CALIFORNIA RACIAL AND IDENTITY PROFILING ADVISORY BOARD https://oag.ca.gov/ab953/board MEETING NOTICE AND AGENDA
June 9, 2021, 10:00 am
Via Blue Jeans video and telephone conference ONLY. The public is encouraged to join the meeting at https://bluejeans.com/332982273 or using the “Join Meeting” link below. This will provide access to the meeting video and audio. We recommend that you log in 5-10 minutes before the start of the meeting to allow sufficient time to set up your audio/video, and to download the Blue Jeans application, if desired.
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A phone dial-in option will also be available. Dial (408) 317-9254 Meeting ID: 332 982 273 The meeting will be recorded and posted to the Board’s website at: https://oag.ca.gov/ab953/board.
1. CALL TO ORDER BY BOARD CO-CHAIRS (10:00 am) 2. WELCOME AND INTRODUCTIONS (10:02 am) 3. APPROVAL OF APRIL 13, 2021 MINUTES (10:15 am) 4. UPDATE FROM THE DEPARTMENT OF JUSTICE ( 10:17 am) 5. BREAK (11:30 am) 6. BOARD DISCUSSION OF 2022 REPORT CONTENTS (12:00 pm) 7. PUBLIC COMMENT (1:00 pm) 8. DISCUSSION OF NEXT STEPS AND ANY ACTION ITEMS (1:20 pm) 9. ADJOURN (1:30 pm)
Documents that will be reviewed during the meeting will be available in the Upcoming Meeting section of the Board’s website https://oag.ca.gov/ab953/board in advance of the meeting.
The meeting will begin at the designated time. Other times on the agenda are approximate and may vary as the business of the Board requires. For any questions about the Board meeting, please contact Anna Rick, California Department of Justice, 1515 Clay Street, Suite 2100, Oakland, California 94612, [email protected] or 510-879-3095. If you need information or assistance with accommodation requests, please contact Ms. Rick at least five calendar days before the scheduled meeting.
1 OUTLINE RIPA REPORT 2022
I. EXECUTIVE SUMMARY
II. INTRODUCTION
III. IMPLICIT BIAS, EXPLICIT BIAS, and SYSTEMIC RACISM A. Effects of COVID-19 1. Differential enforcement of COVID-19 ordinances and orders 2. Impact on RIPA data collected in 2020 B. Racial justice protests 1. Background/info 2. Differential treatment of protestors
IV. ANALYSIS OF WAVE 1 & 2 STOP DATA A. Intro B. Stop Data Demographics 1. Identity Demographics 2. Primary Reason for Stop 3. Calls for Service 4. Actions Taken During Stop by Officers 5. Result of Stop C. Tests for Racial/Ethnic Disparities 1. Residential Population Comparison 2. Discovery-rate Analysis 3. Veil of Darkness 4. Use of Force Analysis
V. POLICY FOCUSED DATA ANALYSIS A. Report-Specific Research Sections (intersecting analysis and prior research) – “FOCUS ON” Sections 1. From Data to Policies Addressing Transgender Disparities a. Data Analyses: Search/Discovery Rates, Use of Force, Reason for Stop b. Context/Background for Gender Disparities c. Best Practice Recommendations for Policies 2. Disability Analysis Follow-up a. Data Analyses: Search/Discovery Rates, Use of Force, Community Caretaking Data Review b. Best Practice Recommendations for Policies
2 OUTLINE RIPA REPORT 2022
3. Consent Searches a. Introduction b. Data Analyses: Search/Discovery Rates, Consent Rates, Refusals with Searches, Stop Duration 1. Who is Impacted by Requests for Consent Searches? 2. How Effective Are Consent Only Searches? 3. Stop Duration for Consent Only Searches? 4. Who Refuses Consent Searches? c. Research on Model Policies/Language Limiting/Prohibiting Consent Searches 4. Parole/Probation/Known Supervision Stops and Searches a. Introduction b. Data Analyses: Discovery Rates Analyses: Search/Discovery Rates, Contraband/Evidence Type Data Dive, Stop Duration 1. Who is Impacted by Being Asked if They are on Probation/Parole/Supervision? 2. How Effective Are Probation Searches? Search Discovery Rates c. Research on Model Policies/Language Limiting/Prohibiting Probation Inquiries/Searches
VI. POLICIES AND ACCOUNTABILITY A. Wave 3 Bias-Free Policing Policies Matrix B. Wave 1 & 2 Agency Bias-Free Policing Policies Follow-up C. Updates to Best Practices on Bias-Free Policing Policies D. Model Accountability Best Practices 1. Supervisory Oversight 2. Video Technology 3. Community-Based Accountability
VII. CALLS FOR SERVICE AND BIAS BY PROXY A. Introduction B. Responding to Biased-Based Calls for Service 1. Updates on Trainings, Policies, and Procedures for Dispatchers and LEAs 2. Bias-Response Teams: Implementing Restorative Justice Approach to Bias-Based Calls for Services C. Responding to a Mental Health Crisis 1. Best Practices and Fundamental Principles of Community-Based Crisis Response 2. Lessons Learned Developing Crisis Response Models – Review of Impact/Effectiveness D. Vision for Future Reports
3 OUTLINE RIPA REPORT 2022
VIII. CIVILIAN COMPLAINTS A. Overview of Civilian Complaint Data B. Wave 3 Civilian Complaint Form Matrix C. Civilian Complaint Form/Procedure Best Practices 1. Tracking Complaints 2. Uniform Civilian Complaint Definition 3. Communication with Complainant D. Early Intervention Systems – effectiveness; use of complaints E. Introduction to Civilian Oversight Bodies for future exploration by Board F. Vision for Future Reports
IX. POST TRAINING AND RECRUITMENT A. AB 953 POST-Certified Training Update B. Board Review of POST Trainings 1. POST Communications Perishable Skills Course Modules 2. Principled Policing in the Community, Learning Domain 3 (evaluation of six components of 26-hour course for new recruits) 3. POST Profiling and Implicit Bias Online Refresher Course for In-Service Officers 4. Implicit Bias and Profiling Online Course for Supervisors C. RIPA Related POST Training Update D. Diversity in Law Enforcement 1. AB 846 Requirements a. Evaluation of peace officers to include explicit and implicit bias b. POST expert panel and RIPA Board involvement regarding reviewing and updating regulations and screening materials 2. Hiring in Law Enforcement to Achieve Diversity a. Research on Best Practices for Screening and Hiring Candidates E. Vision for Future Reports
X. RELEVANT LEGISLATION ENACTED IN 2021
XI. CONCLUSION
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5 FROM DATA TO POLICIES ADDRESSING THE PROFILING OF TRANSGENDER PEOPLE
I. The Board’s Decision to Assess Disparate Outcomes across Gender and Identify Policies to Eliminate Profiling of Transgender and Non- Binary People Advocates have identified law enforcement-generated data as a key resource for understanding the role of gender in profiling.1 RIPA stop data is precisely this type of resource. Given the disparities shown in 2019 stop data in the stops of people perceived to be transgender and the ability to use the RIPA data to solve problems, the Board is focused on developing best practices aimed at eliminating these disparities. In addition to the stop data, the Board reviewed a large-scale community survey to gain a broader understanding of the experiences of transgender people in interactions with law enforcement. Findings from the 2015 U.S. Transgender Survey (USTS)2, which included 27,715 respondents from all fifty states, demonstrated the high levels of harassment and violence private actors committed against transgender individuals and high levels of violence and harassment transgender people experienced in interaction with law enforcement, coupled with high levels of discomfort in asking for help from the police. Over half (58%) of the USTS respondents who interacted with law enforcement who knew they were transgender in the year prior to completing the Survey reported mistreatment, such as being repeatedly misgendered, verbally harassed, or physically or sexually assaulted during the interaction.3 Of all USTS respondents, nearly half (46%) reported that in the past year they were verbally harassed and 9% reported that they were physically attacked. However, more
1 Carpenter, L.F., and Marshall, R.B. (2017). Walking While Trans: Profiling of transgender women by law enforcement, and the problem of proof. William & Mary Journal of Race Gender, and Social Justice. 24(1), p. 6. Available at: https://scholarship.law.wm.edu/wmjowl/vol24/iss1/3. 2 The 2015 U.S. Transgender Survey is the largest survey examining the experiences of transgender people in the U.S. James, S. E., Herman, J. L., Rankin, S., et al. (2016). Police, Prisons, and Immigration Detention. In The Report of the 2015 U.S. Transgender Survey. National Center for Transgender Equality. Washington, DC. p. 4. Available at: http://www. transequality.org/sites/default/files/docs/USTS-FullReport-FINAL.PDF. 3 James, S. E., Herman, J. L., Rankin, S., et al. (2016). Police, Prisons, and Immigration Detention. In The Report of the 2015 U.S. Transgender Survey. National Center for Transgender Equality. Washington, DC. p. 186. Available at: http://www. transequality.org/sites/default/files/docs/USTS-FullReport-FINAL.PDF. DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
6 FROM DATA TO POLICIES ADDRESSING THE PROFILING OF TRANSGENDER PEOPLE
than half (57%) of the respondents reported that they would be somewhat or very uncomfortable asking for help from the police if they needed it.4 The Board reviewed additional research that raises concerns about heightened surveillance and victimization of transgender people by law enforcement.5 This section includes discussion of the 2019 stop data and a brief review of literature regarding the interactions of law enforcement and transgender people. The Board is reviewing and has included information about current legislative advocacy and the National Center for Transgender Equality’s Police Department Model Policy on Interactions with Transgender People.6
“Transgender women, particularly transgender women of color, are so frequently perceived to be sex workers by the police, that the term walking while trans, derivative of the more commonly known term driving while Black, was coined to reflect the reality that transgender women often cannot walk down the street without being stopped, harassed, verbally, sexually and physically abused, and arrested, regardless of what they are doing at the time.” -Joey L. Mogul, Andrea J. Ritchie, and Kay Whitlock. Queer (In)Justice: The criminalization of LGBT people in the United States
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4 James, S. E., Herman, J. L., Rankin, S., et al. (2016). The Report of the 2015 U.S. Transgender Survey. National Center for Transgender Equality. Washington, DC. pp. 188, 198. Available at: http://www. transequality.org/sites/default/files/docs/USTS-FullReport-FINAL.PDF. 5 Shaw, A. (2020). Violence and Law Enforcement Interactions with LGBT People in the US. UCLA School of Law Williams Institute. Available at: https://williamsinstitute.law.ucla.edu/wp- content/uploads/LGBT-Violence-Law-Enforce-Mar-2020.pdf 6 National Center for Transgender Equality. (2019). Police Department Model Policy on Interactions with Transgender People. Available at: https://transequality.org/sites/default/files/docs/resources/FTPS_MP_v6.pdf. 7 Mogul, J.L, Ritchie, A.J., and Whitlock, K. (2011). Queer (In)Justice: The criminalization of LGBT people in the United States. P. 61 in Carpenter, L.F., and Marshall, R.B. (2017). Walking While Trans: Profiling of transgender women by law enforcement, and the problem of proof. William & Mary Journal of Race Gender, and Social Justice. 24(1). Available at: https://scholarship.law.wm.edu/wmjowl/vol24/iss1/3. DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
7 FROM DATA TO POLICIES ADDRESSING THE PROFILING OF TRANSGENDER PEOPLE
The Board plans to continue reviewing the following research: National Coalition of Antiviolence Programs (NCAVP). (2018). Lesbian, Gay, Bisexual, Transgender, Queer, and HIV-Affected Hate and Intimate Partner Violence in 2017. Available at: http://avp.org/wp-content/uploads/2019/01/NCAVP-HV-IPV- 2017-report.pdf. [“NCAVP’s LGBTQ and HIV-Affected Intimate Partner Violence and Hate Violence in 2017 report looks at the experience of survivors who reported to NCAVP member programs” (6). NCAVP documented an increase across five years in the recorded homicides of transgender women of color (7). NCAVP recommendations include: “increase efforts to encourage reporting of hate violence, emphasizing multiple reasons and methods for reporting, and increase community- based reporting infrastructure.” … Support community-based solutions to violence that are designed by the most impacted people (9).]
Carpenter, L.F., and Marshall, R.B. (2017). Walking While Trans: Profiling of transgender women by law enforcement, and the problem of proof. William & Mary Journal of Race Gender, and Social Justice. 24(1). Available at: https://scholarship.law.wm.edu/wmjowl/vol24/iss1/3. [Transgender women would benefit tremendously from good relationships with law enforcement (7). Article delineates some of the harms that transgender women suffer as a result of police profiling practices (7). “Transgender women are at high risk of violence from private actors, particularly through homicide and domestic violence” (9).]
James, S. E., Herman, J. L., Rankin, S., et al. (2016). Police, Prisons, and Immigration Detention. In The Report of the 2015 U.S. Transgender Survey. National Center for Transgender Equality. Washington, DC. pp. 184-189. Available at: http://www. transequality.org/sites/default/files/docs/USTS-FullReport-FINAL.PDF. [Other forms of discrimination-racism, ableism, and xenophobia-have a compounding impact (6).]
Kim, R.L. (2001). Legitimizing Community Consent to Local Policing: The need for democratically negotiated community representation on civilian advisory councils. Harvard Civil Rights-Civil Liberties Law Review. 36. pp. 461-525. [“In addition to the specific incidents of police brutality and excessive force that occasion public indignation, problematic police practices include the selective enforcement of laws in ways that disproportionately burden [minoritized groups]” (462).] II. Analyses of 2019 Stop Data by Perceived Gender This following discussion of 2019 stop data includes charts and graphs that are available on Open Justice.8 The 2020 stop data is not yet available for review. The Board will decide if
8 California Department of Justice. (2021). Open Justice: Data exploration – How Do Stops Unfold? Available at: https://openjustice.doj.ca.gov/exploration/stop-data; California Department of Justice. (2021). Open Justice: Data exploration – Search Discovery Rates and Stop Outcomes. Available at: https://openjustice.doj.ca.gov/exploration/stop-data-discovery-rates-outcomes. DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
8 FROM DATA TO POLICIES ADDRESSING THE PROFILING OF TRANSGENDER PEOPLE analyses of 2019, 2020, or a combined two-year analysis of data should be included in this section of the Report.
A. Reasons for Stops The Board identified dramatic differences in the reasons for stop across perceived gender categories. For individuals perceived to be transgender women/girls (1,870), officers reported the primary reason for stop as reasonable suspicion that the person was engaged in criminal activity for 56.90% (1,064) of individuals. In comparison, officers reported reasonable suspicion as the primary reason for stop for 9.91% (113,332) of the individuals they perceived to be (cisgender) female. Of the individuals perceived to be transgender women/girls stopped for reasonable suspicion, officers perceived 35.71% to be Black and nearly half to be between 25-34 years of age (46.33%). For individuals perceived to be transgender men/boys (3,294), officers reported the primary reason for stop as reasonable suspicion that the person was engaged in criminal activity for 44.02% (1,450) of the individuals. In comparison, officers reported reasonable suspicion as the primary reason for stop for 12.84% (364,703) of the individuals they perceived to be (cisgender) male. Of the individuals perceived to be transgender men/boys stopped for reasonable suspicion, officers perceived 34.76% to be Latinx and nearly half to be between 25-34 years of age (45.17%). For individuals perceived to be gender nonconforming (2,431), officers reported the primary reason for stop as reasonable suspicion that the person was engaged in criminal activity for 29.45% (716) of the individuals. Of the individuals perceived to be gender nonconforming stopped for reasonable suspicion, officers perceived 33.24% to be White and 44.13% to be between 25-34 years of age. The Board has requested an analysis of the principal reasonable suspicion violation types by perceived gender. Why Were People Stopped? 2019 data visualizations from OpenJustice
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
9 FROM DATA TO POLICIES ADDRESSING THE PROFILING OF TRANSGENDER PEOPLE
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
10 FROM DATA TO POLICIES ADDRESSING THE PROFILING OF TRANSGENDER PEOPLE
B. Differences in Pedestrian and Traffic Stops [this data will be forthcoming] C. Actions Taken by Officers during Stops Officers reported taking action during stops toward 58.34% (1,091) of individuals perceived to be transgender women/girls and 13.43% (153,522) of individuals perceived to be (cisgender) female. Individuals perceived to be transgender women/girls experienced exceptionally high rates of being handcuffed, experiencing a search of their person, and being detained curbside.
Individuals perceived to be transgender women/girls were handcuffed in one out of every three stops (33.74% (631 individuals)), as compared to one in every 18 stops for perceived (cisgender) females (5.51% (63,016)).
Individuals perceived to be transgender women/girls experienced a search of their person in one out of every four stops (28.77% (538 individuals)), in comparison with one in every 18 stops for perceived (cisgender) females (5.59% (63,947)).
Individuals perceived to be transgender women/girls were detained curbside in one out of every four stops (24.33% (455 individuals)), as compared to one in every 22 stops for perceived (cisgender) females (4.55% (51,986)).
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
11 FROM DATA TO POLICIES ADDRESSING THE PROFILING OF TRANSGENDER PEOPLE
Officers reported taking action during stops toward 50.30% (1,657) of individuals perceived to be transgender men/boys and 21.21% (602,685) of the individuals perceived to be (cisgender) male.
Individuals perceived to be transgender men/boys experienced a search of their person in one out of every three stops (30.69% (1,011 individuals)), as compared to one in every eight stops for perceived (cisgender) males (12.37% (351,459)).
Individuals perceived to be transgender men/boys were handcuffed in one out of every four stops (28.78% (948 individuals)), in comparison with one in every 11 stops for perceived (cisgender) males (9.47% (268,924)).
Individuals perceived to be transgender men/boys experienced a search of their property in one out of every seven stops (14.79% (487 individuals)), as compared to one in every 18 stops for perceived (cisgender) males (5.68% (161,240)).
Officers reported taking action toward 41.75% (1,015) of individuals perceived to be gender non-conforming. In comparison, across all perceived genders, officers took action toward the person stopped during 19.04% of stops.
Actions Taken by Officers during Stops - 2019 data visualization from OpenJustice
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
12 FROM DATA TO POLICIES ADDRESSING THE PROFILING OF TRANSGENDER PEOPLE
What Occurred during Stops? - 2019 data visualization from OpenJustice
1. Use of Force [this data will be forthcoming] D. Calls for Service [this data will be forthcoming] E. Searches Officers searched individuals perceived to be transgender women/girls at 5.5 times the rate at which they searched individuals perceived to be (cisgender) female, and searched individuals perceived to be transgender men/boys at 2.5 times the rate at which they searched individuals perceived to be (cisgender) male.
Although officers were much more likely to search individuals perceived to be transgender, they found contraband or evidence at similar rates across all gender categories: 23% of the searches of perceived transgender women/girls, 21% of the searches of perceived (cisgender) females, 18% of the searches of perceived transgender men/boys, 22% of the searches of perceived (cisgender) males, and 22% of the searches of perceived gender non-conforming people. Gender did not predict whether officers found contraband during a search.
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
13 FROM DATA TO POLICIES ADDRESSING THE PROFILING OF TRANSGENDER PEOPLE
2019 data visualizations from OpenJustice
F. What Was the Result of the Stops? - 2019 data visualizations from OpenJustice There were significant disparities in the frequency at which no action taken was the result of stops.
Officers took no action as the result of one of every seven stops of perceived transgender women/girls (15.03%), in comparison with one of every fifteen stops of perceived (cisgender) female individuals (6.58%).
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
14 FROM DATA TO POLICIES ADDRESSING THE PROFILING OF TRANSGENDER PEOPLE
Officers took no action as the result of one of every five stops of perceived transgender men/boys (22.07%), as compared with one of every twelve stops of perceived (cisgender) male individuals (8.53%).
Officers took no action as the result of one of every five stops of individuals perceived to be gender nonconforming (19.66%).
Additionally, there were significant gender disparities in the issuance of citations. Officers cited individuals perceived to be transgender in one out of every five stops (transgender women/girls 18.50%, transgender men/boys 20.04%), as compared to one out of every two stops for individuals perceived to be cisgender ((cisgender) females 57.30%, (cisgender) males 51.51% ), and one out of every three stops of individuals perceived to be gender nonconforming (37.84%).
[Discussion of field interview records under development] III. Recent Policy Changes A. del Valle, L. (Feb. 2021). New York Governor Signs Bill to Repeal “Walking While Trans” Ban. CNN. [New York State repeal of 1976 penal law statute aimed at prohibiting loitering for the purpose of prostitution, which led to enforcement discrimination against transgender people of color. Bill sponsor State Senator Brad Hoylman said the former law allowed officers to, “stop-and-frisk trans women of color and other marginalized groups for simply walking down the street." Hoylman stated that the statute “led to hundreds of unnecessary arrests of transgender women of color and a broader culture of fear and intimidation for transgender and gender nonconforming New Yorkers. … The Legal Aid Society has represented women assumed to be loitering for prostitution because they were wearing ‘a short dress,’ ‘a skirt and high heels,’ ‘tight black pants,’ or ‘a black dress.’”] B. Crimes: loitering for the purpose of engaging in a prostitution offense. California S. Bill 357 (2021). Available at: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220S
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
15 FROM DATA TO POLICIES ADDRESSING THE PROFILING OF TRANSGENDER PEOPLE
B357. [Would repeal provisions of existing law related to loitering with the intent to commit prostitution. Would also authorize a person convicted of a violation of loitering with the intent to commit prostitution to petition the court for the dismissal and sealing of their case, and resentencing, if applicable. St. James’ Infirmary, one of the co-sponsors of the bill, argues, “The broad subjective nature of the anti-loitering law has created opportunities for law enforcement to engage in discriminatory policing that targets Black and Brown women and members of the transgender community.”9] C. Other policy changes National Center for Transgender Equality (NCTE). (2019). Failing to Protect and Serve: Police Department Policies Towards Transgender People. Available at: https://transequality.org/issues/resources/failing-to-protect-and-serve-police- department-policies-towards-transgender-people. [“This report analyzes policies for the 25 largest police departments (based on the number of full-time sworn personnel), and grades them on 17 criteria reflecting areas of interaction between law enforcement and transgender people. … This report is an evaluation of specific police policies only and does not purport to evaluate the implementation of these or any other policies impacting transgender people.”] This review included Los Angeles Police Department, San Diego Police Department, and San Francisco Police Department. The Board may wish to compare the 2019 assessment by NCTE with the current policies at these agencies.
