New package of laws makes it harder for officers who commit misconduct to get hired by other departments, places limits on ‘qualified immunity.’
Gov. Gavin News signed a broad new set of police reform laws Sept. 30. Dino Vournas / Flicker C.C. 2.0 Generic License
In April of 2018, police in Gardena—a South Bay suburb of Los Angeles and home to a population of about 60,000—responded to a report of multiple shots fired at a local park, a report that Officer Michael Robbins, the last officer on the scene, later described as giving him “a little adrenaline squirt.”
Several other officers were already there and were chasing a 25-year-old African-American man, Kenneth Ross Jr., past Rowley Park. Robbins pulled up in his cruiser and quickly got out, armed with an AR-15 rifle. Moments later, Robbins fired at Ross, hitting him twice in the back and shoulder. Ross instantly collapsed to the ground. He was pronounced dead on arrival at a nearby hospital.
A little over a year later, Los Angeles County’s then-District Attorney Jackie Lacey issued a report clearing Ross, concluding that the officer acted in “lawful self-defense” when he shot Ross, and that he was “justified in the use of deadly force to apprehend a dangerous fleeing felon.”
Case closed.
But when Gardena State Sen. Steven Bradford, whose family was one of the first African-American families to move into the Rowley Park neighborhood and who served as Gardena’s first Black city councilmember, made some inquiries into the shooting, he learned a disturbing fact.
Robbins had been hired into the Gardena Police Department on a “lateral” basis, after leaving a police department in neighboring Orange County. In his previous job, Robbins had already shot three people under what Bradford called “questionable” circumstances. None of those shootings had been determined to be unlawful either, but the revelation “turned on the light for me that this needs to end,” Bradford told the Los Angeles Times.
The Gardena senator drafted a bill which became Senate Bill 2, christened the Kenneth Ross Jr. Police Decertification Act of 2021, designed to stop officers with records of misconduct from simply moving to another police department, allowing them to offend again.
After a lengthy legislative struggle that saw Bradford emotionally reciting the names of African-American victims of police violence during a contentious April committee hearing, the state Senate on Sept. 8 gave the OK to send the bill to Gov. Gavin Newsom, after the Assembly had held its own affirmative vote five days earlier.
Newsom signed the bill Sept. 30 at a ceremony in Rowley Park, including it in a wide-ranging package of eight police reform bills, many of which originated with issues raised by the horrific police killing of George Floyd in Minneapolis in May of 2020. The final version of SB2—Bradford’s original bill with some significant compromises—limits the ability of police to claim “qualified immunity,” a legal maneuver which allows them to skirt civil liability when they’re accused of violating someone’s civil or constitutional rights. The Gardena senator, who also spoke at the Rowley Park ceremony, called Newsom’s signing of the bill into law a “major victory” that "sends a message all across the nation."
A similar bill, SB731, which would have created a process to decertify officers and limited qualified immunity, failed in the legislature in 2020.
How serious is the issue of what Yale University researchers in a 2020 study called “wandering officers,” that is, “law-enforcement officers fired by one department, sometimes for serious misconduct, who then find work at another agency”? According to the researchers, Ben Grunwald and John Rappaport, their study, which focused on the state of Florida, found that a yearly average of 1,100 officers fired by one department find work at another agency. That’s about 3 percent of all police officers in that state.
They also found that because officers who have been fired for misconduct have difficulty finding new jobs, they often end up in smaller departments with fewer resources, serving larger communities of color. Finally, the landmark Yale research found that the “wandering officers” were more likely than other hires to be targeted by complaints for “moral character violations,” and to be fired again.
Because the Yale study was the first of its kind, no hard stats exist on the number of California officers who shift from one police department to another after misconduct reports. But anecdotally there are numerous stories, beyond the case of Michael Robbins.
A 2013 investigation by the Los Angeles Times found that the Los Angeles County Sheriff’s Department hired 280 officers even after background checks turned up reports of wrongdoing ranging from cheating on polygraph exams and falsifying police records to accidentally firing weapons and soliciting prostitutes. One hire had previously faced allegations that he groped a 14-year-old girl, another that she fired her service weapon at her husband during an argument that turned violent, and yet another who had been the subject of six internal affairs investigations for alleged use of unreasonable force, threats and intimidation.
Of those 280, 29 had previously been fired by other law enforcement agencies over misconduct allegations.
In 2018, five Oakland police officers were fired over the shooting of 31-year-old homeless man Joshua Pawlik. A 2021 investigation by the Oaklandside news site found that three of them had since been hired by other law enforcement agencies in Solano and Alameda counties, and the city of Emeryville.
A 2019 report by the Mercury News discovered that in the San Joaquin Valley city of McFarland—celebrated in the 2015 Disney film McFarland, USA—one of every five officers who worked at the police department over the previous decade had “been previously fired, sued for misconduct or convicted of a crime.” That total included two of the city’s police chiefs.
And also in 2019, a collaborative investigation among multiple California news organizations led by the Investigative Reporting Program at the UC Berkeley Graduate School of Journalism found 648 officers who remained employed in law enforcement even after criminal convictions on their records. Their crimes ran the gamut from manslaughter (by running people over with a police car) to driving under the influence, sex offenses aganst minors, domestic violence, and fraud.
