Victims of Rights-Violating California Cops May Finally Get Justice in Court

Gov. Gavin Newsom signed S.B. 2 into law, despite some objections from police unions.

California Gov. Gavin Newsom signed a series of police reform bills into law yesterday as the state attempts to open the door to police accountability, bolster education and training, and curtail certain use-of-force techniques.

Perhaps most consequential was Senate Bill (S.B.) 2, which will create a decertification program for misbehaving officers so that they're no longer able to hop to a different law enforcement agency after losing their job. California was one of just four states that didn't have such a rule.

"Traditionally, what they've been able to do is that if they break the law—they've committed a felony—and when they're being investigated by their own department, they just tender a resignation, and when they leave there is not a negative mark on their employment," says Julia Yoo, president of the National Police Accountability Project, the country's largest civil rights attorneys organization. "They can say honestly, 'I have not been terminated from my previous employment.'…So they get hired by their second department, and the first investigation just goes away. On and on. It enables some officers who have committed egregious misconduct to continue to be employed."

The bill assembles a nine-person advisory board—composed of political appointees, some from law enforcement—to review misconduct claims and decide if an officer should have his or her license suspended or revoked. Those who lose a two-thirds vote may appeal.

Also noteworthy is the removal of certain immunities that protected police officers from accountability in civil court after they'd allegedly violated someone's constitutional rights.

Qualified immunity has been the nucleus of the police reform debate since last year. The legal doctrine prohibits victims of government abuse from suing certain state actors if the exact way their rights were infringed on has not been explicitly deemed unconstitutional in a prior court precedent. It's emboldened some of the worst behavior, including cops who allegedly stole $225,000 during a search warrant, because no preexisting ruling said that theft under those precise circumstances was wrong. It's also shielded a cop who killed a man who had been sleeping in his car, a group of cops who beat a man after pulling him over for broken taillights, and a cop who allegedly kneed a suspect in the eye 20 to 30 times after he'd already been subdued.

But California's state courts in certain circumstances employ absolute immunity, an even taller barrier to overcome, as it confers total protection to government actors in such cases despite any relevant case law. Federal cops currently have the same shield, which is how, for instance, an officer on a federal task force was able to avoid any civil penalty after throwing people in jail on false charges in connection with a fake sex-trafficking ring she concocted. S.B. 2 reels that in for California officers, although qualified immunity remains the law of the land for any lawsuit brought in federal court, as Congress recently demurred at any sort of police reform compromise.

Other states that have recently limited police immunity include New Mexico and Colorado, as well as New York City at the municipal level.

From its conception, police unions pushed back on some of the measures. The decertification portion, for example, was originally proposed last year as part of a different piece of legislation that met a quick death after various police advocacy groups objected. The Peace Officers Research Association, a law enforcement lobbying organization, said that even with many of their concerns addressed, S.B. 2 still provides "unclear, subjective and vague definitions" of "serious misconduct." The legislation was amended not long before the California legislature approved the bill in an attempt to address the lobby's worries. It passed with many moderate Democrats declining to vote—perhaps a sign of how influential police unions are, even in a blue state like California.

Concessions were made on immunity as well. "You have to prove what's called 'specific intent'" when attempting to sue a police officer, notes Yoo. "And the problem with 'specific intent' is that nobody knew what that meant," leaving it up to the subjective discretion of whoever is on the bench. The law enforcement lobby was able to keep that "extra layer" in the law, said Yoo.