NCTE found that Los Angeles Police Department’s policies met: the criteria for policy availability, recommendations regarding sexual orientation, respectful communication, and search procedures.
The policies partially met the recommendations regarding: gender identity, department forms, medical care, appearance-related items, and immigration enforcement.
The policies did not address or contradicted the recommendations regarding: non-binary recognition, transportation, sexual misconduct, bathroom access,
9 Office of Senate Floor Analyses. Crimes: Loitering for the purpose of engaging in a prostitution offense. p. 6 DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
16 FROM DATA TO POLICIES ADDRESSING THE PROFILING OF TRANSGENDER PEOPLE
condoms as evidence, training, and civilian oversight (8-9).
NCTE found that San Diego Police Department’s policies did not meet the criteria regarding policy availability. The policies met the recommendations regarding sexual orientation. The policies partially met the recommendations regarding gender identity. The policies did not address or contradicted the recommendations regarding: non-binary recognition, respectful communication, department forms, search procedures, transportation, sexual misconduct, placement, medical care, appearance-related items, bathroom access, condoms as evidence, training, immigration enforcement, and civilian oversight (8-9).
NCTE found that San Francisco Police Department’s policies met: the criteria for policy availability, recommendations regarding gender identity, sexual orientation, non-binary recognition, respectful communication, appearance-related items, bathroom access, condoms as evidence, immigration enforcement, and civilian oversight.
The policies partially met recommendations regarding: department forms and transportation.
The policies did not address or contradicted the recommendations regarding: search procedures, sexual misconduct,
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
17 FROM DATA TO POLICIES ADDRESSING THE PROFILING OF TRANSGENDER PEOPLE
placement, medical care, training (8-9).
San Francisco Police Department. (2018). General Order 5.22: Interacting with Transgender, Gender-Variant, and Nonbinary Individuals. [“Referring to a person by their adopted name and treating them in accordance to their gender identity are examples of appropriate treatment; even if they are not legally recognized as such per documentation. Conversations with and regarding the TGN individual shall also conform to these standards.” (DGO 5.22.02)]
D. Model Policy Language Recommendations The Board recommends that LEAs work in close partnership with local transgender advocacy organizations that will be knowledgeable about local struggles related to police practices, both when developing policies and the trainings that support policy implementation. Engaging with advocacy groups in the communities the LEA serves can increase accountability. The Board emphasizes the importance of training related to policies.
The Board has reviewed the best practice recommendations developed by the National LGBT HIV Criminal Justice Working Group and staff have received comments from advocacy organizations.
Advocates emphasize the need for policies regarding search procedures because of how dehumanizing invasive searches are and the frequency with which searches occur.
Advocates also emphasize that officers need to be familiar with the tools that some transgender people use for gender affirming healthcare, such as needles for hormone therapy, and appearance related items, such as clothing, and not misinterpret these.
Additionally, advocates identified a need for LEA policies and training to align practices with Penal Code Sec. 647.3(b), possession of condoms in any amount shall not provide a basis for probable cause for arrest for specified sex work crimes.
Advocates stress the importance of auditing records to identify and address instances where individuals were misgendered in records, establishing policy and providing training regarding respectful language, particularly the use of correct name and pronouns when talking with and about individuals.
ACLU of Southern California discussed a policy recommendation from ACLU Chicago prohibiting Department members from disclosing an individual's DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
18 FROM DATA TO POLICIES ADDRESSING THE PROFILING OF TRANSGENDER PEOPLE
Transgender Intersex or Gender Nonconforming (TIGN) identity to members of the public, non-Department members, or others interacting with the Department absent a legitimate law enforcement objective, as well as prohibiting Department members from disclosing a juvenile's TIGN identity to the juvenile's parents or legal guardians, absent a legitimate law enforcement objective.
E. The Board plans to continue reviewing the following research:
Thusi, I. (2020). On Beauty and Policing. Northwestern University Law Review. pp. 1335-1402. [Examines how police preserve racial and gender subordination in South Africa.] Copple, J.E., and Dunn, P.M. (2017). Gender, Sexuality, and 21st Century Policing: Protecting the rights of the LGBTQ+ Community. Washington, DC: Office of Community Oriented Policing Services.
Mallory, C., Hasenbush, A., and Sears, B. (2015). Discrimination and Harassment by Law Enforcement Officers in the LGBT Community. Available at: https://williamsinstitute.law.ucla.edu/publications/lgbt-discrim-law-enforcement/. [“Discrimination and harassment by law enforcement is an ongoing and pervasive problem for LGBT people. These experiences make it difficult for officers to effectively police in their communities. Governments and law enforcement departments can adopt laws and policies to improve relationships between law enforcement and LGBT citizens.”]
Spade, D. (2015). Normal Life: Administrative violence, critical trans politics, and the limits of law. Hein Online Legal Classics. [Critiques the legal equality framework for social change, and points to examples of transformative grassroots trans activism that is raising demands that go beyond traditional civil rights reforms. Describes transformative resistance processes and formations that address the root causes of harm and violence.]
Lambda Legal. (2014). Police: Protected and Served? New York, NY. Available at: https://www.lambdalegal.org/protected-and-served. [“Lambda Legal conducted a national study of the experiences individuals have with police, courts, prisons and school security. A total of 2,376 people completed the survey.”]
Blair Woods, J., Galvan, F. H., Bazargan, M., Herman, J. L., Chen, Y. (2013). Latina transgender women’s interaction with law enforcement in Los Angeles County. Policing: A Journal of Policy and Practice, 7(4), 379–391. https://doi. org/10.1093/police/pat025
Grant et al., National Center for Transgender Equality & National Gay and Lesbian Task Force. (2011). Injustice at Every Turn: A Report of the National
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
19 FROM DATA TO POLICIES ADDRESSING THE PROFILING OF TRANSGENDER PEOPLE
Transgender Discrimination Survey. Available at: https://www.thetaskforce.org/wp-content/uploads/2019/07/ntds_full.pdf.
Wolff, K.B., and Cokely, C.L. (2007). “To Protect and Serve?”: An exploration in police conduct in relation to the gay, lesbian, bisexual, and transgender community. Sex Cult. 11. pp. 1-23. Goldberg, N.G., Mallory, C., Hasenbush, A., et.al, (2019). Police and the Criminalization of LGBT People. In Lave, T., and Miller, E. (Eds.), The Cambridge Handbook of Policing in the United States (Cambridge Law Handbooks) (pp. 374-391). Cambridge: Cambridge University Press. [“This chapter describes the experiences of LGBT people with law enforcement, which include discriminatory targeting, harassment, and violence, as well as potential remedies such as community engagement and the revision of local and federal policies.”]
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
20 WŽůŝĐLJ&ŽĐƵƐĞĚĂƚĂŶĂůLJƐŝƐ͗ZĞƉŽƌƚƐƉĞĐŝĨŝĐƌĞƐĞĂƌĐŚƐĞĐƚŝŽŶ ŽŶƐĞŶƚ^ĞĂƌĐŚĞƐ WĂƌŽůĞͬWƌŽďĂƚŝŽŶͬ<ŶŽǁŶ^ƵƉĞƌǀŝƐŝŽŶ^ƚŽƉƐĂŶĚ^ĞĂƌĐŚĞƐ Pretext Stops
21 V. POLICY FOCUSED DATA ANALYSIS
A. Report-Specific Research Sections
3. Stops and Searches
The Board is tasked with eliminating racial and identity profiling in law enforcement and tackling such an entrenched and complex issue will require both a micro and macro analysis of law enforcement policies and practices. One such area the Board has identified involves racial and identity profiling with respect to consensual searches and stops and searches of individuals on some form of post-conviction supervision. Consensual searches are searches conducted of someone’s person or property with the permission of that individual. In California, stops and searches of individuals placed under post-conviction supervision (usually by a court after pleading guilty to a crime or being released from jail or prison) can take the form of parole,1 probation,2 post-release community supervision (PRCS),3 or mandatory supervision4 (hereinafter collectively referred to as “supervision”).
Consent searches and supervision stops and/or searches may seem to represent a small portion of all searches in 2019 (1.6% and 0.7% respectively), but for the over 62,323 individuals subject to consent searches, the 28,015 stopped for known supervision status, and the 96,328 individuals searched due to their supervision status, these law enforcement interactions are significant and
1 Parole is a period of supervision that follows a state prison sentence, during which an individual remains under the control of the California Department of Corrections and Rehabilitation’s Division of Adult Parole Operations. Individuals on parole are supervised by parole agents, and must follow certain requirements or “conditions” of parole. Cal. Code Regs., tit. 15, § 2355; Root & Rebound, What are the main types of supervision in California?
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 22 can be life changing. Of the nearly 187,000 individuals referenced above, [insert analysis and 2020 data on consent as well as supervision stops and/or searches].
Given the severe consequences of these stops, this is an area where law enforcement agencies and legislators can make an impact in reducing bias in policing. Discretionary searches, by their nature, are vulnerable to bias, as there are no objective criteria for who to stop or search and why. Instead, officers are permitted to use their own discretion which is rooted in the officer’s personal, as well as professional, experience. The increased opportunity for bias, revealed by the 2019 data, is based in part on the level of discretion to stop or search, especially regarding consent and supervision searches. We must take a deep look at the data and the costs and benefits to the community in conducting these types of searches, and try to identify policy reforms that may reduce or eliminate such disparities.
a. Consent Searches
A consent search is when an officer approaches a person and asks if they may search their person, car, or even residence. In a discretionary search, for which an officer decides who and why to ask for consent, an officer does not need to suspect any criminal wrongdoing in order to request consent to search.5 As the Board noted in its 2021 report, “given the disparities in consent only searches and discovery rates, and that neither state nor federal law requires officers to suspect any criminal wrongdoing before they request consent to search a person or their property, an obvious question is raised: should individuals be subjected to a search if, based on the officer’s perception, the individual is innocent of engaging in apparent criminal activity?”6 The Board believes the data analysis of the past several years highlights their concerns regarding such consent only searches.
1. Data Analyses: Search/Discovery Rates, Consent Rates, Refusals with Searches, Stop Duration
[Insert Analysis of Stop Data]
2. Next Practices Recommendations for Policies
Consent searches generally are cause for concern for several reasons: (1) the data shows that there are stark racial and ethnic disparities in who gets searched, (2) the data shows that they are not as successful in locating contraband as other types of searches because they are not
5 Florida v. Royer (1983) 460 U.S. 491, 497. 6 See Racial and Identity Profiling Advisory Board Report (2021) p. 73.
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necessarily conducted based upon evidence of a crime, and (3) data shows that they promote distrust and therefore harm community relations with the police.
Voluntariness & Consent Search Forms
Under the law, a person is free to give the officer permission to search or decline the request. However, unless there is an “People comply with police request to perform searches for social agency-specific policy, an officer does not have an affirmative rather than informational reasons. responsibility to explain to the individual that they have the right Crucial aspects of the social to refuse consent to a search or that they can limit the scope of context, the authority of the police the search when giving consent.7 In fact, a person may have officer and the awkwardness of “consented” to a search by simply not objecting under the legal refusal, prevail even when people theory of implied consent.8 The courts have found that as long are properly informed of their rights. It is high time to abandon as the consent was given “voluntarily,” meaning it was freely the myth that notifying people of 9 given and without coercion, the search is legal. The legal their individual rights is enough.” - definition of “consent” is founded on the idea that people are free Roseanna Sommers, University of to decline, but the reality is that nearly everyone “consents” Chicago given the inherent power inequality that exists between an officer and a civilian; not everyone feels entitled to exercise a right to say “no” to a law enforcement officer that they might not know they have.
A recent study examined whether consent searches were truly voluntary by tracking whether participants would agree to a search of their cellphone when asked by researchers. The study included 200 participants of undergraduates at the University of the Northeast.10 One set of participants were asked, “before we begin the study, can you please unlock your phone and hand it to me? I’ll just need to take your phone outside of the room for a moment to check for some things.”11 A separate set of participants –the control group –watched the questioning of the other participants and then were asked if they would agree to the same request.12 The study allowed
7 Fla. v. Rodriguez (1984) 469 U.S. 1, 6-7. 8 Fla. v. Jardines (2013) 569 U.S. 1, 10. 9 Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227. 10 Sommers, R. & Bohns, V. (2019) The Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance. 128, no. 7- 1962-2033. 11 Sommers, R. (2019) Are Consent Searches Truly Voluntary? University of Chicago
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 24
researchers to compare what participants thought they would do and what they actually did when faced with an intrusive search request. Overall, they found 97% of people asked to turn over their phone did so, but 86% people in the control group thought the request was unreasonable.13 Thus, nearly all of the participants consented to a search of their phone that a neutral observer, the control group, found unreasonable.
Next the researchers tested to see whether people withheld consent if they were advised that they could refuse the search. Researchers gave a Miranda-like warning to see if it changed the participants’ behavior and found the “practice did not significantly reduce the rates at which people handed over their phones.”14 They “also examined whether those who received the warning felt less pressured to agree to hand over their phones and found that the warning had no significant effect on how participants actually felt.”15 This study demonstrates the psychological pressure to comply with a search request and shows there is a significant difference between what an observer thinks they would do in this situation and what might happen in the field. The researchers concluded that “people comply with police requests to perform searches for social rather than informational reasons. Crucial aspects of the social context, the authority of the police officer and the awkwardness of refusal, prevail even when people are properly informed of their rights. It is high time to abandon the myth that notifying people of their individual rights is enough.”16
Given the results of this study, it is important to also consider how vulnerable populations, such as youth or those with a mental health condition, are more likely to be affected by authoritative pressure to comply with a request rather than a college student, like was used in this study.
13 Sommers, R. (2019) Are Consent Searches Truly Voluntary? University of Chicago
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 25
A popular proposed reform to combatting the disparities with consent searches is to require written consent to search or recording the consent on camera.17 Although written consent search forms or advisory on the right to refuse or limit the scope of the search have become a common reform proposal, such reforms do not center solutions for the root problems of these police practices, as discussed above. In fact, the data shows that the officer’s discretion first leads to disparate stops of Black and Latinx individuals and second, that voluntary consent may not truly be voluntary because of the power dynamics at play between a law enforcement officer and a member of the public. Therefore, there are likely better solutions such as severely limiting when a consent search would be appropriate and another would be to eliminate the practice entirely.
Limiting Consent Searches of Vehicles and Cellphones
Some law enforcement agencies and state legislatures have taken the approach of prohibiting consent searches based on what is being requested to search, like a car or a cellphone. Several agencies have implemented policy changes prohibiting consent searches of vehicles. Rhode Island, for example, has a law stating “unless there exists reasonable suspicion or probable cause of criminal activity, no motor vehicle stopped for a traffic violation shall be detained beyond the time needed to address the violation.”18 Similarly, after working with researchers and reviewing stop data, the state of Connecticut passed a law in October 2020 prohibiting officers from requesting consent to search a vehicle stopped only for a motor vehicle violation.19
Special consideration should also be given to consent searches of cellphones, since “modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.”20 A consent search of a cellphone is vulnerable to bias like all other consent searches. What sets it apart from other types of consent searches is the amount
17 An OIG report regarding LAPD expressed concerns about whether individuals were giving consent for searches and whether the officers were asking the question or telling individuals they would be getting searched. In response, in November 2020, the Los Angeles Police Commission approved LAPD’s policy change. The new policy, “Field Officer’s Notebook, Form 15.03.00,” requires officers to get written consent after asking for consent, advising the individual that they may withdraw consent at any time and, if the officer gets “implied consent,” then they must get confirmation recorded on body-worn cameras or on their digital In-Car Video System. (See generally Los Angeles Office of the Inspector General, Review of Stops Conducted by the Los Angeles Police Department in 2019 (Oct. 27, 2020)
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 26
of data that can be obtained in that type of search. Cellphones store an immense amount of data “that reveal much more in combination than any isolated record.”21 Under the law, an officer may search a phone incident to arrest only if they have a warrant to search the phone, but can evade the warrant requirement by asking for consent to search.22
A cellphone search is not only highly intrusive, but it is also rarely related to evidence of any crime that was the cause of the stop, for example having a broken tail light.23 Additionally, most people likely do not know fully understand the scope of the consent nor what is going to be done with the data on their phone if they do consent.24 In fact, a cellphone search can involve the extraction all of the data from a person’s phone and can be reexamined by law enforcement at any time; this includes everything from text messages, conversations on apps, location data, deleted photos, google search histories, etc.25 “The power and information asymmetries of cellphone consent searches are egregious and unfixable.”26 As such, agencies and policymakers should consider prohibiting consent searches of cellphones and instead require officers to obtain a warrant.27
Evidence Based Policing: Reducing Disparities, Improving Police Tactics & Community Relations
Reducing Disparities:
A significant part of what is driving the disparities is who is being asked consent to search. The data shows that Black and Latinx individuals are being asked for consent to search at higher rates
21 Riley v. California (2014) 573 U.S. 373, 375. 22 Riley v. California (2014) 573 U.S. 373, 376. 23 Knowles v. Iowa (1998) 525 U.S. 113, 114, holding that the issuance of the citation did not authorize the officer, consistently with the Fourth Amendment, to conduct a full search of the car. There was no need to discover and preserve evidence because once defendant was stopped and issued a citation all the evidence necessary to prosecute had been obtained. The threat to safety from issuing a traffic citation was significantly less than in the case of a custodial arrest. 24 Upturn Toward Justice in Technology, Mass Extraction: The Widespread Power of U.S. Law Enforcement to Search Mobile Phones. (2020) < https://www.upturn.org/static/reports/2020/mass-extraction/files/Upturn%20- %20Mass%20Extraction.pdf > (as of June 1, 2021). 25 Upturn Toward Justice in Technology, Mass Extraction: The Widespread Power of U.S. Law Enforcement to Search Mobile Phones. (2020) < https://www.upturn.org/static/reports/2020/mass-extraction/files/Upturn%20- %20Mass%20Extraction.pdf > (as of June 1, 2021). 26 Schwartz, A. So-called ‘Consent Searches’ Harm Our Digital Rights (Jan. 2021) Electronic Frontier Foundation.
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than White individuals. This suggests that such disparities are driven by explicit or implicit bias. In last year’s report, the Board reviewed studies on implicit bias explaining that implicit bias is a natural function of the human brain and refer to the beliefs or attitudes a person holds that can shape their understanding, actions, and decisions in an unconscious manner.28 “Relying on their implicit biases, individuals may make unconscious associations in an attempt to quickly make sense of a complex, highly evolving environment.”29 In the context of policing, implicit biases may explain the disparities seen in consent search data. For example, last year the Board also highlighted studies that show people’s attention is drawn more quickly to Black individuals, especially young Black men, than to White individuals.30
Piecemeal approaches to eliminating consent searches, such as prohibiting consent searches of cell phones or cars, is certainly a start, but they miss the larger social issues at play. One way to address these issues is to require the officer to conduct only evidenced-based searches, meaning a search based on reasonable suspicion or probable cause, and not just a hunch.
Social psychologists point out that hunches or gut instincts are ripe for bias.31 Officers can mitigate this bias by adding in “friction” between the hunch and the actions they choose to take next. This friction occurs when the officer has to articulate a legal basis to search or asking themselves “is this stop intelligence led?”32 Adding friction works to interrupt the implicit bias, and cause the person to stop and point to objective evidence of criminal activity. Just having an officer ask themselves that question may result in a reduction of the disparities observed in the data. In fact, in Oakland, adding these sources of friction before an officer contacted an
28 Bennett, Introduction to Implicit (Unconscious) Bias (2019) 89 The Advoc. (Texas) 35; see also See Racial and Identity Profiling Advisory Board Report (2021) p. 24. < https://oag.ca.gov/sites/all/files/agweb/pdfs/ripa/ripa- board-report-2021.pdf> (as of June 1, 2021). 29 See, Richardson, Police Efficiency and the Fourth Amendment (2012) 87 Ind. L.J. 1143, 1150 [citing Trawalter, et al., Attending to Threat: Race-Based Patterns of Selective Attention (2008) 44 J. Experimental Soc. Psychol. 1322, 1324]; see also See Racial and Identity Profiling Advisory Board Report (2021) p. 24.
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 28
individual reduced stops of individuals perceived as Black by 43 percent and those perceived as Hispanic or Latinx by 35 percent.33
Improving Police Tactics:
Law enforcement agencies that have eliminated or prohibited consent searches may also see an increase in finding contraband. A law enforcement agency in New Haven, Connecticut prohibited consent searches and found “[p]olice searches were more successful at finding contraband, i.e. a 63-percentage point increase, and the department ceased to be identified as having a disparity in subsequent annual analyses.”34
Community Relations:
Ultimately, the greatest impact these policy recommendations may have is on police and community relations. When a search is conducted without an objectively legal basis, citizens may feel they are being unfairly targeted for enforcement rather than an officer performing a legal duty. “Not only is public support fundamental to the legitimacy of the police, but it is also important for enlisting the public in efforts to reduce crime. Moreover, there is growing evidence that public support depends on the public’s perception that police treat people fairly and professionally.”35
b. Parole/Probation/Known Supervision Stops and Searches
1. Data Analyses/Discovery Rates Analyses: Search/Discovery Rates, Contraband/Evidence Type Data Dive, Stop Duration
33 Eberhardt, How racial bias works -- and how to disrupt it (June 2020) Ted Talk.
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 29
In California, after a person convicted of a crime there are several types of court ordered supervision, including parole,36 probation,37 post-release community supervision (PRCS),38 or mandatory supervision.(here in “supervision”).39 The judge may also impose certain conditions to being on supervision, for example to stay away from the location where the crime occurred. A common condition is a Fourth Amendment Waiver, which allows officers to search a person and their home even if the person is not engaged in criminal activity. However, the law requires an officer seeking to conduct a search know of the waiver prior to conducting any searches.40
Similarly, an officer who conducts a stop based on an individual’s supervision status must know at the time of the stop that the person is on supervision. The courts have been explicit about this: “no conduct is more unreasonable than stopping a vehicle and then hoping the stop later can be justified if one of the occupants in the vehicle happens to be on probation or parole. Such a stop cannot reasonably be related to a probation/parole search condition because the officer(s) did not know the individual was on probation or parole.”41
Under RIPA, reporting requirements mirror California law for searches as a condition to supervision; an officer reports the “Reason for Stop” as “known supervision” when the officer knew this information prior to initiating the stop. Officers can also indicate supervision status as
36 Parole is a period of supervision that follows a state prison sentence, during which an individual remains under the control of the California Department of Corrections and Rehabilitation’s Division of Adult Parole Operations. Individuals on parole are supervised by parole agents, and must follow certain requirements or “conditions” of parole. Cal. Code Regs., tit. 15, § 2355; Root & Rebound, What are the main types of supervision in California?
