Police Decertification & SB 2

Episode Notes

Transcript

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Marshal Arnwine, Jr.: If we do not have transparency on the public records of bad actors, it’s going to make it really difficult to make the change that is much needed.

Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I have two books out titled ‘How to Get Sued’ and ‘The Sled.’

On September 3, 2021, California Governor Gavin Newsom signed Senate Bill 2, SB 2, also known as the Kenneth Ross Jr. Police Decertification Act of 2021 establishing a statewide system to decertify or suspend officers who have committed serious misconduct. Under SB 2, the public can report police officers to the Commission on Police Officer Standards and Training, POST. POST will assess the complaint through a multi-layered decertification system according to the law itself. SB 2 also makes it easier to sue police who have committed civil rights abuses. So, what constitutes police misconduct and how is SB 2 shaping police departments. Today on Lawyer 2 Lawyer we’ll spotlight SB 2 and police decertification. We’ll discuss decertification due to police misconduct, wandering officers, and the impact on states’ decertification revocation laws. And to help us better understand this issue, we’re joined by Marshal Arnwine, Jr., an advocate for the Criminal Justice Program at the ACLU of Northern California, the American Civil Liberties Union, and in this capacity, he helps lead and organize efforts to reform police policies for 48 Northern California Counties. Hs efforts include implementing multiple statutes, AB 392, the police use of force; AB 953 on racial and identity profiling; and SB 1421, access to police officer’s records relating to police conduct. Marshal recently hosted a webinar for the ACLU of Northern California entitled “Police Decertification: How Does It Work?” Well, welcome to the show, Marshal.

Marshal Arnwine, Jr.: Hello. Thank you for having me. It’s a pleasure to be here.

J. Craig Williams: Tell us a little bit about your background, your legal background, and how you got involved with the ACLU?

Marshal Arnwine, Jr.: Yes, so I serve in the role as legal policy advocate, and in this role, I analyze state and local legislation and to make sure that the legislation that we lobby for at the state capital is actually implemented properly in the local jurisdictions and my home jurisdiction is Sacramento County.

J. Craig Williams: So, how do you go about making sure that they’re enforced correctly?

Marshal Arnwine, Jr.: One option is after the bills are passed, I go to ledgeinfo.com, which anyone in the public can do, and I pull up the bill and I just read it from top to bottom to educate myself and then I’ll go and see and check if the police agencies are following not only the intent, but also the legal statutes of the law.

J. Craig Williams: You talked about you recently had a webinar entitled the “Police Decertification: How Does It Work?” Tell us about your seminar.

Marshal Arnwine, Jr.: Yes, in May, I believe it was May 30, I co-hosted a seminar with some of our co-sponsors to the Senate Bill 2 bill, and in this bill webinar, we wanted the public to understand how the decertification process worked. At the ACLU, we received numerous inquiries from community members, from advocates, who wanted to know how will this work. So I decided to pull together some of the co-sponsors of the bill to create this educational webinar to explain three things. One, what was the original purpose of SB 2? Two, what are the factors for someone to be decertified? And three, how can community members help implement SB 2?

J. Craig Williams: What does police decertification mean? What is the actual process and how does it work?

Marshal Arnwine, Jr.: So, in layman’s terms, police decertification is essentially revoking the officer’s ability to become a police officer within California. In order for an officer to have their badges revoked, they would have to fall within nine definitions of serious misconduct and if they fall within those definitions, then there is an agency called POST which stands for the Commission on Peace Officer Standards and Training, and this is the law enforcement agency that creates the system of revoking law enforcement badges.

(00:5:17)

J. Craig Williams: Tell us about Kenneth Ross Jr. and the Police Decertification Act that you’re working on?

Marshal Arnwine, Jr.: So, Kenneth Ross Jr. was a beloved son, father, and brother. He was 25 years old when he was tragically killed by the Gardena Police Department. His death prompted an urgent call for police reform. The officer who had shot Kenneth Ross Jr. had previously been involved in three other shootings. We cannot ever forget that precious life was lost in the process of creating this law. And because of this tragic killing, Senate Bill 2 created a pathway to decertify officers who engage in serious misconduct and commit crimes so that it can prevent officers from committing harm at one police department and then transferring to a different police department.

J. Craig Williams: Well, it sounds like there are — you mentioned there are nine grounds for police decertification. Obviously, shooting someone without a reason is one of them, but what are the other ones?

Marshal Arnwine, Jr.: Yeah, so the nine are: dishonesty, abuse, power, physical abuse, sexual assault, demonstrating bias, acts that violate the law, participation in a law enforcement gang, failure to cooperate with an investigation, and failure to intercede.

