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AB-1652 Law enforcement agency policies: use of force: protests.(2019-2020)

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Date Published: 06/29/2020 09:00 PM
AB1652:v97#DOCUMENT

Amended  IN  Senate  June 29, 2020
Amended  IN  Assembly  March 21, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 1652

Introduced by Assembly Member Wicks

February 22, 2019

An act to amend Section 374.7 of the Penal Code, relating to crimes. amend Section 7286 of the Government Code, and to amend Sections 148 and 408 of the Penal Code, relating to law enforcement.


LEGISLATIVE COUNSEL'S DIGEST


AB 1652, as amended, Wicks. Crimes: littering. Law enforcement agency policies: use of force: protests.
(1) Existing law requires, no later than January 1, 2021, each law enforcement agency to maintain a policy that provides a standard on the use of force by implementing various guidelines and procedures and to make that policy accessible to the public. Existing law also requires a uniformed peace officer to wear a badge, nameplate, or other device which bears clearly on its face the identification number or name of the officer.
This bill would require each law enforcement agency to expand the agency’s use of force policy to include clear and specific guidelines under which officers may use “kettling” or “corralling,” as defined by the bill, and to prohibit officers from failing to wear, or intentionally acting to obscure or conceal information on, a badge while on duty. The bill would also require each agency’s policy to prohibit law enforcement officers from using force on individuals engaged in, or members of the press covering, a lawful assembly or protest, as specified, and would further require the policy to require that an officer who is found to have intentionally violated this policy be suspended, as specified. By imposing additional duties on local law enforcement agencies, the bill would impose a state-mandated local program.
(2) Existing law makes it a crime to willfully resist, delay, or obstruct any public officer, peace officer, or an emergency medical technician, as defined, in the discharge or attempt to discharge any duty of the office or employment, when no other punishment is prescribed. Existing law exempts from the scope of that crime a person who takes a photograph or makes an audio or video recording of a public officer or peace officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place the person has the right to be, and further provides that those acts do not constitute, in and of itself, commission of the crime proscribed, nor a reasonable suspicion to detain the person or probable cause to arrest the person.
This bill would authorize a person who is detained or arrested for engaging in an act that is exempt as described above to recover actual damages, punitive damages not exceeding $25,000 per violation, and reasonable attorney’s fees, in addition to any other remedy at law. If that person is detained or arrested in violation of specified law enforcement agency policies relating to the use of force, the bill would also authorize the person to recover additional punitive damages not exceeding $25,000 per violation and reasonable attorney’s fees, in addition to any other remedy at law.
(3) Existing law makes every person who participates in any rout or unlawful assembly guilty of a misdemeanor.
This bill would instead make every person who participates in any rout or unlawful assembly guilty of an infraction.
(4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law prohibits littering or dumping waste into a body of water, as specified, or onto a beach or shoreline. A violation of this prohibition is a misdemeanor punishable by a fine.

Under existing law, the court may, in addition to a fine, order a convicted person to pick up litter as a condition of probation.

This bill would instead authorize the court to order a person to perform community service, including, but not limited to, picking up litter.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NOYES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 7286 of the Government Code is amended to read:

7286.
 (a) For the purposes of this section:
(1) “Deadly force” means any use of force that creates a substantial risk of causing death or serious bodily injury. Deadly force includes, but is not limited to, the discharge of a firearm.
(2) “Feasible” means reasonably capable of being done or carried out under the circumstances to successfully achieve the arrest or lawful objective without increasing risk to the officer or another person.
(3) “Kettling” or “corralling” means using a police line to encircle, or substantially encircle, a speech, protest, or assembly that is not implemented for the safety of those participating in the speech, protest, or assembly.

