. This increases transparency with the public regarding misconduct and acts as a deterrent against further officer misconduct. Mandating reporting and publicly disclosing actions taken against misconduct enables POST to more effectively combat officer misconduct and provide the public with critical information about the officers serving their relevant community.
SB-2 Risks Impacting an Already Low and Difficult increase Police Force
First, SB-2’s potential benefits predate comprehensive and accurate reporting from the state’s various agencies. Due to the close-knit community inherent in police agencies, agencies may be incentivized to under-report or not report. Thus, to be effective, POST and the Accountability Division must establish mechanisms to oversee and compel agencies to report officer misconduct and disciplinary actions accurately. Absent such a mechanism, nothing prevents agencies and officers from undermining all of SB-2’s benefits by withholding information or not reporting misconduct to POST at all, which is necessary for them to decertify officers that commit serious misconduct properly.
Also, although SB-2 is in the public's interest and benefit, its measures directly conflict with and may even exacerbate the state's current problem of being able to hire and retain officers as California's population of active and certified law enforcement officers has been on the constant decline for almost over a decade, in 2012 POST certified on average about 3,200 new officers within the state each year. However, in 2022 it only issued 2,424 officer certifications. This is the Commission's lowest number of certifications issued since 2013 and drastically below its 10-year high of 4,530 certifications issued in 2020. Agencies are also reporting a decline in officer employment, with 46.5% of the state's 458 agencies reporting a decline in the number of officers it hires and employs. This is further compounded by the state's number of sworn officers per 100,000 citizens is also the lowest since 1995.
With nearly half of the state's officers employed by city and county agencies, this lack of officers disproportionately affects California municipalities' abilities to combat crime effectively and protect its citizens. Recent research and studies show that each additional officer on patrol reduces overall crimes committed per year (violent crimes reduced by 1.3 and property crimes reduced by 4.2). With 86% of officers serving as patrol officers in the state and directly responsible for combating crime, this decline in officers directly prevents cities and towns from effectively serving and protecting their citizens. There is also no sign that this trending decline is likely to end anytime soon; thus, it will continue to have detrimental effects on California communities.
With this all in mind, SB-2's provisions can affect and exacerbate agencies' ability to effectively hire and retain officers within the state. With more officers on the street being essential to effectively combating crime, SB-2's decertification and reporting process directly conflicts with a city's ability to staff its police force and properly protect its citizens adequately. Although SB-2's requirements do eliminate officers that should not be entrusted with the authority law enforcement holds in our society, it has the potential of acting as a mechanism for reducing the state's already low and declining police force, directly frustrating cities' abilities to reduce crime within their communities.
Furthermore, it may also act as a deterrent against officers taking specific actions while on duty. By extending disqualifying conduct to discretionary actions taken by officers in carrying out their duties, such as using force in altercations within the community they are serving, they may be less willing to take actions necessary to protect community members for fear of later discipline and decertification. New officers also might be deterred from applying to law enforcement agencies due to fear that potential misconduct in their history could lead to later discipline and employment termination. With Californians already having a negative view of officer’s ability to control crime properly, some may argue that the efforts and resources put into SB-2’s process could be better spent on improving other measures related to officer conduct, such as increased funding for officer training and other avenues that both increase officer employment while simultaneously improving public confidence in the state’s law enforcement.
Conclusions
SB-2 and its measures are an overall benefit to California's society by combating officer misconduct; however, its decertification and retroactive report requirements are predicated on accurate reporting from agencies and also come with the risk of adding to the problem of city and county agencies being able to hire and retain officers which is essential to them promoting safety in their communities. POST has reported only one officer being decertified under SB-2's new procedures. However, this may primarily result from the Governor's failure to entirely appoint all nine Peace Officer Standards Accountability Division members by his January 2023 deadline, which likely has hampered POST's ability to investigate and decertify officers. Thus, it is reasonable to assume that once the Division is fully established, there should be more officers disciplined and decertified by POST. Only time and more data will tell what the long-term effect of SB-2's decertification process is on the police force within California; however, it does pose a substantial risk of being unable to effectively combat officer misconduct and further impair municipalities' ability to protect its communities adequately.
*The views expressed in this article do not represent the views of Santa Clara University.