SIGN ON TO LETTER FOR STRONG REGULATIONS TO END RACIAL & IDENTITY PROFILING BY LAW ENFORCEMENT IN CALIFORNIA
RESPONSE TO DRAFT REGULATIONS GOVERNING DATA COLLECTION CREATED BY THE STATE RACIAL AND IDENTITY PROFILING ADVISORY BOARD CREATED BY AB 953
Please sign on your organization, school/university or house of worship to the letter below that will be sent to the Department of Justice. This letter reflects the recommendations raised by the YJC and other community organizations at the recent public hearing and in calls we had to engage the community.
TO SIGN ON: reply to this email or send a message to action@youth4justice.org
Read the entire letter at below at www.youthjusticela.org. These regulations if adopted will govern the data that law enforcement agencies across the state have to document during a stop – whether the stop is of a vehicle or on the street, in schools and colleges, on public transportation, in public housing, apartment buildings and private homes:
Read the entire letter at below at www.youthjusticela.org. These regulations if adopted will govern the data that law enforcement agencies across the state have to document during a stop – whether the stop is of a vehicle or on the street, in schools and colleges, on public transportation, in public housing, apartment buildings and private homes:
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January 25, 2017
Catherine Z. Ysrael
Deputy Attorney General
Civil Rights Enforcement Section California Office of the Attorney General 300 South Spring Street, First Floor
Los Angeles, CA 90013
Kathleen V. Radez
Deputy Attorney General California Department of Justice Civil Rights Enforcement Section P.O. Box 70550
Oakland, CA 94612
RE: Proposed AB 953 Regulations
Dear Ms. Ysrael and Ms. Radez,
On behalf of a diverse coalition of organizations that co-sponsored and supported the passage of AB 953, we submit these written comments to the Office of Attorney General (OAG) and California Department of Justice (DOJ) on the proposed regulations for the Racial and Identity Profiling Act of 2015, referred to hereinafter as AB 953.
Background
The purpose of AB 953 is to collect data about interactions between individuals and law enforcement during investigations to identify and illuminate bias and to provide data necessary to develop evidence- based solutions to racial profiling and improve policing outcomes. AB 953 established the Racial and Identity Profiling Advisory (RIPA) Board that is tasked with analyzing the reported data to examine where disparities based on race and identity occur in law enforcement action, where bias plays a role and where it does not, and how bias operates; and recommending potential solutions. For the RIPA Board’sultimate data analysis to be sound, the data collected must capture a complete and accurate picture of law enforcement’s investigatory interactions with the public.
An essential part of the effective implementation of AB 953 is adoption of regulations that identify all data to be reported and provide standards, definitions, and technical specifications to ensure uniform reporting. AB 953 and its effective implementation provides an opportunity to understand the full extent and breadth of disparities in policing based on perceived race and identity and will be an
important step towards eliminating discrimination in policing. Although we recognize the need to minimize the burden on peace officers in the data collection process, the regulations cannot sacrifice the accuracy and completeness of the data required to be collected. Instead, the breadth of data elements and the depth of data values must be specifically designed and mandatory open-text fields that capture necessary context must be used in order to collect sufficient data to permit the type and scope of analysis intended under the statute.
We commend the OAG and CA DOJ for the proposed regulations that reflect the discussion and public comment over the last several months before the RIPA Board, including letters sent by advocacy organizations outlining specific recommendations that have been included in the rulemaking file. However, we submit these written comments to object to certain proposed provisions and to recommend specific changes to the proposed regulations to ensure that the full promise of AB 953 is realized.
General Recommendations
1. Data collection for data elements “Reason for Stop” and “Basis for Search” must include mandatory open-text fields to ensure complete and accurate data collection. Peace officers providing stop data must be allowed to provide factually specific information to explain the reason for the stop as well as other circumstances. Although numerous data elements lend themselves to defined data values, the “Reason for Stop” and “Basis for Search” are data elements where officers should be required to provide additional context for why the stop was initiated or search was conducted by completing an open-text field in addition to selecting the appropriate specifically identified data value.
An officer’s decision to conduct a stop or a search may be based on a wide variety of reasons — any reason or set of reasons that gives rise to reasonable suspicion or probable cause that criminal activity is afoot, or evidence of criminal activity will be found, under the “totality of the circumstances” analysis adopted by courts. See, e.g., Illinois v. Gates, 462 U.S. 213, 238 (1983). Accordingly, an open-text field is essential for an officer to briefly and accurately respond to these data elements and for the proper analysis required by the statute. This is especially true since there is no way to encompass in a drop down menu of specified data values all of the myriad reasons officers may have for suspecting criminal activity. Moreover, such specified data values will not describe the reasons for a stop or search with the detail necessary to determine if the reasons may be insufficient or themselves the product of bias.
Finally, the importance of open-text fields has been previously identified by RIPA Board member Jennifer Eberhardt, who also stated that the use of open-text fields can help identify additional specified data values that should be added to the data collection process. In addition, California Justice Information Services Division (CJIS) representatives made clear during RIPA subcommittee meetings that there are no technological barriers to the use of open-text fields as part of the data collection process.1
1 During various Technology subcommittee meetings of the RIPA Board, CJIS representatives stated that narrative fields could be incorporated into the data collection software being developed and also expressed a commitment to minimizing peace officer burden in the data collection process as well as
We commend the OAG and CA DOJ for the proposed regulations that reflect the discussion and public comment over the last several months before the RIPA Board, including letters sent by advocacy organizations outlining specific recommendations that have been included in the rulemaking file. However, we submit these written comments to object to certain proposed provisions and to recommend specific changes to the proposed regulations to ensure that the full promise of AB 953 is realized.
