LAPD officers form a line in riot gear during a Black Lives Matter protest in Los Angeles following the 2020 Minneapolis police murder of George Floyd. A landmark California law to decertify officers who commit serious misconduct reached a milestone this week. But there's still a long way to go. (Gabriella Angotti-Jones/Los Angeles Times via Getty Images)
A Contra Costa County Sheriff’s deputy fatally shot a mentally ill man fleeing from a traffic stop in 2018. The deputy received no discipline — although years later he was convicted of assault and sentenced to prison for the shooting. A Fairfield police officer made a racist joke about “COVID-19 from China” and posted it to TikTok. That officer was suspended for a day.
Starting Jan. 1, 2023, cases like these might get kicked up to a state agency — the Commission on Peace Officer Standards and Training (POST) — for a level of review completely new to California: Was the officer’s misconduct egregious enough to take away their badge for good?
California’s landmark police decertification law might wind up undermined by this flawed and fractured system — but it could also provide fresh opportunity for oversight.
“I think we're going to see a whole lot of unintended consequences of SB 2,” POST Vice Chair Rick Braziel said Wednesday. “We're going to identify agencies who aren't doing their IA [internal affairs] cases correctly. ... When we start lifting up rocks and looking underneath, we're going to see a whole lot of things that are just messed up.”
Since the bill passed last year, POST has been trying to navigate the high expectations of those who hope decertification will address gaps in police accountability, and concerns from law enforcement leaders that it will usurp their authority to discipline employee officers.
“There’s a lot of misinformation out there,” said Jackie Nelson, the POST bureau chief in charge of implementing SB 2, in an interview. “Agencies think we're going to become the internal affairs for the state, and that's not the case.”
Redlands Police Chief Chris Catren, who’s serving as president of the California Police Chiefs Association, said he’s concerned the law is too broad and “could apply to officers that have done what would otherwise be seen as minor misconduct, and then potentially put them in the crosshairs for decertification.”
With these kinds of concerns in mind, POST has been refining the definition of “serious misconduct” for months, arguing over terms like “fitness,” “substantive” and “willful” in workshops and during long meetings.
“Serious Misconduct is an act or acts, or an omission or omissions, demonstrating a lack of fitness to serve as a peace officer in the State of California” is the catchall definition created and approved by the commission on Wednesday.
The commission also expanded and refined definitions for the nine aspects of serious misconduct outlined in the law: dishonesty, abuse of power, physical abuse, sexual assault, demonstrating bias, acts that violate the law and are sufficiently egregious, participation in a law enforcement gang, failure to cooperate with an investigation, and failure to intercede if another officer uses unnecessary force.
The public will be able to comment on these definitions next week, Nelson said.
On Wednesday, POST Executive Director Manny Alvarez said the agency is working hard to meet its January deadline for implementation. Its expanded $22.6 million budget was recently approved by Gov. Gavin Newsom. In July, the agency will ramp up hiring for 127 positions, nearly doubling the size of the agency.
In light of the labor shortage and the tight timeline, Alvarez called this a “significant challenge.”
The commission also approved regulations Wednesday that outline a framework for reporting and reviewing allegations of serious misconduct.
All roads to officer decertification begin with a complaint or an allegation of misconduct.
In a TikTok video recorded early in the pandemic, Fairfield police officer Amanda Graham is sitting in the driver’s seat of a city police cruiser. A white surgical face mask hangs from the rearview mirror.
“I like your air freshener, what scent is that?” a trainee officer who is behind the camera asks Graham.
“Oh, you like this?” Graham responds, leaning over and taking a deep whiff of the face mask. “COVID-19 from China,” she says, putting on an accent with the last word.
On April 20, 2020, at least two residents saw the post and emailed the police department. KQED recently obtained these emails and the TikTok video from Fairfield under the expanded police transparency law that passed last year.
“Dear Chief, I hope you are as offended by the behavior of your officers as I am,” one of them reads. “The COVID-19 pandemic is not a joke and many people are impacted.”
Initially, Graham’s supervisor planned to handle it with a written reprimand. But when the department realized that Graham had posted other videos on the site, it began a fuller investigation.
Once a police department like Fairfield’s receives a complaint like the email about Officer Graham, it will have to determine whether what the complaint is alleging is “serious misconduct.”