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 30
a basis for search, but in order to be a lawful search the officer must aware of the search condition prior to taking any action.
1. Data Analyses/Discovery Rates Analyses: Search/Discovery Rates, Contraband/Evidence Type Data Dive, Stop Duration
[Insert Data Analysis]
2. Research on Model Policies/Language Limiting/Prohibiting Probation Inquiries/Searches
Mass Incarceration and Systemic Issues that Contribute to Disparities in Stops:
Throughout the nation, it is estimated that 1 out of 58 adults are on supervision.42 However, Black individuals are “2.6 times as likely to be on probation, and nearly 4 times as likely to be on parole, as compared to White individuals.”43 The percentage of Latinx individuals in the probation population (13%) is more in line with their share of the general population (19%), although it is critical to note that Latinx individuals are systemically undercounted in correctional statistics44 and in census counts. Individuals identifying as Native American or Alaska Native were “48% more likely to be on probation, and 77% more likely to be on parole, than their [W]hite counterparts.”45 Studies have further found that Black individuals are between 50% and over 100% more likely to be charged with parole violations, even when “controlling for
42 The Bureau of Justice Statistics releases reports annually on probation and parole data throughout the country but reviews prior years’ data, thus the present report is a review of 2017-2018 data but was published in 2020. Kaeble, D., & Alper, M. Probation and Parole in the United States, 2017-2018. (Aug. 2020) United States, Department of Justice, Bureau of Justice Statistics.
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relevant demographic and legal factors” for example, overall supervision and residential populations 46
Notably, compared to other states, “California reincarcerated the largest absolute number of people (64,761) from probation in 2018, making up 47% of all exits from probation across the state,” meaning almost half of the people on probation in California did not successfully complete their probationary term in the community and instead were reincarcerated. Additionally, “California also had the largest number of people incarcerated for technical violations – 46,479 people, or one-third (34%) of all Californians exiting probation for any reason in 2018.”47 A technical violation is when someone may violate a term of supervision such as not participating in a court ordered class, rather than committing a new crime.
A 2018 Justice Center of Council of State Governments study estimates California spends $2 billion annually to reincarcerate people for supervision violations, and $235 million per year on technical violations alone, “such as missing a drug rehab appointment or socializing with a friend who has a criminal record.”48 Community supervision is not only costly, but it significantly contributes to mass incarceration by sending people back to prison for minor or technical rules violations. Experts have described this as “a tripwire that can trigger a vicious cycle of incarceration for people under supervision for administrative rule violations that would rarely lead someone not under supervision into prison.”49
Limiting Supervision Inquiries:
When looking at the RIPA data on supervision, observed disparities may be driven in part by larger inequities in the criminal justice system but are compounded when we look deeper into who is asked their supervision status the first place. One way in which the Board believes law enforcement agencies can begin to mitigate this disparity is by examining who is being asked if they are on supervision in the first place, similar to the approach with consent searches.
46 Bradner, K., Schiraldi, V., Mejia, N., &; Lopoo, E. More Work to Do: Analysis of Probation and Parole in the United States, 2017-2018. (August 2020). Columbia University Justice Lab. p. 7.
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 32
During a study of Oakland Police Department’s (OPD) stop data and body worn camera footage researchers found “officers were more likely to mention the word probation in conversations with African American community members.”50 The study further found that “93% of probation/parole searches were of African Americans and Hispanics.”51
The OPD study also affirmed that Black and Hispanic residents generally felt more disrespected and misunderstood “Given that many of the underlying by police than White or Asian residents.52 Agencies need to offenses that trigger supervision, as evaluate whether asking someone whether they are on well as the stops and arrests that can supervision, without a specific law enforcement objective, is lead to violation proceedings, stem worth the significant negative consequences to police- from over-policing, particularly in poor and minority communities, [we community relations? For OPD it was not; instead, to must] develop and implement a plan, rebuild community trust through transparency and by with specific metrics, to reduce acknowledging that even a simple inquiry into someone’s disparate treatment of people based probation status is intrusive, it prohibited inquiries into a on race, poverty, and geography.” – 53 person’s probation status. Human Rights Watch & ACLU The San Diego Police Department (SDPD) also developed a policy prohibiting inquiries into a person’s probation or parole status during a stop. The change came after an increase in civilian complaints raising community concerns “related to questions about previous arrests, and/or probation or paroles status.”54 The agency reports the policy is still in effect and SDPD reports that it has seen a decrease in complaints since the policy change.
50 Eberhardt, J. L. Strategies for Change: Research Initiatives and Recommendations to Improve Police-Community Relations in Oakland, Calif. (Jun. 2016). Stanford University: SPARQ.
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 33
Limiting Supervision Searches:
Another policy agencies may wish to explore is limiting when and how officers conduct supervision searches. For example, not only did OPD limit supervision inquiries, they also limited when an officer should conduct a supervision search. Presently OPD officers perform a supervision search for a non-violent offense only if they have reasonable suspicion the person is engaged in criminal activity.55
During the Covid-19 pandemic, some agencies, such as the Los Angeles County Probation Department, relaxed probation requirements such as reducing in home visits or searches to only those at high risk of reoffending.56 Both Humboldt County and Sacramento also implemented similar changes, limiting technical violations as well as suspending searches and arrests to only those that are directly linked to a public safety concern.57
Researchers found that if the changes like those implemented by Los Angeles, Humbolt, and Sacramento become permanent they would have “no adverse effect on public safety.”58 Instead numerous studies demonstrate “what does make a difference increasing public safety is engaging with those on supervision as community members rather than potential reoffenders.”59 Notably these types of changes are supported by “more than 50 current and former elected prosecutors and 90 current and former probation and parole officials, in partnership with Executives Transforming Probation and Parole (EXiT).”60
55 Oakland Police Department, Dept. General Order R-02: Searches of Individuals on Probation, Parole, Mandatory Supervision and PRCS (Post-Release Community Supervision), Oct. 11, 2019. 56 Probation and Parole Driving Mass Incarceration (Nov. 25, 2020) Equal Justice Initiative.
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Given that the data demonstrates that reducing this type of enforcement actually increases public safety and has the potential to improve community relationships,61 both law enforcement agencies and policy makers should continue to examine the data surrounding supervision stops and searches and critically consider the costs to communities from this type of policing.
Evidence Based Policing: Reducing Disparities, Improving Police Tactics & Community Relations
The Board encourages agencies to monitor and review their data regularly for disparities and explore and implement policy changes that may address those disparities. When looking at supervision data, law enforcement agencies should ask if the practice “helps or hinders community-police relations, individual’s rehabilitation process, and the protection of the community from crime.” 62
Reducing Disparities:
Like other discretionary searches, a significant part of what may be driving the observed disparities is who is being asked if they are on supervision and who is being searched based on their supervision status. These issues are amplified when we examine the impacts of mass incarceration on Black, Indigenous, and other people of color. As noted above, while, “one in 58 adults is under supervision, one in 23 Black adults are subject to the onerous requirements of probation or parole that experts describe as a tripwire.”63
One of the factors causing the observed disparities is who is being asked their supervision status. Officers are more likely to mention the word probation in conversations with Black community members, researchers found in a study conducted by Stanford.64 In reaching this finding, they
61 Probation and Parole Driving Mass Incarceration (Nov. 25, 2020) Equal Justice Initiative.
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 35
reviewed body worn camera footage of Oakland Police Department officers and over 1,000 encounters with community members over a year to systematically analyze officers’ language when interacting with different community members.65 The statistical models show officers not only mentioned probation more with Black community members, but they also used more severe legal words, like arrest and prison, in comparison to White community members.66
Another factor to consider is who is being searched based on their supervision status. One way to observe the disparity in the RIPA data is to look at the rate in which those stopped for known supervision status are also searched; this also takes into account the larger systems of inequity in our criminal justice system. The 2019 RIPA data shows that while 76.6% of individuals who were stopped for known supervision were also searched, yet Black individuals stopped for known supervision had a higher rate of being searched than all other racial/ethnic groups, (79.5% or 6,219 individuals).
This data suggests that such disparities are driven in part by explicit or implicit bias in who is being asked their probation status and who is actually being searched.
[Additional research on disparities of supervision stops and searches. Follow up with agencies to understand the impact of this policy change]
Improving Police Tactics:
The RIPA data collected thus far indicates that the practice of _____ is not only characterized by racial disparities but also results in low yield rates (__%). Given the low yield rates, law enforcement agencies should re-evaluate if it is necessary to ask if someone who is stopped is on probation or parole.
Last year the state of California passed AB 1950, which reduced the length of probation terms. Proponents of the bill advocated that “reducing the length of probation terms would enable probation officers to more effectively manage their caseloads by focusing resources on those most at risk of reoffending.”67 Here too, by limiting probation inquires and searches, probation officers can focus their limited time and resources on the most serious violations. Notably, the
65 Eberhardt, J. L. Strategies for Change: Research Initiatives and Recommendations to Improve Police-Community Relations in Oakland, Calif. (Jun. 2016). Stanford University: SPARQ.
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 36
bill proponents specifically stated that one benefit of this change in policy is to help “end wasteful spending” and reduce the “length of time that a person might be subject to arbitrary or technical violations that result in re-incarceration.”68
Community Relationships:
Asking someone’s supervision status at the beginning of an interaction is viewed by the community as an improper assumption that the person is involved in criminal activity.69 In a national poll, a majority of respondents felt there were too many people currently on supervision and the primary purpose of supervision should not be to surveil others but rather to provide supportive services.70
When officers engage in probation inquiries or searches without a connection to a crime or a public safety issue, it may undermine public confidence in policing. As noted above, in a survey of Oakland residents, Stanford researchers found that “in officer-initiated contacts, African American and Hispanic community members felt less respected and understood by the officer with whom they interacted. Many respondents of color described feeling singled out, subject to increased scrutiny, or differentially treated because of their race when officers pulled them over.”71 After concluding the survey, researchers recommended that law enforcement agencies monitor public opinions of the police and experiences to help shape policy reforms.72 As a result of this community survey and a careful analysis of the stop data, Oakland seized probation and parole inquiries during stops in 2019.73
68 Sen. Rules Com., Off of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1950. (2019-2020 Reg. Sess.) as amended June 10, 2020. 69 Oakland Police Department, Dept. General Order R-02: Searches of Individuals on Probation, Parole, Mandatory Supervision and PRCS (Post-Release Community Supervision), Oct. 11, 2019; Eberhardt, J. L. Strategies for Change: Research Initiatives and Recommendations to Improve Police-Community Relations in Oakland, Calif. (Jun. 2016). Stanford University: SPARQ. pp. 27-37.
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 37
Law enforcement agencies have other investigative methods that may be less intrusive, improve community relations, and are more effective at yielding contraband.
c. Pretext Stops
“Traffic stops…are the most common entry point for contact between civilians and the police. And the harms that can accompany a traffic stop encompass far more than physical violence. Even the most routine stop can cause apprehension or fear, for some. And a resulting ticket or fine can have devastating effects on the driver. For example, drivers who cannot afford to pay the fine often lose their license. As a result, those who need a license to work will lose their jobs. And that in turn makes it harder for them to pay their fines and have their license reinstated. The stakes for ensuring even-handed traffic enforcement are high. And traffic enforcement is not even-handed. The evidence is clear: [B]lack drivers are more likely to be stopped than white drivers…”
– Rohit Asirvatham & Michael Frakes,et. al., Duke Law School
74
1. Data Analyses
[Insert Data Analysis]
2. Introduction to Pretext Stops
A pretext stop is when an officer stops someone for a traffic violation or minor infraction with intention to use the stop to investigate an officer’s hunch, “that by itself would not amount to reasonable suspicion or probable cause.”75 As long as an officer can point to an objective reason for the stop, such as a broken tail light, the subjective reason for the stop, even if it is motivated in bias, will not affect the constitutionality of the search. This is because a 1996 Supreme Court Case, Whren v. United States,76 held that the constitutional reasonableness of traffic stops does
74 Asirvatham, R.& Frakes, M., Are Constitutional Rights Enough? An Empirical Assessment of Racial Bias in Police Stops (August 13, 2020). Duke L. School Public L. & Legal Theory Series No. 2020-56,
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 38
not depend on the actual motivations of the individual officers involved.77 Whren has become one of the most sharply criticized legal decisions of our time.78
Pretextual stops can be influenced by an officer’s “Whren is in many ways the Plessy of its own implicit or explicit bias, as well as agency era. It endorsed racial discrimination, policies that may focus certain types of and thereby encouraged its spread.” – Gabriel J. Chin & Charles J. Vernon, enforcement actions in different neighborhoods, George Washington Law Review which can cause disparities in who is selected for enforcement actions or pulled over in the first place.79
Through analysis of stop data and working with researchers, several police agencies identified disparities in their traffic stops associated with pretextual stops, and made policy changes to address those issues. For example, the New Haven Police Department, which reformed their consent search policy, previously had a policy of stopping cars for low-level equipment violations and would request consent to search a vehicle. Researchers found that illegal contraband was rarely found during those searches (about 7%.).80 As a result, after consulting with community members, they reformed their policies to focus traffic enforcement on hazardous driving behaviors. After implementing these changes the law enforcement agency noticed a lower crime rate (5%), less traffic accidents (10%), and a 63% increase in finding contraband.81
Similarly, the Hartford Connecticut Police Department was stopping motorist for lighting violations, nearly 40% of stops, in hopes of catching DUI drivers.82 However, once the department started working with researchers, they found that only one out of the 1,608 traffic
77 Whren v. United States (1996) 517 U.S. 806, 813 78 Gabriel J. Chin & Charles J. Vernon, Reasonable but Unconstitutional: Racial Profiling and the Radical Objectivity of Whren v. United States, 83 Geo. Wash. L. Rev. 882, 941 (2015); see also Plessy v. Ferguson (1986) 163 U.S. 537, a U.S. Supreme Court decision that upheld the constitutionality of racial segregation under the “separate but equal” doctrine. 79 Ross, M., Barone, K, & Kalinowski, J., Testing for Disparities in Traffic Stops: Best Practices from the Connecticut Model. (2020) Criminology & Public Policy. Criminology and Public Policy. p. 1297.
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 39
stops for lighting violations resulted in a DUI arrest.83 Not only were these stops ineffective in locating DUI drivers, they were also the primary source of the disparities between White individuals and people of color who were pulled over. In response to the disparities observed, the agency changed its polices. Officers were instead instructed to look for objective evidence if someone was DUI. After making this change the disparities were reduced and there was an increase in DUI arrests.84
83 Examining Equity in Transportation Safety Enforcement, Testimony by Ken Barone before House Com. on Transportation and Infrastructure, Subcom. On Highways and Transit, 117th Congress, 1st Sess. (Feb. 2021).
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 40 WŽůŝĐŝĞƐĂŶĚĐĐŽƵŶƚĂďŝůŝƚLJ
41
RACIAL AND IDENTITY PROFILING POLICIES AND ACCOUNTABILITY
[Introduction]
Wave 3 and 3.5 Agency Bias-Free Policing Policies Review In its 2019 Report, the Board found that while most agencies did have a specific policy or portion of a policy addressing racial and identity profiling, there was little consistency across agencies in the substance of those policies. In its 2020 Report, the Board built upon this finding and provided model language that law enforcement agencies could include in their bias-free policing policies. Since 2020, the Board reviewed the bias-free policing policies for the eight Wave 1 agencies and the seven Wave 2 agencies based on the best practices outlined in the 2019 report. The Board is continuing its review of individual bias-free policing policies one final time. This review includes the bias-free policing policies of the eleven Wave 3 agencies and twelve Wave 4 agencies that began collecting data in 2021.1 Given that the next and final wave of agencies beginning to report stop data in 2022 includes over 400 agencies, the Board will not be able to review their bias-free policing policies in the same way that is has for the past three years.
When the Board began its review, the posting of policies on an agency website was a best practice recommendation by the Board. Now, California law requires law enforcement agencies to make their policies, including their bias-free policing policies, “easily accessible” to the public by “conspicuously” posting them on their agency websites. (Cal. Penal Code § 13650). Therefore, each agency identified below should immediately post their policies on their websites in a conspicuous location to comply with state law.
Davis Police Department (Davis Police): An 8-page policy which includes cross-reference to other departmental policies. Uniquely, this policy references that members of the public may file complaints that allege bias-based policing and that the agency will investigate them all. This kind of cross-policy language is something the Board has not seen before. Moreover, the policy acknowledges that “explicit and implicit bias can occur at both an individual and institutional level” and provides that Davis Police “is committed to addressing and eradicating inappropriate use of biases.”
The policy dedicates approximately three and a half pages to definitions beyond “bias-based policing” and/or “racial and identity profiling,” including, for example, definitions of “explicit or conscious bias,” “implicit or unconscious bias,” “gender identity,” and “discriminatory policing.” Including these definitions help ensure that Davis Police officers are knowledgeable of different identities and understand the connection to policing. This policy also includes a section on “bias-by-proxy,” which contains a definition and outlines responsibilities for officers and dispatchers to be mindful of bias by proxy and share relevant information, as well as giving them discretion to not respond to a bias-based call.
The policy is sprinkled with several officer responsibilities, including referring “to all members of the
1 The policies of these law enforcement agencies can be found in Appendix Table []. DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 42
public, including LGBT individuals, using the names, pronouns, and titles of respect appropriate to the individual’s gender identity as expressed or clarified by the individual.” Not only are officers given clear responsibilities to uphold individuals’ constitutional rights but supervisors are provided several ways to review their supervisees’ adherence to this policy. Supervisors are to review documentation, including video from body-worn cameras, of investigatory stops for accuracy, completeness, and adherence to law and departmental policy. Moreover, supervisors are to “lead efforts” to ensure that officers are “working actively to engage the community and increase public trust.” This policy also aims to hold the entire department accountable to their commitment in this policy by including an annual review of public concerns, complaints, and analysis of stop data that will be reviewed to identify any changes in training or operations that should be made; most importantly, this annual review must be reviewed and discussed by supervisors with their supervisees.
[Insert remaining Wave 3 and 4 agencies: Alameda County Sheriff’s Office (Alameda Sheriff); Kern County Sheriff’s Department (Kern Sheriff); Los Angeles World Airport Police (LAX Police); Riverside Police Department (Riverside Police); San Francisco County Sheriff’s Department (San Francisco Sheriff); Santa Clara County Sheriff’s Department (Santa Clara Sheriff); Stockton Police Department (Stockton Police); Sonoma County Junior College District Police (Sonoma College Police); Windsor Police Department (Windsor Police).]
Agencies with Commercially Available policies
[Insert comparison of different versions of the commercially available policy for the following agencies who use it: Ventura County Sheriff’s Department (Ventura Sheriff); Berkeley Police Department (Berkeley Police); Anaheim Police Department (Anaheim Police); Fresno County Sheriff’s Department (Fresno Sheriff); San Ana Police Department (Santa Ana Police); Rohnert Park Department of Public Safety (Rohnert Park); Culver City Police Department (Culver City Police); Santa Rosa Police Department (Santa Rosa Police); Sonoma County Sheriff’s Office (Sonoma Sheriff); Sonoma Police Department (Sonoma Police); Sonoma State University Police (Sonoma State Police); Cotati Police Department (Cotati Police); Petaluma Police Department (Petaluma Police).]
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 43
Uses Component on Stand- Concrete Limited Component Component Alone Definitions of Circumstances on on Racial Component Component on Wave 3 + 3.5 Bias- Clearly Easily Bias-Free in which Supervisory Encounters and Identity on Data Requiring Agency Free Written? Accessible?2 Policing Characteristics Review? with Profiling Analysis? Accountability? Policing and/or Racial of Individual Community? Training? Policy? & Identity May Be Profiling Considered?
Davis Police 9 9 9 9 9 9 9 9 9 9
Alameda
Sheriff 8
Kern Sheriff 8
LAX Police 8
Riverside Police 8 San Francisco 8 Sheriff Santa Clara Sheriff 8
Stockton Police 8
2 Beginning January 1, 2020, each law enforcement agency must conspicuously post on their website all current standards, policies, practices, operation procedures, and education and training materials that would otherwise be available to the public through a Public Records Act request. (Cal. Pen. Code, § 13650.) 44 DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
Uses Component on Stand- Concrete Limited Component Component Alone Definitions of Circumstances on on Racial Component Component on Wave 3 Bias- Clearly Easily Bias-Free in which Supervisory Encounters and Identity on Data Requiring Agency Free Written? Accessible? Policing Characteristics Review? with Profiling Analysis? Accountability? Policing and/or Racial of Individual Community? Training? Policy? & Identity May Be Profiling Considered? Sonoma College 8 Police Windsor Police 8
Ventura Sheriff 9 9 9 9 ? 8 9 8 9 ?
Berkeley Police 9 9 9 9 9 8 9 8 9 8
Anaheim Police 9 9 9 9 ? 9 9 8 9 9
Fresno Sheriff 9 9 9 9 ? 9 9 8 9 9
Santa Ana Police 9 9 9 9 ? 9 9 8 9 9
Rohnert Park 9 9 9 8 ? 9 9 8 9 8
45 DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
Uses Component on Stand- Concrete Limited Component Component Alone Definitions of Circumstances on on Racial Component Component on Wave 3 Bias- Clearly Easily Bias-Free in which Supervisory Encounters and Identity on Data Requiring Agency Free Written? Accessible? Policing Characteristics Review? with Profiling Analysis? Accountability? Policing and/or Racial of Individual Community? Training? Policy? & Identity May Be Profiling Considered? Culver City Police 9 9 9 9 ? 8 9 8 9 9
Santa Rosa Police 9 9 9 8 ? 8 8 8 9 9
Sonoma Sheriff 9 9 9 9 ? 9 9 8 9 9
Sonoma Police 9 9 9 9 ? 9 9 8 9 9
Sonoma State Police 8
Cotati Police 9 9 9 9 ? 9 9 8 9 9
Petaluma Police 9 9 9 9 ? 9 9 8 9 9
46 DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
Wave 1 and 2 Agency Bias-Free Policing Policies Review Follow-Up
The Board also followed up on its review of the Wave 1 and Wave 2 agency’s bias-free policing policies.3
[Insert updates from the Wave 1 and Wave 2 agencies.]
