A rare crack in California’s law enforcement monolith has manifested with the progress of a bill authored by Assemblyman Miguel Santiago (Democrat-Los Angeles) that would make disciplining police officers who falsify police reports or lie on the witness stand more difficult.
AB 1298, coauthored by Assemblyman Tom Lackey (Republican- Sacramento), would require when any public safety officer is under investigation and subject to interrogation by his or her commanding officer or his/her employing public safety department on the allegation of making a false statement that any administrative finding of the false statement shall require proof based on clear and convincing evidence. The bill applies only to allegations of false statements and would not affect any other allegation or charge against the public safety officer.
The bill has been lauded by unions representing police officers and police advocates. It has, however, garnered the opposition of not only the American Civil Liberties Union but those in charge of the agencies that employ those officers. Organizations representing police chiefs, police management and county sheriffs in California, such as the California State Sheriff’s Association, oppose the bill.
At present, individual agencies are free to apply whatever standard the leadership of those agencies deem fit when determining if peace officers have engaged in falsifying evidence and police reports or offering misleading or false testimony. A substantial number of those agencies will adjudge an officer to have lied if it is determined that it is more likely than not that the officer made a false or misleading statement, that is, guilt is presumed upon a preponderance of the available evidence pointing to falsification. A preponderance of evidence – anything above a threshold of 50 percent – is the same burden of proof used in civil lawsuits.
AB 1298 calls for raising the standard well beyond simply establishing that there is a greater than 50 percent chance that a police officer prevaricated to a level of there being clear and convincing evidence, meaning that there is overwhelming evidence the officer wrote a report, provided evidence or made statements he knew to be false. This is the same burden of proof required in civil liberties cases, such as restraining orders and the loss of parental rights.
Santiago maintains that his legislation is needed because an officer’s career can be ruined by a finding that he has made a false and misleading statement. Civil libertarians, however, note that in California the Public Safety Officers Procedural Bill of Rights Act already provides officers with protections requiring that certain conditions be met when any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action. Because of the power and authority accorded to police officers, as well as the esteem they are held in and credibility accorded to their statements in a court of law where the fate and freedom of an accused citizen, who may be guilty or innocent, is at stake, civil libertarians say justice demands that the officers be held to a high standard with regard to the accuracy and truth in their reports and testimony.
An officer deemed by prosecutors to have made a false or misleading statement is subject to being cataloged as a “Brady officer,” meaning the officer’s record of falsification is subject to disclosure to defense attorneys representing clients against whom that particular officer might testify. A defense attorney can then use a finding that an officer has lied in the past to undermine the credibility of his or her testimony.