THE MICHAEL BROWN OVER-POLICED RIGHTS ACT OF 2015
A BILL
To provide for reporting from Law Enforcement Agencies and to provide a private cause of action against Law Enforcement Agencies that discriminate.
BE IT ENACTED by the Legislature of this State assembled:
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SECTION 1. SHORT TITLE; TABLE OF CONTENTS
(a) Short Title.--This Act may be cited as the "Over-Policed Rights Act of 2016".
(b) Table of Contents.--The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
TITLE I--UNIVERSAL REPORTING REQUIREMENTS
Sec. 101. Universal Reporting Requirements.
Sec. 102. Non-admissibility in certain actions.
Sec. 103. One-Time Universal Reporting Requirements.
Sec. 104. Information sworn-to by commanding officer.
Sec. 105. State Police to report to the public such information as described therein.
TITLE II--PRIVATE CAUSE OF ACTION AGAINST STATE, LOCAL, AND CONTRACTED LAW ENFORCEMENT AGENCIES
Sec. 201. Creating private cause of action.
Sec. 202. Defining an over-policed jurisdiction as violating the Equal Protection rights of the Citizens.
Sec. 203. Courtroom procedures.
Sec. 204. Attorney General's option to enter suit.
Sec. 205. Setting the burden of proof and the findings by the court.
TITLE III--CONDITIONS PLACED ON OVER-POLICED JURISDICTIONS AND ENFORCEMENT AND PENALTIES
Sec. 301. Penalties, conditions and probation.
Sec. 302. Volunteer observers.
Sec. 303. State Police to provide training materials for volunteer observers.
Sec. 304. Additional reporting requirements.
Sec. 305. Enforcement and penalties.
TITLE IV--PETITION FOR TERMINATION AS OVER-POLICED JURISDICTION AND PROCEDURES
Sec. 401. Petition for Termination as Over-Policed Jurisdiction.
Sec. 402. Burden of proof and procedures.
TITLE V--MISCELLANEOUS PROVISIONS, FUNDING, SEVERABILITY AND SAVINGS CLAUSE
Sec. 501. Appropriations.
Sec. 502. Severability.
Sec. 503. Savings clause.
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SEC. 2. DEFINITIONS.
In this Act:
(1) Law enforcement agency -- The term "law enforcement agency" means any State, local, or private agency, acting on behalf of a unit of state or local Government, engaged in the prevention, detection, or investigation of violations of criminal laws, punishable by fine or imprisonment.
(2) Law enforcement agent -- The term "law enforcement agent" means any State, local, or private agency official, acting on behalf of a unit of state or local Government, responsible for enforcing criminal laws, punishable by fine or imprisonment, including police officers and other agents of a law enforcement agency, and also including any private contract employees with those duties.
(3) Covered program -- The term "covered program" means any program or activity funded in whole or in part with funds made available from the State for any law enforcement or other purpose.
(4) Unit of local government -- The term "unit of local government" means --
(A) any city, county, township, town, borough, parish, village, or other general purpose political subdivision of this State;
(B) any law enforcement district or judicial enforcement district that --
(i) is established under applicable State law; and
(ii) has the authority to, in a manner independent of other State entities, establish a budget and impose taxes.
(5) Weapon or other weapon -- "Weapon" or "other weapon" shall include any weapon used to subdue or inflict damage to a person.
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Sec. 101. UNIVERSAL REPORTING REQUIREMENTS. All law enforcement agencies shall report the following information every twelve months to the Attorney General in the manner that office shall prescribe by rule:
(1) The name, address, race, ethnicity, and occupation (if known) of any person injured or killed by a firearm, taser, or other weapon designed to cause physical injury to, or which is used to subdue or control, persons, and which was fired by a law enforcement agent employed by that law enforcement agency.
(2) The name, address, race, ethnicity, and rank of any law enforcement agent who has shot or tazed a person with a gun or taser or other weapon designed to cause physical injury to, or which is used to subdue or control, persons during the preceding twelve months.
(3) Whether the police action described in subsection (1) of this section resulted in death, injury, or medical treatment, specifying which, if any.
(4) The filing and disposition of any criminal or civil matters related to the use of force.
(5) The result of any internal investigation, including punishment, if any, meted out.
(6) The language minority status of any persons involved.