Vision for Future Reports
In the coming years, the Board hopes to conduct more comprehensive research – examining both current agency policies and protocols and evidence-based research – into each area of accountability systems to identify best practices.
3 The policies of the Wave 1 and 2 law enforcement agencies can be found in Appendix []. DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 47 ACCOUNTABILITY MODELS AND BEST PRACTICES
There is not a single model policy that encompasses all of the systems required to ensure accountability in law enforcement agencies. In its 2021 Annual Report, the Board identified ten components that make up accountability systems. This document includes questions that the Board may want to address and resources that the Board may want to reference in the 2022 Report regarding auditing practices to ensure integrity of the stop data, and use of data for staff supervision and policy change within agencies. I. Auditing Practices to Ensure Integrity of the Stop Data The Board will inquire with agencies about their stop data auditing practices. The Board will also inquire about agencies’ practices and policies regarding audits of body-worn camera footage in supervisor review of stop data reports and how this review relates to the agencies’ disciplinary practices. The Report will include discussion of the agencies’ responses. The Board recommends that agencies assess outlier patterns in their stop data, for example, rates of individuals consenting to searches that are much higher than the rates at which individuals gave consent in other agencies and significantly higher rates of officers asking for consent to search. The Board plans to continue reviewing the following research: Office of the Inspector General. (Oct. 2020). Review of Stops Conducted by the Los Angeles Police Department in 2019. Available at: https://a27e0481-a3d0-44b8-8142- 1376cfbb6e32.filesusr.com/ugd/b2dd23_d3e88738022547acb55f3ad9dd7a1dcb.pdf. [Review relied primarily on 2019 Los Angeles Police Department RIPA stop data and a sample of videos of stops. Through video review of 190 stops, the OIG found, “officers did not always accurately document the number of people considered detained under RIPA or the extent to which they conducted post-stop activities” (5). Recommendations regarding use of video technology for supervisory oversight]. Logan, W.A., and Ferguson, A.G. (2016). Policing Criminal Justice Data. Minn. L. Rev. pp. 541-616. [Addresses how to create an accountability structure to better ensure data quality in the criminal justice system and allow for detection of errors (545). Justice Ginsburg, in dissent, (Ariz. v. Evans (1995) 514 U.S. 1 [115 S.Ct. 1185, 131 L.Ed.2d 34]) “…inaccurate data can infect not only one agency, but the many agencies that share access to the database” (582).] II. Use of Data for Staff Supervision and Policy Change within Agencies
In future years, the Board may wish to address best practices related to peer intervention and misconduct reporting. DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
48 ACCOUNTABILITY MODELS AND BEST PRACTICES
The Board plans to continue reviewing the following research: Eberhardt, J.L. (2016). Strategies for Change: Research initiatives and recommendations to improve police-community relations in Oakland, Calif. Stanford University, SPARQ: Social Psychological Answers to Real-world Questions. [Analysis of April 2013-April 2014 Oakland Police Department stop data found that less-experienced officers showed more racial disparities in their stops (5). Analysis also showed that officers that are more senior were less active in conducting searches, handcuffing, and making arrests, even after controlling for an officer’s total number of stops (12). The authors recommended better training of new officers, which would likely reduce the disparities (5). The Board may wish to recommend analysis of RIPA data by officers’ years of experience.] Voigt, R., Camp, N.P., Prabhakaran, V., Hamilton, W.L., Hetey, R.C., Griffiths, C.M., Jurgens, D., Pauker, K., Jurafsky, D., Eberhardt, J.L. (2016). Automated Analysis of Body-Worn Camera Footage. In Eberhardt, J.L. Strategies for Change: Research initiatives and recommendations to improve police-community relations in Oakland, Calif. Stanford University, SPARQ: Social Psychological Answers to Real-world Questions. pp. 14-19. [LEAs and the public tend to think of body-worn camera footage as evidence, rather than data. Evidence can prove liability or innocence in one specific case, but data can show patterns across incidents and possibly be used to change those patterns. Researchers developed computational tools to analyze linguistic data from body-worn cameras.] Prabhakaran, V., Camp, N.P., Jurafsky, D., Eberhardt, J.L. (2016). Expert and Automated Analysis of Officer Narratives. In Eberhardt, J.L. Strategies for Change: Research initiatives and recommendations to improve police-community relations in Oakland, Calif. Stanford University, SPARQ: Social Psychological Answers to Real-world Questions. pp. 20-25. [Researchers developed computational tools to analyze written narratives from stop data forms.] The People of the State of California, ex rel. Xavier Becerra, Attorney General of the State of California v. County of Kern and the Kern County Sheriff’s Office. Stipulated Judgement. (2020). Available at: https://oag.ca.gov/sites/default/files/Judgment.pdf [Requires officers who witness higher-level use of force incidents to complete an incident report and requires supervisors to review all deputy use of force statements for adequacy, accuracy, and completeness. “Deputies who use reportable force should be required to complete a use force statement, as shall deputies who witness a Level 2 or Level 3 use of force. The name and rank of each and every deputy on scene shall be included in the use of force report, even if that deputy did not witness the Level 2 or Level 3 use of force” (15-16). Requires the agency to conduct an annual review of use of force data and document the results of the analysis in a public report (19).]
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
49 ACCOUNTABILITY MODELS AND BEST PRACTICES
Koen, M.C., Willis, J.J., and Mastrofsi, S.D. (2019). The Effects of Body-worn Cameras on Police Organisation and Practice: A theory-based analysis. Policing & Society. 29(8). pp. 968-984. Available at: https://www.bwctta.com/sites/default/files/Files/Resources/Koen 2018.pdf [Cameras enhanced “environment-changing features of the LEA”, they were less successful in changing supervision and training. “Body-worn cameras are small, mobile devices that patrol officers wear to provide video and audio recordings of their encounters with the public” (1).] Murphy, J.R. (2018). Is it Recording?: Racial bias, police accountability, and the body- worn camera activation policies of the ten largest metropolitan police departments in the USA. Columbia Journal of Race and Law. 9. pp. 141-189. [The note surveys the “activation” requirements of the body-worn camera policies of the ten largest police departments in the United States, including the Los Angeles Police Department, in order to assess their relative effectiveness at combatting racial bias (144). Activation requirements are the “policy provisions specifying events that officers are required to record on their cameras” (144). “[S]hows that, at present, many body-worn camera policies are not appropriately calibrated to successfully reduce racial bias in policing.”] White, M.D., and Fradella, H.F. (2018). The Intersection of Law, Policy, and Police Body-Worn Cameras: An exploration of critical issues. North Carolina Law Review. 96. pp. 1579-1638. [Describes best practices for planning and implementing a body-worn camera (BWC) program, grounded in reviews of research and the results of an analysis of 129 BWC policies. Highlights the importance of administrative policy regarding supervisory review of footage. “Since 2015 the U.S. Department of Justice (“US DOJ”) has awarded nearly $ 60 million in grant funding to more than 250 law enforcement agencies to deploy BWCs” (1583).] Cubitt, T.I.C., Lesic, R., Myers, G., and Corry, R. (2017). Body-worn Video: A systemic review of literature. Australian & New Zealand Journal of Criminology. 50(3). pp. 379- 396. Available at: [Body-worn video (BWV) was shown to reduce use of force incidents, and crime rates for certain crime types. Public response to body-worn video was varied. “Three peer-reviewed studies examined officer perception of BWV” (387).] Cigno, J.T. (2016). Truth and Evidence: The role of police officer body cameras in reforming Connecticut’s criminal justice system. Connecticut Law Review. 49(1). pp. 293-326. Rushin, S. (2016). Competing Case Studies of Structural Reform Litigation in American Police Departments. Ohio St. J. Crim. L. [The U.S. v. City of Los Angeles Consent Decree required that the Police Commission, the Inspector General, and the Chief of Police all have equal and complete access to LAPD’s early intervention system (117).]
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
50 ACCOUNTABILITY MODELS AND BEST PRACTICES
Kitzmueller, M. (2014). Are You Recording This?: Enforcement of police videotaping. Connecticut Law Review. 47(1). pp. 167-196. [Examines how different states compel law enforcement to make and preserve videos through legislation and judicial intervention. Because of the year of publication, laws referenced may have changed. However, this may be a good resource to look at principles.] III. Community-Based Accountability (community oversight bodies’ role in discipline, recruitment, and promotion processes) The Board will reach out to Wave 1, 2, and 3 agencies that have a civilian oversight board about the board’s practices and policies. The Report will include discussion of the agencies’ responses. The Board may consider developing a survey regarding communities’ perceptions of public safety and law enforcement. This survey might include a question regarding perception of the effectiveness of community oversight boards. San Francisco has a Police Commission, a Department of Police Accountability, and an SFPD Chief Advisory Board. The Department of Police Accountability handles civilian complaints regarding on-duty officers. The Police Commission must approve all Department General Order policies. A working group chaired by SFPD leadership recruits community members to participate in the Chief Advisory Board. The Board plans to continue reviewing the following research: Breckenridge, J.H. (2018). Civilians on Police Use of Force Review Boards: A delphi study involving six police departments. Thesis: Naval Post Graduate School. Monterey, California. [Six cities were included in this study (Denver, Las Vegas, Olympia, Phoenix, Portland, and Tucson), which asked nine board members from the six cities to identify ideal structures and operations for these boards. The study found a wide variety of practices. All participants expressed support for the practice of including voting community members. Recommendations for improving these boards include increasing training, term limits, the authority to review, and opportunities to question for voting community members as well as improving public reporting.] SFPD Report discusses civilian participation in hiring process. The People of the State of California, ex rel. Xavier Becerra, Attorney General of the State of California v. County of Kern and the Kern County Sheriff’s Office. Stipulated Judgement. (2020). Available at: https://oag.ca.gov/sites/default/files/Judgment.pdf [KCSO has a Community Advisory Panel with which KCSO agreed to work on policy reforms (10).] Dungca, N., and Abelson, J. (Apr. 2021). When Communities Try to Hold Police Accountable, Law Enforcement Fights Back. Washington Post. Available at: DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
51 ACCOUNTABILITY MODELS AND BEST PRACTICES
https://www.washingtonpost.com/investigations/interactive/2021/civilian-oversight- police-accountability/. Seattle Police Department. (Apr. 2021). General Policy 8.500: Reviewing use of force. Available at: https://www.seattle.gov/police-manual/title-8---use-of-force/8500--- reviewing-use-of-force. [Seattle Police Department policy permits attendance by a non- voting "civilian observer" for any review of an officer involved shooting. The Mayor appoints this person. In CRES review of agencies that have policies on review boards, only Seattle and Tucson Police Departments were identified as including a community member as a part of the board. ]
Simonson, J. (2021). Police Reform through a Power Lens. Yale Law Journal. 130(4). [The demands that emerged amid the 2020 uprisings against police violence and white supremacy brought into the national consciousness ideas for change in how the state should provide safety and security. There are demands to defund the police, to have the people decide how budgets are allocated, and to give communities control over how to define public safety. These visions are the product of long-term organizing by directly impacted people. A bill was reintroduced in the Chicago City Council to form the Civilian Police Accountability Council, which would consist of civilians chosen through elections in each neighborhood district.] Barker, K., Keller, M.H., Eder, S., and Friedman, G. (December 23, 2020). The Way Cities Lost Oversight of Their Police. New York Times. P. A1-A18. Helme, R. (2015). Civilian Oversight of Police the Canadian Experience. The Judicial Current. Petru Maior University. v. 60. pp. 13-18. [Three branches of civilian oversight are described and discussed: police boards (governance), Office of Police Complaints Commissioner (complaints against police), and Independent Investigation Office (criminal investigation of police). Each branch is discussed in the context of a case study.] Porter, L.E. (2013). Beyond “Oversight”: A problem oriented approach to police reform. Police Practice and Research. 14(2). pp. 169-181. [Discusses contributions of external oversight agencies to proactive police reform. Provides a framework to highlight a number of activities that identify and analyze problems in the police integrity domain, and design and implement solutions. Case studies illustrate the model in practice.] Chavis Simmons, K. (2012). Stakeholder Participation in the Selection and Recruitment of Police: Democracy in action. Saint Louis University Public Law Review. 32(7). pp. 7- 32. [Addresses the organizational roots of police misconduct. Beliefs that violence is a necessary part of law enforcement and the code of silence are organizational characteristics that need to be addressed in order to remedy organizational failures to hold law enforcement officers accountable. Consistent with the principles of community
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
52 ACCOUNTABILITY MODELS AND BEST PRACTICES
policing, police departments should develop processes to allow the community to participate in the selection and recruitment process. Offers a proposal for ways in which government could encourage or incentivize the inclusion of the community in the hiring and selection process. Emphasis has been placed on who police hire and how the characteristics of police officers might improve the police culture. However, less emphasis has placed on how officers are selected. Discusses examples of community participation, including in Sacramento, where members of the community participated in focus groups to determine selection criteria of new police hires, participated in recruiting officers from the community, and sponsored candidates in the academy.] Mu iz, A. (2011). Disorderly Community Partners and Broken Windows Policing. Ethnography. [Addresses which community members elect to participate in law enforcement-community engagement. Residents request police action and demand government services based on the self-adopted identities of victim and consumer-citizen. The police, in turn, enact a model of community policing in which the public is restricted to a supportive role as informants and guarantors of quality-of-life issues.] Kim, R.L. (2001). Legitimizing Community Consent to Local Policing: The need for democratically negotiated community representation on civilian advisory councils. Harvard Civil Rights-Civil Liberties Law Review. 36. pp. 461-525. Tucson Police Department. (May 2001). Administrative Policies. Vol. 3: 3200 Critical Incident Review. [CRES review of agencies which had a policy on Use of Force boards found that only Tucson Police Department required a community member as part of the board and in a voting capacity. The Department Chief selects the community member.] IV. Potential Future Topics for Consideration A. Peer Misconduct Intervention and Reporting Georgetown Law (2021). Active Bystandership for Law Enforcement (ABLE) Frequently Asked Questions. Available at: https://www.law.georgetown.edu/innovative-policing-program/active- bystandership-for-law-enforcement/faqs-about-able/. [A practice focused, scenario-based training for LEAs in the strategies and tactics of police peer intervention with concrete measures that must be in place to create and sustain a culture of peer intervention. Are these evaluation measures linked to outcomes in the field?] Baltimore Police Department. (2020). Ethical Policing Is Courageous EPIC): Maryland Police and Correctional Training Commission Lesson Plan. Available at: https://www.baltimorepolice.org/ethical-policing-courageous-epic-training- lesson-plan. [Eight-hour in-service course. Objectives include: learners will be
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
53 ACCOUNTABILITY MODELS AND BEST PRACTICES
able to demonstrate how to effectively give and receive peer intervention, learners practice how to properly intervene in a possible misconduct situation using a learned strategy.] Jackman, T. (Jan. 2019). New Orleans Police Pioneer New Way to Stop Misconduct, Remove “Blue Wall of Silence.” The Washington Post. Available at: https://www.washingtonpost.com/crime-law/2019/01/24/new-orleans-police- pioneer-new-way-stop-misconduct-remove-blue-wall-silence/. Kutnjak Ivković, S., Haberfled, M., Peacock, R. (2018) . Decoding the Code of Silence. Criminal Justice Policy Review. 29(2). pp. 172-189. [A survey that made use of scenarios identified officers’ perception that other officers would not report as a key factor related to police officers’ reluctance to report misconduct. LEAs or civilian oversight bodies can use the methodology to assess the nature and extent of the code in an LEA.] Aronie, J., and Lopez, C.E. (2017). Keeping Each Other Safe. Police Quarterly. 20(3). pp. 295-321. [Explores the dynamics of policing and argues these make active bystandership training, as part of an overarching implementation of an active bystandership ethos, critical to overcoming entrenched inhibitors to peer intervention. Considers the New Orleans Police Department’s implementation of a peer intervention or active bystandership program beginning in 2015 and presents “lessons learned” from that department’s experience.] B. Civilian Oversight of Police Surveillance Technology National Association for Civilian Oversight. (Feb. 2021). Civilian Oversight of Police Surveillance Technology. Available at: https://www.nacole.org/civilian_oversight_of_police_surveillance_technology_re cording [Electronic Frontier Foundation documents and maps which surveillance technologies are in use by law enforcement agencies in communities (atlasofsurveillance.org). In oversight efforts, communities are enacting Community Control over Police Surveillance (CCOPS) policies, also known as Surveillance Equipment Regulation Ordinances. These polices require that in advance of acquiring a surveillance technology, LEAs write a proposed policy and conduct a privacy assessment that will be reviewed by an elected body in a public meeting. For technology that is approved, the LEA must report annually on the use of the technology. Ordinances in Oakland and San Diego created civilian oversight bodies that review each of these technologies. Santa Clara County was the first municipality to enact a CCOPS policy. The ACLU has identified eight CCOPS laws enacted in California (San Diego, Santa Clara County, Palo Alto, San Francisco, Oakland, BART System, Berkeley, and
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
54 ACCOUNTABILITY MODELS AND BEST PRACTICES
Davis).1 These ordinances are often enacted along with prohibitions of specific technologies, such as face recognition. The Electronic Frontier Foundation has identified the key questions for elected bodies to pose regarding surveillance technologies.] Richardson, R., Schultz, J.M., and Crawford, K. (2019). Dirty Data, Bad Predictions: How civil rights violations impact police data, predictive policing systems, and justice. N.Y.U.L. Rev. pp. 192-233. [The use of predictive policing must be treated with high levels of caution and mechanisms for the public to know, assess, and reject these systems are imperative.] Jouvenal, J. (Jan. 2016). The New Way Police Are Surveilling You: Calculating your threat “score”. Washington Post. [Police stops become part of a self- reinforcing system of digital suspicion. The more stops, the more times the individual's name is in a database as being stopped, results in the likelihood of future stops.]
1 ACLU. (2021). Community Control over Police Surveillance. Available at: https://www.aclu.org/issues/privacy- technology/surveillance-technologies/community-control-over-police-surveillance#map DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
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56
VII. CALLS FOR SERVICE AND BIAS BY PROXY
A. Introduction
A call for service is a common term in policing that refers to when a public safety professional is dispatched, often to assist a community member in crisis.1 Public safety professionals can range from the more traditional services such as police, fire department, and emergency medical services, to more modern progressive models such as mobile mental health evaluation teams and bias response teams. Responding to a call for assistance – typically prompted by a 911 call requesting aide and a dispatcher who assigns a particular public safety professional to the incident –is termed a “call for service” by the public safety community. Public safety professionals are assigned typically through computer aided dispatch systems (CAD), which give a priority to the call and may assign a particular unit to the call such as the fire department.2
Dispatchers are generally the first point of contact in any call for service, playing a critical role in protecting both the public and officers. In 2021, the skill and instincts of dispatchers were on full display during the murder trial of Derek Chauvin. The very first witness the prosecution called was dispatcher, Jena Scurry, who monitored the officers responding to the scene of George Floyd’s arrest and reported to her sergeant when she saw excessive force was being used.3 Dispatchers make critical lifesaving decisions every day, but the level of discretion and tools given to dispatchers throughout agencies very significantly. As we continue to improve public safety, agencies should reflect on their own policies to ensure that dispatchers can intervene in instances of police misconduct.
The Board has identified calls for service as a critical component of police and community relationships, and it has focused on several important issues surrounding calls for service.
(1) Bias by Proxy is “when an individual calls the police and makes false or ill- informed claims about persons they dislike or are biased against.”4 The Board has begun exploring best practices for addressing when a bias-based call for service is being made by a member of the
1 Police Data Initiative, Calls for Service. < https://www.policedatainitiative.org/datasets/calls-for-service> (as of June 1, 2021). 2 Police Data Initiative, Calls for Service. < https://www.policedatainitiative.org/datasets/calls-for-service> (as of June 1, 2021). 3 Bailey, Holly & Bellware, Kim, Emotional first day of testimony at Derek Chauvin murder trial (March 29, 2021) Washington Post.
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public and how to address it from the moment the 911 call is made to when officers interact with community members.
(2) Mental Health Calls for Service is also another area the Board has begun to explore and review alternatives to police responses to someone experiencing a crisis. Last year the report covered the history of mental health in America and reviewed developing crisis response models. This year the Board continues that work by exploring the success of crisis response pilot programs that emerged in 2020-21 and data driven solutions to improve calls for service. Further, as we continue to reimagine public safety and alternatives to police responses, dispatchers will continue to play a critical role in identifying, triaging, and diverting calls for service that may be more appropriate for a community based response.
A. Data Analysis Write Up
[Insert Analysis of Calls for Service Data]
B. Responding to Biased-Based Calls for Service
Dispatch is often the lesion between the public and the “Becoming a public safety dispatcher means choosing dispatching not only police, as such the policies and procedures as a career, but as a moral surrounding their work is critical to improving commitment to maintain public trust.” community relationships, especially when addressing - Commission on Peace Officer bias by proxy. This year the Report reviews updated Standards and Training dispatcher trainings and polices from the Police Officer Standards and Training (POST), which sets the minimum guidelines and training for dispatchers. The Report also looks at developments in technology which may help improve communications between dispatch and officers so they can live stream calls for service.
Not only is the Board interested in improving training for dispatchers and officers, it is also looking at ways to promote healing in communities affected by a bias-based incident and prevent future harm. This year the Board continues to explore restorative justice approaches to a bias- based incident that focuses on accountability and education. Restorative justice “is a theory of justice that emphasizes repairing the harm caused by criminal behavior. It is best accomplished through cooperative processes that allow all willing stakeholders to meet, although other
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 58
approaches are available when that is impossible. This can lead to transformation of people, relationships and communities.”5
The Board is exploring a few ways of implementing this approach including bias-response teams which are community based teams that respond to a bias-based incident. The Board also is reviewing strategies how to educate 911 callers about checking biases before contacting the police. Finally, as we continue to reimagine public safety the community should continue to work together to develop creative alternatives to police responses.
