Newsletter

Legislative Update

Despite the ongoing pandemic, the 2021 calendar year was a busy one for the State Legislature. The following bills, approved by the Governor in September, may be of interest to members. The below bills are scheduled to go into effect on January 1, 2022.

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AB 26 (Holden) Peace officers: use of force

Summary: Existing law requires each law enforcement agency, on or before January 1, 2021, to maintain a policy that provides a minimum standard on the use of force. Existing law requires that policy, among other things, to require that officers report potential excessive force to a superior officer when present and observing another officer using force that the officer believes to be unnecessary, and to require that officers intercede when present and observing another officer using force that is clearly beyond that which is necessary, as specified.

This bill will mandate those law enforcement policies to require officers to immediately report potential excessive force, as defined. The bill will additionally require those policies to, among other things, prohibit retaliation against officers that report violations of law or regulation of another officer to a supervisor, as specified, and to require that an officer who fails to intercede be disciplined up to and including in the same manner as the officer who used excessive force. By imposing additional duties on local agencies, this bill will create a state-mandated local program. This bill contains other related provisions and other existing laws.

AB 48 (Gonzalez, Lorena) Law enforcement: use of force

Summary: Existing law authorizes a peace officer to use reasonable force to effect the arrest, to prevent escape, or to overcome resistance. Existing law requires law enforcement agencies to maintain a policy on the use of force, as specified. Existing law requires the Commission on Peace Officer Standards and Training to implement courses of instruction for the regular and periodic training of law enforcement officers in the use of force.

This bill will prohibit the use of kinetic energy projectiles or chemical agents by any law enforcement agency to disperse any assembly, protest, or demonstration, except in compliance with specified standards set by the bill, and will prohibit their use solely due to a violation of an imposed curfew, verbal threat, or noncompliance with a law enforcement directive. The bill will include in the standards for the use of kinetic energy projectiles and chemical agents to disperse gatherings the requirement that, among other things, those weapons only be used to defend against a threat to life or serious bodily injury to any individual, including a peace officer, or to bring an objectively dangerous and unlawful situation safely and effectively under control. This bill contains other related provisions and other existing laws.

AB 361 (Rivas). Open meetings: state and local agencies: teleconferences.

Summary: This bill, until January 1, 2024, will authorize a local agency to use teleconferencing without complying with the teleconferencing requirements imposed by the Ralph M. Brown Act when a legislative body of a local agency holds a meeting during a declared state of emergency, as that term is defined, when state or local health officials have imposed or recommended measures to promote social distancing, during a proclaimed state of emergency held for the purpose of determining, by majority vote, whether meeting in person would present imminent risks to the health or safety of attendees, and during a proclaimed state of emergency when the legislative body has determined that meeting in person would present imminent risks to the health or safety of attendees, as provided. This bill contains other related provisions and other existing laws.

AB 654 (Reyes) COVID-19: exposure: notification

Summary: Existing law, the California Occupational Safety and Health Act of 1973, authorizes the Division of Occupational Safety and Health to prohibit the performance of an operation or process, or entry into a place of employment when, in its opinion, a place of employment, operation, or process, or any part thereof, exposes workers to the risk of infection with COVID-19, so as to constitute an imminent hazard to employees. Existing law requires that the prohibition be issued in a manner so as not to materially interrupt the performance of critical governmental functions essential to ensuring public health and safety or the delivery of electrical power or water. Existing law requires that these provisions not prevent the entry or use, with the division’s knowledge and permission, for the sole purpose of eliminating the dangerous conditions.

This bill will add the delivery of renewable natural gas to the list of utilities that the division’s prohibitions are not allowed to materially interrupt. This bill contains other related provisions and other existing laws.

AB 1455 (Wicks) Sexual assault by law enforcement officers: actions against public entities: statute of limitations

Summary: Existing law sets the time for commencement of any civil action for recovery of damages suffered as a result of sexual assault, as defined, as the later within 10 years from the date of the last attempted act, or assault with intent to commit an act of sexual assault by the defendant against the plaintiff or within three years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from the sexual assault.

This bill will exempt a claim arising out of an alleged sexual assault, as defined, by a law enforcement officer if the alleged assault occurred on or after the plaintiff’s 18th birthday and while the officer was employed by a law enforcement agency from all state and local government claim presentation requirements. The bill will, notwithstanding any other law, require the claim to be commenced within the later of either of 10 years after the date of judgment against a law enforcement officer in a criminal case for a crime of sexual assault or a judgment against a law enforcement officer for a different crime if a crime of sexual assault was alleged and the crime for which there was a judgment against a law enforcement officer arose out of the same set of operative facts as the allegation of sexual assault in the present claim or 10 years after the law enforcement officer is no longer employed by the law enforcement agency that employed the officer when the alleged assault occurred. The bill will also, notwithstanding those provisions, revive and authorize to be commenced, a claim seeking to recover damages arising out of a sexual assault by a law enforcement officer, if the alleged sexual assault occurred on or after the plaintiff’s 18th birthday while the officer was employed by a law enforcement agency, and the claim has not been litigated to finality or compromised by an executed written settlement agreement, and would otherwise be barred because of the applicable statute of limitations, any state or local government claim presentation deadline, or any other applicable time limit, if it is filed within 10 years from the date of the last act, attempted act, or assault with the intent to commit an act, of sexual assault against the plaintiff or within three years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from an act, attempted act, or assault with the intent to commit an act, of sexual assault against the plaintiff. This bill contains other existing laws.