General Recommendations
1. Data collection for data elements “Reason for Stop” and “Basis for Search” must include mandatory open-text fields to ensure complete and accurate data collection. Peace officers providing stop data must be allowed to provide factually specific information to explain the reason for the stop as well as other circumstances. Although numerous data elements lend themselves to defined data values, the “Reason for Stop” and “Basis for Search” are data elements where officers should be required to provide additional context for why the stop was initiated or search was conducted by completing an open-text field in addition to selecting the appropriate specifically identified data value.
An officer’s decision to conduct a stop or a search may be based on a wide variety of reasons — any reason or set of reasons that gives rise to reasonable suspicion or probable cause that criminal activity is afoot, or evidence of criminal activity will be found, under the “totality of the circumstances” analysis adopted by courts. See, e.g., Illinois v. Gates, 462 U.S. 213, 238 (1983). Accordingly, an open-text field is essential for an officer to briefly and accurately respond to these data elements and for the proper analysis required by the statute. This is especially true since there is no way to encompass in a drop down menu of specified data values all of the myriad reasons officers may have for suspecting criminal activity. Moreover, such specified data values will not describe the reasons for a stop or search with the detail necessary to determine if the reasons may be insufficient or themselves the product of bias.
Finally, the importance of open-text fields has been previously identified by RIPA Board member Jennifer Eberhardt, who also stated that the use of open-text fields can help identify additional specified data values that should be added to the data collection process. In addition, California Justice Information Services Division (CJIS) representatives made clear during RIPA subcommittee meetings that there are no technological barriers to the use of open-text fields as part of the data collection process.1
1 During various Technology subcommittee meetings of the RIPA Board, CJIS representatives stated that narrative fields could be incorporated into the data collection software being developed and also expressed a commitment to minimizing peace officer burden in the data collection process as well as
We object to the omission of mandatory open-text fields and recommend that the proposed regulations be revised to include a mandatory open-text field in response to the data elements of “Reason for Stop” and “Basis for Search” to ensure the collection of accurate and complete stop data as required by statute.
- For any data value that references “Other”, there should be a mandatory open-text field.
Similar to the above, any data element that allows an officer to select a data value of “Other” must include an open-text field that allows the officer to provide additional factual information to understand what scenarios are not covered by the specified data values. Although data collection must balance the need for efficiency with the need for completeness, officers must submit – and those analyzing the data must be provided – the necessary information and context to allow for complete and thorough analysis so appropriate responses to biased policing can be formed and implemented. In addition, the use of open-text fields will assist in identifying additional, often-used responses that should be added as specified data values.
We object to the omission of a requirement to use open-text fields and recommend that the proposed regulations be revised to include a mandatory open-text field for all data values referencing “Other”2 to ensure the collection of accurate and complete stop data as required by statute. - The regulations should specifically address standards for any intended trainings related to data collection to ensure uniform reporting pursuant to the statute. The proposed regulations do not currently set forth any training standards related to the process of data collection. However, during various subcommittee meetings, several RIPA Board members referenced “trainings” as a means of ensuring consistent and uniform data reporting. Moreover, law enforcement members of the RIPA Board expressed concern related to whether officers would know how to appropriately report perceptions related to identity data fields, particularly those related to gender identity and membership in the Lesbian, Gay, Bisexual and Transgender (LGBT) community.
We strongly recommend that to the extent data collection trainings are contemplated as part of the implementation process that minimum standards be specifically established in the AB 953 regulations to ensure that officers correctly and accurately collect and report data.
Specific Comments on Proposed Regulations
Article 1. Definitions, 11 CCR § 999.224.
1. “Detention”. The definition of “Detention” should be strengthened to guard against narrowinterpretations of the term. Although section 999.224(a)(7) sufficiently defines the scope of the detention, an explanatory example may be useful to ensure that officers accurately and consistently capture reportable stop data. Specifically, an example should be added under the definition of “Detention” to clarify the scope of interactions implicated by the term, including initial questioning by officers generally perceived by individuals as interactions where they are not free to leave.
Although we do not object to the definition of “Detention”, we do strongly recommend that the proposed regulations be revised to add a clarifying example to the definition of “Detention” that reads as follows:
Example: A peace officer who inquires about an individual’s presence or activities (e.g. “What are you doing?”, “Why are you here?”, “Where are you going?”, “What is in your pocket?”, “Do you have drugs on you?”, etc.) would record the interaction pursuant to Government Code section 12525.5.
2. “Stop”. Section 999.224(a)(14) sets forth the definition of “Stop”, but fails to reflect the definitionused in the statute. Specifically, AB 953 makes clear that a “stop” is defined as “any detention by a peace officer of a person, or any peace officer interaction with a person in which the peace officer conducts a search, including a consensual search, of the person’s body or property in the person’s possession orcontrol.” The regulations should reflect the exact language of the statute to guard against any confusion that any search – consensual or not – is subject to reporting under the statute and the regulations.
We object to the definition of “Stop” and recommend that the proposed regulations be revised so that the definition of “Stop” read as explicitly stated in the statute.