1. Updates on Trainings, Policies, and Procedures for Dispatchers and LEAs
A Public Safety Dispatcher Center is the central hub for aiding anyone who calls 911 for assistance and can range from a crime in progress to a medical emergency. Dispatchers need the skills as well as tools to quickly assess a crisis and dispatch the appropriate first responders to the scene. In California, there are more than 400 Public Safety Dispatcher Centers. Given the importance of this work, it is hard to understand why there are no uniform policies and procedures to create standards for these centers. Some centers are completely independent of one another while others work together jointly. Most centers use computer-aided dispatch (CAD) systems that communicate the priority of the call, identify the status or location of first responders in the field, and dispatch responder personnel.6 Usually the call is prioritized based on the nature of the 911 call, with life threatening calls taking the highest priority.
How call priorities are assigned also depends on the individual agency, and there are many variations. Some CAD agencies have a predetermined computer program that assigns priority, based on the radio or Penal Code the dispatcher enters. Depending on the agency’s policies, dispatchers may have the ability to override the priority based on the information solicited from the caller. While other agencies rely primarily on the dispatcher to priorities the calls. Some CAD systems have as few as four priorities; others many more priority codes. Another difference is the volume of calls – some dispatch centers receive only a few calls each hour, while others received hundreds.
POST and the Dispatcher Advisory Council are responsible for establishing the minimum guidelines and training for the Public Safety Dispatcher Program.7 By law, every public safety
5 Center for Justice & Reconciliation, Lesson 1: What Is Restorative Justice? Prison Fellowship International
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dispatcher must complete the Public Safety Dispatcher Basic Course within 12 months after being hired by an agency. Currently, as long as the dispatcher completes the course within the first year of employment, they may start dispatching calls despite not having completed probation or basic training.8 POST is presently in the process of updating their trainings.9
In the academy, dispatchers are trained on how to respond to “suspicious” person calls and to ask questions until they understand the situation. One such question they ask is “what makes that person suspicious?” They will continue to ask questions until they understand the situation. Once they understand the situation, they may be limited based on individual agency policies on how they can resolve the call. Some agencies for example have a policy that they cannot refuse any call for service and will send an officer to the scene.
Both officers and dispatchers face significant challenges when responding to a call for service motivated by bias. One way to mitigate bias by proxy is allowing for better communication between the dispatcher and officers in the field, since “officers who know ahead of time that the complaint or allegation is the result of bias are best-positioned to respond properly.”10 There are now new tools available for agencies that allow them to livestream 911 calls directly to first responders in the field.11 This gives officers and first responders significantly more details about the call, including the tone and demeanor of the 911 caller.12 Officers are able to hear the questions dispatch, ask for more details via radio, and can dismiss a call themselves.13 This may help mitigate bias by proxy but agencies must take additional steps to address bias-based calls for service.
2. Bias-Response Teams: Implementing Restorative Justice Approach to Bias-Based Calls for Services
A bias-based call for service causes a ripple effect –not only does it harm the direct victim, but it also deeply affects entire communities. For example, the Central Park incident involving Amy Cooper14 brought up deep historical and present harms for a lot of people. Sadly, walking while
8 11 CCR § 1018. Public Safety Dispatcher Programs. 9 See Commission on Peace Officer Standards and Training, Public Safety Dispatchers’ Basic Course: Training Specifications (July 2011)
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Black, being in the park while Black, driving while Black are commonly used terms that reflect the broad experience of Black, Indigenous, and other people of color who often cannot walk down the street without being stopped, harassed, and arrested, regardless of what they are doing at the time. A bias-based call for service can cause fear about police and affect the public’s view of the legitimacy of the entire department. Officers and agencies must have an intimate understanding of both the present and historical harms our communities face both with police, but also more broadly the effects of structural racism.
A restorative justice approach to bias-based incidents works to address this ripple effect and goes beyond just merely punishing the offender; it focuses on the harm caused, creates a system of accountability, and takes steps to prevent future harm. This approach “can be applied both reactively in response to conflict and/or crime, and proactively to strengthen community by fostering communication and empathy.”15 A community based response to a bias-biased call for service which focuses on responding to the harm caused by the biased caller promotes healing and justice within affected communities.
In order to address these types of issues, numerous organizations and colleges have created bias response teams to address acts of hate. One such organization is the New York Commission on Human Rights, which launched their Bias Response Teams in 2016. The Commission is staffed by “legal, community relations, policy, communications, and human resources” personnel from “across the City's rich and diverse communities and beyond, representing many languages, cultures, and backgrounds.”16 These teams work to “support and stabilize communities after incidents of bias have occurred” and respond directly to needs identified by the harmed communities.17 The Bias Response Teams will do everything from distributing literature to local business about protections under the human rights laws, partner with schools and youth to provide people with the tools to recognize and stand up to bias, canvass neighborhoods with informational literature, and educate impacted community members about their rights, as well as provide direct support to the affected victim.18 In 2019, they responded to 235 alleged incidents of bias. They work independently from the police department and are contacted directly when an
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 61
incident occurs. However, where appropriate such as if there is a suspected hate crime, the Bias Response Teams will refer the incident to law enforcement for investigation.
Participation in response team outreach efforts is voluntary for both victims and perpetrators. Further, the function of the Bias Response Team’s – in addition to other restorative justice approaches – is not to punish, but to educate, promote healing within communities, and prevent any future harm.
Another component of addressing bias-based calls for service is proactively educating the individual callers about their own biases. UC Irvine, for example, created a flow chart for the public that cause the caller to pause and think prior to even making that call to 911. Education and outreach about the effects of bias are imperative in improving community relationships.
As we continue to reimagine public safety not only should the community be knowledgeable on when it is appropriate to call the police, but also have easily accessible information on alternatives to police services. For example, some calls for service are more appropriate for a community first response, such as someone experiencing a medical emergency like a mental health crisis. As many communities continue to explore alternatives to law enforcement responses, such as bias response teams, it will be vital that the community and law enforcement are educated on the social services available in their area. In June 2020, an online database launched that contains local resources and alternatives to police responses.19 The database contains a list of vetted resources categorized by city. The resources include resources address everything from “housing, mental health, domestic violence & sexual
19 Mental Health in America, Alternatives to Calling the Police in a Crisis,
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assault, LBGTQ+, youth, elders, crime and substance use.”20 Presently the database contains resources for over 75 cities throughout the nation and 10 cities in the state of California.21
C. Responding to a Mental Health Crisis
A mental health episode is not a crime and should not have a law enforcement response. Yet, nearly 1 in 4 individuals killed by police have a mental health condition, 2 in 5 people who are incarcerated have a history of mental illness, and 70% of youth in the court system have a mental health condition.22 This is certainly a problem that requires us to rethink, reimagine, and redefine what public safety looks like in our communities.
Responding criminally to a mental health episode only further exacerbates the stigma around receiving treatment. Nearly 1 in 5 adults has a mental health condition, yet only 1/3 of those experiencing a mental health condition are receiving treatment.23 Due to systemic barriers and historical adversity, Black and Hispanic individuals used mental health services at about 1/2 the rate of Whites in the past year and Asian Americans at about 1/3 the rate.24 “Marginalized, oppressed, and disenfranchised people have unique concerns, trauma, stress, obstacles, and challenges because of historical experiences, cultural differences, and social disparities.”25 Destigmatizing mental health care is a racial justice issue, and it means not having a criminal or police response to a mental health crisis but also appropriately funding community based care.
1. Fundamental Principles of Community-Based Crisis Response
20 Mental Health in America, Alternatives to Calling the Police in a Crisis,
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One aspect of improving public safety is funding community based mental health care and developing robust crisis response systems for those experiencing a medical emergency. As cities strive to improve their crisis response systems to better protect everyone the RIPA Board recommends that communities keep certain fundamental principles in mind. The three common components of any effective crisis care model which provides a continuum of care include: (1) a regional crisis call center, (2) a crisis mobile response team, and (3) crisis receiving and stabilization facilities “providing shorter term care in a home-like, non-hospital environment.”26
Further, when reimagining crisis response models, communities should consider certain guiding principles. This list is by no means exhaustive and should be seen as a starting point for communities, leadership, and law enforcement to have a discussion about how they can improve a community first response to calls for services.
• Anti-Bias Training: All dispatchers, responders, and healthcare workers should consider implementing extensive training on explicit and implicit bias. This could include for example, ongoing training on explicit racism and bias, and “the unique strengths and needs of Black, Indigenous, and People of Color (BIPOC) youth and families, and how those intersect with behavioral health crises.”27
• Trauma-Informed Care: When developing a response team any team members’ training, from dispatchers to first responders, should consider employing trauma- informed care.28 This is an approach to mental healthcare that requires “sensitivity to the prevalence and effects of trauma in the lives of people accessing services.”29 This type of training can equip responders with the understanding of the effects of “poverty, class, racism, social isolation, past trauma, sex-based discrimination, and other social inequalities affect people’s vulnerability to and capacity” for getting treatment.30
26 Substance Abuse and Mental Health Services Administration, National Guidelines for Behavioral Crisis Care: Best Practices Tool Kit (2020) p. 12.
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• Peer Intervention: Peers (for example, those who have suffered mental health crises themselves or survived a suicide) can be a crucial part of crisis response teams. The use of peers as a member of the crisis team “supports engagement efforts through the unique power of bonding over common experiences while adding the benefits of the peer modeling that recovery is possible.”31
• Harm Reduction: Providing non-judgmental, non-coercive, compassionate care that seeks to reduce harms associated with those suffering from an untreated mental health condition or substance abuse disorder is also an important principle for communities to keep in mind.32 Communities must be willing and open to meet the person “where they are” and work to minimize the harmful effects rather than simply ignoring or condemning them.33
• Voluntariness: Crisis response systems should consider voluntariness as a cornerstone to any crisis response model.34 This includes using clear communication to the person regarding treatment options available, allowing the person time to understand those options and space for the person to express their treatment preferences; engaging the family, where appropriate, to educate about ways to provide support to their family member in crisis; 35 and aiding the person in crisis in participating in their treatment and the development of a safety/recovery plan.36
• Violence Free: In providing services to the community law enforcement agencies and community responders should consider a commitment to a no-force-first approach to
31 Substance Abuse and Mental Health Services Administration, National Guidelines for Behavioral Crisis Care: Best Practices Tool Kit (2020) p. 28.
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crisis care and implement policies that prioritize the use of engagement, collaboration, and de-escalation.37
• Zero Suicide Aspiration: Suicide prevention and awareness is a core component of health care services. Both crisis responders and law enforcement agencies may want to explore how to implement policies that prevent a suicide from negotiation strategies to a no-force first approach. 38
• Least Restrictive Intervention: When agencies are connecting a person in crisis with services they should use the least restrictive intervention such as using home-like crisis stabilization facilities over traditional hospitalization.39
• Short-Term and Long-Term Connection to Care: A robust crisis response system can offer both immediate connection to community-based care to address the specific crisis and aid the person in developing strategies for long term treatment..40
• Housing First: Community’s should consider how to establish permanent housing to those experiencing homelessness without a requirement to accept mental health treatment. This approach recognizes that housing is one of the greatest barriers to individuals achieving remission, 41 which is a significant reduction in signs or symptoms related to a psychiatric disorder.42 Access to housing should not be contingent on
37 Substance Abuse and Mental Health Services Administration, National Guidelines for Behavioral Crisis Care: Best Practices Tool Kit (2020) p. 12.
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participating in services, sobriety, lack of criminal record, or completion of a treatment program.43
2. Lessons Learned from Emerging Crisis Response Models
Last year the Board looked at the history of crisis response in America and the difficulties funding community based mental health care has faced. The Board also began reviewing several developing crisis response models throughout California and the nation. This year the board continues to review developing models with a focus on new emerging programs that have completed or began their pilot program. As communities continue to explore these models the Board would like to highlight some of the successes we have already seen in implementation, such as cost savings for the communities and more importantly the lives that have been saved by implementing a community first crisis response.
a. San Francisco Street Crisis Response Teams (SCRT)
One of the pilot programs the Board highlighted in its 2021 report is the SCRT. The program began their planning phase in the Summer of 2020 and launched its first crisis response team in November 2020. By March of 2021, the SCRT has 6 total teams and 24/7 citywide coverage. This year, the Board invited the leadership of SCRT to give a presentation on their program development, as well as lessons learned in implementing and creating a community based crisis response.
After a review of the 911 dispatch data, the teams identified the “Addressing racial equity and highest need regions in the city based on volume of call and call reducing institutional racism that is type. The SCRT launched with a focus on calls indicating a call often reflected by for service for a “mentally disturbed person” where no weapon overrepresentation of incarcerated or violence is involved. The teams plan to expand the types of Black/African Americans is a key calls they respond to as the program grows and develops. object of the SCRT. The program will be closely monitoring its ability Each SCRT team includes an emergency services vehicle staffed to reduce incarceration, emergency with a community paramedic, behavioral health clinician, a peer room use and involuntary detentions, especially through the support specialist, and a staff member dedicated to linking the lens of race and ethnicity.” - SCRT person in crisis to follow-up care. The teams primarily respond to calls through the 911 dispatch but also respond to people they encounter between calls who are in visible need of support or “special calls” from other agencies.
43 United States Interagency Council on Homelessness, Housing First Checklist (Sept. 2016)
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 67
Further, each team member will receive extensive training on racial equity as a part of their onboarding and continuous learning.
In their first two months of operation the teams responded to almost 200 calls for service and successfully diverted 20% of these calls from law enforcement.44 None of these calls required law enforcement to respond and only seven calls resulted in emergency room admissions or Penal Code section 5150 psychiatric holds.45
[Review SCRT End of Year Data]
From their experience in developing their program, the SCRT has identified several lessons learned for policymakers to consider when creating their own programs.
(1) Engagement with community stakeholders is key to providing a robust crisis response system that is responsive to the community’s needs. The community should play an active role in the planning, implementation, and the continuous evaluation of the effectiveness of these teams.
(2) Collaboration with the community, law enforcement, and the Department of Emergency Management is imperative to the success of this program. For example, the city reviewed 911 dispatch data and identifying calls for service that should have a community based response and work together to provide the appropriate aide to a person in crisis.
(3) Peer intervention specialists imbedded in the in the crisis teams is an important aspect of this program. The SCRT teams show how someone with lived experience can be key in deescalating a crisis.
(4) Team members from officers to peer intervention specialists should receive extensive training on explicit and implicit bias.
44 Street Crisis Response Team Issue Brief, Mental Health San Francisco Implementation Working Group. (Feb. 2021)
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 68
(5) A crisis does not happen from during business hours (9 a.m. to 5 p.m. Monday through Friday) so citywide coverage 24/7 is vital to providing consistent care to the community.
b. Arizona Model: Crisis Now
The Crisis Now program in Arizona serves as another model, although this is not a new program, there are many important lessons we can learn from this model including ways of using improved dispatch technology to diversify the types of public safety personnel that are dispatched when a person is in crisis. The crisis response system includes a regional call center, mobile crisis teams, and community based stabilization centers.
The Arizona model uses current 911 technologies to improve communication between agencies and provide a broad range of crisis services to a large geographic region. Crisis Now is led by the National Association of State Mental Health Program Directors (NASMHPD) and was developed with the National Action Alliance for Suicide Prevention, the National Suicide Prevention Lifeline, the National Council for Behavioral Health, and RI International. The program began in 2016 in Maricopa County Arizona and has served as a model for crisis response programs throughout the country.46
Maricopa County is one of the largest counties in the United States by area and serves over 4 million people. The program’s centerpiece is high-tech dispatch response technology that has up-to-date information on bed space and where mobile response units are located within the community to increase the speed of the crisis response team’s response time.47 The mobile response team meets the person at the residence or place where the crisis is occurring and provides safe transport to community based treatment options if appropriate.48 They also have numerous MOU’s with crisis stabilization centers where someone can receive treatment in a home-like environment instead of a hospital setting.49
One piece of these crisis response systems is implementing the air traffic control model for dispatching emergency services. This model means that dispatchers always (1) know where an
46 National Association of State Mental Health Program Directors (NASMHPD), Crisis Now, About Crisis Now. (2021). < https://crisisnow.com/about-crisis-now/> (as of June 1, 2021). 47 National Association of State Mental Health Program Directors (NASMHPD), Crisis Now (2021).
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 69
individual is in crisis and (2) verify when the person is safety in the hands of another caretaker.50 Agencies across Arizona utilize shared tracking of the location of mobile response teams, the individuals throughout the linkage process, available bed space, and even what services the person is in need of, so a dispatcher can see in real time if the appropriate connection to care has been made.51
The Crisis Now program gives communities several lessons learned that can provide guidance to other cities looking to implement similar programs.
(1) State of the art dispatch technology that uses an air traffic control model to dispatch responders and insure there is the proper linkage to care for the person in crisis not only insures that the patient receives care but also allows the response teams to cover a large geographic region.
(2) By prioritizing the least restrictive intervention possible and through numerous MOU’s with crisis stabilization facilities, the teams can provide a range of care both short and long term for the person in need.
(3) Funding crisis response and improving dispatch technology saved the community money in this case. Notably, in 2016 alone, the program saved the county “$260 million in hospital spending, $37 million in emergency department spending, 45 years of emergency department psychiatric boarding hours, and 37 full-time equivalents (FTEs) of police officer time and salary.”52
c. Denver: Support Team Assistance Response (STAR)
The STAR team is a community based mobile crisis response team that launched its pilot program in June of 2020. They work in collaboration with the Caring for Denver Foundation, Denver Police Department, Mental Health Center of Denver (MHCD), Denver Health Paramedic Division, Denver 911, and community supports and resources.
50 Substance Abuse and Mental Health Services Administration, Crisis Services Meeting Needs, Saving Lives (Dec. 2020) p. 289,
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 70
During the pilot program, the mobile teams responded to several types of calls including: “assist, intoxicated persons, suicidal series, welfare check, indecent exposure, trespass, and syringe disposal.” The teams were “In 748 calls handled by the STAR staffed Monday through Friday from 10 a.m. to 6 p.m. and van during the pilot program, no only responded to a specific geographic area; in the next calls required the assistance of the Denver Police Department and no phase of the project they hope to have 24/7 coverage individuals were arrested.” – STAR throughout the city. The teams are dispatched in three Program Evaluation different ways: (1) 911 call takers flagging calls or dispatching STAR (41.8%); (2) officers requesting STAR to respond (34.8%); and (3) STAR self-initiating a response or contacting someone in crisis in the field (23.4%).53
In their first 6 months of service, they responded to 748 calls, and none of those calls resulted in calls for police back-up or led to arrests.54 The STAR program also successfully diverted nearly 3% of all calls for service.. Of those who were contacted by the STAR team, “approximately 68% of people contacted were experiencing homelessness, and there were mental health concerns in 61% of cases.”55
[Review STAR End of Year Data]
The STAR program identified a number of lessons learned to provide guidance to other cities looking to implement similar programs. Their recommendations include the following:
(1) It is important to identify what calls for service will be diverted to a community based response and collaborate with community partners – including law enforcement – so there is effective communication as to who should be responding.
(2) Mobile teams will need to make sure their vans are wheelchair accessible and may need resources on hand such as cleaning products, food, clothing, and blankets to provide to people they encounter.56
53 Star Program Evaluation (Jan. 8, 2021)
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 71
d. Community Crisis Response Save Lives and Money
Data shows that community response models to mental health crises can save lives and reduce use of force incidents. The LA County Mobil Evaluation Teams (MET), is a co-responder crisis response program, meaning law enforcement is dispatched in conjunction with a medical provider. The program estimates they saved over 34 lives during “potential deadly force encounters” including 14 incidents where the person was at risk of suicide. According to deputies or supervisors who were on scene when MET arrived “patrol would have reportedly ‘very likely’ used at least ‘Level-1’ force57 (or greater) to subdue people they encountered during 434 crises during 2020, were it not for MET personnel arriving in time to help de-escalate the consumer.”58 It is important to note or reflect that even more lives may be spared by using a community first response, for example both SCRT and STAR in their pilot programs have unarmed civilians responding and have yet to have to call for law enforcement back up when responding to a crisis.
Only 4 to 10% of calls for service involve a report of a violent crime.59 By diverting non-violent calls for service involving a wide range of social issues –from mental health care to being unhoused –officers can focus their efforts on the most serious crimes. Community based response programs have already been successful at diverting nearly 20% of all police calls for
57 A ‘Level-1” use of force involves any of the following: searching and handcuffing, hobbling restraints, control holds, take downs, and use of pepper spray. For comparison a Level-2 use of force involves an identifiable injury, a complaint of pain that a medical evaluation determines is attributable to an identifiable injury; and Any application of force other than those defined in Category 1 Force, but does not rise to the level of Category 3 Force. A Level-3 use of force is “All shootings in which a shot was intentionally fired at a person by a Department member; Any type of shooting by a Department member which results in a person being hit, Force resulting in admittance to a hospital; Any death following a use of force by any Department member; All head strikes with impact weapons; Kick(s), delivered from a standing position, to an individual’s head with a shod foot while the individual is lying on the ground/floor; Knee strike(s) to an individual’s head deliberately or recklessly causing their head to strike the ground, floor, or other hard, fixed object; Deliberately or recklessly striking an individual’s head against a hard, fixed object, Skeletal fractures, with the exception of minor fractures of the nose, fingers or toes, caused by any Department member; All canine bites; or Any force which results in a response from the IAB Force/Shooting Response.” Los Angeles County Sheriff’s Department, 3-10/100.00 Force Categories.
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 72
service, giving officers more time to investigate the most serious crimes.60 Studies have found that “every 10 additional organizations focusing on crime and community life in a city with 100,000 residents leads to a 9% reduction in the murder rate, a 6% reduction in the violent crime rate, and a 4% reduction in the property crime rate.”61
Not only can community first responses to mental health crises save lives, and it can also save time “Police themselves have been saying for years that they are asked to do too and money. The Health Care Financial much. Why do we continue to ask them Management Association estimates that by to respond to crisis calls that health providing comprehensive community based crisis professionals could address more safely services, the U.S. could save as much as $4.6 and effectively?” – Beck, Reuland, and billion annually.62 Several communities have Pope, Vera Institute of Justice already seen significant cost savings by investing in their crisis response systems.
