What Is Senate Bill 2 And Why Should Investigators And Law Enforcement Agencies Who Conduct Investigations Into Alleged Police Misconduct Be Paying Close Attention To Its Provisions?
Part Two[1]:
Part One of this blog highlighted the two most impactful aspects of SB 2. Specifically, SB 2 (1) provided substantial, new power to the Commission on Peace Officer Standards and Training (POST); and (2) significantly increased law enforcement agencies’ reporting obligations when faced with “serious misconduct” allegations. In case you missed it, find it here.
Part Two of this blog focuses on key, practical takeaways for investigators, internal and external alike. Law enforcement agencies, and external investigators working with them, need to understand how key provisions of SB 2 will impact their investigations. Do not get left behind, as SB 2 changes the playing field! Keep reading to learn about the three most pivotal impacts for your next investigation.
Do Not Sit On The Facts
SB 2 requires that law enforcement agencies report to POST all allegations of “serious misconduct” within 10 days of receipt. Take note that law enforcement agencies must now report all allegations, not just findings, of “serious misconduct” to POST within 10 days.
For external investigators in the trenches, you are the one reviewing written complaints and interviewing complaining parties. That means the onus is on you to sift through the information, work with your client to identify which allegations might be claims of “serious misconduct,” and help outline the information in a manner suited for POST. In practice, this means you need to be ready and willing to summarize information for the agency to swiftly send to POST. Be prepared to outline the claims in detail immediately after you learn about them, such that your client can comply with SB 2’s requirements.
Be Prepared For Stale Claims
As a result of SB 2, agencies are required to complete any investigation into allegations of “serious misconduct” against Peace Officers, regardless of the employment status of the Peace Officer. Accordingly, even if allegations are leveled against a Peace Officer no longer employed at the agency – whether though resignation, retirement, or termination – the agency is still required to complete the pending investigation.
Gone are the days of stopping an investigation when the subject of the investigation leaves the agency. Rather, investigators must finish investigations and reach findings, sometimes without the benefit of key parties’ participation.
How do you conduct your investigation in the face of this challenge? Here are some tips. If you suspect a party is preparing to leave the agency while an investigation is pending, interview them immediately. Also, utilize the agency’s Information Technology department to identify and safeguard forensic and documentary evidence (such as emails, notes, text messages, etc.) before a party leaves the agency with the evidence in tow. Further, when it comes to making findings, rely heavily on documentary evidence, knowledgeable witnesses, and reliable circumstantial evidence that helps tip the scales in either direction. Finally, make sure there is a section in your report outlining the investigative gaps and the underlying reasons for them.
Expect To Be Scrutinized
SB 2 requires agencies to provide POST with their investigative reports following investigations of “serious misconduct.” SB 2 also established a Peace Officer Standards Accountability Division (POSAD) within POST. POSAD is imbued with the power to review Peace Officer misconduct investigations conducted by law enforcement agencies (or conducted by neutral investigators on behalf of those agencies). In addition, POSAD can conduct its own investigations that could provide the grounds for the suspension or revocation of a Peace Officer’s required POST certification.
As an investigator, keep in mind what will happen to your investigative report after it is finished. With these new requirements in place, there is an increased likelihood your report will be shared with POST, and potentially scrutinized by POSAD, after you complete it. Write your reports with that in mind! Be thorough and outline your investigative process in the report. Describe limitations or challenges you faced during the investigation, and how you overcame them. Finally, keep all of the SB 2 requirements in mind, communicate about them with your agency or your client, and do not hesitate to ask questions and seek assistance while navigating this new playing field.
Van Dermyden Makus benefits from the kind of expertise that can only be gained through the collective experience of several thousand interviews. Out team approach means every investigation we conduct benefits from that experience. Chances are, whatever difficult interview (or investigation) issue you are facing, we have dealt with something similar before; if not, we welcome the new challenge.