This bill extends the statutes of limitation to bring action against a police officer for sexual assault to ten years past conviction or separation from the department. Extended statutes of limitation make defense of these cases very difficult as personnel change and it is challenging to discover the true facts of the incident.

SB 16 (Skinner) Peace officers: release of records

Summary: This bill will make a sustained finding involving force that is unreasonable or excessive, and any sustained finding that an officer failed to intervene against another officer using unreasonable or excessive force, subject to disclosure. The bill will require records relating to sustained findings of unlawful arrests and unlawful searches to be subject to disclosure.

The bill will also require the disclosure of records relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in conduct involving prejudice or discrimination based on specified protected classes. The bill will make the limitations on delay of disclosure inapplicable until January 1, 2023, for the described records relating to incidents that occurred before January 1, 2022. The bill will require the retention of all complaints and related reports or findings currently in the possession of a department or agency, as specified. The bill will require that records relating to an incident in which an officer resigned before an investigation is completed to also be subject to release.

For purposes of releasing records, the bill will exempt from protection under the lawyer-client privilege, the disclosure of factual information provided by the public entity to its attorney, factual information discovered by any investigation by the public entity’s attorney, or billing records related to the work done by the attorney. The bill will expand the authorization to redact records to preserve the anonymity of victims and whistleblowers. The bill will require records subject to disclosure to be provided at the earliest possible time and no later than 45 days from the date of a request for their disclosure, except as specified. By imposing additional duties on local law enforcement agencies, the bill will impose a state-mandated local program. This bill contains other related provisions and other existing laws.

SB 98 (McGuire) Public peace: media access

Summary: Existing law makes every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined, in the discharge or attempt to discharge any duty of the office or employment, when no other punishment is prescribed, guilty of a misdemeanor. Existing law also authorizes specified peace officers to close an area where a menace to the public health or safety is created by a calamity and to close the immediate area surrounding any emergency field command post or other command post activated for the purpose of abating a calamity, riot, or other civil disturbance, as specified. Existing law makes any unauthorized person who willfully and knowingly enters those areas and who remains in the area after receiving notice to evacuate or leave guilty of a misdemeanor. Existing law exempts a duly authorized representative of any news service, newspaper, or radio or television station or network from the provisions prohibiting entry into the closed areas, as specified.

This bill will, if peace officers close the immediate area surrounding any emergency field command post or any other command post, or establish a police line, or rolling closure at a demonstration, march, protest, or rally where individuals are engaged primarily in constitutionally protected activity, as described, require that a duly authorized representative of any news service, online news service, newspaper, or radio or television station or network, as described, be allowed to enter those closed areas and would prohibit a peace officer or other law enforcement officer from intentionally assaulting, interfering with, or obstructing a duly authorized representative who is gathering, receiving, or processing information for communication to the public.

The bill will also prohibit a duly authorized representative who is in a closed area and gathering, receiving, or processing information from being cited for the failure to disperse, a violation of a curfew, or a violation of other, specified law. The bill will require that if a representative is detained by a peace officer or other law enforcement officer, the representative be permitted to contact a supervisory officer immediately for the purpose of challenging the detention. The bill will not impose criminal liability. The bill will state the Legislature’s intention to achieve parity in the access and protections in these circumstances as those established pursuant to a specified law.

SB 447 (Laird) Civil actions: decedent’s cause of action

Summary: This bill will permit damages for a decedent’s pain, suffering, or disfigurement to be recovered in an action brought by the decedent’s personal representative or successor in interest if the action or proceeding was granted a specified preference before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026. The bill will require a plaintiff who recovers damages for pain, suffering, or disfigurement between specified dates to submit to the Judicial Council a copy of the judgment, consent judgment, or court-approved settlement agreement entitling the plaintiff to the damages and a cover sheet containing certain information. The bill will require the Judicial Council to transmit to the Legislature a report detailing this information, as specified.

This bill will permanently allow non-economic damages for pain and suffering to be awarded in survival actions, which could give rise to increased costs and more litigation clogging California courts.

The California State Legislature reconvenes in January. The Authority will update members with further legislative updates throughout the 2022 Legislature calendar year.

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