Even just increasing officer training on crisis response has contributed to cost savings. For example, Denver Crisis Intervention Training (CIT) for officers resulted in an estimated savings of up to $3 million in jail related costs.63 The city of Tucson, Arizona enhanced their CIT programs by creating a Mental Health Investigative Support and Transport Team, which reduced SWAT deployments from 14 a year to only 2, saving $15,000 each deployment.64
As we mentioned earlier in this chapter, Maricopa County Arizona has an established crisis response system that, by their calculations, in one year alone saved the county “$260 million in
60 Crisis Assistance Helping Out On the Streets (CAHOOTS) White Bird Clinic, Media Guide 2020
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 73
hospital spending, $37 million in emergency department spending, 45 years of emergency department psychiatric boarding hours, and 37 full-time equivalents (FTEs) of police officer time and salary.”65 Eugene Oregon’s community based crisis response teams have been in place for over 30 years, and serves as a model for a number of the pilot programs, including SCRT, and STAR. Not only do the crisis teams handle about 20% of the calls for service throughout the city they also save the city about $8 million dollars annually on public safety and $14 million in emergency rooms costs.66
Robust crisis response systems benefit the entire community. We hope that law enforcement, policymakers, and communities will rally together to insure everyone can receive compassionate stigma free care. Leadership in both the community and law enforcement have the ability to end this crisis by prioritizing and funding the community based care.
D. Vision for Future Reports
The Board will continue to review evidence based best practices as this model and new program develop throughout our communities.
65 Substance Abuse and Mental Health Services Administration, Crisis Services Meeting Needs, Saving Lives (Dec. 2020) p. 289.
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 74 ŝǀŝůŝĂŶŽŵƉůĂŝŶƚƐ
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CIVILIAN COMPLAINTS: POLICIES AND DATA ANALYSES
Since 1981, state law has required California law enforcement agencies to submit civilian complaint information to the Department. This state law was amended in 2015 with the passage of RIPA to require law enforcement agencies to submit the total number of complaints alleging racial or identity profiling along with the number of complaints with dispositions of “sustained,” “exonerated,” “not sustained,” and “unfounded.”1 Furthermore, RIPA requires this data be disaggregated and analyzed for inclusion in the Board’s annual report. Included below is an overview and analysis of the civilian complaint data submitted to the DOJ, a review of the Wave 3 and Wave 4 agencies who started reporting in 2021 civilian complaint forms, and [insert short description of what else discussed below].
As the Board has noted in its earlier Reports and discusses further below, state law gives each law enforcement agency discretion to implement their complaint processes and outreach differently.2 This legal flexibility may affect the number of complaints an agency receives and the outcome of those complaint investigations. Thus, making comparisons across law enforcement agencies should be done with care, as the differences may be the result of a variety of factors. The Board has identified the following factors as important to consider in analyzing complaint data: 1) varying definitions of “civilian complaint” and variability in how complaints are categorized; 2) variable civilian complaint intake and investigation processes; 3) varying outreach and education to members of the public about an agency’s complaint process; 4) variable accessibility for people with disabilities; and 5) the potential deterrent impact of including language from Penal Code section 148.6 and Civil Code section 47.5 on complaint forms.
Overview of Civilian Complaint Data
[Insert Research Center Data Analysis]
Wave 3 and 3.5 Civilian Complaint Form Review In its 2019 report, the Board made recommendations for best practices for civilian complaint procedures and policies.3 In its 2020 report, the Board built upon this review and made recommendations regarding civilian complaint forms after reviewing literature regarding best
1 “Sustained” means the investigation disclosed sufficient evidence to prove the truth of the allegation in the complaint by a preponderance of the evidence. “Exonerated” means the investigation clearly established that the employee’s actions that formed the basis of the complaint were not a violation of law or agency policy. “Not sustained” means the investigation failed to disclose sufficient evidence to clearly prove or disprove the complaint’s allegation. “Unfounded” means the investigation clearly established that the allegation is not true. Cal. Pen. Code, § 13012, subd. (a)(5)(B). 2 See Cal. Pen. Code, § 832.5. 3 Racial and Identity Profiling Advisory Board Report (2019) pp. 41-44
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practices for civilian complaint procedures and forms.4 Through this lens, the Board conducted an initial review of the Wave 1 and Wave 2 agencies’ civilian complaint forms since 2020; the Board is now extending that review to the Wave 3 agencies and those Wave 4 agencies that began reporting in 2021.5
Alameda County Sheriff’s Office (Alameda Sheriff): Complaints may be submitted in person at any Sheriff’s station, by phone to the Internal Affairs Office, or by mail. The Alameda Sheriff’s website provides personnel complaint telephone numbers for submitting a complaint during the day or nighttime instead of a single line. The current policy states that the Alameda Sheriff accepts anonymous complaints. The agency’s website provides specific information on the civilian complaint procedure and investigation process. It includes language from Penal Code 148.6 at the top of the webpage and includes verbatim language from that statute.
Anaheim Police Department (Anaheim Police): Anaheim Police Department offers a PDF and online civilian complaint form in English and Spanish. Complaint forms may be retrieved online, at any police station, the City Clerk’s Office, any Anaheim public library, or the Community Services Office. The form can then be submitted in person, by mail, or online. Additionally, members of the public may submit their complaint through an online form. The two forms are nearly identical except for a question about whether or not the complaint is based on racial or identity bias; this question is only included on the PDF form and not the online form. The complaint form includes some information about the civilian complaint process, such as whether the complainant will be informed of the results of the investigation but it does not describe the investigation process or provide a timeline. Both forms include nearly verbatim language from Penal Code section 148.6. Fresno County Sheriff’s Department (Fresno Sheriff): Members of the public may file a civilian complaint with the Fresno Sheriff by completing a form or calling Internal Affairs during business hours. If the call is made after hours, the complainant must contact the Watch Commander. The complaint form details information that is “needed to process [a] complaint,” including: 1) the complainant’s name, address, and telephone number; 2) the location, date, and time of the alleged incident; 3) the name, address and telephone number (if available) of all witnesses; 4) the names or other identification of Sheriff’s Officer personnel involved; 5) all details of the alleged incident which prompts the complaints; and 6) a signature on both sides of the complaint. The form does not explain that a complainant only need to provide as much information that is known to them. Because the form states that this information is “needed to process a complaint” without this additional disclaimer, a complainant may think they cannot submit a complaint unless they provide every item of information listed above. Moreover, couching the complaint as requiring these six areas of information, including a name and signature, suggests that anonymous complaints may not be processed. Therefore, it is unclear whether the Fresno Sheriff will accept anonymous complaints. The complaint form includes
4 Racial and Identity Profiling Advisory Board Report (2020) p. 58-80
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nearly verbatim language from Penal Code section 148.6 and cites to Penal Code section 129, which references criminal liability for perjury. Kern County Sheriff’s Department (Kern Sheriff): Complaints against Kern Sheriff employees may be submitted in person at the Personnel Division or any substation and by mail. The complaint form includes nearly verbatim language from Penal Code section 148.6.
Los Angeles World Airport Police (LAX Police): The LAX police use an online form which can be used to submit either a commendation or complaint. There does not seem to be any paper form or information on the complaint investigation process. Riverside Police Department (Riverside Police): The Riverside Police provide a detailed description of the complaint, investigation, and disposition process on their website. However, it is unclear if that information is provided to complainants who receive the complaint form in person or by mail. Complaints are accepted in person, by phone, or by mail. While it is unclear whether the Riverside Police accepts anonymous complaints or third-party complaints, the agency states that “all persons, including non-citizens,” have the right to report employee misconduct. Moreover, the complainant’s signature is optional. All complaints submitted within six months of the allegations are also investigated by the Community Police Review Commission.
San Francisco County Sheriff’s Department (San Francisco Sheriff): Complaints may be filed with the San Francisco Sheriff by mail, by phone, or in person at the Internal Affairs unit. The form also makes optional getting a medical records release from the complainant to assist in the investigation. The complaint form includes language from and cites to Penal Code section 148.6.
San Ana Police Department (Santa Ana Police): Santa Ana Police accept complaints either in person or by mail. A detailed description of the purpose and procedure of the civilian complaint process is posted on their website. The description includes a general timeframe with respect to the length of review and information about what the complainant can expect if the complaint alleges criminal behavior. The complaint form is available in English and Spanish and includes near verbatim language from Penal Code section 148.6.
Santa Clara County Sheriff’s Department (Santa Clara Sheriff): Civilian complaints may be filed at any Santa Clara Sheriff’s facility, online, by phone, or mail. The PDF complaint form is available in English, Mandarin, Vietnamese, and Spanish; the online form is available in English only. The two complaint forms are generally the same, except the online form asks for the “associated police report.” Both the website and the PDF complaint form have information on the complaint process and investigation. The Santa Clara Sheriff’s website has a specific note to complainants that their investigation of officer conduct is wholly separate from any connected criminal prosecution and will not affect the prosecutor’s decision. Following this note, it provides:
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
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“A complaint which is false, however, and made with knowledge of its falsity, and made with spite, hatred, or ill will, which accuses an officer of misconduct, criminal conduct, or incompetence, will expose the maker of such false complaint to a civil action brought by the officer. This advisement is not made to dissuade the making of a bona fide complaint, for such complaints should be made and investigated. It is directed only to those few individuals who believe that false complaints against officers can be made with impunity.”
Similar to the Board’s concerns about the deterrent effect of California Penal Code section 148.6, this language may deter some individuals may from submitting a complaint despite having a bonafide complaint. The website also lists the name and contact information of other organizations that a complainant may go to if they are unsatisfied with the investigation outcome, including DOJ and the Santa Clara ACLU chapter.
Stockton Police Department (Stockton Police): Stockton Police receive complaints by phone, in person, or by mail. Civilian complaint forms can be found at Stockton public libraries, the City Clerk’s Office, or any Stockton Police station. At the top of the complaint form, it states “if your concern stems from an arrest or citation issued, it may not be investigated until the legal matter has been resolved.” While the complaint form does not include language from Penal Code section 148.6, the signature block of the complaint form references Civil Code section 47.5 regarding an officer’s ability to file a civil claim against the complainant for a false complaint.
Ventura County Sheriff’s Department (Ventura Sheriff): Civilian complaints are accepted in person, by phone, or by mail. The forms can be found at any Ventura Sheriff station. Penal Code section 148.6 is directly quoted and cited to in the signature block of the form.
Berkeley Police Department (Berkeley Police): The Berkeley Police accept complaints by phone, by email, or in person at the Public Safety Building. Complaints may also be submitted to and reviewed by the Police Review Commission. The complaint form includes the following language before the open narrative space for a complainant to describe their allegation, “[i]f your complaint is more than 30 days from the date of incident upon which the complaint is based, please explain in your synopsis the circumstances that caused a delay in filing.” Without more this could potentially be a deterrent.
Culver City Police Department (Culver City Police): Members of the public can submit civilian complaints by phone, by mail, in person, or electronically. The form includes near verbatim language of Penal Code section 148.6.
Davis Police Department (Davis Police): Complaints may be submitted to the Davis Police by mail, in person, by e-mail, by contacting the City Manager’s Office or the Independent Police Auditor. The complaint form includes nearly verbatim language from Penal Code 148.6 at the top of the complaint form rather than at the end where the complainant is expected to sign.
Petaluma Police Department (Petaluma Police): Petaluma Police accept complaints by mail, by phone, by fax, and in person. The agency policy provides that complaints may be made by anyone and can be anonymous. The complaint form is available in English and Spanish and includes no open narrative field for the complainant to write a summary of their allegations; instead, they are required to attach a summary of the allegations on an additional sheet. The form includes nearly verbatim language from Penal Code DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
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148.6.
Rohnert Park Department of Public Safety (Rohnert Park): Complaints to Rohnert Park can be submitted by phone, by mail, or in person. The complaint process is detailed on their website and on the complaint form. There is one piece of information distinct on the website compared to the PDF form. Online there is an FAQ titled “What if I File a False Criminal Complaint?” The complaint form can be used for both a commendation and complaint, and it includes near verbatim language of Penal Code section 148.6. The form is available in English and Spanish.
Sonoma County Junior College District Police (Sonoma College Police): [Information about complaint form].
Santa Rosa Police Department (Santa Rosa Police): A civilian complaint may be made in person, by phone, by e-mail, by fax, or in person. The complainant has the option to remain anonymous. The form is available in English and Spanish and includes the following:
“We invite citizens to bring their concerns regarding police practices and services to our attention. If you have a complaint and are not sure how to proceed, a telephone call to any on-duty watch commander will provide you the options available.”
The complaint form includes language verbatim to what is found in Penal Code section 148.6. The form does not include an open narrative field so the complainant must attach additional sheets.
Sonoma County Sheriff’s Office (Sonoma Sheriff): The Sonoma Sheriff accepts complaints by phone, by mail, or in person at any station or a mutually convenient location. Complaints may also be filed with the Independent Law Enforcement Review and Outreach. Both the online and PDF complaint forms explain the complaint process and include the FAQ titled “What if I File a False Criminal Complaint?” The PDF complaint form is available in English and Spanish and includes a statement that the Sonoma Sheriff does not tolerate any “intimidation or retaliatory action against any person who files a complaint against a member of this office.”
Sonoma Police Department (Sonoma Police): [Information about complaint form].
Sonoma State University Police (Sonoma State Police): Civilian complaints may be submitted to the Sonoma University Police in person, by phone, by fax, or by mail. The form includes the agency’s mission and the complaint process details.
Windsor Police Department (Windsor Police): A member of the public can file a complaint by phone, by mail, or in person. Windsor Police use the same complaint form as Sonoma Sheriff. The form is available in English and Spanish.
Cotati Police Department (Cotati Police): [Information about complaint form].
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
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Form Can Multiple Available in Third Party Includes Narrative Does Not Include Complaint Process Wave 3 + 3.5 Accessible Submit Methods of Multiple Complaints Field for Description Language from Information Agency Online? Online? Submission? Languages?6 Allowed? of Complaint? PC §148.6?7 Attached to Form? Alameda Sheriff 8 8 9 8 ? 8 8 ? Anaheim Police 9 9 9 9 ? 9 8 ? Fresno Sheriff 9 8 9 8 ? 9 8 9 Kern Sheriff 9 8 9 8 ? 9 8 9 LAX Police 9 9 8 8 ? 9 9 8 Riverside Police 9 8 9 9 ? 9 9 ? San Francisco Sheriff 9 8 9 8 ? 9 8 ? Santa Ana Police 9 8 9 9 ? 9 8 9
6 Federal and state law require federally and state assisted law enforcement agencies to provide meaningful access to Limited English Proficient (LEP) individuals. Under federal law, to determine the extent of its obligation to provide services to the LEP population, the Federal Coordination and Compliance Section recommends that law enforcement agencies engage in a four-factor analysis. (Se e U.S. Dep’t of Justice, Federal Coordination and Compliance Section, Planning Tool: Considerations for Creation of a Language Assistance Policy and Implementation Plan for Addressing Limited English Proficiency in a Law Enforcement Agency
Form Can Multiple Available in Third Party Includes Narrative Does Not Include Complaint Process Wave 3 + 3.5 Accessible Submit Methods of Multiple Complaints Field for Description Language from Information Agency Online? Online? Submission? Languages? Allowed? of Complaint? PC §148.6? Attached to Form? Santa Clara 8 OS8 9 9 9 ? 9 9 9 Sheriff 9 PV9 Stockton Police 9 8 9 9 ? 9 9 ? Ventura Sheriff 9 8 9 8 ? 9 8 9 Berkeley Police 9 8 9 8 ? 9 9 ? Culver City Police 9 8 9 9 9 9 8 ? Davis Police 9 8 9 ? ? 9 8 9 Rohnert Park 9 8 9 9 ? 9 8 9 Sonoma College Police Santa Rosa Police 9 8 9 9 ? 8 8 9 Sonoma Sheriff 9 8 9 9 ? 9 8 9 Sonoma Police Sonoma State Police 9 8 9 8 ? 9 9 9 Windsor Police 9 8 9 9 ? 9 8 9 Cotati Police Petaluma Police 9 8 9 9 ? 8 8 9
8 “OS” refers to the online submission form. 9 “PV” refers to the printed or PDF version of the complaint form. DRAFT REPORT – PENDING EDITING AND REVIEW 82 This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
Standardizing California LEA Civilian Complaint Processes and Procedures
California law sets out limited requirements for law enforcement agencies to follow with respect to their civilian complaint processes and procedures. In its 2019 Report, the RIPA Board set out best practice recommendations regarding standardizing the civilian complaint intake and investigation process.10 The Board also separately wrote a letter to the legislature concerning the potential deterrent effect of Penal Code section 148.6 and the conflict between state and federal law around potential violations of the First Amendment in regulating speech about peace officers.
This year the Board is recommending changes to state law to ensure best practices are codified to create a more equitable and legitimate civilian complaint procedure across the state. While the Board recognizes its responsibility to “eliminate racial and identity profiling in policing,” which necessitates members of the public feeling welcomed to submit their concerns and feeling confident that their concerns will be taken and investigated seriously.
Current State Law
Law enforcement civilian complaint processes and procedures are governed by the state’s penal code. Each law enforcement agency is required to establish a civilian complaint investigation procedure but the law does not detail specific steps for agencies to include in the procedure. (Pen. Code § 832.5 (a)(1).) State law requires this procedure must be made available to the public. (Pen. Code § 832.5 (a)(1).)
State law requires agencies to retain civilian complaints and any reports or findings related to the complaint for a minimum of five years. (Penal Code § 832.5 (b).) However, there is a gap in the law because it does not provide a uniform definition of what constitutes a “civilian complaint.” This means that each agency has discretion to decide what community concerns are officially labeled “civilian complaints” and thus what incidents will be investigated, reported and retained as required.
State law requires agencies to retain civilian complaints and any corresponding documentation in either the officer’s personnel file or in a separate file. (Penal Code § 832.5 (b).) However, if the agency chooses to retain them in an officer’s personnel file, the law requires the agency to remove the complaint and corresponding documentation before any “official determination” of promotion, transfer, or disciplinary action. (Penal Code § 832.5 (b).)
10 See Racial and Identity Profiling Advisory Board Report (2019) pp. 41-44
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Although state law does not provide law enforcement with instructions on how to assess and investigate civilian complaints, it requires agencies to report the outcome under the four categories of “frivolous,”11 “unfounded,”12 “exonerated,13” or “sustained.14”
If an agency determines that the complaint, in its entirety or a portion of it, is “frivolous, or unfounded or exonerated,” then the law prohibits those complaints and corresponding documentation from being saved in the officer’s personnel file. Nevertheless, the agency is still required to save these documents in a separate file which, by law, are deemed “personnel records.” (Penal Code § 832.5 (c).) While agencies must retain these complaints and corresponding documentation, state law does not permit their disclosure to members of the public. (Penal Code § 832.7 (b)(8).) State law specifies that officers named in these complaints may be required to do counseling or additional training but no reference to the complaint may be made in their personnel file. (Penal Code § 832.5 (c)(3).) This concerns the RIPA Board: if an officer may be in need of counseling or additional training, why are agencies allowed to find these complaints as frivolous, unfounded, or exonerated and obscure the complaints and findings from public inspection?
Personnel files are generally confidential in both civil and criminal proceedings with specific and limited exceptions outlined in state law based on the evidence code, penal code, and the California Public Records Act. (See Penal Code § 832.7; Evidence Code §§ 1043 and 1046; Gov. Code § 6250 et seq.). Some exceptions are triggered by the subject matter or finding of an investigation. For example, records relating to discharge of a firearm at a person by an officer and incidents of use of force that result in death or great bodily injury must be disclosed regardless of whether there is an investigation or what the investigation outcome is. (See Penal Code § 832.7 (b)(1)(A)(i)-(ii).) Whereas, other subject matters may be confidential unless there is a certain outcome to an investigation. Current state law only requires disclosure of records involving matters of “sustained” findings of sexual assault involving a member of the public and dishonesty by the officer. (See Penal Code § 832.7 (b)(1)(B)(i); (b)(1)(C).)
Penal Code section 832.7 also outlines the specific narrow disclosures regarding civilian complaints. Law enforcement agencies are required to provide a complainant with the complainant’s own statement(s) at the time the complaint is filed. (Penal Code § 832.7 (c).) It
11 “Frivolous" is defined as “totally and completely without merit or for the sole purpose of harassing an opposing party.” (Civil Procedure § 128.5). 12 “Unfounded” is defined as “the investigation clearly established the allegation is not true.” (Penal Code § 832.5 (d)(2).) 13 “Exonerated” is defined as “the investigation clearly established that the actions of the [officer] that formed the basis for the complaint are not violations of law or department policy.” (Penal Code § 832.5 (d)(3).) 14 “Sustained” is defined as “a final determination by an investigating agency, commission, board, hearing officer, or arbitrator, as applicable, following an investigation and opportunity for an administrative appeal [], that the actions of the [officer] were found to violate law or department policy.” (Penal Code § 832.8 (b).) DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
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is unclear whether this requirement extends to any additional statements the complainant may provide throughout the investigation. The other statutory requirement relating to an agency’s communication with a complainant comes at the end of the investigation. State law requires agencies to provide the complainant with written notification of the disposition of the complaint within 30 days of the disposition. (Penal Code § 832.7 (f)(1).) State law prohibits this written notification from being used as evidence in any subsequent proceeding “brought before an arbitrator, court, or judge of this state or the United States.” (Penal Code § 832.7 (8)(f)(2).)
Board Recommendations
Define civilian “complaint”
[Insert brief summary issue with inconsistent definition effects and definition recommendation].
Improve the civilian complaint processes and procedure by requiring agencies to:
• Accept all complaints, in any form, including in person, by phone, by e-mail, and electronically online; • Create an online portal for members of the public to prepare, submit, and track their complaints; • Accept complaints from all people, including minors, a parent or legal guardian filing a complaint on behalf of their minor dependent, non-English-speaking persons; third-party complainant (i.e. witnesses to misconduct against another person, persons who are aware of misconduct by an officer); or anonymous parties; • Provide complaint forms and instructions on filing a complaint in any language spoken by more than 5% of the jurisdiction’s population as defined in Dymally-Alatorre Bilingual Services Act (Gov. Code Section 7296.2 and 7299.6); • Assign a number and log every complaint when it is received with the following details: o [insert data points]; • Investigate all complaints received; and • [Insert other processes/procedure improvements recommended by the Board.]