Article 3. Data Elements to Be Reported, 11 CCR § 999.226.
Example: A peace officer who inquires about an individual’s presence or activities (e.g. “What are you doing?”, “Why are you here?”, “Where are you going?”, “What is in your pocket?”, “Do you have drugs on you?”, etc.) would record the interaction pursuant to Government Code section 12525.5.
2. “Stop”. Section 999.224(a)(14) sets forth the definition of “Stop”, but fails to reflect the definitionused in the statute. Specifically, AB 953 makes clear that a “stop” is defined as “any detention by a peace officer of a person, or any peace officer interaction with a person in which the peace officer conducts a search, including a consensual search, of the person’s body or property in the person’s possession orcontrol.” The regulations should reflect the exact language of the statute to guard against any confusion that any search – consensual or not – is subject to reporting under the statute and the regulations.
We object to the definition of “Stop” and recommend that the proposed regulations be revised so that the definition of “Stop” read as explicitly stated in the statute.
Article 3. Data Elements to Be Reported, 11 CCR § 999.226.
- “Duration of Stop”. Section 999.226(a)(2)(C) requires officers to provide the duration of the stop and sets forth five data values: 0-10 minutes, 11-20 minutes, 21-30 minutes, 31-60 minutes, and over 60 minutes. However, the duration of a stop is a significant data value that can distinguish between a brief stop and more significant stops. Reporting the duration of a stop in 10 minute increments loses valuable information by lumping substantially different stops into a single category. For instance, the difference between a one-minute stop and a ten-minute stop is considerable to both the individual stopped and the officer making and reporting the stop. Instead of collecting the data element of “Duration of Stop” through a limiting bracket system, simply allowing an officer to estimate the duration of the stop in minutes (as done by departments such as NYPD) requires that the officer enter one or two digits, which is no more burdensome than checking a box, and provides important information that will help evaluate the nature of stops and the types of bias that may be at play.
We object to the use of bracketed time frames for the data values responsive to the data element of “Duration of Stop” and recommend that the proposed regulations be revised so the responsive data value is simply a mandatory open-text field where officers are instructed to provide the best estimate for the duration of the stop. - “Location and Type of Stop”. Section 999.226(a)(3) requires officers to provide specific geolocation information or street address to describe the location of the stop. However, the provision does not require officers to provide a description of the location that will be essential for thorough and complete data analysis. In particular, when examining and providing solutions to bias currently embedded in policing, it is important to note when stops are occurring on sidewalks as opposed to public transportation, at private homes as opposed to public housing complexes, or at a public park or a commercial location. Providing this necessary level of detail will allow researchers and the RIPA Board that is charged with analyzing and identifying solutions to biased policing to better understand what types of locations individuals are most frequently stopped.
We object to the omission of descriptive data values to identify the location of a stop and recommend that the proposed regulations be revised to include a data element for “Description of Location of Stop” with the following primary and secondary data values:
- Vehicle Stop
Public Street Highway
Parking lot - Pedestrian Stop
Public street/sidewalk
Public transportation/transit
Public housing/Section 8 housing
Private home/apartment
Public park/playground
Government building
Commercial/business location
On K-12 school grounds or at school perimeter Community college/state college/university
Other
We further recommend an officer be required to complete a mandatory open-text field whenselecting the “Other” data value.
3. “Reason for Presence at Scene of Stop”. Section 999.226(a)(4)(A) sets forth 10 primary data values in response to the data element of “Reason for Presence at Scene of Stop” and officers are required to select as many of these primary data values that may apply. Yet, several primary data values would seem more logical as secondary data values. For example, “Welfare check” and “Other community caretaking” (see§999.226(a)(4)(A)(6) and (7)) are listed as primary data values; however, both would be more appropriately listed as secondary data values under both “Radio calls/dispatch” and “Citizen-initiated contact”. In addition, “Witness interviews” (see §999.226(a)(4)(A)(3)) seems vague and subject to broad interpretation. A better data value would be “Officer-initiated investigatory activity” in order to capture witness interviews, stakeouts, drug buy and busts, and other similar activities. Finally, there is no data value that captures when an officer is at the scene due to a joint operation with another agency and a corresponding mandatory open-text field where the officer can identify the other agency.
The data values for “Reason for Presence at Scene of Stop” should be mutually exclusive and mutually exhaustive to ensure both accurate and consistent reporting and appropriate data analysis. Accordingly, we believe the current data values for “Reason for Presence at Scene of Stop” should be revised and recommend that the data values be reorganized into the following nine primary data values:
Patrol (currently §999.266(a)(4)(A)(1))
Radio calls/dispatch (currently §999.226(a)(4)(A)(2))
Officer-initiated investigative activity
Citizen-initiated contact (currently §999.266(a)(4)(A)(4))
Warrants and programmatic operations (currently §999.266(a)(4)(A)(5))
“K-12 public school assignment” (currently §999.266(a)(4)(A)(8))
Civil disorder (currently §999.266(a)(4)(A)(9))
Rally/protest
Joint operation with another agency
Other
We also recommend that the secondary data values for specific primary data values be revised as follows:
Under “Patrol” the following secondary data values should be added: o “Foot” o “Vehicle”
Under “Radio calls/dispatch” and “Citizen-initiated contact” the following secondary data
elements should be added:
o “Welfarecheck”
o “Other community caretaking”
We further recommend an officer be required to complete a mandatory open-text field when selecting the“Joint operation with another agency” data value so the officer can identify the specific agency.
