By Eric Gelber
What problem/issue would the bill address?
The public was understandably shocked and outraged by the circumstances of the death of George Floyd on May 25, 2020. Officer Derek Chauvin, who has been accused of murdering George Floyd, restrained him by pressing his knee into Floyd’s neck for over eight minutes despite Floyd’s plea that he could not breathe. Equally troubling was the fact that three other officers on the scene assisted or observed what was happening but failed to intervene despite Minnesota’s “Duty to Intervene” law. AB 26 (Holden) would define and clarify existing California law on what is meant by the duty to intervene.
What would the bill do?
AB 26 would disqualify someone from being a peace officer if they have been found by a law enforcement agency that employs them to have either used excessive force that resulted in great bodily injury or death or to have failed to intercede when witnessing excessive force, as defined under existing guidelines, being used by another member of law enforcement, and to report an incident at the time it occurred to a dispatcher or a watch commander.
The bill defines “excessive force” to mean a level of force that is found to have violated … the requirements on the use of force required by existing law, regulation, or policy of the employing law enforcement agency.
“Intercede” includes, but is not limited to, physically stopping the excessive use of force, recording the excessive force and documenting efforts to intervene, efforts to deescalate the offending officer’s excessive use of force, and confronting the offending officer about the excessive force during the use of force and, if the officer continues, reporting to dispatch or the watch commander on duty and stating the offending officer’s name, unit, location, time, and situation, in order to establish a duty for that officer to intervene.
AB 26 would also prohibit retaliation against an officer who reports a suspected violation of a law or regulation of another officer to a supervisor or other person of the law enforcement agency who has the authority to investigate the violation. “Retaliation” is defined as a “demotion, failure to promote to a higher position when warranted by merit, denial of access to training and professional development opportunities, denial of access to resources necessary for an officer to properly perform their duties, or intimidation, harassment, or the threat of injury while on duty or off duty.”
Although it did not satisfy law enforcement organizations opposing the bill, the author nonetheless agreed to amend AB 26 to remove a provision that would have deemed an officer who observes another peace officer using excessive force, and fails to report the excessive use of force as required, to be charged as an accessory in any crime committed by the other officer during the use of excessive force.
The author provided background on AB 26, stating that “In 2019, Governor Newsom signed SB 230 (Caballero) and AB 392 (Weber) requiring each law enforcement agency to provide a minimum standard on the use of force and redefine circumstances under which the use of deadly force is deemed justifiable.
“Current law does not define what duty to intervene actually means. It leaves each law enforcement agency to decide as to what constitutes “intervention.” “We are calling for responsibility and accountability. AB 26 is paramount to building public trust that has eroded between law enforcement and communities across California.”
Current law requires that every law enforcement agency have a policy requiring an officer to 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 circumstance.”
This bill would modify the circumstances under which an officer is required to intercede by deleting existing language that specifies that an officer must intercede when 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.”
This bill would, instead, make the requirement to intercede when one officer observes an officer “using excessive” force, without any other qualifiers. Generally, one would look at the circumstances known to the person in the moment in determining whether a person acted reasonably.
“Given the widespread public outcry for police reforms right now, we have another opportunity for California to lead on this issue,” Holden concluded.
In support of AB 26, the Los Angeles Board of Supervisors stated that “[t]he County’s Office of the Public Defender states that AB 26 would increase accountability of officers and law enforcement agencies, establish well-defined guidelines for officers who witness excessive force to intercede, and add disqualifications from being a peace officer to existing law.
“The County’s Office of the Alternate Public Defender indicates that AB 26 would promote the use of de-escalation techniques, as well as help to prevent the re-hiring of officers found by their employer to have used excessive force that caused great bodily injury or death or to have failed to intercede in such incidents. The County’s Office of Inspector General states that public and law enforcement agencies are best served when training is evidence-based, such as the Active Bystandership for Law Enforcement (ABLE) Project.”
In opposition to the bill, the California Association of Highway Patrolmen (CAHP) stated, in part, that “[i]n 2019, the CAHP was a part of a working group that negotiated issues that made comprehensive changes in the area of use of force. In that legislation, we created a mandate that an officer intercede when they feel another officer is using excessive force. The new law also requires an officer to report what they believe to be excessive force to the department. AB 26 not only addresses those issues again, but redefines excessive force.
“Oftentimes, when an officer is not the first, or even second, person to arrive on the scene, they will observe actions being taken with a suspect without knowing what led up to the actions they are observing. For example, an officer may arrive at a scene and witness two or three officers wrestling or in a fight with a suspect on the ground. The arriving officer may not know that the suspect has a weapon, or has potentially used, or attempted to use, that weapon on the officers prior to their arrival on the scene. Without the arriving officer having full knowledge of the situation, that officer’s intercedence could be dangerous to both the officers and the public.”
One can only speculate as to whether, had intervention standards and procedures like those contained in AB 26 been in place and applied in the situation involving George Floyd, he would be alive today. It is highly unlikely, however, that any of the officers on the scene—who either applied or failed to intervene or immediately report clearly excessive force—would be employed as law enforcement officers any longer.
The author has expressed his commitment to working with opponents of the bill to potentially address their concerns. The bill was passed by the Assembly Public Safety Committee on March 23rd and is now pending in the Assembly Appropriations Committee.
Eric Gelber, now retired, is a 1980 graduate of UC Davis School of Law (King Hall). He has nearly four decades of experience monitoring, analyzing, and crafting legislation through positions as a disability rights attorney, Chief Consultant with the Assembly Human Services Committee, and Legislative Director of the California Department of Developmental Services.
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