J. Craig Williams: And how does it go about you decertifying a police officer? I mean, I know that there’s a lot of internal procedures and internal review that happens. How does this process work?

Marshal Arnwine, Jr.: Yes, so there are several avenues for this process to work. One avenue is written in the SB 2 law. Within SB 2, it states that starting at the beginning of this year, 2023, that all agencies employ peace officers, if they receive a complaint that one of their officers alleged in serious misconduct, then within 10 days of receiving that allegation, a local police department has to send that investigation to the Peace Officers Standards and Training facility.

J. Craig Williams: How do we know whether they’ve done that or not?

Marshal Arnwine, Jr.: That is a great question that a lot of people ask, and one way is to reach out to POST, the Peace Officers Standards and Training Commission to inquire which agencies have actually reported. POST holds four meetings per calendar year where they update the public on the implementation status of SB 2 and in a recent POST meeting this month that transpired in June, they mentioned that almost half of the agencies that fall under SB 2 haven’t reported yet. And POST will be the agency that will be reaching out to those police departments that have not reported to make sure that they are following the law.

J. Craig Williams: What enforcement ability do they have? What does POST have as the ability to be able to make sure that this happens?

Marshal Arnwine, Jr.: So, in the SB 2 law, there isn’t anything in writing that provides an actual remedy that lays out the steps for what happens when an agency does not provide the records as intended by the law. But on the other hand, if the local agency does not provide the records, then they are breaking state law and they’re opening up themselves to potential lawsuits.

J. Craig Williams: There’s a phrase called “a wandering officer.” Is a wandering officer one of those people that just move from police department to police department around the state?

Marshal Arnwine, Jr.: I haven’t heard that phrase before, can you define it to me, or have you heard it in the past?

J. Craig Williams: Just as that, they wander from one department to another even though they’ve been accused of misconduct in one department.

Marshal Arnwine, Jr.: Yes, so the officer that shot Kenneth Ross Jr., he was previously employed at a different police department before transferring to Gardena. So, if we had this Police Decertification Law in place before that officer transferred over, because that officer has already committed three other shootings, it’s very possible that that officer would not have been in a position to shoot Kenneth Ross Jr. that day.

(00:10:16)

J. Craig Williams: Now, this is in California and what happens in the rest of the United States? I mean there’s 49 other states that we have to deal with.

Marshal Arnwine, Jr.: Yes, so each state has their own decertification scheme. So SB 2 focuses just on the decertification scheme in California to ensure, like you mentioned, the officer cannot bounce from one police department to the next police department without any accountability. But let’s say an officer loses their badge in California, and they want to transfer to a different state, let’s say Arizona. SB 2 does not prevent that officer from going to a different state. However, let’s say Arizona has a similar decertification scheme as California, then that officer wouldn’t be able to go to Arizona because their revocation will be similar but something powerful in the SB 2 Law is that there’s this index called the National Decertification Index, where law enforcement agencies have to put the officer that they decertified in that index so that future law enforcement agents would know who had their badges revoked.

J. Craig Williams: And the same question there, who polices the police and making sure that those names get uploaded to that national list?

Marshal Arnwine, Jr.: That is an excellent question. Unfortunately, the SB 2 Bill does not lay out who polices the police, but as community members, as people that work in law enforcement, it’s going to take a team effort to ensure that the spirit and the intention of SB 2 gets accomplished.

J. Craig Williams: Marshall we’re going to take a quick break to hear a word from our sponsors. We’ll be right back.

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J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m joined by Marshal Arnwine, Jr. He’s an advocate for the criminal justice program at the ACLU of Northern California. We’ve been talking about police decertification, and in this instance, cross state and national lists. Since there really isn’t any process to police the police, who is it that gets to make the complaint in the first place about a police officer that needs to be decertified and how do they go about doing it?

Marshal Arnwine, Jr.: There are several mechanisms to file a complaint. So a citizen of the public, if they are harmed and their harm falls within the nine serious misconduct definitions, they can file a complaint to their local police agency that employ that officer that caused the harm. After filing that complaint with the local agency, the law says that after the agency receives that allegation, they have 10 days to alert the POST agency of that allegation. Once that allegations investigation is complete at the local level, then the local agency sends that completed investigation to POST agency. So, in a sense, POST is the watchdog to ensure that SB 2 is being implemented properly — going back to your earlier question, it’s who is policing the police? POST is supposed to play a role in ensuring that these complaints are being investigated properly to either decertify officer or suspend them.