We further recommend that officers be allowed to select only one data value in response to “Reason for Presence at Scene of Stop” and instructed to select the data value that reflects the primary reason.
“Reason for Stop”. Section 999.226(a)(5)(A) sets forth six primary data values in response to the data element of “Reason for Stop” and officers are required to select as many data values that may apply. However, as previously stated, a mandatory open-text field should be required in addition to selecting any applicable specifically identified data values. Although requiring officers to cite the specific code section and subdivision that formed the basis for the stop (i.e. “Reasonable suspicion”, section 999.226(a)(5)(A)(2)) and basis for the probable cause to arrest (i.e. “Probable cause to arrest”, section 999.226(a)(5)(A)(3)) is advisable and should remain in the regulations, such citations are not enough to provide the necessary context and information related to a stop to ensure proper analysis of stop data.
In addition, although secondary data values are provided for some primary data values, e.g. “Reasonable suspicion” (see §999.226(a)(5)(A)(2)), there are no secondary data values for “Probable cause to arrest” and “Probable cause to search” (see §§999.226(a)(5)(A)(3) and (4), respectively). The legal standard for probable cause is fact intensive and is a higher standard than reasonable suspicion. Accordingly, it is essential to capture the factual context of any specific stop to ensure complete and accurate data collection relating to stops made on the basis of probable cause.
We object to the exclusion of certain data values in response to the “Reason for Stop” data element and recommend that the proposed regulations be revised to include the following changes to the data values for “Reason for Stop”:
Officer-initiated investigative activity
Citizen-initiated contact (currently §999.266(a)(4)(A)(4))
Warrants and programmatic operations (currently §999.266(a)(4)(A)(5))
“K-12 public school assignment” (currently §999.266(a)(4)(A)(8))
Civil disorder (currently §999.266(a)(4)(A)(9))
Rally/protest
Joint operation with another agency
Other
We also recommend that the secondary data values for specific primary data values be revised as follows:
Under “Patrol” the following secondary data values should be added: o “Foot” o “Vehicle”
Under “Radio calls/dispatch” and “Citizen-initiated contact” the following secondary data
elements should be added:
o “Welfarecheck”
o “Other community caretaking”
We further recommend an officer be required to complete a mandatory open-text field when selecting the“Joint operation with another agency” data value so the officer can identify the specific agency.
We further recommend that officers be allowed to select only one data value in response to “Reason for Presence at Scene of Stop” and instructed to select the data value that reflects the primary reason.
“Reason for Stop”. Section 999.226(a)(5)(A) sets forth six primary data values in response to the data element of “Reason for Stop” and officers are required to select as many data values that may apply. However, as previously stated, a mandatory open-text field should be required in addition to selecting any applicable specifically identified data values. Although requiring officers to cite the specific code section and subdivision that formed the basis for the stop (i.e. “Reasonable suspicion”, section 999.226(a)(5)(A)(2)) and basis for the probable cause to arrest (i.e. “Probable cause to arrest”, section 999.226(a)(5)(A)(3)) is advisable and should remain in the regulations, such citations are not enough to provide the necessary context and information related to a stop to ensure proper analysis of stop data.
In addition, although secondary data values are provided for some primary data values, e.g. “Reasonable suspicion” (see §999.226(a)(5)(A)(2)), there are no secondary data values for “Probable cause to arrest” and “Probable cause to search” (see §§999.226(a)(5)(A)(3) and (4), respectively). The legal standard for probable cause is fact intensive and is a higher standard than reasonable suspicion. Accordingly, it is essential to capture the factual context of any specific stop to ensure complete and accurate data collection relating to stops made on the basis of probable cause.
We object to the exclusion of certain data values in response to the “Reason for Stop” data element and recommend that the proposed regulations be revised to include the following changes to the data values for “Reason for Stop”:
Add a mandatory open-text field to be completed in addition to selecting any applicable specifically identified data values
Add the secondary data values identified in sections 999.266(a)(5)(A)(2)(a)-(i) as secondary data values for both “Probable cause to arrest” and “Probable cause to search”
The primary data values should be reordered so that “Traffic violation” is not the first data value, but the fifth data value in the list
5. Distinction between “Reason for Presence at Scene of Stop” and the “Reason for Stop”.
Section 999.226(a)(5)(B) provides guidance distinguishing between the data elements of “Reason for Presence at Scene of Stop” and the “Reason for Stop”. Yet, the third example in this provision is erroneous and must be corrected to ensure accurate reporting of stop data. Specifically, the example establishes a scenario where an officer pulls over a vehicle for a broken taillight and the officer then observes a switchblade on the lap of the passenger. The example then states that “the ‘Reason for Stop’ of the passenger will be ‘Reasonable suspicion that the person stopped was engaged in criminal activity (other than traffic violation)’”.
As written, the example instructs officers to conflate two different situations, which would lead to underreporting of stops and inaccurate data collection and analysis. There are actually two reportable interactions in this scenario: one with the driver and one with the passenger. The “Reason for the Stop”for the driver would actually be “Traffic violation”, “Equipment violation” as stated in §999.226(a)(5)(A)(1)(b). The “Reason for Stop” for the passenger would be “Reasonable suspicion that the person stopped was engaged in criminal activity (other than traffic violation)”. To permit officers to only report the stop of the passenger is inconsistent both with the statute and the proposed regulations. The stop of the driver is a reportable stop as it does not fall within the exception found in section 999.227(c)(1)(A) because the stop was not made in conjunction with a traffic accident or emergency situation.