The TikTok video might qualify under biased conduct, but the agency would also weigh whether Graham’s conduct was “inconsistent with a peace officer’s obligations to carry out their duties in a fair and unbiased manner.”
While there are other ways cases can get to POST — civil lawsuits, complaints filed directly to POST, or media coverage — Nelson said that “a lot of it will be the agencies' ... I don't want to say discretion ... their interpretation if it meets the definition.”
Some law enforcement departments in California might ignore a complaint like this entirely. A recent report from the state auditor pointed out how departments prematurely dismiss complaints, and rely on the explanations of officers rather than other evidence when they’re looking into potentially biased conduct.
Fairfield Police Captain Daniel Marshall told KQED in an email that the department couldn’t comment on whether a case like Graham’s would be reportable under SB 2 since the law is still being implemented.
Marshall wrote that his department takes biased misconduct seriously, even if it’s done as a joke. The police chief suspended Graham for one day, took away her training privileges for about seven weeks, and ordered her to attend training.
“We have shared the information with some leaders of Fairfield’s communities of color and held tough conversations about the damage this sort of behavior can cause,” Marshall wrote, adding that Graham also understood “how this kind of behavior can affect community trust.”
Graham did not respond to an email requesting comment.
Exonerated by a sheriff — convicted by a jury
If Graham’s conduct is near one end of the spectrum of police misconduct, the actions of Contra Costa County Deputy Andrew Hall, who fatally shot a mentally ill man named Laudemer Arboleda, falls near the other.
In late 2018, Arboleda led law enforcement on a low-speed car chase for about eight minutes after an attempted traffic stop. Hall tried to block Arboleda’s car with his own. He jumped out of his police car and into the path of Arboleda’s vehicle as the man tried to maneuver through the blockade. Hall fired multiple rounds through Arboleda’s windshield and window, killing him.
But the internal investigation begun in 2018 by the Contra Costa County Sheriff’s department exonerated Hall. The deputy kept working for the sheriff for two more years, and went on to fatally shoot Tyrell Wilson, an unhoused Black man whose family says suffered from schizophrenia, in 2021. It was shortly after that second shooting that the district attorney pressed charges.
Because Hall was convicted of a violent felony, under the new rules of SB 2 he would be eligible for decertification on Jan. 1, 2023. But, if he had not been criminally prosecuted, the sheriff would not have reported a case like this to POST because he didn’t think Hall was guilty of misconduct.
In theory, this is not supposed to happen. The standard of evidence for an internal investigation — a “preponderance” of the evidence — is much lower than a criminal conviction — “beyond a reasonable doubt.” For decertification, the evidence of serious misconduct must be “clear and convincing,” which falls somewhere in between.
“I wasn't on the jury. I didn't hear all the evidence,” Catren, the California Police Chiefs Association president, said. “But those kinds of cases are naturally going to cause people concern in the community, because they're saying, well, you know, the question always is right: 'Who's policing the police?'"
Catren said in certain cases it's also important to give officers the chance to learn from their mistakes.
“Some things are painfully obvious, you know. Somebody goes in and intentionally lies in court, or they plant evidence, or there's hard, clear evidence of biased policing,” Catren said. “But others aren't going to be. So, things like a DUI, some departments might determine that that's egregious enough, others may not.”
Nelson, the POST bureau chief, said it’s not POST’s job to weigh in and say whether the discipline an officer received was insufficient or unfair. If cases like Graham’s or Hall’s do get reported to POST, after the agency completes its internal investigation, POST will decide to either move forward with decertification or not. In certain cases, POST may decide to do its own investigation.
“We're taking the first bite out of this big monster, and we're going to find a whole lot more work as we continue in this process,” Braziel, the POST vice chair, said Wednesday.
“They get approximately 16,000 annually,” she said. “We looked at those — we felt about 3,400 would equate to what we think is serious misconduct or for potentially decertifying information.”
Nelson also said that later this year her team will be traveling to law enforcement agencies across the state to hold workshops and get everyone up to speed.
“We call it the road show,” she said. Nelson won’t just be training departments on decertification, but also on certification — how officers can get licensed in the state and what might disqualify them from a career in policing.
“So it spans the life cycle of an officer's career from beginning to end,” she said. “It's huge.”