Member Article

On September 30, 2021, Governor Gavin Newsome approved and signed AB 26, AB 48, AB 89, AB 481, AB 490, and AB 958, which amend existing laws, add entire new chapters, and expand laws impacting law enforcement agencies, their operations, and the review of conduct of peace officers. Below is a short list of what is to come:

• AB 26: Amendment to the Definition of and Expansion to Reporting Excessive Force
• AB 48: Standards for the Use of Kinetic Energy Projectiles and Chemical Agents
• AB 89: A New Policing Degree Program
• AB 481: Funding, Acquisition, and Use of Military Equipment
• AB 490: Expansions on Policies Prohibiting Carotid Restraints and Choke Holds
• AB 958: Prohibition on Law Enforcement Gangs

AB 26: When Do I Report Potential Use of Excessive Force? Should I Intercede?

Immediately! Yes, plan to intercede or face discipline that may be just as harsh as the peace officer who allegedly committed the use of excessive force. AB 26 amends section 7286 of the Government Code requiring officers to immediately report potential excessive force while prohibiting retaliation against officers that report violations of law or regulation of another officer to a supervisor. Additionally, it requires that an officer who fails to intercede in the violation be disciplined up to and including the same level of discipline as the officer who used excessive force.

Government Code Section 7286

Government Code Section 7286 (a)(2) was expanded to include "excessive force" defined as a level of force that is found to have violated section 835a of the Penal Code, the requirements on use of force in this section, or any other law.

It also added "intercede" defined to include physically stopping the excessive use of force; recording the excessive force; documenting efforts to intervene and deescalate the offending officer's excessive use of force; confronting the offending officer during the use of force; and reporting to dispatch or the watch commander on duty the offending officer's name, unit, location, time, and situation. Note that this is not an exhaustive list of conduct that constitutes "intercede."

"Retaliation" was included to mean demotion; failure to promote to a higher position when warranted by merit; denial of training and professional development opportunities; denial to resources necessary for an officer to perform their duties; intimidation; harassment; or threat of injury.

Additionally, the existing requirement for officers to report potential excessive force has now changed to immediate reporting. No guidance was provided on what constitutes an appropriate immediate report.

A prohibition on retaliation against officers that report suspected violations of law of another officer was added to the section along with barring officers who have a substantiated abuse of force complaint against them from training other officers.¹

Lastly, an officer that has received training on the requirement to intercede and fails to do so may be disciplined in the same manner as the officer that committed the excessive force.

AB 48: Am I Allowed to Use Kinetic Energy Projectiles or Chemical Agents to Disperse Civilians?

Not so fast, there is a new standard in town. AB 48 sets a standard for the use of kinetic energy projectiles or chemical agents by any law enforcement agency to disperse any assembly, protest, or demonstration is allowed. Additionally, provides guidance on when the use of these items is prohibited and on maintaining transparency about incidents involving their use. Finally, the bill reforms existing law that requires law enforcement agencies to annually report use of force incidents to the Department of Justice.

Government Section Code 12525.2

AB 48 changed the requirement of reporting instances of use of force to Department of Justice from annually to monthly.

Penal Code Section 13652 (New)

Section 13652 prohibits the use of kinetic energy projectiles and chemical agents by law enforcement agencies to disperse any assembly, protest, or demonstration. However, an exception is carved out for the use of peace officers that have received proper use training for crowd control if the use is objectively reasonable to defend against a threat to life or serious bodily injury to an individual, including a peace officer, or to bring an objectively dangerous and unlawful situation under control. The section includes further requirements for the exception to apply. Please refer to the statute as it includes a list of 11 requirements.²

Penal Code Section 13652.1 (New)

Law enforcement agencies are required to publish a summary on its internet website of all instances in which officers used kinetic energy projectiles or chemical agents within 60 days of the incident. An extension may be granted for 30 more days if the agency demonstrates just cause for the delay. However, the extension will not be extended for more than 90 days.³ See the section for specifics on what should be included in the published summary.⁴

AB 89: A New Policing Degree Program

AB 89 requires the office of the Chancellor of the California Community Colleges to develop a policing degree program with the commission and other stakeholders serving as advisors. A report on the program outlining a plan to implement it must be submitted to the Legislature on or before June 1, 2023. Existing law that sets the minimum qualifying age for peace officers at 18 will also be changed to 21 years of age.