We object to the third example provided in section 999.226(a)(5)(B)(3) and recommend the proposed regulations be revised to edit the example to read:
Example: An officer pulls over a car for a broken taillight, and subsequently observes a switchblade in the lap of the passenger in the vehicle. The officer then asks the passenger to exit the vehicle. There are two reportable interactions under this scenario: one with the driver and one with the passenger.
(1) The interaction with the driver is reportable with the “Reason for Presence at Scene of Stop” reported as “Patrol” and the “Reason for Stop” reported as “Traffic violation”, “Equipment violation”.
(2) The interaction with the passenger is reportable with the “Reason for Presence at Scene of Stop”reported as “Patrol” and the “Reason for Stop” reported as “Reasonable suspicion that the person stopped was engaged in criminal activity (other than traffic violation),” followed by selection of the Penal code section for possession of a switchblade.
6. “Actions Taken by Officer During Stop”. Section 999.226(a)(6)(A) requires officers to select one or more 15 primary data values and numerous secondary data values to report what happened during the course of a stop.
Add the secondary data values identified in sections 999.266(a)(5)(A)(2)(a)-(i) as secondary data values for both “Probable cause to arrest” and “Probable cause to search”
The primary data values should be reordered so that “Traffic violation” is not the first data value, but the fifth data value in the list
5. Distinction between “Reason for Presence at Scene of Stop” and the “Reason for Stop”.
Section 999.226(a)(5)(B) provides guidance distinguishing between the data elements of “Reason for Presence at Scene of Stop” and the “Reason for Stop”. Yet, the third example in this provision is erroneous and must be corrected to ensure accurate reporting of stop data. Specifically, the example establishes a scenario where an officer pulls over a vehicle for a broken taillight and the officer then observes a switchblade on the lap of the passenger. The example then states that “the ‘Reason for Stop’ of the passenger will be ‘Reasonable suspicion that the person stopped was engaged in criminal activity (other than traffic violation)’”.
As written, the example instructs officers to conflate two different situations, which would lead to underreporting of stops and inaccurate data collection and analysis. There are actually two reportable interactions in this scenario: one with the driver and one with the passenger. The “Reason for the Stop”for the driver would actually be “Traffic violation”, “Equipment violation” as stated in §999.226(a)(5)(A)(1)(b). The “Reason for Stop” for the passenger would be “Reasonable suspicion that the person stopped was engaged in criminal activity (other than traffic violation)”. To permit officers to only report the stop of the passenger is inconsistent both with the statute and the proposed regulations. The stop of the driver is a reportable stop as it does not fall within the exception found in section 999.227(c)(1)(A) because the stop was not made in conjunction with a traffic accident or emergency situation.
We object to the third example provided in section 999.226(a)(5)(B)(3) and recommend the proposed regulations be revised to edit the example to read:
Example: An officer pulls over a car for a broken taillight, and subsequently observes a switchblade in the lap of the passenger in the vehicle. The officer then asks the passenger to exit the vehicle. There are two reportable interactions under this scenario: one with the driver and one with the passenger.
(1) The interaction with the driver is reportable with the “Reason for Presence at Scene of Stop” reported as “Patrol” and the “Reason for Stop” reported as “Traffic violation”, “Equipment violation”.
(2) The interaction with the passenger is reportable with the “Reason for Presence at Scene of Stop”reported as “Patrol” and the “Reason for Stop” reported as “Reasonable suspicion that the person stopped was engaged in criminal activity (other than traffic violation),” followed by selection of the Penal code section for possession of a switchblade.
6. “Actions Taken by Officer During Stop”. Section 999.226(a)(6)(A) requires officers to select one or more 15 primary data values and numerous secondary data values to report what happened during the course of a stop.
“Handcuffed”, section 999.266(a)(6)(A)(4). This provision needs to be modified to clarify that any restraints, including zip ties, that are used during a stop, must be reported.
We object to this data value and recommend the proposed regulations be revised so this data value reads: “Handcuffed, zip tied or otherwise restrained”.
“Use of canine in apprehension”, section 999.266(a)(6)(A)(6). The inclusion of “in apprehension” places an unnecessary limitation on when a canine may be used and seems to foreclose the possibility of a data value that will capture when officers may use a canine for a search, such as looking for drugs.
We object to this data value and recommend the proposed regulations be revised to delete the phrase “in apprehension” from this data value.
“Other use of force”, section 999.266(a)(6)(A)(9). This provision needs to include an open-text field where officers can briefly describe the use of force employed during the stop.
We object to this data value and recommend the proposed regulations be revised to add a mandatory open-text field to correspond to this data value.
The data element for “Actions Taken by Officer During Stop” does not include a data value to capture those instances where a field sobriety or drug test are conducted during the course of the stop. Such actions are significant in nature both in terms of conducting the test as well as the potential ramifications for the individual stopped based on the results of the test.
We recommend the proposed regulations be revised to add the following data value in response to “Actions Taken by Officer During Stop”: “Field sobriety or drug test”.
