Part One[1]:
Although Senate Bill 2 (SB 2) took effect January 1, 2022 (some of its provisions took effect at later dates, as outlined below), many law enforcement agencies (and outside investigators) are still becoming acquainted with its many new, impactful provisions. Here, I highlight noteworthy provisions of SB 2 while also highly recommending giving SB 2 a close read before embarking on any Peace Officer misconduct investigations. Do not sleep on SB 2!
The two most significant takeaways from the enaction of SB 2 lie in (1) the substantial, new power SB 2 conferred on the Commission on Peace Officer Standards and Training (POST) and (2) the law enforcement agency reporting requirements SB 2 established. Law enforcement agencies (and investigators, alike) are currently working to understand and implement the new parameters established by SB 2, particularly regarding how SB 2 affects Peace Officer misconduct investigations.
SB 2’s POST Power Boost
By way of introduction, SB 2 went into effect January 1, 2022, but key aspects of SB 2, including agency reporting obligations, went into effect January 1, 2023. Rewinding many decades earlier, POST was established in 1959 with the purpose of setting minimum selection and training standards for all members. While POST has always played an important role in law enforcement training and certification, SB 2 increased that power exponentially, as follows.
SB 2 now requires that all Peace Officers be certified by POST, regardless of whether the Peace Officer is employed by a POST participating law enforcement agency. In addition, POST now maintains and publishes a list of Peace Officers whose certification is suspended or revoked along with the basis for the suspension or revocation.
Moreover, SB 2 established a Peace Officer Standards Accountability Division (POSAD) within POST. POSAD is imbued with the power to review Peace Officer misconduct investigations conducted by law enforcement agencies (or conducted by neutral investigators on behalf of those agencies). In addition, POSAD can conduct its own investigations that could provide the grounds for the suspension or revocation of a Peace Officer’s required POST certification.
SB 2’s Law Enforcement Agency Reporting Requirements
In addition to POSAD’s investigatory power, SB 2 also established new reporting requirements for law enforcement agencies. SB 2 requires that these agencies report to POST all allegations of “serious misconduct” within 10 days of receipt. Yes, you read that correctly. Law enforcement agencies must now report all allegations, not just findings, of “serious misconduct” to POST within 10 days. Law enforcement agencies are in the process of determining how precisely to comply with this requirement, including how much information and detail about the allegations must be reported to POST.
Of note, only allegations of “serious misconduct” by Peace Officers must be reported to POST within 10 days. SB 2 defines “serious misconduct” through California Penal Code Section 13510.8. As a general overview, this Penal Code Section includes the nine categories of “serious misconduct” that follow:
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Dishonesty
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Abuse of power
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Physical abuse
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Sexual assault
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Demonstrating bias
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Acts that violate the law that are sufficiently egregious or repeated
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Participation in a law enforcement gang
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Failure to cooperate with an investigation into potential police misconduct
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Failure to intercede
While California Penal Code Section 13510.8 provides some more information about what these categories of “serious misconduct” entail, law enforcements agencies are in the process of deciphering, with guidance from the above Penal Code Section and POST itself, which allegations of Peace Officer misconduct must be reported to POST.
Following a law enforcement agency’s investigation into the allegations of “serious misconduct,” the agency must also provide their completed investigations to POST for review, also within 10 days. This includes any investigations conducted on their behalf by outside investigators.
SB 2 – What’s The Point?
Taking all of this into account, the key rationale behind SB2 is to promote Peace Officer accountability and to ensure that all Peace Officers are not only required to be certified, but also cognizant of and subject to POST’s power to revoke that certification in the event of “serious misconduct.” SB 2’s requirements will likely prevent Peace Officers from “agency jumping” when faced with discipline or even termination, as POST maintains a list of Peace Officer certification status, including revocations and suspensions. While I have highlighted some significant provisions of SB 2, I highly recommend giving it a thorough review and keeping in mind all of its new requirements while conducting Peace Officer misconduct investigations.
[1] Part One will cover key provisions of SB 2, including POST’s new Division and reporting requirements, and will also discuss SB 2’s purpose. Part Two, coming soon, will discuss some practical takeaways from SB 2 for investigators.
Van Dermyden Makus benefits from the kind of expertise that can only be gained through the collective experience of several thousand interviews. Out team approach means every investigation we conduct benefits from that experience. Chances are, whatever difficult interview (or investigation) issue you are facing, we have dealt with something similar before; if not, we welcome the new challenge.