Government Code Section 1031.4 (New)

Peace officers that are described in section 830.1 and other officers that participate in the Peace Officer Standards and Training (POST) program must be at least 21 years old at the time of appointment. This requirement excludes some peace officers,⁵ including those currently enrolled in a basic academy or who are already employed as a peace officer by a public entity in California as of December 31, 2021.

Penal Code Section 13511.1 (New)

The office of the Chancellor of the California Community Colleges must submit a report on recommendations to the Legislature on a plan to implement a modern policing degree program. The commission, representatives of law enforcement administration, law enforcement employees, and the California State University administration, faculty, and community organizations may serve as advisors to develop the degree program. This section also lists various requirements to include in the degree program.⁶

AB 481: Will Funding, Acquisition, and Use of Military Equipment Become Easier?

Quite the contrary. Beware of increased regulation. AB 481 adds an entire new chapter, Chapter 12.8 titled Funding, Acquisition, and Use of Military Equipment, to the Government Code and is intended to regulate funding, acquisition, and police use of military equipment and allowing for transparency and public input.

Sections included in the new chapter:

• Government Code Section 7070 (definitions for the chapter)
• Government Code Section 7071 (adopting military equipment use policy at meeting)
• Government Code Section 7072 (military equipment reports)
• Government Code Section 7073 (military equipment use policy requirements)
• Government Code Section 7074 (authority and applicability of this chapter)
• Government Code Section 7075 (authority to impose additional regulations)

Government Code Section 7070

Section 7070 provides definitions to "Governing body," "Law enforcement agency," "Military equipment," "Military equipment use policy," "State agency," and "Type."

A "governing body" is defined as an elected or appointed body that oversees a law enforcement agency or the board of supervisors of a county for the law enforcement agency of the county.

"Law enforcement agency" includes police departments, sheriff's department, district attorney's office, and county probation departments.

"Military equipment" includes an extensive list of items such as battering rams, slugs, breaching apparatuses, flashbang grenades, tear gas, pepper balls, firearms that launch explosive projectiles, and firearms of .50 caliber or greater. The term also includes a variety of vehicles such as Humvees; tracked armored vehicles that provide ballistic protection; unmanned, remotely piloted, powered aerial or ground vehicles; and weaponized aircraft, vessels, or vehicles of any kind.

"Military equipment use policy" is defined as a publicly released, written documents that govern the use of military equipment, including description of military equipment, purpose and authorized uses of the equipment, cost impact of the military equipment, training, mechanisms to ensure compliance with the use policy, legal and procedural rules for use, and procedures by which the public may submit complaints, concerns, and submit questions about the use.

"State agency" refers to the law enforcement division within the state.

"Type" refers to the items that share the same manufacturer model number.

Government Code Section 7071

Section 7071 provides that a law enforcement agency must get approval from a governing body to request military equipment, obtain funds for military equipment, acquire military equipment permanently or temporarily, collaborate with another law enforcement agency in use of military equipment, using military equipment for a purpose or by a person that was not previously approved to do so, and solicit or respond to a proposal for receiving, acquiring, using military equipment.

Law enforcement agencies that want to continue to use equipment acquired before January 1, 2022 must ask for approval to continue use no later than May 1, 2022. Law enforcement agencies must stop use of military equipment within 180 days of the proposed equipment use policy to the governing body. When a law enforcement agency seeks approval to use equipment, it must submit a use policy to the governing body and make the policy available on the law enforcement agency's website for 30 days before any public hearing.

The section also establishes a standard by which a body may approve a military equipment use policy: use is necessary because there is no reasonable alternative that can achieve the same objective of safety; use policy safeguards the public's welfare, safety, civil rights, and civil liberties; equipment is reasonably cost effective compared to alternatives that can achieve the same objective; and equipment used before complied with use police effective at the time of use, or corrective action is taken to remedy nonconforming uses and ensure future compliance with relevant use policy.

Finally, to encourage public participation, use policies must be made available to the public on the internet websites of relevant law enforcement agencies for as long as the military equipment is in use.

Government Code Section 7072

Section 7072 requires that law enforcement agencies submit an annual military equipment report for each type of equipment approved for as long as it is available for use. At minimum, the annual report must include items such as a summary of the purpose and use of the military equipment, a summary of complaints or concerns received concerning the equipment, quantity possessed for each type of equipment, and the quantity for each type of additional military equipment law enforcement agencies intend to acquire in the next year. Please see the statute for additional minimum requirements for annual report.