The data element for “Actions Taken by Officer During Stop” does not include a data value where an officer can indicate when another agency was contacted in conjunction with a stop. For instance, an officer may call a mental health agency for support during a stop or may contact the Immigration and Customs Enforcement (ICE) or Drug Enforcement Administration (DEA). Such instances are significant and there should be specified data value that allows an officer to indicate that another agency was called to the scene and the officer should be further required to use an open-text field to indicate the specific agency contacted, such as ICE or DEA.
We recommend the proposed regulations be revised to add the following data value in response to “Actions Taken by Officer During Stop”: “Other agency called to scene”. This data value should also have a corresponding mandatory open-text field where the specific agency can be identified.
We object to this data value and recommend the proposed regulations be revised so this data value reads: “Handcuffed, zip tied or otherwise restrained”.
“Use of canine in apprehension”, section 999.266(a)(6)(A)(6). The inclusion of “in apprehension” places an unnecessary limitation on when a canine may be used and seems to foreclose the possibility of a data value that will capture when officers may use a canine for a search, such as looking for drugs.
We object to this data value and recommend the proposed regulations be revised to delete the phrase “in apprehension” from this data value.
“Other use of force”, section 999.266(a)(6)(A)(9). This provision needs to include an open-text field where officers can briefly describe the use of force employed during the stop.
We object to this data value and recommend the proposed regulations be revised to add a mandatory open-text field to correspond to this data value.
The data element for “Actions Taken by Officer During Stop” does not include a data value to capture those instances where a field sobriety or drug test are conducted during the course of the stop. Such actions are significant in nature both in terms of conducting the test as well as the potential ramifications for the individual stopped based on the results of the test.
We recommend the proposed regulations be revised to add the following data value in response to “Actions Taken by Officer During Stop”: “Field sobriety or drug test”.
The data element for “Actions Taken by Officer During Stop” does not include a data value where an officer can indicate when another agency was contacted in conjunction with a stop. For instance, an officer may call a mental health agency for support during a stop or may contact the Immigration and Customs Enforcement (ICE) or Drug Enforcement Administration (DEA). Such instances are significant and there should be specified data value that allows an officer to indicate that another agency was called to the scene and the officer should be further required to use an open-text field to indicate the specific agency contacted, such as ICE or DEA.
We recommend the proposed regulations be revised to add the following data value in response to “Actions Taken by Officer During Stop”: “Other agency called to scene”. This data value should also have a corresponding mandatory open-text field where the specific agency can be identified.
The data element for “Actions Taken by Officer During Stop” does not include a data value for instances where an officer does not remove or brandish a weapon, but takes actions consistent with a threat of use or brandishing a weapon, such as unbuttoning the holster or grabbing the weapon while it remains in the officer’s holster. Such actions are intimidating and threatening to an individual and significantly changes the nature of interaction between individuals and law enforcement, thus should be captured in the interest of accurate and comprehensive data analysis.
We recommend the proposed regulations be revised to add the following data value in response to “Actions Taken by Officer During Stop”: “Unbuttoning the holster or grabbing the weapon”.
The data element for “Actions Taken by Officer During Stop” does not include a data value related to information or documentation taken as part of the stop, including the completion of a field interview card or other documentation used for subsequent investigation.
We recommend the proposed regulations be revised to add the following data value in response to “Actions Taken by Officer During Stop”: “Completion of field interview card or other investigatory documentation”.
“Basis for search”. Section 999.226(a)(6)(B)(1) requires officers to provide information related to the basis for a search. As previously stated, a mandatory open-text field should be required in addition to selecting any applicable specifically identified data values. Moreover, there should be a specific data value for “Other basis” that can be used in the event that none of the currently identified specific data values captures the basis for the search. As with any selection of a specific data value, an officer would be required to complete the open-text field to provide additional factual detail and context when selecting the “Other basis” data value.
In addition, two of the data values specifically identified may be part of an officer’s decision to search, or to do so without a warrant, but are insufficient legal basis for a search, specifically “Officer safety” and “Exigent circumstances/emergency” (see §999.226(a)(6)(B)(1)(b) and (l), respectively). The presence of these choices further underscores the need for an open-text field to allow officers to explain the basis for safety concerns or exigency.
We object to the omission of a mandatory open-text field in response to the “Basis for Search” dataelement and recommend the proposed regulations be revised to:
Add a mandatory open-text field to be completed in addition to selecting any applicable specifically identified data values
Add a data value of “Other basis” in response to this data element
“Result of Stop.” Section 999.226(7) requires officers to report the result of stops and specificallyprovides a data value for “Person taken into custody (other than for arrest)”. This data value lists multiple secondary data values, including “Referred to U.S. Citizenship and Immigration Services” (see§999.226(7)(F)(7)), which is misleading as drafted. Because U.S. Citizenship and Immigration Services is not an enforcement agency, a more appropriate secondary data value would reference actual immigration enforcement agencies, such as Customs and Border Protection (CBP) or ICE. Moreover, there is not a secondary data value that captures when an individual is transported to another agency that is not specifically identified.
We recommend the proposed regulations be revised to add the following data value in response to “Actions Taken by Officer During Stop”: “Unbuttoning the holster or grabbing the weapon”.
The data element for “Actions Taken by Officer During Stop” does not include a data value related to information or documentation taken as part of the stop, including the completion of a field interview card or other documentation used for subsequent investigation.