(3)

(4) “Law enforcement agency” means any police department, sheriff’s department, district attorney, county probation department, transit agency police department, school district police department, the police department of any campus of the University of California, the California State University, or community college, the Department of the California Highway Patrol, the Department of Fish and Wildlife, and the Department of Justice.
(b) Each law enforcement agency shall, by no later than January 1, 2021, maintain a policy that provides a minimum standard on the use of force. Each agency’s policy shall include all of the following:
(1) A requirement that officers utilize de-escalation techniques, crisis intervention tactics, and other alternatives to force when feasible.
(2) A requirement that an officer may only use a level of force that they reasonably believe is proportional to the seriousness of the suspected offense or the reasonably perceived level of actual or threatened resistance.
(3) A requirement that officers report potential excessive force to a superior officer when present and observing another officer using force that the officer believes to be beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances based upon the totality of information actually known to the officer.
(4) Clear and specific guidelines regarding situations in which officers may or may not draw a firearm or point a firearm at a person.
(5) A requirement that officers consider their surroundings and potential risks to bystanders, to the extent reasonable under the circumstances, before discharging a firearm.
(6) Procedures for disclosing public records in accordance with Section 832.7. 832.7 of the Penal Code.
(7) Procedures for the filing, investigation, and reporting of citizen complaints regarding use of force incidents.
(8) A requirement that an officer intercede when present and observing another officer using force that is clearly beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances, taking into account the possibility that other officers may have additional information regarding the threat posed by a subject.
(9) Comprehensive and specific guidelines regarding approved methods and devices available for the application of force.
(10) An explicitly stated requirement that officers carry out duties, including use of force, in a manner that is fair and unbiased.
(11) Comprehensive and specific guidelines for the application of deadly force.
(12) Comprehensive and detailed requirements for prompt internal reporting and notification regarding a use of force incident, including reporting use of force incidents to the Department of Justice in compliance with Section 12525.2.
(13) The role of supervisors in the review of use of force applications.
(14) A requirement that officers promptly provide, if properly trained, or otherwise promptly procure medical assistance for persons injured in a use of force incident, when reasonable and safe to do so.
(15) Training standards and requirements relating to demonstrated knowledge and understanding of the law enforcement agency’s use of force policy by officers, investigators, and supervisors.
(16) Training and guidelines regarding vulnerable populations, including, but not limited to, children, elderly persons, people who are pregnant, and people with physical, mental, and developmental disabilities.
(17) Comprehensive and specific guidelines under which the discharge of a firearm at or from a moving vehicle may or may not be permitted.
(18) Factors for evaluating and reviewing all use of force incidents.
(19) Minimum training and course titles required to meet the objectives in the use of force policy.
(20) A requirement for the regular review and updating of the policy to reflect developing practices and procedures.
(21) Clear and specific guidelines under which officers may use “kettling” or “corralling.”
(22) A prohibition against failing to wear a badge in a prominent location while on duty, or any intentional act to obscure or conceal information on a badge while on duty, in violation of Section 830.10 of the Penal Code.
(23) (A) A prohibition against law enforcement officers using force on individuals engaged in, or members of the press covering, a lawful assembly or protest. For purposes of this subparagraph, “members of the press” include the persons described in subdivisions (a) and (b) of Section 1070 of the Evidence Code.
(B) A requirement that if a law enforcement officer is found by a preponderance of the evidence, as determined pursuant to the procedures set forth in Chapter 9.7 (commencing with Section 3300) of Division 4, to have intentionally violated a requirement described in subparagraph (A), the officer shall, at minimum, be suspended.
(c) Each law enforcement agency shall make their use of force policy adopted pursuant to this section accessible to the public.
(d) This section does not supersede the collective bargaining procedures established pursuant to the Myers-Milias-Brown Act (Chapter 10 (commencing with Section 3500) of Division 4), the Ralph C. Dills Act (Chapter 10.3 (commencing with Section 3512) of Division 4), or the Higher Education Employer-Employee Relations Act (Chapter 12 (commencing with Section 3560) of Division 4).

SEC. 2.

 Section 148 of the Penal Code is amended to read:

148.
 (a) (1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her the office or employment, when if no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.
(2) Except as provided by subdivision (d) of Section 653t, every person who knowingly and maliciously interrupts, disrupts, impedes, or otherwise interferes with the transmission of a communication over a public safety radio frequency shall be punished by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(b) Every person who, during the commission of any offense described in subdivision (a), removes or takes any weapon, other than a firearm, from the person of, or immediate presence of, a public officer or peace officer shall be punished by imprisonment in a county jail not to exceed one year or pursuant to subdivision (h) of Section 1170.
(c) Every person who, during the commission of any offense described in subdivision (a), removes or takes a firearm from the person of, or immediate presence of, a public officer or peace officer shall be punished by imprisonment pursuant to subdivision (h) of Section 1170.
(d) Except as provided in subdivision (c) and notwithstanding subdivision (a) of Section 489, every person who removes or takes without intent to permanently deprive, or who attempts to remove or take a firearm from the person of, or immediate presence of, a public officer or peace officer, while the officer is engaged in the performance of his or her their lawful duties, shall be punished by imprisonment in a county jail not to exceed one year or pursuant to subdivision (h) of Section 1170.
In order to prove a violation of this subdivision, the prosecution shall establish that the defendant had the specific intent to remove or take the firearm by demonstrating that any of the following direct, but ineffectual, acts occurred:
(1) The officer’s holster strap was unfastened by the defendant.
(2) The firearm was partially removed from the officer’s holster by the defendant.
(3) The firearm safety was released by the defendant.
(4) An independent witness corroborates that the defendant stated that he or she the defendant intended to remove the firearm and the defendant actually touched the firearm.
(5) An independent witness corroborates that the defendant actually had his or her hand defendant’s hand was actually on the firearm and tried to take the firearm away from the officer who was holding it.
(6) The defendant’s fingerprint was found on the firearm or holster.
(7) Physical evidence authenticated by a scientifically verifiable procedure established that the defendant touched the firearm.
(8) In the course of any struggle, the officer’s firearm fell and the defendant attempted to pick it up.
(e) A person shall not be convicted of a violation of subdivision (a) in addition to a conviction of a violation of subdivision (b), (c), or (d) when the resistance, delay, or obstruction, and the removal or taking of the weapon or firearm or attempt thereof, was committed against the same public officer, peace officer, or emergency medical technician. A person may be convicted of multiple violations of this section if more than one public officer, peace officer, or emergency medical technician are victims.
(f) This section shall does not apply if the public officer, peace officer, or emergency medical technician is disarmed while engaged in a criminal act.
(g) (1) The fact that a person takes a photograph or makes an audio or video recording of a public officer or peace officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she the person has the right to be, does not constitute, in and of itself, a violation of subdivision (a), nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person.
(2) Any person who, notwithstanding paragraph (1), is detained or arrested for engaging in an act described in paragraph (1) that does not constitute, in and of itself, a violation of subdivision (a), and that does not otherwise constitute reasonable suspicion to detain the person or probable cause to arrest the person, may recover actual damages, punitive damages not exceeding twenty-five thousand dollars ($25,000) per violation, and reasonable attorney’s fees, in addition to any other remedy at law. If that person is detained or arrested in violation of policies established pursuant to subdivision (b) of Section 7286 of the Government Code, the person may also recover additional punitive damages not exceeding twenty-five thousand dollars ($25,000) per violation and reasonable attorney’s fees, in addition to any other remedy at law.

SEC. 3.

 Section 408 of the Penal Code is amended to read:

408.
 Every person who participates in any rout or unlawful assembly is guilty of a misdemeanor. an infraction.

SEC. 4.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
SECTION 1.Section 374.7 of the Penal Code is amended to read:
374.7.

(a)A person who litters or causes to be littered, or dumps or causes to be dumped, waste matter into a bay, lagoon, channel, river, creek, slough, canal, lake, or reservoir, or other stream or body of water, or upon a bank, beach, or shore within 150 feet of the high water mark of a stream or body of water, is guilty of a misdemeanor.

(b)A person convicted of a violation of subdivision (a) shall be punished by a mandatory fine of not less than two hundred fifty dollars ($250) nor more than one thousand dollars ($1,000) upon a first conviction, by a mandatory fine of not less than five hundred dollars ($500) nor more than one thousand five hundred dollars ($1,500) upon a second conviction, and by a mandatory fine of not less than seven hundred fifty dollars ($750) nor more than three thousand dollars ($3,000) upon a third or subsequent conviction.

(c)The court may, in addition to the fine imposed upon a conviction, require as a condition of probation, in addition to any other condition of probation, that any person convicted of a violation of subdivision (a) perform not less than eight hours of community service, including, but not limited to, picking up litter at a time and place within the jurisdiction of the court.