Furthermore, law enforcement agencies are required to hold at least one community engagement meeting within 30 days of submitting and releasing the annual report so that the public may have an opportunity to discuss and ask questions about the report and funding, acquisition, or use of military equipment.

Government Code Section 7073

Section 7073 requires that state agencies create a military equipment use policy before they engage in requesting military equipment, seeking funds for equipment, buying, leasing, or borrowing equipment, collaborating with law enforcement agencies or another state agency in use of equipment, using new or existing equipment for a purpose or by a person that was not approved. The section also requires that the creation of a military equipment use policy before an agency solicits or responds to a proposal to seek funds for military equipment and, in general, acquiring equipment through means not included in the section.

Government Code Section 7074

Section 7074 establishes that to ensure adequate oversight of the acquisition and use of military equipment, this entire new chapter that regulates the funding, acquisition, and use of military equipment applies to all cities including charter cities and it also supersedes any inconsistent provisions established by any city and county.

Government Code Section 7075

Lastly, section 7075 gives authority to counties and local municipalities to implement additional requirements and standards for the purchase, use, and reporting of military equipment by local law enforcement agencies.

AB 490: More on Carotid Restraints and Choke Holds

AB 490 expands existing law enforcement agency policies prohibiting carotid restraint and choke holds to include techniques or transport methods that involve substantial risk of positional asphyxia.

Government Code Section 7286.5

Section 7286.5 is amended to include the prohibition of techniques or transport methods that involve a substantial risk of positional asphyxia. Positional asphyxia includes situating a person in a way that compresses their airway and reduces their ability to adequately breath; use of physical restraint that would cause a person's respiratory airway to be compressed or impair the person's breathing; and actions where pressure or body weight is unreasonably applied against a restrained person's neck, torso, or back. Lastly, it also includes positioning a restrained person in a way that reasonable monitoring for signs of asphyxia is not possible.

AB 958: New Penalties and Restrictions on Law Enforcement Gangs or Cliques

AB 958 defines and prohibits law enforcement gangs. The bill requires that law enforcement agencies have a policy prohibiting law enforcement gangs and making participation in one grounds for termination.

Penal Code Section 13670

Law enforcement gang is defined as a group of peace officers within a law enforcement agency who may identify themselves by a name and may be associate with an identifying symbol (such as a tattoo) that have a pattern of intentionally violating the law and engaging in unprofessional policing conduct such as discriminating against individuals based on a protected category under federal or state antidiscrimination laws; engaging in conduct that violates the rights of the public; engaging in unlawful detention; using of unjustified excessive force; and engaging in fabricating or destroying evidence.

Section 13670 requires law enforcement agencies to maintain a policy that prohibits participation in a law enforcement gang and makes the violation of that policy grounds for termination.

Lastly, the section requires that agencies disclose the termination of an officer for participation in a gang to another agency that is conducting a pre-employment background investigation of that officer.

Have any remaining, pressing questions? Contact Hanson Bridgett's Labor & Employment attorneys.

 

This outline is a general overview and is not intended to be comprehensive, an analysis of the new legislations, or legal advice. Due to the many nuances in the new legislation and the uniqueness of each situation, readers should seek advice of legal counsel for their unique circumstances.

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¹ The duration of the bar is for a period of at least three years from the date of the complaint.

² (1) de-escalation techniques or other alternatives to force attempted but have failed; (2) audible announcements made warning of intent to use kinetic energy projectiles and chemical agents; (3) persons given an objectively reasonable opportunity to disperse and leave; (4) objective reasonable effort to identify persons engaged in violent acts as targets of kinetic energy projectiles or chemical agents instead of aiming indiscriminately into a crowd; (5) projectiles and chemical agents used only with the frequency, intensity, and manner that is proportional to threat and is objectively reasonable. See statute for (6)-(11).

³ It is unclear at this time whether or how other statutory provisions, such as Government Code section 6254, regarding pending investigation, may apply to this new disclosure requirement.

⁴ (1) description of assembly, protest, demonstration, or incident; (2) type of kinetic energy projectile or chemical agent used; (3) number of rounds or quantity of chemical agent used; (4) number of injuries resulted from use of projectile or chemical agent used; (5) justification for using projectile or chemical agent

⁵ Those described in subdivision (c) of section 830.1, section 830.2 (d), 830.3, 830.32, 830.33 of Penal Code

⁶ Includes courses that focus on psychology, communications, history, ethnic studies, law, and those determined to develop necessary critical thinking skills and emotional intelligence.

 

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