MORE ON HOW BIAS MAY BE ELIMINATED IN CHARGES OF RESISTING ARREST

Expanding on my last blog about resisting arrest,  the following fills in some details of a proposal to discipline the individuals responsible for bias, or avoiding it, as well as looks at the legal implications. 

The proposal is to amend the Government Code and Civil Code to provide:

Each government entity should keep ethnic statistics of the charges of ‘resisting arrest’ California Penal Code Section 148(a) recommended by police or sheriff entities, charged by prosecutors, or adjudged in court including by pleas of guilty. 

These statistics will be reported to the Department of Fair Employment and Housing.

 Wherever it appears that police, as individuals, or departments, are disproportionately accusing racial minorities of violation of PC section 148(a)  that prosecutors are disproportionately charging this section against such minorities, or that courts are disproportionately convicting or accepting guilty pleas to PC 148(a)  the officers, chiefs, prosecutors, and/or judges should be investigated for bias by the State Department of Fair Employment and Housing. (DFEH). 

The DFEH may then schedule a hearing or refer the matter for hearing by the highest responsible in the policing jurisdiction, the applicable county sheriff, or presiding judge of the applicable county’s superior court.  

A statistical disproportion of 10 percent greater than the population of the ethnic group in the applicable county or police jurisdiction, as determined by the last decennial census, or a later census  count authorized by the Governor, will raise a a rebuttable presumption that bias exists.  Individuals, or if individuals cannot be reasonably identified, then the applicable supervisory person or persons, will be invited to  show a credible neutral explanation for the disproportionate enforcement at a hearing to be scheduled within 60 days.   If such invitees cannot overcome the presumption of bias, the DFEH shall issue a finding of bias that shall be retained by the DFEH as a public record and will be incorporated in the record of the officers, prosecutors, or judges as applicable,  and that must be reported considered in any job performance review, promotion or transfer application of the individual for the next 10 years. 

“Disproportionately” shall be defined as 10 percent greater than the percentage of the population of the ethnic group, in the applicable police jurisdiction, city, or county.

“Ethnic”  shall be defined as identified on a driver’s license, or by an arresting officer, subsequent prosecutor, or judge as of apparent African or Afro-American ancestry,  East Asian or Pacific Island ancestry, Latin American Ancestry. 

Professionally discipline practitioners of biased enforcement

The reform proposed is both limited but powerful.  Civil servants, whether police or prosecutors, or even judges, are probably more sensitive to possible employment related sanctions than to general civil laws which must be enforced by a prosecutor, or brought to court by an aggrieved individual.  This rule makes them individually and personally responsible for avoiding bias, thus making them both personally and institutionally motivated to find ways out of the bias that is statistically pervasive, and so destructive of trust in the institutions of law enforcement.    

The proposal does not involve a treatment of an individual on the basis of their race or ethnicity and so avoids the concerns of the U.S. Supreme Court for color blind responses, in the absence of a narrowly interpreted compelling public purpose.  [1] [2]   

Use of statistical and sociological evidence to permit government policy based on race has been approved to remediate de jure practices which it is certainly arguable based on charging and prosecution history this has been.    The provision does not create an arbitrary standard, only a presumption based on statistical evidence, of wrongdoing that may be challenged, and a narrow tailoring of a remedy.  

In the above respects it is unlike the far more sweeping proposed AB 2542.  That bill allows, but likewise requires to obtain such a remedy, an accused person to engage in discovery to determine if he or she is the victim of biased prosecution for any crime, and then excuses the accused, regardless of how guilty, or how heinous the victimization and crime if the prosecution “fruit” is tainted by the poisonous tree of racial bias.

In contrast the above proposal does not excuse factual behavior of one person because of the bias of another, nor does it involve the legally dubious treating of individuals differently because of their own race or ethnicity.   

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[1] Parents Involved in Community Schools v Seattle School Dist. (2007) 127 S. Ct 2738,2740

[2] A legislative classification satisfies equal protection of law so long as persons similarly situated with respect to the legitimate purpose of the law receive like treatment. (Brown v. Merlo (1973) 8 Cal.3d 855, 861, 106 Cal.Rptr. 388, 506 P.2d 212.)  Connerly v. State Personnel Bd. (2001) 92 Cal.App.4th 16 [92 Cal.App.4th 16, 32112 Cal.Rptr.2d 5, 19–20]