We recommend the proposed regulations be revised to add the following data value in response to “Actions Taken by Officer During Stop”: “Completion of field interview card or other investigatory documentation”.
“Basis for search”. Section 999.226(a)(6)(B)(1) requires officers to provide information related to the basis for a search. As previously stated, a mandatory open-text field should be required in addition to selecting any applicable specifically identified data values. Moreover, there should be a specific data value for “Other basis” that can be used in the event that none of the currently identified specific data values captures the basis for the search. As with any selection of a specific data value, an officer would be required to complete the open-text field to provide additional factual detail and context when selecting the “Other basis” data value.
In addition, two of the data values specifically identified may be part of an officer’s decision to search, or to do so without a warrant, but are insufficient legal basis for a search, specifically “Officer safety” and “Exigent circumstances/emergency” (see §999.226(a)(6)(B)(1)(b) and (l), respectively). The presence of these choices further underscores the need for an open-text field to allow officers to explain the basis for safety concerns or exigency.
We object to the omission of a mandatory open-text field in response to the “Basis for Search” dataelement and recommend the proposed regulations be revised to:
Add a mandatory open-text field to be completed in addition to selecting any applicable specifically identified data values
Add a data value of “Other basis” in response to this data element
“Result of Stop.” Section 999.226(7) requires officers to report the result of stops and specificallyprovides a data value for “Person taken into custody (other than for arrest)”. This data value lists multiple secondary data values, including “Referred to U.S. Citizenship and Immigration Services” (see§999.226(7)(F)(7)), which is misleading as drafted. Because U.S. Citizenship and Immigration Services is not an enforcement agency, a more appropriate secondary data value would reference actual immigration enforcement agencies, such as Customs and Border Protection (CBP) or ICE. Moreover, there is not a secondary data value that captures when an individual is transported to another agency that is not specifically identified.
We object to the current secondary data value identified in section 999.226(7)(F)(7) and recommend the proposed regulations be revised so that this secondary data value reads: “Referred to immigration agency (e.g. CBP, ICE, etc.)”.
We further recommend the proposed regulations be revised to add an additional secondary data value to “Result of Stop”: “Transferred/released to other agency”. This data value should also have a corresponding mandatory open-text field where the specific agency can be identified.
9. “Perceived Gender of Person Stopped.” Section 999.226(9) requires officers to report the perceived gender of a person stopped and sets forth generally appropriate data values. However, in the context of reporting stops related to children, which is particularly important in the school setting, the terms “Transgender man” and “Transgender woman” are misleading. Accordingly, the data values should be modified.
We recommend the proposed regulations be revised to change the data values found in sections 999.226(9)(3) and (4) to be revised to read as “Transgender Man/boy” and “Transgender Woman/girl”, respectively.
10. “Perceived Age of Person Stopped”. Section 999.226(10) requires an officer to report the perceived age of the individual stopped and provides nine data values with bracketed age ranges. However, the age ranges reflected in these specifically identified data values do not sufficiently distinguish between substantially different age ranges. For instance, the stop of a five-year old child is significantly different than the stop of a nine-year old. Similarly, the stop of a 10-year old is different than that of a 14-year old. Officers are required to report their perception of the age of an individual stopped and officers should be provided with meaningful age ranges to distinguish between different age groups.
We object to the data values currently set forth in response to this data element and recommend that the responsive data values for “Perceived Age of Person Stopped” read as follows:
0-6
7-9
10-12
13-14
15-17
18-24
25-29
30-39
40-49
50-59
60 and older
11. “Person Stopped had Limited English Fluency or Pronounced Accent”. Section 999.226(11) requires an officer to indicate when an individual stopped has limited English fluency or a pronounced accent.Although this is an important data element, the inclusion of “pronounced accent” is confusing and may lead to the collection of data related to whether an individual has a regional U.S. accent.
We further recommend the proposed regulations be revised to add an additional secondary data value to “Result of Stop”: “Transferred/released to other agency”. This data value should also have a corresponding mandatory open-text field where the specific agency can be identified.
9. “Perceived Gender of Person Stopped.” Section 999.226(9) requires officers to report the perceived gender of a person stopped and sets forth generally appropriate data values. However, in the context of reporting stops related to children, which is particularly important in the school setting, the terms “Transgender man” and “Transgender woman” are misleading. Accordingly, the data values should be modified.
We recommend the proposed regulations be revised to change the data values found in sections 999.226(9)(3) and (4) to be revised to read as “Transgender Man/boy” and “Transgender Woman/girl”, respectively.
10. “Perceived Age of Person Stopped”. Section 999.226(10) requires an officer to report the perceived age of the individual stopped and provides nine data values with bracketed age ranges. However, the age ranges reflected in these specifically identified data values do not sufficiently distinguish between substantially different age ranges. For instance, the stop of a five-year old child is significantly different than the stop of a nine-year old. Similarly, the stop of a 10-year old is different than that of a 14-year old. Officers are required to report their perception of the age of an individual stopped and officers should be provided with meaningful age ranges to distinguish between different age groups.
We object to the data values currently set forth in response to this data element and recommend that the responsive data values for “Perceived Age of Person Stopped” read as follows:
0-6
7-9
10-12
13-14
15-17
18-24
25-29
30-39
40-49
50-59
60 and older
11. “Person Stopped had Limited English Fluency or Pronounced Accent”. Section 999.226(11) requires an officer to indicate when an individual stopped has limited English fluency or a pronounced accent.Although this is an important data element, the inclusion of “pronounced accent” is confusing and may lead to the collection of data related to whether an individual has a regional U.S. accent.