Improve accountability to the civilian complaint processes and procedure by requiring agencies to: • Require an officer to inform a member of the public of their right to file a complaint and the department or agency’s complaint procedures when a member of the public describes alleged misconduct by an officer; • Require an officer to submit a complaint in the event a member of the public provides the officer with information about alleged misconduct by another officer but does not wish to pursue a complaint themselves or does not express any desire for any remedy, such as discipline of the officer;
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
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• Prohibit the department or agency from terminating an investigation into a complaint solely on the basis of a complainant’s withdrawal of a complaint;
Remove deterrent language from agency website and civilian complaint forms or brochures.
Penal Code section 148.6
Penal Code section 148.6 is a longstanding concern of the RIPA Board. This law makes it a misdemeanor to knowingly file a false allegation of misconduct against a law enforcement officer and requires complainants to read and sign advisory language that states:
“YOU HAVE THE RIGHT TO MAKE A COMPLAINT AGAINST A POLICE OFFICER FOR ANY IMPROPER POLICE CONDUCT. CALIFORNIA LAW REQUIRES THIS AGENCY TO HAVE A PROCEDURE TO INVESTIGATE CIVILIANS’ COMPLAINTS. YOU HAVE A RIGHT TO A WRITTEN DESCRIPTION OF THIS PROCEDURE. THIS AGENCY MAY FIND AFTER INVESTIGATION THAT THERE IS NOT ENOUGH EVIDENCE TO WARRANT ACTION ON YOUR COMPLAINT; EVEN IF THAT IS THE CASE, YOU HAVE THE RIGHT TO MAKE THE COMPLAINT AND HAVE IT INVESTIGATED IF YOU BELIEVE AN OFFICER BEHAVED IMPROPERLY. CIVILIAN COMPLAINTS AND ANY REPORTS OR FINDINGS RELATING TO COMPLAINTS MUST BE RETAINED BY THIS AGENCY FOR AT LEAST FIVE YEARS.
IT IS AGAINST THE LAW TO MAKE A COMPLAINT THAT YOU KNOW TO BE FALSE. IF YOU MAKE A COMPLAINT AGAINST AN OFFICER KNOWING THAT IT IS FALSE, YOU CAN BE PROSECUTED ON A MISDEMEANOR CHARGE.”
The Board has identified that this language has a chilling effect that may deter members of the public from pursuing a complaint against an officer for fear of criminal sanctions in spite of having a bonafide complaint. The RIPA Board strongly supports the acceptance of anonymous complaints.
The RIPA Board renews its request to the California Legislature to address the inaccessibility and deterrence caused by the Penal Code by removing this advisory language and signature requirement from state law.
Civil Code 47.5
[Insert review of law and recommendation for change.]
Other deterrent language
[Insert review and recommendation of other deterrent language.] DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
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Early Intervention Systems
[Insert discussion of different EIS systems and their effectiveness in either preventing incidents from occurring and holding officers accountable; including, vignettes of different California LEAs use of EIS systems]
[Insert discussion of how civilian complaints used in EIS]
Vision for Future Reports In the coming years, the Board will [insert decision here].
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
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88 LAW ENFORCEMENT TRAINING RELATED TO RACIAL AND IDENTITY PROFILING I. INTRODUCTION AND BACKGROUND Training for Law Enforcement
The early 1900s marked the beginning of a new police system in California, initiated by August Vollmer, the Chief of Police for the City of Berkeley. Vollmer, considered “the father of modern policing,” stressed the importance of sociology, social work, psychology, and management in police work. In this system, officers patrolled on foot the neighborhoods in which they lived. Vollmer also made sure police officers went to college.1 This pattern continued to evolve and in 1959, the California Legislature took steps to develop a more consistent pattern for peace officer standards and training by establishing the Commission of Peace Officer Standards and Training (POST).
Since the formation of POST, there has been an increased demand for enhanced training by both the public and law enforcement alike. The public release of video recordings by bystanders and body worn cameras have shone a spotlight on the need for progressive and enhanced officer training, especially with respect to officer misconduct. In addition, the need for training aimed at correcting the historical strain between communities of color and law enforcement has become more apparent through the video evidence and also data collection. Commission on Peace Officer Standards and Training (POST)
POST is an independent state entity within the California Executive Branch that reports directly to the Governor. It was created for the purpose of establishing minimum selection and training standards for California law enforcement officers. The POST Commission consists of 18 members from varying backgrounds such as city and county administrators, law enforcement professionals, educators, and public members. The Commission holds three public meetings per year.
POST is a voluntary program by which agencies can participate if they agree to meet the Commission’s standards. Currently, POST serves 608 agencies and 95,211 law enforcement professionals. With a budget of $83 million, POST provides financial assistance to participating jurisdictions for instructional/tuition/travel costs associated with selected training courses. POST audits agencies to ensure compliance with minimum hiring standards as well as ensuring minimum compliance of biannual training. To encourage and assist local law enforcement agencies to meet and maintain minimum standards in the selection and training of law enforcement officers, the Commission provides financial assistance to all 58 counties,
1 AUGUST VOLLMER AND THE ORIGINS OF POLICE PROFESSIONALISM | Office of Justice Programs (ojp.gov). DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
89 approximately 346 cities, and numerous specialized districts and local agencies which have agreed to meet the Commission's standards.
POST is comprised of 119 employees who enforce hiring standards, develop and deliver trainings, and conduct audits of 40 police academies that are spread across the state. POST also participates in monthly regional agency training manager and executive meetings to discuss new training mandates as well as keep apprised of emerging trends within law enforcement.
As noted above, POST is a voluntary and incentive-based program. This means that if a law enforcement agency agrees to abide by the standards established by POST, they become eligible to receive the services and benefits from the Commission, which include but are not limited to:
• research into improved officer selection standards; • management counseling services;. • the development of new training courses; • reimbursement for training; and • quality leadership training programs.
A combination of 652 law enforcement agencies and academies participate in the POST Program. There are approximately 84,300 full time peace officers and 8,100 public safety dispatchers that currently fall under the POST program and are eligible to receive training by POST.
POST training is designed to enhance the skills of entry-level peace officers and provide continuing education for seasoned peace officers. Table 1 below provides a summary of the minimum training requirements for officers.
A. Entry-level peace officers (new recruits) come primarily from participating law enforcement agencies and are required to complete a minimum of 664 hours of training in a standardized police academy. The academy training is delivered through two components and both must be successfully completed to receive a basic certificate from the academy.
Component One: Regular Basic Course Academy (RBC) – requires a minimum of 664 hours of classroom training.
Component Two: The Field Training Program requires a minimum of 400 hours of on-the-job training.
Additionally, every peace officer (other than a Level III Reserve Peace Officer), Public Safety Dispatcher, and Public Safety Dispatch Supervisor shall satisfactorily complete the CPT requirement of 24 or more hours of POST-certified training every two years. Peace officers
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
90 assigned to patrol, traffic, or investigation who routinely effect the physical arrest of criminal suspects are required to complete Perishable Skills and Communications training.
(A) Perishable Skills training shall consist of a minimum of 12 hours in each two-year period. Of the total 12 hours required, a minimum of 4 hours of each of the three following topical areas shall be completed: 1. Arrest and Control 2. Driver Training/Awareness or Driving Simulator 3. Tactical Firearms or Force Options Simulator B) Communications training consists of a minimum of 2 hours in either tactical or interpersonal communications. Currently being proposed to the Commission is the inclusion of an additional perishable skill on Use of Force.
II. POST TRAINING COURSES
In order to meet the mandates of setting standards and providing training to the California law enforcement community, POST has organized into 10 regions, as can be seen in Map 1. Within each region, there are several training academies. The academies have the primary responsibility for administering the direct training programs.
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
91 MAP 1: REGIONS
Map 2 shows the locations of the distribution of the academies; most of the academies are concentrated in the Bay and Los Angeles areas.
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
92 MAP 2: ACADEMIES
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
93 Each academy is responsible for delivering 43 Regular Basic Training Courses, as noted in Table 1. In addition, the academies are responsible for ensuring that the new recruits receive the Field Training necessary to achieve 18 competencies, as indicated in Table 2.
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
94 TABLE 1 REGULAR BASIC COURSE TRAINING TABLE 2 • Regular Basic Course Minimum Hourly FIELD TRAINING PROGRAM Requirements • LD 01 Leadership, Professionalism and Ethics • 1 - Agency Orientation / • LD 02 Criminal Justice System Department Policies • LD 03 Principled Policing in the Community • 2 - Officer Safety Procedures • LD 04 Victimology/Crisis Intervention • 3 - Ethics • LD 05 Introduction to Criminal Law • 4 - Use of Force • LD 06 Property Crimes • 6 - Community Relations / • LD 07 Crimes Against Persons Professional Demeanor • LD 08 General Criminal Statutes • 7 - Radio Communication • LD 09 Crimes Against Children Systems • LD 10 Sex Crimes • • LD 11 Juvenile Law and Procedure 8 - Leadership • LD 12 Controlled Substances • 9 - California Codes and Laws • LD 13 ABC Law • 10 - Search and Seizure • LD 15 Laws of Arrest • 11 - Report Writing • LD 16 Search and Seizure • 12 - Control of • LD 17 Presentation of Evidence Persons/Prisoners/Mentally Ill • LD 18 Investigative Report Writing • 13 - Patrol Procedures • LD 19 Vehicle Operations • 14 - Investigations / Evidence • LD 20 Use of Force/De-escalation • 15 - Tactical Communication / • LD 21 Patrol Techniques Conflict Resolution • LD 22 Vehicle Pullovers • 16 - Traffic (doc) • LD 23 Crimes in Progress • 17 - Self-Initiated Activities • LD 24 Handling Disputes/Crowd Control • 18 - Agency-Specific Activities • LD 25 Domestic Violence • LD 26 Critical Incidents • LD 27 Missing Persons • LD 28 Traffic Enforcement • LD 29 Traffic Accident Investigation • LD 30 Crime Scenes, Evidence, and Forensics • LD 31 Custody • LD 32 Lifetime Fitness • LD 33 Arrest and Control • LD 34 First Aid and CPR • LD 35 Firearms/Chemical Agents • LD 36 Information Systems • LD 37 People with Disabilities • LD 38 Gang Awareness • LD 39 Crimes Against the Justice System • LD 40 Weapons Violations • LD 42 Cultural Diversity/Discrimination • LD 43 Terrorism Awareness
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
95 A team of POST Regional Training Consultants coordinates the training program. One Regional Training Consultant is assigned to each region. The Regional Training Consultants work directly with the academies, law enforcement agencies, and training managers by assisting with the course certification requests and processes, advising on training requirements, and conducting regular audits. Regional Consultants are available for contact by training managers should any questions arise.
Academy Courses
The Regular Basic Training Academy Courses – or Learning Domains – are entry level training for California peace officers. There are 43 Learning Domains – a total of 664 mandatory hours – that are made available to the 40 academies. POST certifies the academies, and they must meet the minimum mandates of providing 664 hours of the Basic Regular Course curriculum.
The Regular Basic Course Learning Domain 3 –Principled Policing in the Community – is led by an instructor and covers six overarching topics: Community Policing; Community Partnerships; Problem Solving; Principled Policing; Historical and Current Events; and Implicit Bias.
In-Service Courses
After trainees go through the academies and become peace officers, POST regulations require them to obtain 24 hours of POST Certified Continuing Professional Training (CPT) during every two-year training cycle. RIPA required POST to create 2-hour refresher courses on racial and identity profiling and cultural awareness for in-service officers. The courses must be taken at a minimum of every 5 years.
The Implicit Bias and Racial Profiling Self-Paced Refresher Course for In-Service officers is one such refresher course. The RIPA Board’s feedback regarding this course follow in this year’s report.
Other Courses/Guidelines
POST is creating a course entitled “De-Escalation” within the Strategic Communications Perishable Skills Program (PSP). The course is available to seasoned officers as part of POST Continuing Professional Training requirements. POST invited the RIPA Board to comment on the de-escalation course and their comments are included in this year’s annual report.
Pursuant to California legislation regarding use of deadly force – AB 392 – POST also developed Use of Force Guidelines in 2020.2 A representative from the RIPA Board participated in the early development workshops for the Guidelines.
2 https://post.ca.gov/Portals/0/post_docs/publications/Use_Of_Force_Standards_Guidelines.pdf DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
96 III. LEGISLATIVE MANDATES FOR RACIAL AND IDENTITY PROFILING AB 953 Mandates Specific Training Penal Code section 13519.4 requires POST to create specific law enforcement training courses aimed at preventing racial and identity profiling. The law requires academy level courses for new recruits and expanded training for seasoned in-service officers. The Legislature stressed that these courses should teach an understanding and respect for racial, identity, and cultural differences. The legislative intent was to mandate effective methods of carrying out law enforcement duties in a racially and culturally diverse environment. Penal Code section 13519.4 requires that the curriculum “be evidence-based patterns, practices, and protocols that prevent racial or identity profiling.” In developing the training courses, POST is required to consult with the RIPA Board. The results of the RIPA Board’s evaluations must be included in their annual report – Summary of Racial and Identity Profiling Training Courses.
IV. EVALUATION OF POST TRAINING
A. POST AND RIPA TRAINING COLLABORATION Over the past four years, POST and the RIPA Board have worked collaboratively to meet the mandates of RIPA. POST has provided the RIPA Board with the names of six courses that they believe meet the RIPA mandate as follows:
1. Principled Policing in The Community (6 hours), Regular Basic Course, Academy LD 3 (Review In Progress)
2. Cultural Diversity/Discrimination (18 hours), Regular Basic Course, Academy LD 42 (Not Yet Reviewed)
3. Bias and Racial Profiling Video Refresher for In-Service Officers (2 hours) (Completed)
4. Profiling and implicit Bias Online Refresher for In-Service Officers (2 hours) (Completed)
5. Profiling and Implicit Bias Online Refresher for Supervisors (2 hours) (Not Yet Reviewed)
6. De-Escalation Online for In-Service Officers (2 hours) (Completed)
Course Review Status
The Board has reviewed and provided input and comments on three of the courses:
(1) De-Escalation Online for In-Service Officers (2022 Report)
(2) Bias and Racial Profiling Video for In-Service Officers (2021 Report) DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
97 (3) Profiling and Implicit Bias Online for In-Service Officers (2021/22 Report)
The Board is currently reviewing the following courses:
(4) Principled Policing in the Community (Regular Basic Course, Academy LD 3)
The Board has not yet reviewed the following two courses:
(5) Cultural Diversity/Discrimination (Regular Basic Course, Academy LD 42)
(6) Profiling and Implicit Bias Online for Supervisors.
Course Reviews and Comments
This year, the RIPA Board has completed reviews of two courses. The courses reviewed this year are “De-Escalation Course for In-Service Officers” and “Implicit Bias and Racial Profiling Self-Paced Online Refresher Course.” The following is a brief summary of key comments by RIPA Board Members.
1. De-Escalation Course for In-Service Officers POST is developing a Strategic Communications Course with several modules that will cover topics such as Mindful Communication, Establishing a Safe Space, Active Listening, De- escalation, Getting What You Want, Persons with Disabilities, and Peer-to-Peer Communication. Board members completed a detailed review of the Mindful Communication and De-Escalation online modules and found they provided a proper balance of information. The Board was appreciative of the opportunity to review this course because de-escalation is critical to building community trust and eliminating racial and identity profiling. There was a positive response about how the De-Escalation Course was arranged in such a way that the participant was placed in the shoes of the officer as well as the community. There was general agreement that the objectives of the course are important to addressing a critical need in policing. The Board identified several areas where the course could be improved: • The Board would like POST to provide them with advanced notice and more time to review these courses.
• There should be more examples and opportunities for de-escalation in the scenarios.
• The training should emphasize the importance of early initiation of de-escalation strategies which can increase safety and more positive outcomes for both the public and the officer. DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
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• The course should provide a discussion about the meaning of certain terms such as “triggers” and “disengagement.” This would help to set the foundation of what the course is trying to accomplish.
• There course should capitalize on using the individual scenarios and the specific word choices to further illustrate how officer tone, empathy and professionalism can de- escalate a communication exchange and can often prevent a situation from escalating at the outset. The Board members provided POST with their comments and look forward to seeing how POST will incorporate them into the De-Escalation course as it is being developed.
2. Implicit Bias and Racial Profiling Self-Paced Online Refresher Course
Multiple Board members provided a second review of the self-paced online refresher course on implicit bias and racial profiling, after POST worked to revise an earlier version of the course to incorporate the Board’s feedback and input from other stakeholders. POST adopted several of the previous Board comments. In this version of the course, Board members found that it included an adequate balance of information. Members indicated that the introduction set the proper tone, identified the scope of the training, the goals, the segments and the reasons why recognizing bias is important. Although the history section was not fully completed at the time of the Board’s review, they felt that the personal stories presented good illustrations explaining the community’s distrust of law enforcement. Members stated that the photos about preferences caused the viewer to pause and think; and the information provided a good overview of the law. Board members also expressed that they liked the inclusion of RIPA stop data. The scenarios throughout the training were nice illustrations of the impacts different officer responses can have on the outcomes of stops. Board members identified several areas where the Implicit Bias and Racial Profiling course could be improved: • In the introduction, use RIPA data to provide an example of a “call-out quote” to underscore the presumptions that sometimes cause disparate treatment.
• In the history section, emphasize that community distrust is historical by using references to slave patrols, and targeted and aggressive police practices during the years of Jim Crow and segregation. Acknowledge the role of elected officials in policing.
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
99 • Explain that bias results in presumptions based on unconscious associations or recognized preferences that may or may not be grounded in fact. When acted upon in policing, such bias has the power to put others’ lives at risk or even cause death.
• Require officers to ask themselves threshold questions to check their biases before pulling a person over.
• Show examples of a white person being treated preferentially during a stop.
• Thread stories into the training to show why people may act defensively or be hostile when stopped by law enforcement.
• Add discipline to the discussion of department responses to misconduct.
• In officer stories, show them positively connecting to the community.
• In a scenario where an officer makes a stop, it is also important to include discussion about the decisions an offers makes during the course of the stop.
• The training needs to show officers giving the individual the reason for the stop.
• Provide this Implicit Bias training to police executives and elected officials so they can better explain their expectations of officers. Board members have submitted their comments to POST and look forward to seeing how POST incorporates them as the course continues to be developed.
B. Little Hoover Commission 2021 Study on Law Enforcement Training in California The Little Hoover Commission (LHC) is an independent state oversight agency created in 1962. The Commission’s mission is to investigate state government operations and policy and – through reports and legislative proposals – make recommendations to the Governor and Legislature to promote economy, efficiency and improved service in state operations. In addition, the Commission has a statutory obligation to review and make recommendations on all proposed government reorganization plans.
This year, LHC is examining the development of training standards for California’s law enforcement community. The LHC has already conducted three public hearings on training in February and March 2021. The Executive Director of POST presented testimony at the hearing. The Commission will also conduct a survey of California peace officers to gain an understanding of the training they receive. Following the completion of the survey, the Commission will host a DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
100 public advisory meeting to discuss the findings obtained from the survey and the hearings. The Commission plans to complete its final report of their findings and recommendations in the fall of 2021.
C. California Legislative Analyst Office –Funding for POST
The Legislative Analyst's Office (LAO) provides nonpartisan fiscal and policy analysis to the California Legislature and has done so since 1941. The LAO (1) assists the Legislature in all aspects of the budget process, through its analytical and oversight activities; (2) responds to legislative requests for information and analysis of the state's budget and programs; and (3) conducts independent studies and produces self-generated reports on topics of importance to the state.
In the 2019-2020 budget, POST received a $34.9 million General Fund augmentation for law enforcement training costs. The funds were used for POST administration, training, and oversight, as well as local assistance and training-related reimbursements. The augmentation provided that $20 million of this amount be used to prioritize use of force and de-escalation training in 2019-20 and 2020-21. However, the Legislative Analyst said that under the proposed expenditure plan it is unclear how much of the increased funding would generally be used for these specific purposes. 3
Require Reporting on Specific Outcome and Performance Measures. If the Legislature approves additional funding for POST, the LAO recommends adopting trailer bill language directing POST to report annually on specific outcome and performance measures that are tied to legislative expectations for the additional funding. For example, if the additional funding is provided for training, POST should collect and report information on the number of officers trained, how training was delivered, and the cost per training attendee, as well as the effect of specific trainings on officers’ job performance. To the extent that it takes time to begin collecting information on certain performance measures, the Legislature can direct POST to report on how it plans on acquiring or measuring that information in the near-term until the information becomes available for annual reporting. Such reporting would help the Legislature evaluate the impact of any new funding provided, as well as make decisions on appropriate funding and service levels in the future4 . VI. RIPA TRAINING In the fall of 2020, the Department received certification from POST to begin teaching a web- based course entitled “Reporting Stop Data for RIPA (AB 953).” This course is presently being conducted via a live webinar to provide an overview of the stop data reporting requirements pursuant to RIPA. The Department anticipates offering in-person courses in the future. The target audience includes sworn and non-sworn personnel. It is intended for those responsible for
3 https://lao.ca.gov/Publications/Report/4097#other-criminal-justice-programs. 4 https://lao.ca.gov/Publications/Report/3940#Local_Public_Safety DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
101 working on their agency’s overall RIPA implementation, agency trainers, and key stakeholders. However, members of city attorney’s offices have also participated in the course. Attendees learn information pertaining to the background, legislation, and data elements required under RIPA and review detailed scenarios to gain an understanding of how data on stops should be reported. The course also addresses roles and key activities for implementation, publication of the data, and resource materials. It is co-taught by instructors from the Civil Rights Enforcement Section and California Justice Information Services Division.
The training incorporates multiple learning approaches, including a PowerPoint presentation, videos, interactive review of scenarios, a system demonstration, and knowledge checks. The goal of the course is to ensure uniform reporting across agencies. Sessions are three hours in length, and offered twice a month. Thus far, in 2021, the Department has offered seven courses, with 320 total participants completing the course. Two hundred forty participants received Continuing Professional Training (CPT) credit through POST.