(00:15:01)

J. Craig Williams: And is that actually happening?

Marshal Arnwine, Jr.: So this year is the first year where all the implementation components of it, of SB 2 has to be complete. So recently, the Civilian Advisory Board have been receiving appointments and this advisory board are a board of civilians who will make recommendations of decertifying officers. Also, by July 1, law enforcement agencies have to send over complaints that fall within a specific retroactive timeline. So in a sense, the process is ongoing but this year is the first year that the proceedings for decertification is going to take place and according to POST, there is an anticipated timeline of October of when the first proceedings will occur.

J. Craig Williams:  And if I wanted to find POST, where would I look for it?

Marshal Arnwine, Jr.:  You can enter ca.post.gov into your Internet browser and when you get to that website, one of the first things you will see is complaint on an officer, you will see Senate Bill 2, you will also see upcoming POST Commission meetings, which I highly recommend people to attend to kind of go back to your point of who is policing the police? Us, as the general public should be monitoring these meetings to ensure that SB 2 is being implemented properly.

J. Craig Williams: And these meetings are open to the general public?

Marshal Arnwine, Jr.: Yes, so the meetings happen at different cities. Sometime they’re in Sacramento. Sometime they’re in Los Angeles. The next one that’s in person is in Los Angeles. I believe it’s in September but on the POST website it gives you the exact date and time and address. But let’s say you don’t live in Los Angeles. You can also watch online.

J. Craig Williams: That’s a great alternative to be able to see these kinds of proceedings online. Is there any type of cross referencing that’s occurring between the police decertification lists across the country and the national list? And as against the list of people who police officers who are employed in these states?

Marshal Arnwine, Jr.: I don’t know the answer to that. What I do know is right now, POST has a decertification list on their website. So when you go to the website ca.post.gov, there is a tab that has a decertification list and there’s approximately 40 officers that are already on that list.

J. Craig Williams: Now could I take a look at that list and then go to my local police department and find a list of police officers that were working there so that I could compare the two of the lists? Let’s say that I go find the list of 40 officers that are decertified on the POST site. Can I then go to my local site here, say in Orange County, and look at the list of officers and sheriffs that are employed by the local police departments and find out if any of those 40 officers are actually working at any of the local police departments?

Marshal Arnwine, Jr.: That is a great question. I do not know if each local agency has their own list of officers in order to compare, like you mentioned, but something that would be interesting that the public can be helpful and a part of is — let’s say you live in Orange County and you look at the decertification list on the POST website and you’ve known and you’ve heard of law enforcement officers that have completed serious misconduct and you believe that they too should be investigated for misconduct. You can file a complaint with your local agency to ensure that the local agency is aware of any officer within your local jurisdiction that should be given consideration for decertification.

J. Craig Williams: Sounds like maybe a project for the ACLU would be to send out for your requests to all of the local agencies in California and get these lists and run that comparison. Just get the databases matched up.

Marshal Arnwine, Jr.:  That would be something we will have to discuss internally to see if that’s something that can be useful to community members.

J. Craig Williams:  Well, there have been some stories about police officers that are banned from working in one state, working in another states, but we’ll see. Let’s get to the point of what’s going wrong with police these times, I guess, it’s a way to say it.

(00:20:02)

We’ve had deaths of black individuals all across the country, George Floyd among them and many others, that just sad situations at police officer’s hands. What’s going on? Why is there such a problem?

Marshal Arnwine, Jr.: One aspect that is a huge problem is the lack of transparency and accountability, and an example that’s occurring right now is that in California, there is something called SB 2 Trailer Bill Language where the governor’s administration through the state budget is trying to remove some of the SB 2 provisions that provide transparency. And if we do not have transparency on the public records of bad actors, it’s going to make it really difficult to make the change that is much needed.

J. Craig Williams: Well in all honestly, it sounds like there isn’t much transparency now since you can’t really find out fairly easily who’s decertified. You can find that out who’s decertified but you can’t really find out if they’re working somewhere.

Marshal Arnwine, Jr.: Yes, and even with the SB 2 Bill, the hope and the intent is that this will be a turning point because the proceedings that transpire with an officer that is being considered for decertification, that has never happened before. Before this law was passed, an officer could just commit a harm and then they could retire, or they could commit a harm and transfer to another police department. At least with SB 2, it will be publicly known who the bad actor is and there will also be a public hearing of a sort to understand what has transpired in these local communities. So I do think SB 2 is going to take us in the right direction for transparency and accountability.

J. Craig Williams: Good. Well Marshal, it’s time for another quick break to hear a word from our sponsors. We’ll be right back.

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J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m back with Marshal Arnwine, Jr. He’s an advocate for the criminal justice program at the ACLU of Northern California discussing police decertification. Before the break, Marshal, you mentioned that the governor here in California is taking some steps to perhaps erode some of Senate Bill 2 and the transparency that exists. What’s the governor’s position and his rationale?

