Amended  IN  Assembly  March 28, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 1428

Introduced by Assembly Member Low
(Principal coauthor: Assembly Member Gipson)
(Coauthors: Assembly Members Bigelow, Cooper, Lackey, and Santiago)
(Coauthor: Senator Wilk)

February 17, 2017

An act to amend Sections 832.5 and 832.7 of, and to add Section 832.19 to, the Penal Code, relating to peace officers.


LEGISLATIVE COUNSEL'S DIGEST


AB 1428, as amended, Low. Peace officers: transparency.
Existing law requires a department or agency that employs peace officers to establish a procedure to investigate complaints by members of the public against those officers. Existing law requires the department or agency to provide written notification to the complaining party of the disposition of a complaint made pursuant to those provisions within 30 days of the disposition.
This bill would also require a department or agency to provide written notification to the complaining party of the current procedural status of an ongoing complaint investigation at least every 45 days. The bill would require a department or agency that employs peace officers to make available for public inspection the rules and procedures that have been adopted by that department or agency for imposing discipline and providing for the administrative appeal of an adverse decision by a peace officer. By imposing additional duties on local agencies, the bill would impose a state-mandated local program.
The bill would authorize an agency or department that employs peace officers to establish, through collective bargaining, a mediation program to resolve biased policing complaints. The bill would require an agency or department to establish rules for the mediation program, as specified, and would require that participants in a mediation program voluntarily agree to participate and sign a confidentiality agreement, as specified.
Existing law requires each law enforcement agency to annually furnish to the Department of Justice a report of specified incidents when a peace officer is involved in the use of force, including an incident involving the shooting of a civilian by a peace officer.
This bill would require each county district attorney’s office that conducts an investigation into an incident involving the shooting of a civilian by a peace officer to report the findings of that investigation on a publicly accessible Internet Web site within 30 days of the conclusion of the investigation. The bill would also require each department or agency that employs peace officers to post reports about serious uses of force by peace officers on its Internet Web site within 30 days of completing any investigation or adjudication related to the use of force and to, at least quarterly, post a report on its Internet Web site containing aggregate statistical information on serious uses of force for which any investigation, adjudication, or both have been completed. By imposing additional reporting duties on local law enforcement agencies, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law requires a department or agency that employs peace officers or custodial officers to establish a procedure to investigate complaints by members of the public against those officers. Existing law establishes retention requirements and access privileges, as specified, for those complaints and related reports or findings.

This bill would state the intent of the Legislature to enact legislation on peace officer transparency.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NOYES  

The people of the State of California do enact as follows:


SECTION 1.

 It is the intent of the Legislature, in order to promote understanding, foster communication, and build positive relationships between the public and the law enforcement community who serves them, to establish a system of transparency that educates, informs, and engages the community, including persons filing complaints against a department or law enforcement officer. This system of transparency includes the posting of policies and procedures for complaints and investigations of those complaints, investigatory findings of officer-involved shootings and serious uses of force, and creating an option for law enforcement departments and the employee organizations that represent uniformed employees to mutually adopt a mediation program to resolve civilian complaints of biased policing filed by members of the public. It is further the intent of the Legislature that education and open dialogue established through this act become the impetus for building improved relationships between law enforcement and the community members it serves.

SEC. 2.

 Section 832.5 of the Penal Code is amended to read:

832.5.
 (a) (1) (A) Each department or agency in this state that employs peace officers shall establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies, and shall make a written description of the procedure available to the public. on a publicly accessible Internet Web site.
(B) Each department or agency in this state that employs peace officers shall make available for public inspection the rules and procedures that have been adopted by that department or agency for imposing discipline upon, and providing for the administrative appeal of an adverse decision by, a peace officer.
(2) Each department or agency that employs custodial officers, as defined in Section 831.5, may establish a procedure to investigate complaints by members of the public against those custodial officers employed by these departments or agencies, provided however, that any procedure so established shall comply with the provisions of this section and with the provisions of Section 832.7.
(b) Complaints and any reports or findings relating to these complaints shall be retained for a period of at least five years. All complaints retained pursuant to this subdivision may be maintained either in the peace or custodial officer’s general personnel file or in a separate file designated by the department or agency as provided by department or agency policy, in accordance with all applicable requirements of law. However, prior to any official determination regarding promotion, transfer, or disciplinary action by an officer’s employing department or agency, the complaints described by subdivision (c) (d) shall be removed from the officer’s general personnel file and placed in separate file designated by the department or agency, in accordance with all applicable requirements of law.
(c) (1) An agency or department that employs peace officers may establish, through bargaining pursuant to the Meyers-Milias-Brown Act (Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code) or pursuant to the Ralph C. Dills Act (Chapter 10.3 (commencing with Section 3512) of Division 4 of Title 1 of the Government Code), a mediation program to resolve biased policing complaints against any of its peace officers. The goal of a program established pursuant to this paragraph is to establish communication and understanding between peace officers and individuals who believe they have been the victim of biased policing and shall be an informal, confidential process in which the complainant and accused peace officer meet in person and, with the assistance of a neutral mediator, discuss the alleged misconduct with the goal of arriving at a mutually agreeable resolution.
(2) An agency or department that elects to establish a mediation program, shall establish rules that define which biased policing complaints qualify for mediation. However, complaints involving the use of force, the arrest of a complainant, an assault on an employee, the filing of a lawsuit, injury to a person, damage to property, or allegations of criminal misconduct shall not be considered for mediation.
(3) The complainant and the peace officer may voluntarily agree to participate in any mediation program. An inference shall not be established against either party based on a decision to participate in the mediation program.
(4) A mediation conducted as part of a program established pursuant to paragraph (1) shall be confidential and is subject to Sections 1115 to 1128, inclusive, of the Evidence Code. All participants shall sign a confidentiality agreement stating, in clear language, that the mediation session shall not be recorded and that the documents or notes created, and any statements made, during the course of the mediation shall not be used in any administrative or civil proceeding.
(5) Participants shall not be required to arrive at a formal resolution of a complaint. Upon completion of mediation, the agency or department shall close the complaint against the peace officer and shall not take any further action against the officer. If a mediation is scheduled and a peace officer fails to appear without just cause, as determined by the mediator, the biased policing complaint shall be referred back to the agency or department for processing according to that agency’s or department’s procedure for investigating complaints. If a mediation is scheduled and the complainant fails to appear without just cause, as determined by the mediator, the agency or department shall contact the complainant to reschedule the mediation. If the complainant fails to appear a second time without just cause, as determined by the mediator, the agency or department shall close the complaint against the peace officer and shall not take any further action against the officer. This section does not prevent or preclude an officer from being subject to prosecution of a serious crime or from being subject of a civil remedy or lawsuit.

(c)

(d) Complaints by members of the public that are determined by the peace or custodial officer’s employing agency to be frivolous, as defined in Section 128.5 of the Code of Civil Procedure, or unfounded or exonerated, or any portion of a complaint that is determined to be frivolous, unfounded, or exonerated, shall not be maintained in that officer’s general personnel file. However, these complaints shall be retained in other, separate files that shall be deemed personnel records for purposes of the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and Section 1043 of the Evidence Code.
(1) Management of the peace or custodial officer’s employing agency shall have access to the files described in this subdivision.
(2) Management of the peace or custodial officer’s employing agency shall not use the complaints contained in these separate files for punitive or promotional purposes except as permitted by subdivision (f) of Section 3304 of the Government Code.
(3) Management of the peace or custodial officer’s employing agency may identify any officer who is subject to the complaints maintained in these files which require counseling or additional training. However, if a complaint is removed from the officer’s personnel file, any reference in the personnel file to the complaint or to a separate file shall be deleted.

(d)

(e) As used in this section, the following definitions apply:
(1) “General personnel file” means the file maintained by the agency containing the primary records specific to each peace or custodial officer’s employment, including evaluations, assignments, status changes, and imposed discipline.
(2) “Unfounded” means that the investigation clearly established that the allegation is not true.
(3) “Exonerated” means that the investigation clearly established that the actions of the peace or custodial officer that formed the basis for the complaint are not violations of law or department policy.

SEC. 3.