VI. VISION AND NEXT STEPS
• The Board will seek to review performance and outcome data. The Board seeks to evaluate whether the training courses are producing the desired outcomes of preventing and eliminating racial and identity profiling.
• The DOJ will continue to teach the POST certified AB 953 course to Wave 3 and Wave 4 law enforcement agencies that are beginning to compile data. This training will help to increase officer understanding of how and when to report data from stops.
• The RIPA Board will continue to work collaboratively with POST and review additional training courses that relate to racial and identity profiling and bias. This includes a review of the Regular Basic Course Academy Learning Domain #42 entitled Cultural Diversity and Discrimination. The Board will further examine the Regular Basic Courses and their link to the Field Training Program.
• The Board will continue to monitor the training recommendations made from course review comments and will seek specific updates from POST on prior recommendations.
• The Board will continue to seek a better understanding of the POST Academy, including the Field and the In-Service Training Programs. In addition, the Board will continue to research evidence-based best practices to strengthen the way racial and identity profiling, bias, and cultural awareness trainings are incorporated throughout an officer’s career training experience.
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
102 AB 846 Background California Assembly Bill (AB) 846, enacted on September 30, 2020, is a police reform measure that changes the minimum standards for individuals who wish to become peace officers. Existing law requires peace officers to be evaluated and found free from any physical, emotional, or mental condition that might adversely affect their ability to be a peace officer. AB 846 requires that the evaluation include bias against race or ethnicity, gender, nationality religion, disability, or sexual orientation. AB 846 also requires POST to, by January 1, 2022, study, review, and update regulations and screening materials related to the emotional and mental condition evaluation to incorporate both the identification of explicit and implicit bias towards race or ethnicity, gender, nationality, religion, disability, or sexual orientation. Lastly, AB 846 adds Section 13651 to the Penal Code (PC) and requires that every entity that employs peace officers to review the job description used in recruitment and hiring and make changes emphasizing community-based policing while de-emphasizing the paramilitary aspects of the job. 1 Discussion A. Lead-up to AB 846 In the wake of the tragic murder of George Floyd in Minneapolis by Officer Derek Chauvin, California state lawmakers introduced a wave of bills advancing reforms to improve policing practices, including AB 846.2 The rationale behind this particular bill is to ensure peace officers are free from explicit and implicit bias against race, ethnicity, gender, nationality, religion, disability, or sexual orientation. Assemblymember and co-author of the bill, Jacqui Irwin, noted that AB 846 will propel efforts to reform the culture within law enforcement, which is a change that Californians have demanded. Further, she stated that “screening police officer applicants for dangerous biases is a common sense approach for any state that wishes to see its law enforcement fully protect and serve its diverse communities. Emphasizing collaborative problem solving and community interaction in job descriptions is crucial for recruiting officers who will make communities feel safe, not under siege.” Fellow Assemblymember and co-author Autumn Burke noted the significance of the bill, stating that “the way we recruit and screen officer candidates is an incredibly necessary step in the fight for criminal justice reform and racial equality. Our law enforcement officers should be a reflection of the very communities they are sworn to protect and serve.”3 The bill is further supported by police encounter data reporting from 782 use of force incidents that resulted in serious injury or death in California dating back to 2016, which found that of the 157 individuals died during encounters with police, 42 percent
1 Assem. Bill No. 846 (2019 – 2020 Reg. Sess.) Ch. 322) 2 Public CEO, Scott Campbell & Joseph Byrne, analysis of Assem. Bill No. 846 (2019 – 2020) 3 US State News, Gov. Newsom signs legislation reforming police officer recruitment and pre-employment evaluations, Newsroom (October 1, 2020) DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
103 of them were Latino.4 And, although Black people in California represent just 6% of the state’s population, they represented nearly 20% of the use of force and shooting cases in 2019; in those cases, more than half of the involved officers were White.5 The 2019 Racial & Identity Profiling Advisory (RIPA) report found that in 2017, there were 741 individuals involved in use of force incidents, 43.9% of whom were Latino and 19.3% of whom were Black.6
B. Support for AB 846 Implicit biases, according to Stanford University professor of psychology Jennifer Eberhardt, are the beliefs and the feelings we have about social groups that can influence our decision-making and our actions, even when we are not aware of it.7 The AB 846 authors noted the inherent dangers of implicit bias among law enforcement because of the positions of power they hold, recognizing the disparities in stop, search, and arrest rates across demographic groups coupled with the killings of Black men by White police officers across our nation.8 Because of these factors, they believed it was critical for the hiring process to screen for bias as a measure to counteract the influence of harmful implicit bias within policing.9 Additionally, there is the belief that greater diversity within the ranks of law enforcement will reflect a cultural change and promote a greater focus on community involvement; therefore, the bill also stressed the importance of the review of job descriptions and emphasizing community interaction while de- emphasizing the paramilitary aspects of the job.10 News coverage of bias-related incidents by law enforcement officers highlighted the need for peace officers to receive screening and training on implicit and explicit bias. In June 2020, the mayor of San Jose called for the firing of four San Jose police officers accused of making racist comments on Facebook in what he called “an online ring of hate.” San Jose Police Association President Paul Kelly condemned the officers, saying, ‘There is no place in our police department or our union for racists or bigots, or for those that enable them by not speaking up when they see those types of behaviors.11 The sponsors believed AB 846’s enactment would be a significant step towards protecting the people of
4 (Assembly Floor Analysis of Assem. Bill No. 846 (2019 -2020 Reg. Sess.) May 29, 2020 citing ABC 10 TV News San Diego report “Attorney General report: 157 died in encounters with police in California last year” 5 (Assembly Floor Analysis of Assem. Bill No. 846 (2019 -2020 Reg. Sess.) May 29, 2020 citing ABC 10 TV News San Diego report “Attorney General report: 157 died in encounters with police in California last year” 6 (Assembly Floor Analysis of Assem. Bill No. 846 (2019 -2020 Reg. Sess.) May 29, 2020 7 The Bias Inside: A Conversation with Psychologist Jennifer Eberhardt: (Interview with Jennifer Eberhardt, Stanford University Professor of Psychology) Behavioral Scientist (May 29, 2019) pg. 3 8 (Sen. Committee on Public Safety, analysis of Assem. Bill No. 846 (2019-2020 Reg. Sess.) AB 846 authors comments on need for this bill 9 Id. 10 Id. 11 Id at pg. 6 Support for AB 846 provided by California Public Defenders Association quoting San Jose Police Association President Paul Kelly DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
104 California from biased law enforcement officers who have no place in our law enforcement agencies.’12 Added support for this legislation was provided by Mayor Robert Garcia of the City of Long Beach, who wrote in a letter of support that the bill proposed strategies for the Commission on Police Officer Standards and Training to eliminate discriminatory bias in hiring and emphasize community interaction in public safety. Further, the Mayor included in his letter that AB 846 aligned with the Long Beach Police Department’s (LBPD) actions to ensure a diverse law enforcement included in their Framework for Reconciliation to advance racial equity in Long Beach.13 C. Position of Opponents for AB 846 The California Police Chiefs Association (CPCA) believed the AB 846 mandate would be costly and duplicative and that POST already includes these (identification of explicit and implicit bias) factors in their mental health evaluations. As an example, they cited that POST screening currently requires the discussion of topics of bias, specifically on gender, racial, disability, nationality, religion, sexual orientation, and more. Further, the CPCA stated that polygraphs are also utilized in the background process to identify tolerance-related issues, acts of physical/domestic violence, or the use of racial or ethnic slurs directed at others, among other potentially disqualifying acts. In sum, the opponents believed that AB 846 would recreate the painstaking work of countless professionals and experts who worked with POST to develop the current guidelines with empirical evidence. Additionally, CPCA believes the recruiting limitations are concerning relative to the law’s requirement to “review the job description making changes that emphasize community-based policing, while de-emphasizing the paramilitary aspects of the job.” Their primary concerns included how to discern the “paramilitary aspect of the job” and what would constitute sufficient de-emphasis of those duties? In addition, given recruiting difficulties over the last decade, coupled with many qualified candidates coming from the armed forces, they believed the bill could potentially impact outreach to those individuals.14 Overall, CPCA believed that AB 846 duplicated work already complete, unnecessarily increased costs to local agencies already facing budget cuts due to the pandemic, and hampered law enforcement agencies’ abilities to recruit qualified candidates.15 AB 846 ultimately passed and was approved by the Governor on September 30, 2020.
12 Id at pg. 6 Support for AB 846 provided by California Public Defenders Association 13 Letter from Mayor Robert Garcia, City of Long Beach: Support for AB 846: Public Employment: Public Officers or Employees Declared by Law to be Peace Officers 14 Id at pg. 7 Opposition for AB 846 provided by California Police Chiefs Association 15 Id at pg. 7, 8 DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
105 POST UPDATE AB 846 PROJECT: Bias Screening of Peace Officer Candidates In response to Assembly Bill (AB) 846, POST has engaged in the work mandated by the legislation. Below is an update on the progress and work with POST’s AB 846 Project (Project). POST organized the Project into three phases: 1) A Subject Matter Expert Panel (SME) to study, review, and update regulations, and develop recommendations for a bias assessment framework. Additionally, SME developed recommendations for changes to the Peace Officer Psychological Screening Manual on Commission Regulations, including adding Multicultural Competence to the required psychological evaluator competencies and ensuring relevant candidate personal history is provided to the screening psychologist in support of the bias assessment framework.16 2) POST has reached out to psychological evaluators who expressed an interest in participating in the Psychological Evaluator Advisory Group (Advisory Group) for this project. The Advisory Group will meet to discuss SME recommendations and provide feedback. The Advisory Group will present recommendations to background investigators and other law enforcement partners. Once there is a final draft of recommendations, POST will reach out to other stakeholders, including interested community groups for input.17 3) POST receives feedback from stakeholder groups, relevant suggestions will be submitted to the SME panel for review and modifications made. The final draft of the proposed recommendations will then be presented to the Commission for their review. Following Commission approval, the recommendations move to the Office of Administrative Law for implementation in 2022.18 The RIPA Board will continue to provide updates throughout the year while working in collaboration with the Project team on the progression of the POST AB 846 Project.
16 Bulletin: Commission on Peace Officer Standards and Training, (2021) Update on the Assembly Bill (AB) 846 Project: Bias Screening of Peace Officer Candidates. (May 27, 2021) pg. 2 17 Id. 18 Id. at pg.3 DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice.
106 1) As described above, POST is still in the process of developing standards consistent with AB 846’s directive that officers be “free” from “bias against race or ethnicity, gender, nationality, religion, disability, or sexual orientation, that might adversely affect the exercise of the powers of a peace officer.” (Govt. C. § 1031(f).) 2) AB 846 reflects the Legislature’s understanding that law enforcement reform starts with cultural change within an organization, which itself begins with whom the agency hires. AB 846 signals that the Legislature is creatively identifying ways to use legislation to push for that cultural change. 3) While AB 846 helpfully focuses on a long-ignored component of policing—hiring—there are limitations and concerns to the bill. 4) As noted above, AB 846 amends Government Code to require officers to “be found free from . . . any bias against race or ethnicity, gender, nationality, religion, disability, or sexual orientation [which] may adversely affect the exercise of the powers of a peace officer.” However, many experts on implicit bias caution that it is not possible to hire officers “free” from bias. https://www.washingtonpost.com/nation/2020/10/27/how-much-bias-is-too-much- become-police-officer-experts-fear-policing-law-might-backfire/; see also https://cops.usdoj.gov/RIC/Publications/cops-w0831-pub.pdf at 17 (“Most social scientists agree that every person harbors various types of implicit bias, so finding officer candidates who are 100 percent bias-free is an unrealistic expectation.”) a) Jerry Kang, an expert on implicit bias, observes that “while [AB 846] recognizes the importance of talking about biased behavior among officers, ‘it worryingly assumes there is an easy way to identify emotional and mental conditions that include implicit bias on specific individuals.’” https://www.washingtonpost.com/nation/2020/10/27/how-much- bias-is-too-much-become-police-officer-experts-fear-policing-law-might-backfire/. b) Some of the tools or tests that are used to identify implicit biases, such as the Harvard Implicit Association Test, are inexact (the IAT). See https://www.washingtonpost.com/nation/2020/10/27/how-much-bias-is-too-much- become-police-officer-experts-fear-policing-law-might-backfire/; https://cops.usdoj.gov/RIC/Publications/cops-w0831-pub.pdf at 17.1 c) Even if agencies were able to identify officers’ implicit biases, these biases do not necessarily predict future behavior. https://www.washingtonpost.com/nation/2020/10/27/how-much-bias-is-too-much- become-police-officer-experts-fear-policing-law-might-backfire/. 5) A question that remains is how agencies can use the hiring process to identify officers who are less likely to rely on their implicit biases in their interactions with the community because it may not be possible to hire officers who are free of bias. a) Some experts posit that the key is identifying people who are motivated to change. See https://www.usatoday.com/story/opinion/policing/2020/12/31/how-do-we-stop-deadly- police-bias-start-hiring-only-those-calling/4092273001/ (Cedric Alexander was the
1 Other tools are emerging, such as the polygraph test focused solely on the issue of bias. See https://www.reviewjournal.com/business/can-biased-cops-be-weeded-out-before-being-hired-a- tool-aims-to-find-out-2342603/
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 107 former Deputy Chief Operating Officer for Public Safety of DeKalb County (GA) and a member of the President’s Task Force on 21st Century Policing) (https://obamawhitehouse.archives.gov/the-press-office/2014/12/18/fact-sheet-task-force- 21st-century-policing); see also https://diverseeducation.com/article/165817/. 6) One way agencies can check for explicit biases is to use the background check process to research a person’s social media, interview their neighbors, family, etc. 7) The United States Department of Justice Community Oriented Policing Services Office convened a forum, bringing together experts on policing and hiring, and forum participants agreed that the key is not hiring individuals with explicit bias. 8) But the forum participants also noted that it is critical to train on managing implicit biases. https://cops.usdoj.gov/RIC/Publications/cops-w0831-pub.pdf at 17. 9) However, it becomes trickier to identify ways agencies can use other components of the hiring processes to identify officers’ implicit biases and whether officers demonstrate a willingness to address or manage their implicit biases through training. 10) There are several components to the hiring process (https://post.ca.gov/peace-officer- candidate-selection-process). Each of these areas offer potential opportunities for agencies to identify officers less likely to rely on their biases or who are motivated to change: i) Recruitment ii) Application iii) Written Exam (Reading and Writing Assessment) iv) Physical Ability Test v) Oral Interview vi) Background Investigation (1) Complete/provide Personal History Statement and other materials (2) Meet w/background investigator for background interview(s) (3) Fingerprinting (4) Polygraph examination vii) Medical Evaluation viii) Psychological Evaluation ix) Additionally, there is the field training/probationary phase of employment, beyond the initial hiring process. DOJ COPS Hiring forum participants also recommended looking at this phase. https://cops.usdoj.gov/RIC/Publications/cops-w0831-pub.pdf at 17. 11) There is a dearth of research into various strategies to identify applicants in the law enforcement context less likely to rely on their biases or motivated to change 12) Primarily, the strategies that agencies have focused on to reduce biased policing involve various ways to increase diversity a) Some experts have long recommended diversity in hiring as a way to improve community-police relationships. See https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf at 17 (“A critical factor in managing bias is seeking candidates who are likely to police in an unbiased manner. Since people are less likely to have biases against groups with which they have had positive experiences, police departments should seek candidates who have had positive interactions with people of various cultures and backgrounds.”); see also https://thecrimereport.org/2021/01/18/1196218/ (citing DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 108 https://www.researchgate.net/publication/228124426_Race_Bureaucracy_and_Symbolic _Representation_Interactions_Between_Citizens_and_Police; https://www.ucpress.edu/book/9780520292413/mirage-of-police-reform); https://www.eeoc.gov/advancing-diversity-law-enforcement (“A more reflective and open-minded culture in an agency can help drive reform across a range of areas, including civilian oversight, community policing, and racial bias. In addition, while greater workforce diversity alone cannot ensure fair and effective policing, a significant - and growing - body of evidence suggests that diversity can have a positive influence on specific activities and practices of law enforcement agencies.”) b) This call for increased diversity is related to the belief that diversity promotes procedural justice i) When a community has a representative agency, the community trusts the agency more, which leads to better community/police relationships, which may lead to more fair, less biased policing outcomes. https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf at 17; see also https://www.justice.gov/sites/default/files/opa/press- releases/attachments/2015/03/04/ferguson_police_department_report_1.pdf; https://www.eeoc.gov/advancing-diversity-law-enforcement#_ftnref33 ii) Some studies have shown that increasing officers of certain races or identities have resulted in improvements in policing and community trust. https://www.eeoc.gov/advancing-diversity-law-enforcement#_ftnref33 c) But experts advise that increasing diversity is not a cure-all or silver bullet. i) While there is a modest reduction in officer killings in big city departments as diversity increased, there was no such reduction in smaller departments. Also, some studies have shown that BIPOC officers have been shown to have same biases as White officers. https://thecrimereport.org/2021/01/18/1196218/; see also https://www.npr.org/2019/07/26/745731839/new-study-says-white-police-officers- are-not-more-likely-to-shoot-minority-suspe; https://www.justice.gov/sites/default/files/opa/press- releases/attachments/2015/03/04/ferguson_police_department_report_1.pdf at 88-89; see also https://journals.sagepub.com/doi/pdf/10.1177/1043986211425726 (1) BIPOC officers may feel pressure to comport with the larger culture of the agency and thus may still discriminate against BIPOC civilians in a similar manner as White officers as some studies have shown. https://thecrimereport.org/2021/01/18/1196218/; see also https://whyy.org/segments/can-you-train-people-to-be-less-biased/ (“Patricia Jaimes, a Ph.D. candidate at Michigan State University who studies diversity, equity, and inclusion in the sciences, said organizations need to do more than just recruit more people from under-represented groups. She said this is a deficit model: ‘bring in these students, and they try to get them to assimilate and to acculturate to the dominant group … this has been useful to an extent, but there is this pipeline problem, where people are still leaving.’”). 13) How hiring can be used to identify officers who are willing to engage in nonbiased policing is ripe for research and review.
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 109 a) As it stands now, there needs to be more research into the ways increasing diversity impacts or improves policing, and what specific areas of policing. See also https://www.msnbc.com/opinion/derek-chauvin-proves-america-still-hiring-exact-wrong- people-be-n1259960 b) More research also has to be done on how to identify candidates who are motivated to change or to absorb training on implicit biases. i) For example, are there particular questions during the oral examination that can help to solicit information about a person’s experience and interest in interacting with people of various backgrounds? Are there questions on the polygraph test (assuming the validity of such a test) that can touch on those same issues? What questions can be asked of references, neighbors, or other people during the background investigation phase? How do field training officers measure trainees’ interactions with people of various backgrounds and to intervene when they observe biased policing?
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 110 Z/WŽĂƌĚ>ĞŐŝƐůĂƚŝǀĞWƌŽƉŽƐĂůƐĂŶĚZĞĐŽŵĞŶĚĂƚŝŽŶƐ
111 XI. RIPA BOARD LEGISLATIVE PROPOSALS AND RECOMMENDATIONS
A. Updates on Pending Proposals
[Add Status of Board Proposed Legislation]
B. Legislative Proposal - Bias by Proxy
In previous RIPA Reports, the Board recommended that law enforcement agencies adopt a policy on bias by proxy. This year, the Board conducted a review of the bias-based policing of law enforcement agencies in Wave 1, 2, and 3. During review, the Board identified several polices on bias by proxy and was encouraged to see more agencies adopting the policies.
Because of the significance of this issue, the Board recommends the state legislature require agencies to have a policy specific to bias by proxy. The Board believes every state and local agency that employs peace officers should maintain a policy that prohibits bias-based policing, provides guidance on how to interact with community members in a fair and unbiased manner, and explains how to identify and interact with calls for service that are based on the bias of the caller.
The bill should define the following terms:
• “Bias-based policing” means conduct by a peace officer motivated, implicitly or explicitly, by the officer’s beliefs about someone based on the person’s actual or perceived personal characteristics, including but not limited to race, color, ethnicity, national origin, age, religion, gender identity or expression, sexual orientation, housing status, or mental, developmental, or physical disability.
• “Implicit bias” means the attitudes or stereotypes that affect a person’s understanding, actions, and decisions in an unconscious manner. These biases, which encompass both favorable and unfavorable assessments, are activated involuntarily and without an individual’s awareness or intentional control.
• “Bias by proxy” occurs when an individual calls/contacts the police and makes false or ill-informed claims of misconduct about persons they dislike or are biased against based on explicit racial and identity profiling or implicit bias.
Law enforcement agencies should maintain a policy, accessible to the public, that prohibits bias- based policing. Each agency’s policy must be developed in consultation with members of the
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 112 public, including but not limited to community advocates, youth, and academics, and should include:
• A requirement that employees use their critical decision-making skills drawing upon their training to assess whether there is evidence of criminal activity after independently assessing the circumstances before engaging in policing activity. • A requirement that employees, when carrying out their duties, are cognizant of racial and identify profiling, implicit bias, and bias by proxy. • Clear and specific guidelines on: o How sworn members can identify calls for service involving bias by proxy; o How sworn members, including shift supervisors, as well as dispatchers, should interact with a community member who has made a bias-based call for service; o How sworn members should interact with a community member who is the subject of a bias-based call;
Finally, agencies should be required audit the outcome of calls for service. Specifically, agencies should collect information on if a call is determined to be founded or unfounded, meaning the information reported to officers was verified by those on scene. For example, if police receive a report that someone is vandalizing a building but when officers arrive on scene they find a group of kids skating, that would be an unfounded call. Agencies should also include information if a call is believed to be based on the bias of the caller. Additionally, all sworn members and dispatchers should undergo training regarding responding to bias-based calls for service.
DRAFT REPORT – PENDING EDITING AND REVIEW This draft is a product of various subcommittees of the Racial and Identity Profiling Advisory Board. It has been provided merely for the Racial and Identity Profiling Advisory Board’s consideration and its content does not necessarily reflect the views of any individual RIPA Board member, the full RIPA Board, or the California Department of Justice. 113