Marshal Arnwine, Jr.: So my understanding right now, is that in California, every year, the governor has to sign a budget bill to make sure that our economy is running smoothly. But one of the problems is in an effort to save money, there is talks of striking some language from SB 2 that would deny the promised transparency and to the decertification process. So, let me give you an example. If the Trailer Bill Language that the governor’s administration is considering takes place, post can ignore all public records at request for disclosable records in his custody connected to a certification and decertification duties which include records related to physical abuse resulting in death or serious bodily injury, sustained incidents of sexual assault against a member of the public, demonstrating bias and other problematic moral character, criminal conviction data.

(00:25:18)

It’s important to know that when activists, lawyers, law enforcements and lawmakers negotiated SB 2, they added a critical provision stating that all records that’s introduced during the decertification proceedings shall be public. But this Trailer Bill Language that the governor’s administration is proposing will alleviate post from that transparency. So it is extremely important for the legal community, all of your listeners to be able to be aware of what’s going on in our state, and to be able to reach out to the budget committee, and our legislators to have them reject any Trailer Bill Language that will remove the transparency and accountability that communities need and deserve.

J. Craig Williams: If folks want to comment on this Trailer Bill Language, how would they do?

Marshal Arnwine, Jr.: One way is to go online and you can Google the California State Legislature’s budget committee and on there, you’ll be able to see who are the legislators that’s on the budget committee and the ACLU partners with several organizations and wrote a letter to many legislators, to Skinner, to Ting, to Bonta, to Durazo and we also sent this letter to the governor’s administration as well, and I can send you the link after this show in case you want to attach it to the podcast so that your viewers can read the letter and understand what is taking place right now in our state capital.

J. Craig Williams: Wonderful. We’ll include that in the podcast. Thank you. So, tell us what else needs to happen with SB 2. It sounds like it’s a good — as you said, step forward, but there’s still more transparency that needs to occur. What would you recommend as the next steps?

Marshal Arnwine, Jr.:  I recommend that as many community members get involved in the process as possible — so, for example, earlier I mentioned that SB 2 created the Civilian Advisory Board. It’s really crucial that civilians apply to these positions. So right now, the Civilian Board only has five members and needs four more and the governor will be appointing these four and I believe as of now, the positions are still open and if people are interested in applying, they can go to www.gov.ca.gov/appointments and it’s really crucial that community members are a part of this process because as you mentioned earlier, who is going to police the police? And this is an opportunity for community members to not have to be from a law enforcement background to play a role in the decertification process.

J. Craig Williams: Wonderful. Marshal, it looks like we just about reached the end of our program, so it’s time to invite you to share your final thoughts and provide your contact information so our listeners can reach out to you if they’d like to get in touch with you and discuss this further.

Marshal Arnwine, Jr.: Yes. My final thoughts is that, after the world witnessed the murder of George Floyd in 2020, the public demanded more accountability and transparency for police who are bad actors and break their oath to protect and serve. Therefore, it is our duty as community members and our elected officials and public representatives to be committed to ensure public safety for all and address the discrimination, racism and misconduct that occurs. It is extremely important that we continue to uplift Kenneth Ross, Jr. Police Decertification Act, and to remember that precious lives have been lost due to police violence and we have to make sure that that never happens again or alleviate the times that does transpire. If people have any further inquiries or questions, you can reach me at my email at [email protected]. Feel free to email me any questions or comments or ways to get involved.

(00:30:04)

You can also go to our website at www.aclunc.org and on page on the front page, you will see a link called Police Decertification in California, how it works, and you’ll see the frequently asked questions. You can learn more about Senate Bill 2 and you can also watch the recording of how the decertification proceedings work.

J. Craig Williams: Wonderful. Marshal, it’s been a pleasure to have you on the show. Thank you very much.

Marshal Arnwine, Jr.: Thank you for having me. God bless you, take care.

J. Craig Williams: Well here are a few of my thoughts about today’s topic. SB 2 is a big step forward given the lack of transparency that we historically had police departments across the country, but it’s not far enough. I am saddened to hear that Governor Newsom is pulling parts of it back or wants to pull parts of it back and asked our listeners to step up to the plate and notify the budget committee here in the State of California that this is a wrong step, more transparency is needed and more coordination. It’s obvious at this point that we can’t even do basic things like compare lists of working officers with decertified officers and that’s kind of scary. So let’s get this fixed.

Well, that’s it for today’s rant on this topic. Let me know what you think and if you like what you heard today, please rate us on Apple Podcast, so your favorite podcasting app. You can also visit us at the LegalTalkNetwork.com or you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal, think Lawyer 2 Lawyer.

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