As cities across the nation were roiled by police killings in recent years, the Legislature quietly killed proposals to create more police accountability. Now, as California’s capital city responds to the recent killing of Stephon Clark—the unarmed black man shot last month by Sacramento police who seemingly mistook the cellphone he held for a gun—some of those failed bills are being re-introduced.
California police shot 162 people dead last year, according to a tally by The Washington Post—which means the state has 16 percent of the nation’s killings by police but only 12 percent of its population. Activists with the Black Lives Matter movement say legislation now proposed in California is “many years behind” and that Democrats in the Legislature have not been responsive to black communities on police issues.
“What happens is that the police unions, the police lobbyists come out in full force and then legislators who are afraid of their campaign coffers being interrupted side with law enforcement,” said Cat Brooks, founder of the Anti Police-Terror Project based in Oakland.
Police unions see it differently: Reactionary legislators propose un-workable bills, and then law enforcement helps them understand why the bills are bad ideas.
“We have been fortunate to have common sense prevail at the end, as opposed to the stuff that’s proposed at the beginning,” said Tom Saggau, a spokesman for the Los Angeles Police Protective League, a labor union.
When it comes to making campaign contributions, police are like most interest groups that work to influence public policy, said Brian Marvel, president of Peace Officers Research Association of California, an advocacy group.
“That’s politics in America,” he said.
Though the money helps, Marvel said, it is not the only reason police have influence in Sacramento: “Public safety resonates across both sides. People want to be safe in their home, people want to be safe to walk down the street, people respect law enforcement.”
Here are three ways in which California law protects police more than some states do—and one proposed law that would give it the nation’s toughest standard to justify police using deadly force:
California keeps police misconduct records secret
In most states, the public has at least some access to records that detail misconduct by police officers. Not so in California.
The Golden State is among 23 states that do not make discipline of police officers available through a public records request—and one of just three states with laws specifically making police personnel records confidential, according to an investigation by New York public radio WNYC.
The secrecy—which dates back to a law Gov. Jerry Brown signed in 1978—makes it nearly impossible for Californians to know if the police who patrol their streets have ever been disciplined for excessive use of force.
“Law enforcement is the only public employee group for which we have no access to the records—every other employment category you pretty much have full access under the Public Records Act,” said state Sen. Nancy Skinner, a Berkeley Democrat. “Good policing requires community trust.”
Her Senate Bill 1421 would make officers’ records public in three situations: when they fire a gun or use force resulting in serious injury or death; when they’ve engaged in sexual assault on the job; or when they’ve been dishonest in investigating a crime, such as by filing false reports or concealing evidence.
Similar legislation failed in 2016, facing stiff opposition from law enforcement groups who argued that it amounted to an invasion of privacy. It’s too soon to say if Skinner’s bill will meet the same fate, but at least one police group says it’s working to find common ground with her.
“We are trying to find how we can release some information once it’s gone through its administrative process or the courts,” said Marvel, a San Diego police officer who is president of the Peace Officers Research Association. “I think we can agree on a system of transparency that allows the community to have faith in their police department.”
Other law enforcement groups say there’s no need to open up personnel records. Gary Ingemunson, an attorney for the LA police union, called Skinner’s proposal “a can of worms.” He said existing procedures—through the courts and citizen review boards—provide sufficient accountability.
“Why are we opening it up? So the newspapers can have a field day?” Ingemunson said. “What’s really important is that the people who need to know have a way to find out... It’s already as open as it needs to be, in our view.”
California lets local law enforcement police themselves
When police kill, it’s generally up to the local district attorney’s office to determine if it’s a crime. But sometimes they rely on investigations conducted by the cop’s own department, and research has shown that prosecutors rarely file criminal charges against officers involved in on-the-job shootings.
Police say that’s because the vast majority of their shootings are legally justified, done only when officers perceive an imminent threat. Critics say it’s because cops and prosecutors, who work together closely and spend money to help each other win elections, are too cozy.
Four other states require that a state agency—instead of local prosecutors—conduct the investigation when police conduct results in death. Wisconsin passed such a law in 2014 after a man whose son was killed by police used a $1.75 million settlement to lobby for the change.
In California, lawmakers have rejected the idea twice. But Sacramento Democratic Assemblyman Kevin McCarty—spurred on by the recent announcement that Sacramento police asked the state Attorney General to investigate the death of Stephon Clark—plans to re-introduce a bill requiring the state Justice Department to investigate deaths and serious injury caused by police.
“It raises a bigger question: why not for all the shootings?” McCarty said. “Having an independent third-party law enforcement agency come and do the investigation can bring about more transparency and more trust in the process.”
McCarty points to a report by the Stanford Criminal Justice Center that describes the Wisconsin law as a model California should follow. But Tanya Faison, a leader of Black Lives Matter in Sacramento, said such a change is far short of a panacea.
“There needs to be oversight boards that reflect our community that do the investigations when police officers kill people,” Faison said. “This would move the needle in the right direction but there is more work to do.”
Police opposed McCarty’s bill last year, saying people who mistrust local law enforcement are unlikely to have more confidence in state-level authorities. And they challenge the assumption that investigators can’t set aside their personal relationships to conduct a fair inquiry.
“What McCarty is saying is that these officers are unprofessional and can’t do their job,” said Marvel. “I don’t buy into that premise.”