 Section 832.7 of the Penal Code is amended to read:

832.7.
 (a) Peace officer or custodial officer personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. This section shall not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, or an agency or department that employs those officers, conducted by a grand jury, a district attorney’s office, or the Attorney General’s office.
(b) Notwithstanding subdivision (a), a department or agency shall release to the complaining party a copy of his or her own statements at the time the complaint is filed.
(c) Notwithstanding subdivision (a), a department or agency that employs peace or custodial officers may disseminate data regarding the number, type, or disposition of complaints (sustained, not sustained, exonerated, or unfounded) made against its officers if that information is in a form which does not identify the individuals involved.
(d) Notwithstanding subdivision (a), a department or agency that employs peace or custodial officers may release factual information concerning a disciplinary investigation if the officer who is the subject of the disciplinary investigation, or the officer’s agent or representative, publicly makes a statement he or she knows to be false concerning the investigation or the imposition of disciplinary action. Information may shall not be disclosed by the peace or custodial officer’s employer unless the false statement was published by an established medium of communication, such as television, radio, or a newspaper. Disclosure of factual information by the employing agency pursuant to this subdivision is limited to facts contained in the officer’s personnel file concerning the disciplinary investigation or imposition of disciplinary action that specifically refute the false statements made public by the peace or custodial officer or his or her agent or representative.
(e) (1) The department or agency shall provide written notification to the complaining party of the current procedural status of the ongoing complaint investigation at least every 45 days, until final disposition. The notification shall advise the complaining party of the procedural status only, and shall not reveal or disclose any substantive information that is otherwise determined to be confidential, as set forth in subdivision (a).

(e)(1)

(2) The department or agency shall provide written notification to the complaining party of the disposition of the complaint within 30 days of the disposition.

(2)

(3) The notification described in this subdivision paragraph (2) shall not be conclusive or binding or admissible as evidence in any separate or subsequent action or proceeding brought before an arbitrator, court, or judge of this state or the United States.
(f) Nothing in this section shall affect the discovery or disclosure of information contained in a peace or custodial officer’s personnel file pursuant to Section 1043 of the Evidence Code.

SEC. 4.

 Section 832.19 is added to the Penal Code, immediately following Section 832.18, to read:

832.19.
 (a) Each county district attorney’s office that conducts an investigation into an incident involving the shooting of a civilian by a peace officer shall report the findings of that investigation on a publicly accessible Internet Web site within 30 days of the conclusion of the investigation.
(b) (1) Each agency or department that employs peace officers shall post reports about serious uses of force by peace officers on its Internet Web site within 30 days of completing any investigation or adjudication related to the use of force.
(2) The report shall comply with all of the following requirements:
(A) The report shall include a general statement describing the incident and a determination of whether the use of force complied with agency or department policy regarding the use of force.
(B) The report shall not identify the peace officer involved in the serious use of force or contain information that could be used to identify the officer.
(C) The report shall not reveal the contents of confidential statements made by the officer in a personnel investigation.
(D) The report shall not violate the confidentiality provisions of Sections 832.7 and 832.8.
(c) (1) At least quarterly, each agency or department that employs peace officers shall post a report on its Internet Web site containing aggregate statistical information on serious uses of force for which any investigation, adjudication, or both have been completed.
(2) The quarterly report shall comply with all of the following requirements:
(A) The report shall contain statistical information related to, at a minimum, the type of force used, the final disposition of investigations and adjudications, the race of both the peace officer and the civilian, the weapons involved, the degree of injury suffered by the peace officer and the civilian, and whether the officer attempted to use less than serious force.
(B) The report shall include the percentage of serious uses of force in relation to the total number of citizen contacts during the reporting period and the percentage of serious uses of force in relation to the number of arrests during the reporting period.
(C) The report shall not identify by name a peace officer involved in a serious use of force.
(D) The report shall not violate the confidentiality provisions of Sections 832.7 and 832.8.
(d) For the purpose of this section, “serious use of force” means a use of force that results in serious injury, involves the discharge of a firearm, or involves a headstrike with a blunt object.

SEC. 5.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
SECTION 1.

It is the intent of the Legislature to enact legislation on peace officer transparency.