(7) Whether that law enforcement agent has shot another person during his or her career as a law enforcement agent. If so, provide each instance, including, date, name of the law enforcement agency, reason for use of force, disposition of person targeted (legally and medically), and the disposition of any related criminal or civil matters.
(8) The number of shots fired at any person by any weapon utilized by law enforcement agents during the course of police activities in the jurisdiction, including the type of weapon.
(9) The number of target or practice shots taken by the law enforcement agency for training purposes during the preceding 12 months.
(10) The number of full-time and part-time and contract employees of the law enforcement agency.
(11) The number of times a law enforcement agent in the law enforcement agency complained of physical injury requiring medical treatment because of interaction with the public in the course of police activities during the preceding twelve months.
(12) The number of times a person or his or her representative in the relevant jurisdiction complained of death or physical injury requiring medical treatment or death because of interaction with law enforcement agents in that law enforcement agency in the course of police activities during the preceding twelve months.
(13) The number of felony arrests in the jurisdiction made by the law enforcement agency, including the race, ethnicity, and language minority status of the law enforcement agent and the person arrested.
(14) The number of misdemeanor arrests in the jurisdiction made by the law enforcement agency, including the race, ethnicity, and language minority status of the arresting law enforcement agent and the person arrested.
(15) The number of other arrests in the jurisdiction made by the law enforcement agency, including the race, ethnicity, and language minority status of the law enforcement agent and the person arrested.
(16) The number of traffic stops in the jurisdiction made by the law enforcement agency, including the race, ethnicity, and language minority status of the law enforcement agent involved and the person stopped.
(17) The number of Terry stops in the jurisdiction made by the law enforcement agency, including the race, ethnicity, and language minority status of the law enforcement agent involved and the person stopped.
(18) The racial, ethnic, and minority language breakdown of the law enforcement agency by percentage.
(19) The percentage of law enforcement agency patrol vehicles fitted with working dash cams used by the law enforcement agency during the preceding twelve months.
(20) The percentage of law enforcement agents fitted with working body cams used by the law enforcement agency during the preceding twelve months.
Sec. 102. To encourage accurate and prompt reporting, it is expressly provided that the report of any law enforcement agency prepared pursuant to this Act may not be used as evidence against any individual law enforcement agent or agents in any civil, or administrative proceeding. Provided, however, that any information contained in the report that can be obtained elsewhere shall not be subject to this restriction.
Sec. 103. ONE-TIME UNIVERSAL REPORTING REQUIREMENT. All law enforcement agencies shall report the items described above in (a)(1)-(20) for each of the preceding five years to the Attorney General in the manner that office shall prescribe by rule.
Sec. 104. Each Section 101 and 103 report will be signed by the law enforcement agency's commanding officer and, based upon information and belief, sworn to be true and correct. Failure to comply with the universal reporting requirements described above shall subject that law enforcement agency to a rebuttable presumption that the law enforcement agency is an Over-Policed Rights Act Jurisdiction as described in Title II. Additionally, if a law enforcement agency shall refuse to comply, the Attorney General shall reallocate to another law enforcement agency any or all state funding or equipment and may request that any federal funding to the law enforcement agency be suspended pending compliance. The Attorney General shall have the authority to enforce Title I of this Act.
Sec. 105. The Attorney General shall report the information provided pursuant to subsections (a)(1)-(20) each year to the public.
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Sec. 201. A natural person residing in California shall have the right to file an action in state court seeking a declaration that the law enforcement agency in the jurisdiction in which the complainant resides is an over-policed jurisdiction as that term is defined in Section 202 of this Title. Venue shall lie in the county of the complaining party's residence.
Sec. 202. As used in this section, an over-policed jurisdiction is one that has shown a long-standing pattern of abuse, brutality, or racial, or language minority animus of at least eighteen month's duration. Any party who brings an action pursuant to this Title may show a long-standing pattern of abuse, brutality or racial or language minority animus using the information provided in Title I herein or any other reliable statistics which demonstrate that the law enforcement agency has violated the Equal Protection rights of those in their jurisdiction by arresting, stopping, harming, detaining, issuing citations against, failing to hire, property seizures of, killing, or assaulting members of a racial, ethnic, or minority language group in a statistically significant greater percentage than that group is represented in that jurisdiction's population. A party who brings an action pursuant to this Title may make this showing without proof of willful action by the policing jurisdiction.
