Reporting Allegations of Peace Officer Misconduct: Checking in on the Implementation of Senate Bill 2

Senate Bill 2 (SB 2), enacted in 2021, transformed and expanded the role of the Commission on Peace Officer Standards and Training (POST). Most of the mandates in SB 2 took effect on January 1, 2023. As many readers are likely aware, one of the most significant changes brought on by SB 2 is the obligation that law enforcement agencies report all allegations of “serious misconduct” by peace officers to POST. SB 2 established the Peace Officer Standards Accountability Division, which reviews investigations conducted by law enforcement agencies and can conduct its own investigations into misconduct that could provide grounds for suspension or revocation of a peace officer’s certification.?

This post serves as a reminder to law enforcement agencies that when conducting internal investigations regarding alleged wrongdoing by any of their peace officers, the agency must evaluate whether each allegation triggers an additional obligation to report that allegation to POST.?

Public agencies must report all allegations of “serious misconduct” by a peace officer. Penal Code section 13510.8 and Commission Regulation 1205 define “serious misconduct” as follows:

• dishonesty?relating to the reporting, investigation, or prosecution of a crime, or relating to the reporting of, or investigation of, misconduct by a peace officer;?
• abuse of power, including, but not limited to, intimidating witnesses, knowingly obtaining a false confession, and knowingly making a false arrest;
• physical abuse, including, but not limited to, the excessive or unreasonable use of force;?
• sexual assault?as described in subdivision (b) of Penal Code section 832.7, the definition of which extends to acts committed amongst members of any law enforcement agency;
• demonstrating bias?on the basis of actual or perceived race, national origin, religion, gender identity or expression, housing status, sexual orientation, mental or physical disability, or other protected status in violation of law or department policy or inconsistent with a peace officer’s obligation to carry out their duties in a fair and unbiased manner (see below for recent developments regarding this category of misconduct);?
• acts that violate the law?and are sufficiently egregious or repeated as to be inconsistent with a peace officer’s obligation to uphold the law or respect the rights of members of the public;?
• participation in a law enforcement gang;??
• failure to cooperate?with an investigation into potential police misconduct; and?
• failure to intercede?when present and observing another officer using force that is clearly beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances.?

Given that most provisions of SB 2 went into effect only on January 1, 2023, there is not an abundance of practical guidance regarding the implementation of SB 2. However, below we highlight some information relating to common questions about SB 2’s reporting requirement.

Timing of reporting.? Penal Code section 13510.9 requires agencies to report to POST within 10 days of receiving the allegation. In addition, agencies must report the final disposition of any investigation that determines a peace officer engaged in conduct that could render a peace officer subject to suspension or revocation within 10 days.

While there is no penalty listed in SB 2 for failing to report an allegation of misconduct to POST within 10 days, POST’s Frequently Asked Questions (FAQ) page regarding SB 2 states “it would be a clear violation of statute.”

Timing of POST investigation in relation to agency’s investigation. POST has indicated that it will wait for the agency to conclude its internal investigation before conducting its own investigation (if any). POST’s FAQ page offers the below guidance:

How will POST investigations be conducted so as not to interfere with each agency’s individual investigation?

POST will rely on the employing agency to conduct the investigation first. Allegations of serious misconduct received directly to POST will be referred to the employing agency for investigation. The findings of the agency’s investigation will be forwarded to POST for review. Any subsequent investigation needed would occur after the conclusion of the agency investigation.

In addition, POST will wait for an agency to complete its investigation before POST begins its decertification review, “unless unique circumstances dictate otherwise.”

Allegations without merit. POST has advised that all allegations of “serious misconduct” must be reported, including allegations the agency believes do not have any merit. POST’s FAQ page states “[t]here are no statutory exceptions for frivolous, unfounded, or exonerated allegations.”

Possible development regarding SB 2 interpretation. One allegation of “serious misconduct” that law enforcement agencies commonly receive is an allegation that a peace officer demonstrated bias. On December 29, 2023, POST published a Notice of Proposed Regulatory Action proposing to “expand the definition of ‘demonstrating bias’ [in Commission Regulation 1205] to clarify what the Commission considers a demonstration of bias.” In POST’s Initial Statement of Reasons, POST explained that “[a]fter thorough review of PC § 13510.8 and Commission Regulation 1205, it was determined that there needs to be additional regulatory language to define what it means for a peace officer to be ‘demonstrating bias .’”

The text of the proposed supplement to Commission Regulation 1205 is as follows:

An officer is “demonstrating” bias for purposes of this Regulation when the officer either shows or displays, by words, actions or other conduct, prejudice, intolerance, contempt, or hatred towards one or more persons due to that person’s membership within a class of persons identified in Penal Code section 13510.8(b)(5), when such words, actions or other conduct would lead a reasonable person to conclude that the officer has not fairly and impartially performed, or will not fairly and impartially perform, his or her law enforcement duties.

The public comment period for the above proposed amendment ended on February 12, 2024, and the amended regulation is under review by the Office of Administrative Law.

LCW will continue to monitor developments in this evolving area.

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