California Attorney General Xavier Becerra chimed in with support only after last year’s bill was watered down to a study. Lawmakers then killed it in the Senate Appropriations Committee, where bills can die without a public vote.
Asked this month if he would support McCarty’s effort this year, Becerra was noncommittal. “What you want to make sure is that you have an investigation that withstands the test of transparency, scrutiny, and accountability. That can be accomplished in any number of ways,” he said.
Establishing a unit in the state Department of Justice to investigate police shootings would cost between $8.5 million and $10 million a year, according to an analysis of prior legislation. McCarty said he’s exploring whether his proposal can be inserted into this year’s state budget.
California has no power to revoke a cop’s certification
State law says that anyone convicted of a felony cannot serve in law enforcement. Beyond that though, California’s system for getting rid of bad cops is highly decentralized. The state has more than 600 law enforcement agencies, and each one can decide if (short of a felony conviction) an officer’s misconduct is a firing offense.
It’s the opposite of how most of the country regulates police, according to research by Roger Goldman, retired professor at the Saint Louis University School of Law. He said that 45 states have a centralized system for revoking an officer’s professional certification—and most of them do it for less than a felony conviction.
“States like Georgia, Florida and North Carolina are decertifying cops hand over fist, and California is decertifying nobody, other than if convicted of a felony,” Goldman said.
It wasn’t always like this. California used to allow its law enforcement regulatory agency—known as the Commission on Peace Officer Standards and Training—to yank a cop’s certification. But in 2003, police unions lobbied the Legislature to take away that power, and Gov. Gray Davis signed the bill a month before he was recalled.
The other states with a decentralized system like California’s are Hawaii, New Jersey, Massachusetts and Rhode Island, Goldman said.
“What do they have in common? Very blue. Very strong police unions. The (California) Legislature is obviously scared to death of taking on the police unions,” he said.
Though Goldman contends the lack of such a system makes it easier for bad cops in California to bounce from one department to another, state officials disagree. They argue that police departments here can do a background check on anyone they’re considering hiring and find out if they’ve been fired for misconduct.
“Just because California doesn’t have a process per se like other states (to) rescind or cancel a certificate or license, doesn’t mean California takes that lightly,” said Dave Althausen, spokesman for the state regulatory agency.
It has a database that tracks every sworn officer in the state, he said, including when they were hired by a department and under what circumstances they left.
If they are convicted of a felony, the law says the agency must note in their file that they are “ineligible to be a peace officer in California.”
But, Althausen acknowledged, there’s no requirement that agencies check the database when hiring a new officer.
And yet: California is considering the nation’s toughest standard for use of deadly force
In 1989, the U.S. Supreme Court ruled that police use of force is justified whenever a “reasonable officer” in the same circumstance would do the same, setting the legal standard now used in every state. It’s one reason so few cops are convicted of crimes when they kill—jurors must consider whether a reasonable officer perceiving the same threat would make the same split-second decision. If so, the killing is legally justified.
California lawmakers will consider a bill this year that would make California the only state in the nation to set a different standard, one supporters believe will make it easier to hold police accountable. Under AB 931 police could only use deadly force when “necessary” to prevent injury or death in the context of the officer’s entire encounter with a suspect—not just the moment before firing his gun. Killing would only be legally justified if other tactics, such as warnings or de-escalation, were not possible instead.
“We’re not saying that law enforcement officers can never use deadly force,” said Assemblywoman Shirley Weber, a San Diego Democrat carrying the bill with McCarty. “Deadly force can be used, but only when it is completely necessary.”
Lawyers with the American Civil Liberties Union, which is backing the bill, say the Supreme Court standard sets a minimum level of protection for civilians confronted by police, and that states can choose to set a higher bar. But Ingemunson, the lawyer for the LA police union questioned that, saying the proposed standard may violate officers’ rights under federal law.
“The theory would be that an officer also has rights, and one might be to be judged by the federal standard, not some state standard,” he said.
Police are frustrated that the bill language has not yet been made public, and say it’s hypocritical of the ACLU to criticize law enforcement for a lack of transparency while working with legislators behind the scenes to draft a bill that would impact their profession. They also warn that the “necessary” standard might discourage police from going into dangerous situations where their help is needed.
“It would be a colossal hindrance to law enforcement in this state,” said Marvel. “It would take away our ability to react efficiently and effectively. Officers will be thinking, ‘Should I really be doing this? Should I run away?’”
Though no other states have a standard like the one California is considering, some police departments have a standard higher than the one set by the Supreme Court in their internal policies. Seth Stoughton, an assistant professor at the University of South Carolina School of Law, researched use-of-force policies in the nation’s 50 largest police departments for a paper published last year. He concluded that Los Angeles has nothing in its policy describing a continuum of the types of force that should be deployed, while Seattle has the most detailed policy, stating, in part, that officers must “use only the force necessary to perform their duties.”
“The Supreme Court case law sets a (low) floor, but not a ceiling on how agencies handle use of force internally,” Stoughton wrote.
Franklin Zimring, a professor at UC Berkeley’s law school, said the California Legislature could best impact police behavior by increasing the amount of civil damages victims may seek in lawsuits over deadly force.
“The major force in controlling, or failing to control, police use of force is the police chief,” Zimring said. “What state law can do is...make excessive use of deadly force expensive enough to motivate police chiefs.”