Sec. 203. COURT PROCEDURES; STANDING AND WAIVER OF FEES. By virtue of a person's residence in a jurisdiction and status as a member of the allegedly aggrieved racial, ethnic, or language minority class, he or she is deemed to have standing to sue. Every person in a jurisdiction is affected in one way or another by the policing carried out there.
(1) Filing fees and any trial or witness fees for this action are waived.
(2) Complainant will be responsible for any fees necessary to effectuate Service of Process on the policing jurisdiction. The Complaint and all subsequent pleadings will be prepared and argued by an attorney in good standing in that court and follow current state rules of civil procedure except as described herein or amended for good cause by the court.
(3) JURISDICTION; EXHAUSTION OF ADMINISTRATIVE OR OTHER REMEDIES. The county courts of this State shall have jurisdiction of proceedings instituted pursuant to this Act and shall exercise the same without regard to whether a person asserting rights under the provisions herein shall have exhausted any administrative or other remedies that may be provided by law. Trial will proceed before the judge without a jury.
(4) SPEEDY TRIAL PROVISION. A hearing and disposition of this matter shall occur within six months after the law enforcement agency has filed its Answer. The parties shall provide expedited discovery. No later than one month after the law enforcement agency has filed its Answer, the court shall convene the parties to discuss discovery and case management. The inherent contempt powers of the court shall continue. A law enforcement agency may file a Motion to Dismiss if the complainant is not a resident of the county. All other jurisdictional matters will be raised at the final hearing herein.
(5) CONSOLIDATION OF CASES. The court may consolidate multiple independent complaints for hearing. One continuance of no more than one month's duration may be granted by the court for good cause shown.
(6) REFUSAL TO COMPLY WITH REPORTING REQUIREMENTS; REBUTTABLE PRESUMPTION. If the law enforcement agency has refused to comply with the Universal Reporting Requirements described in Title I of this Act, then there shall be a rebuttable presumption that the law enforcement agency is an over-policed jurisdiction. The presumption may be rebutted if the law enforcement agency fully complies with the Universal Reporting Requirements described in Title I of this Act. The complaint brought by virtue of this Title may proceed even if compliance is satisfied.
Sec. 204. At the election of the Attorney General, the State may enter the suit on behalf of the Complainant; however, if the Complainant voices an objection, he or she will be allowed to proceed with the State appearing as a friend of the court, or the State may withdraw, if it elects to do so, but may re-enter the matter at any time thereafter. During the proceedings and after adjudication, the Attorney General may appoint a local or state government authority or official as its designee to appear at hearings and receive reports and take all actions available to the Attorney General and State under this Act. The designee will be reimbursed for all out-of-pocket expenditures.
Sec. 205 If the court, after hearing, finds by a preponderance of the evidence that the law enforcement agency has had a long-standing pattern of abuse, brutality, or racial or language minority animus, which may be proved statistically and without direct evidence of intentional malice, then the court shall designate that law enforcement agency as an Over-Policed Rights Act jurisdiction. The law enforcement agency may appeal, but there shall be no stay of this Act pending appeal. The complainant shall also have the right to appeal.
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Sec. 301. PENALTIES, CONDITIONS AND PROBATION. This Act is not intended to limit the authority of a court judge to tailor his or her order to a given situation. However, a designation as an Over-Policed Rights Act jurisdiction shall, at a minimum, result in the following, unless good cause is shown:
(1) The court shall appoint volunteer observers of good moral character who reside in the jurisdiction to monitor the law enforcement agency as described herein.
(2) The specific reporting requirements for an Over-Policed Rights Act jurisdiction, as described below, shall be enforced.
(3) The Over-Policed Rights Act jurisdiction shall forfeit all federal "militarized" hardware, including only vehicles and weapons, to the State.
(4) The Over-Policed Rights Act jurisdiction shall be subject to audits at any time by the Office of the Attorney General or its designee.
(5) The Over-Policed Rights jurisdiction shall designate a person to act as liaison between the law enforcement agency and the court system, the Attorney General or its designee and any volunteer observer organizations.
(6) If the court finds a long-standing pattern of abuse, brutality, or racial or language minority animus regarding the law enforcement agency's temporary detention of arrestees, then the court will order all law enforcement personnel in the holding facility to wear body cameras and shall consider ordering (i) twenty-four hour video monitoring in cell areas, (ii) the employment of additional law enforcement agents, including those trained in first aid, (iii) specific changes to detention protocols, (iv) the employment of Spanish-speaking (or other language of need) officers, (v) physical changes or additions to the facilities, and (vi) the use of volunteer observers in or around the cell area.
