At the Commission meeting held on April 7, 2022, the Commission deliberated the definition of "serious misconduct" and each of the nine types of misconduct that must be contained in the definition to warrant suspension or revocation. Pursuant to Penal Code Section 13510.8(b), the Commission defined “Serious Misconduct" as the following:
-"Serious Misconduct" is defined as acts or omissions demonstrating a lack of fitness to serve as a peace officer in the State of California. Serious misconduct includes, but is not limited to, the following:
(1) Dishonesty is a material, intentional, or willful act relating to the reporting, investigation, or prosecution of a crime, or relating to the reporting of, or investigation of misconduct by a peace officer, including, but not limited to, false statements, intentionally filing false reports, tampering with, falsifying, destroying, or concealing evidence, perjury, and tampering with data recorded by a body-worn camera or other recording device for the purposes of concealing misconduct.
(2) Abuse of power is knowingly abusing the powers and authority of public office, including, but not limited to, knowingly intimidating witnesses, knowingly obtaining a false confession or statement, and knowingly making a false arrest.
(3) Physical abuse, including, but not limited to, the excessive or unreasonable use of force.
(4) Sexual assault is defined as described in subdivision (b) of Penal Code Section 832.7, and shall extend to acts committed amongst members of any law enforcement agency.
(5) Demonstrating bias on the basis of actual or perceived race, national origin, religion, gender identity or expression, housing status, sexual orientation, mental or physical disability, or other protected status in violation of law or department policy or inconsistent with a peace officer’s obligation to carry out their duties in a fair and unbiased manner. This paragraph does not limit an employee’s rights under the First Amendment to the United States Constitution.
(6) Acts that violate the law and are sufficiently egregious or repeated as to be inconsistent with a peace officer’s obligation to uphold the law or respect the rights of members of the public, as determined by the Commission. Whether a particular factual or legal determination in a prior appeal proceeding shall have preclusive effect in proceedings under this chapter shall be governed by the existing law of collateral estoppel.
(7) Participation in a law enforcement gang. For the purpose of this paragraph, a “law enforcement gang” means a group of peace officers within a law enforcement agency who may identify themselves by a name and may be associated with an identifying symbol, including, but not limited to, matching tattoos, and who engage in a pattern of on-duty behavior that intentionally violates the law or fundamental principles of professional policing, including, but not limited to, excluding, harassing, or discriminating against any individual based on a protected category under federal or state antidiscrimination laws, engaging in or promoting conduct that violates the rights of other employees or members of the public, violating agency policy, the persistent practice of unlawful detention or use of excessive force in circumstances where it is known to be unjustified, falsifying police reports, fabricating or destroying evidence, targeting persons for enforcement based solely on protected characteristics of those persons, theft, unauthorized use of alcohol or drugs on duty, unlawful or unauthorized protection of other members from disciplinary actions, and retaliation against other officers who threaten or interfere with the activities of the group.
(8) Failure to cooperate with an investigation into potential police misconduct, including an investigation conducted pursuant to this chapter. For purposes of this paragraph, the lawful exercise of rights granted under the United States Constitution, the California Constitution, or any other law shall not be considered a failure to cooperate.
(9) Failure to intercede when present and observing another officer using force that is clearly beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances, taking into account the possibility that other officers may have additional information regarding the threat posed by a subject
Following legal review, staff is providing the Commission with the following suggested modifications:
- "Serious Misconduct is defined as 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. For purposes of this section, an act or omission demonstrating a lack of fitness to serve as a peace officer includes any act or omission in connection with the peace officer’s public office, or otherwise, that a reasonable person with the same or similar training and experience would find to be unprofessional, unethical, unlawful, deceptive, or otherwise harmful or detrimental to the public or to the law enforcement profession, or that would tend to disrupt, diminish, or otherwise jeopardize public trust in the law enforcement profession, or that would tend to erode the trust or confidence of the public, or of public officials, in the person’s ability to fairly, honestly, safely, ethically, and/or competently perform the duties of a law enforcement officer. Serious misconduct also includes, but is not limited to, the following:
(1) Dishonesty:
- “For purposes of this section, in considering whether a suspension or revocation of certification is proper, the Commission will consider the extent to which the dishonesty related to a material or significant fact in the context of the statement or omission alleged to be dishonest, and consider whether the dishonesty appears to have been done willfully or intentionally, with the intent to deceive" was added to the statute's definition of "dishonesty" to distinguish a deliberate act of dishonesty from an unintentional omission or misstatement of facts.
(2) Abuse of power:
- The Commission added “is knowingly abusing the powers and authority of public office” to the existing statutory language defining "abuse of power" to clarify or distinguish that abuse of power is more than the presence of a peace officer in uniform. It is an intentional act of violating the public trust in exerting the power and authority granted to a peace officer. The Commission added "knowingly” before “intimidating witnesses” for consistency of terminology in showing deliberate abuse of one’s authority.
The Office of Administrative Law (OAL) determined these changes would be considered a narrowing of the Legislature's intended definition. The Commission's attorney recommended leaving the original definition provided by statute as is and add "For purposes of this subsection, in considering whether a suspension or revocation of certification is proper, the Commission will consider the extent to which the abuse of power was a knowing abuse of the power and authority of a public office".
(3) Physical abuse:
- The Commission opted not to elaborate on the definition of "physical abuse" as provided in the statutory language.
(4) Sexual abuse:
- The Commission added “and shall extend to acts committed amongst members of any law enforcement agency” to the existing statutory language.
The Commission's attorney recommended to adopt the plain language of Penal Code Section 832.7 as it currently exists. "For the purposes of this subsection, the propositioning for or commission of any sexual act while on duty is considered a sexual assault" was added to include all agency personnel as potential victims of sexual assault.
(5) Bias:
- The Commission added “actual or perceived” to the existing statutory language defining "demonstrating bias" to align with Penal Code Sections 422.55 and 422.6 to establish that bias is based on the mindset of the individual who has demonstrated bias.
(6) Egregious acts:
- The Commission opted not to elaborate on the definition of "acts that violate the law..." as provided in the statutory language. The Commission's attorney recommended removing "as determined by the Commission" as it is not included in the language of any of the other acts of serious misconduct defined by statute. The Commission's attorney also recommends removing "Whether a particular factual or legal determination in a prior appeal proceeding shall have preclusive effect and proceedings under this chapter shall be governed by the existing law of collateral estoppel." The Office of Administrative Law also concluded this statement was not necessary is it does not add value to defining the term.
(7) Law enforcement gangs:
- The Commission opted not to elaborate on the definition of "participation in a law enforcement gang" as provided in the statutory language.
(8) Failure to cooperate:
- The Commission opted not to elaborate on the definition of "failure to cooperate" as provided in the statutory language.
(9) Failure to intercede:
- The Commission opted not to elaborate on the definition of "failure to intercede" as provided in the statutory language. |