The UC Berkeley-led investigation did not specify how many of those 648 were “wandering officers,” and how many were simply retained by their own agencies even with the convictions on their record. But the underlying problem that allowed them to continue enforcing the law for members of the public after breaking it themselves was the same—California had an extremely weak system for overseeing officer certification, the process that allows an individual to be employed as a law enforcement officer.
In fact, California was one of only four states along with Hawaii, New Jersey and Rhode Island that lacked any process at all for decertifying officers who break the law, or commit other acts of serious misconduct. That has now changed. SB 2 makes it more difficult for “wandering officers” to wander. But it is also designed to accomplish another major goal of police reform—restricting the doctrine of “qualified immunity.”
Established in the 1967 U.S. Supreme Court case Pierson v. Ray, qualified immunity is the principle that police officers (and other public officials) may not be sued for violating another person’s constitutional rights, as long as the violation occurred in “good faith,” and the victim’s rights were “clearly established.”
The Supreme Court had a chance to revisit the doctrine in March of 2021, when a Cleveland man attempted to sue police after they body slammed him outside of his own home, struck him in the back of the neck and tossed him in jail simply because they decided he was acting in a “suspicious” fashion. But SCOTUS declined to even hear the case.
A 2020 Reuters analysis of 252 lawsuits against police from 2015 to 2019 found that courts cited the qualified immunity doctrine to shield police from lawsuits in more than half of those cases. In addition, the tendency for courts to favor police has increased since a 2009 SCOTUS decision allowing lower courts to apply a more lenient standard in allowing officers to escape lawsuits under qualified immunity.
California already has a law on the books, the 1987 Tom Bane Civil Rights Act (which took effect in 1988), that has been used to override qualified immunity. Designed to combat hate crimes, the act allows victims to sue anyone who used threats, intimidation or coercion to interfere with their constitutional rights. Over the years, however, the law has been used increasingly to sue police.
The Bane Act, however, is far from perfect. While limiting qualified immunity, the 33-year-old law actually guarantees full immunity for police officers who use false evidence against suspects, deny them medical care or use unwarranted force against them in custody. The immunity allowed under the Bane Act, it should be noted, applies only to civil lawsuits. Officers are not immune from prosecution for those offenses under the Bane Act.
The bill signed by Newsom on Sept. 30 adds amendments to the Bane Act to take away those immunities from officers and other public officials, when they are sued by citizens who claim their civil rights have been breached.
The marquee provision of the bill, however, is the process it creates to prevent—or at least discourage—police departments from hiring officers with records of misconduct. SB2 now allows the state’s Commission on Peace Officers Standards and Training (CPOST) to suspend officers after a somewhat complicated review process, in which the commission essentially re-investigates complaints previously investigated by local authorities.
The bill also creates an “advisory board” to make recommendations to the CPOST on whether individual officers should be suspended.
Police organizations, including police unions, fought hard against the bill and won some concessions from Bradford and the bill’s other Democratic backers. No Republicans supported any version of the bill. Under the final bill, a two-thirds vote of the 17-member CPOST, rather than a simple majority, is required to decertify a police officer.
The advisory board will be composed of citizens appointed by the governor. Under the original version of the bill, two of those seats were reserved for people who themsleves had been "subject to wrongful use of force" by police, or were family members of a person killed by police violence. Democrats ended up allowing only that the governor give “strong consideration” to actual victims of wrongful police force in appointing advisory board members.
Newsom on Sept. 30 also signed into law seven more bills that are designed to change the way police and police departments operate in California.
One bill, AB89, raises the minimum hiring age for police recruits from 18 to 21, and requires state colleges and universities, and community colleges, to put degree programs in “modern policing” in place by 2025.
Another bill signed by Newsom was a direct response to police actions during the 2020 civil rights protests following the George Floyd killing. AB48 places restrictions on police use of supposedly non-lethal weapons, such as tear gas and “kinetic projectiles” (rubber bullets, beanbags). Under the new law, police may use those weapons against crowds only after repeated announcements and ample time for crowds to disperse.
Even then, police under the new law must make “objectively reasonable efforts” to target only persons committing violence themselves, rather than firing randomly into a crowd. And the weapons may not be aimed at a person’s head or neck, or other vital organs.
California now also has a law banning the type of police restraint method used against Floyd, and seen in a horrifying viral video showing Minneapolis Officer Derek Chuavin kneeling on Floyd’s neck for a prolonged period of time. Newsom signed AB490, which bans chokeholds and other types of restraints that could result in strangling or choking out a suspect.
Another response to the George Floyd video came in AB26, signed by Newsom, which requires officers who witness other officers using excessive force to step in and stop it. The Floyd video showed three other officers standing idly by as Chauvin kneeled on the fallen man’s neck, even as Floyd repeatedly pleaded with the officers that he could not breathe.
The governor also inked AB958, which bans gang-like officer “cliques” within police law enforcement agencies. A study by the Rand Corporation commissioned by Los Angeles County in 2019 found that such “subgroups” actively encourage use of excessive force, and are more likely to appear at police stations that patrol areas with high levels of violent crime.
Rand surveyed more than 1,600 Los Angeles County sheriff’s deputies and supervisors, finding that 16 percent said they had been invited to join cliques, but only about one of every three (37 percent) said the cliques should be banned.
Finally, Newsom also signed SB16, which opens public access to police records of officer misconduct, and AB481, a law requiring police agencies to get on OK from their local city council before purchasing “military” equipment and weapons, such as grenade launchers or armored vehicles.
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