California Senate Bill 2 (SB 2), signed into law by the governor in 2021, in part, establishes a process in which POST certificates can be revoked for what is defined in the new law as “serious misconduct.” Under this law, the decertification means you would no longer be eligible to serve as a peace officer in the state.
Reserve peace officers appointed to POST-certified agencies, which includes the Los Angeles Police Department, will be subject to these new regulations. Further, while Reserve Levels II and III are not issued POST peace officer certificates, they must still have a proof of eligibility (POE), which would be revoked if the process determines a decertification of the officer is warranted.
It’s important to know that even though a reserve officer’s livelihood may not depend on a POST certificate or a proof of eligibility for primary employment in law enforcement, a revocation — the process of which includes public hearings, and having the decisions published — may have consequences affecting your civilian or military employment, businesses and other parts of your life. Even if you are exonerated and retain your certification, third parties will have had access to the proceedings.
On August 13, 2022, a four-hour class at California Reserve Peace Officers Association’s ARPOC provided a good, broad overview of SB 2 to dispel myths and answer lingering questions. The instructor was Andrew Mendonsa, POST senior consultant, Management Counseling and Projects Bureau.1
“Serious Misconduct” That Can Lead to Decertification
While some of SB 2 went into effect this year,2 the decertification process will go into effect January 1, 2023. Officers will be subject to decertification for the following, defined as “serious misconduct”:
- Dishonesty relating to the reporting, investigation or prosecution of a crime or misconduct
- Abuse of power, including intimidating witnesses, false confessions and arrests
- Physical abuse, including excessive or unreasonable use of force
- Sexual assault, pursuant to PC §832.7
- Demonstrating bias, in violation of law, policy or inconsistent with peace officer duties
- Acts that violate the law and are sufficiently egregious or repeated
- Participation in a law enforcement gang
- Failure to cooperate with an investigation into potential police misconduct
- Failure to intercede in use of force
POST can take action against a certification for misconduct that occurred prior to January 1, 2022, for the following serious misconduct:
- Dishonesty
- Sexual assault
- Use of deadly force resulting in death or serious bodily injury
Or the employing agency makes the final determination regarding its investigation after January 1, 2022.
As you can see, some of this language is vague and not fully defined, such as unreasonable, abuse of power and sufficiently egregious.
Misconduct that could render a peace officer subject to suspension or revocation must be reported to POST, including:
- Complaints, charges or allegations
- Findings or recommendations by a civilian oversight entity, including a civilian review board, civilian police commission, police chief or civilian inspector general
- The final disposition of any investigation reported under this section
- Any civil judgments or court findings or settlements of civil claims based on allegations of misconduct
Beginning January 1, 2023, agencies have until July 1, 2023, to report any event that occurred between January 1, 2020, and January 1, 2023.
Overview of the Decertification Process
SB 2 establishes a new division to review cases for peace officer decertification: the Peace Officer Standards Accountability Division. The new division will not have the infrastructure to be an internal affairs-type of operation. The primary responsibility for investigating will remain with the officer’s agency. As per the illustration below, there is a step-by-step process for decertification, which begins with a division review.
If the division concludes there is reasonable grounds for decertification, the process will continue to each step, unless it is stopped at any step. It includes an evidentiary hearing by an administrative law judge (ALJ), and ends with a second commissioners’ hearing.
One step in the process is a review by the new nine-member advisory board, set up to give a voice to those in the community involved with “police accountability.” Only two of the nine members on this board can have any peace officer experience. Perhaps the most controversial part of this board is that two members are to be appointed with “strong consideration given to individuals who have been subjected to wrongful use of force likely to cause death or serious bodily injury by a peace officer, or who are surviving family members …”
One of the myths is that this board will have the power to counter POST commissioners’ findings that would exonerate an officer. But, in its current structure, this is only a single step in the decertification process that is “bookended” by other stages that would prevent such unilateral judgments.
Excerpt from the ARPOC 2022 presentation on SB 2, illustrating the overview of the step-by-step process for decertification. Source: Commission on Peace Officer Standards and Training.
LAPPL Enhanced Legal Plan
The Protective League offers an enhanced legal defense plan to LAPD reserve police officers on an annual basis to defend against the new decertification process. As of this writing, the cost for the SB 2 enhanced coverage is $360, which is in addition to the current annual legal plan and membership fee. For more info and to sign up, email the LAPPL at cleme@lappl.org. Currently, the Reserve Foundation does not offer reimbursement for this enhanced plan.
The implementation of SB 2 continues to evolve, and this article is by no means a conclusive summary. It is recommended that officers and their families keep up to date on the legislation.
Reference material can be found at post.ca.gov/SB-2.
1As per the course: “This presentation should not be construed as legal advice. Questions about the specific provisions of SB 2, including the applicability to given circumstances, should be discussed with the advice and assistance of competent legal counsel.”
2 SB 2 establishes a requirement that peace officers be certified by POST. New disqualifiers from being appointed as a peace officer have been added, for example, the minimum 21 years of age, which means Reserve Level IIIs must now be at least 21 years of age.