(7) The court should consider the effectiveness of body cameras for all law enforcement agents on patrol and their supervisors. If certain geographic areas have presented particular problems and others have not, the court shall order that law enforcement agents use body cameras in the problem areas.
(8) The court shall order that any law enforcement agent in the law enforcement agency involved in using his or her weapon against a person shall have a blood screen to include testing for illegal substances including steorids as soon as possible and no later than four hours after the event.
(9) The court shall audit the public complaint system used by the law enforcement agency and mandate changes if necessary.
(10) The court shall ensure that the law enforcement agency has a Citizens' Review Board in place.
Sec. 302. Volunteer observers shall be authorized to—
(1) enter and attend at any place in which law enforcement agents of the law enforcement agency are conducting official business for the purpose of observing and documenting; provided, however, that the court may order that certain investigations involving organized crime or other matters shall not be subject to volunteer observation; and
(2) ride along in any police cruiser or other police conveyance.
(3) may carry and use video cameras or any other reasonable recording device.
(4) shall observe and report to the Attorney General or the appropriate designee, and if requested, to the court. Observers are directed to observe only, and if any problems occur, either the observer or the police unit may report same to the court.
(5) Video or other recordings, including written reports made by volunteer observers shall be maintained by the Attorney General or designee.
Sec. 303. The Attorney General shall make available training materials for use by the Volunteer Observers.
Sec. 304. REPORTING REQUIREMENTS. In addition to the Universal Reporting Requirements described above, an Over-Policed Rights Act jurisdiction shall also meet the following reporting requirements and provide to the Attorney General or designee —
(1) a description of every instance in which a law enforcement agent during the performance of his or her professional duties unholsters a weapon of any kind in preparation for its use on any person;
(2) a description of any assault or battery committed by any law enforcement agent of the law enforcement agency during his or her professional duties;
(3) a list of all incidents in which a police encounter escalates. This would include any situation in which a resisting arrest charge, or that jurisdiction's equivalent, is the most serious charge filed against a person;
(4) a list of all injuries suffered by arrestees or detainees or persons released, including those observable injuries that were not caused by, or occurred during, the arrest or detainment;
(5) any lists or reports required by the court tailored to the court's findings or any reasonable requests of the Attorney General or designee. The final arbiter of reasonableness for the purposes of this Act will be the court;
(6) a list of any significant changes to law enforcement agency, department, or unit procedures or protocols;
(7) a copy of all blood screens conducted pursuant to Section 301(8);
(8) and a videotape (including audio) of every interrogation conducted by law enforcement agents of the law enforcement agency or by anyone at the behest of the law enforcement agency.
Sec. 305. ENFORCEMENT AND PENALTIES. An officer of an Over-Policed Rights Act jurisdiction who fails to report an action as described in Section 304(1)-(4) commits a felony. An Over-Policed Rights Act jurisdiction that fails to report as provided for in Section 304(5)-(8) is subject to contempt and the contempt powers of the court. The Attorney General or designee may investigate any instance involving an unholstered weapon, an assault or a battery, and the Attorney General or designee shall investigate every instance in which shots were fired, a taser employed or other weapon used at a person.
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Sec. 401. PETITION FOR TERMINATION. After the expiration of one year or any longer term set by the court, the law enforcement agency may petition the court for relief from the designation as an Over-Policed Rights Act jurisdiction.
Sec. 402. If by a preponderance of the evidence the court finds that the law enforcement agency has followed the terms of its order and the strictures of this provision, has implemented any and all reasonable and narrowly-tailored recommendations made by the Office of the Attorney General, and if the court finds that the law enforcement agency has been positively changed and is now focused on proper policing techniques, then the court shall lift the OPRA designation. In the alternative, the court may designate a reasonable term of continued probation if certain requirements have yet to be met.
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Sec. 501. MISCELLANEOUS. Appropriations for this act will come from the Attorney General's or Justice Fund every year without vote. Provided, however, the Attorney General may use funds obtained pursuant to criminal forfeiture laws, providing a report to the Office of the Governor and the State Legislature every year detailing the disposition of any such funds.
Sec. 502. If any provision of this Act or the application of it to any person or circumstances is held invalid, the remainder of this Act and the application of its provisions to other persons not similarly situated or to other circumstances shall not be affected thereby.
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