We object to the inclusion of “pronounced accent” and recommend that the data element be limited to “Person Stopped had Limited English Fluency”.
12. “Perceived or Known Disability of Person Stopped”. Section 999.226(12) requires an officer to indicate when an individual stopped has displayed signs of one or more conditions. In addition to the specific data values offered, an additional data value related to when an individual stopped has limited use of language should be included. Such a data value is different from the English Fluency data element because it captures those instances when someone is not capable of speech or has pronounced problems in speaking.
We recommend the proposed regulations be revised to add the following data value in response to“Perceived or Known Disability of Person Stopped”: “Limited use of language”.
13. Perceived Membership in the LGBT Community. The proposed regulations fail to include a data element to allow collection of any data related to perceived membership in the LGBT community, despite efforts by advocacy groups to include such information. Failure to collect such information will result in the loss of significant and meaningful data related to when interactions with law enforcement may be the result of bias against a member of the LGBT community, which is distinct from bias on the basis of perceived gender identity.
We recommend the proposed regulations be revised to add a data element for “Perceived Membership in the LGBT Community” where officers may simply check a box to indicate such a perception or choose between the data values of “yes” or “no”.
14. Race and Gender of Officer. Although section 999.226 requires the collection of officer specificinformation, including an “Officer’s Unique Identifier” (see §999.226(13)), the proposed regulations do not require the reporting of an officer’s race and gender. For accurate and effective data analysis, it is essential to capture the race and gender of officers. Without such information, a complete data analysis related to how and why biased policing occurs will not be possible. For instance, it will be important to know whether race or gender identity impact the prevalence of racial disparities in policing. These data elements will allow for greater understanding of whether there is a correlation between disparities and various characteristics of peace officers.
We strongly object to the failure to collect race and gender identity information for officers making stops and recommend that the proposed regulations be revised to include data elements collecting officer race and gender consistent with the data values provided in sections 999.226(8) and (9). In the alternative, we recommend the proposed regulations should be revised to require that race and gender information be embedded in each officer’s unique identifier required in section 999.226(a)(13) such that the race and gender of the officer recording the stop is made available to researchers and others conducting data analysis that is required under the statute.
15. “Officer’s Years of Experience”. Section 999.226(a)(14) requires the reporting of officer years of experience; however, the data values available as a response are large and do not provide sufficient detail for thorough analysis.
We object to the data values currently set forth in response to this data element and recommend that the responsive data values for “Officer’s Years of Experience” read as follows:
0-4
12. “Perceived or Known Disability of Person Stopped”. Section 999.226(12) requires an officer to indicate when an individual stopped has displayed signs of one or more conditions. In addition to the specific data values offered, an additional data value related to when an individual stopped has limited use of language should be included. Such a data value is different from the English Fluency data element because it captures those instances when someone is not capable of speech or has pronounced problems in speaking.
We recommend the proposed regulations be revised to add the following data value in response to“Perceived or Known Disability of Person Stopped”: “Limited use of language”.
13. Perceived Membership in the LGBT Community. The proposed regulations fail to include a data element to allow collection of any data related to perceived membership in the LGBT community, despite efforts by advocacy groups to include such information. Failure to collect such information will result in the loss of significant and meaningful data related to when interactions with law enforcement may be the result of bias against a member of the LGBT community, which is distinct from bias on the basis of perceived gender identity.
We recommend the proposed regulations be revised to add a data element for “Perceived Membership in the LGBT Community” where officers may simply check a box to indicate such a perception or choose between the data values of “yes” or “no”.
14. Race and Gender of Officer. Although section 999.226 requires the collection of officer specificinformation, including an “Officer’s Unique Identifier” (see §999.226(13)), the proposed regulations do not require the reporting of an officer’s race and gender. For accurate and effective data analysis, it is essential to capture the race and gender of officers. Without such information, a complete data analysis related to how and why biased policing occurs will not be possible. For instance, it will be important to know whether race or gender identity impact the prevalence of racial disparities in policing. These data elements will allow for greater understanding of whether there is a correlation between disparities and various characteristics of peace officers.
We strongly object to the failure to collect race and gender identity information for officers making stops and recommend that the proposed regulations be revised to include data elements collecting officer race and gender consistent with the data values provided in sections 999.226(8) and (9). In the alternative, we recommend the proposed regulations should be revised to require that race and gender information be embedded in each officer’s unique identifier required in section 999.226(a)(13) such that the race and gender of the officer recording the stop is made available to researchers and others conducting data analysis that is required under the statute.
15. “Officer’s Years of Experience”. Section 999.226(a)(14) requires the reporting of officer years of experience; however, the data values available as a response are large and do not provide sufficient detail for thorough analysis.
We object to the data values currently set forth in response to this data element and recommend that the responsive data values for “Officer’s Years of Experience” read as follows:
0-4
5-9
10-14
15-19
20-24
25-29
30-34
More than 34
Article 4. Reporting Requirements, 11 CCR § 999.227.
10-14
15-19
20-24
25-29
30-34
More than 34
Article 4. Reporting Requirements, 11 CCR § 999.227.
- General Reporting Requirements. Section 999.227(a)(4) addresses a scenario when two or more reporting agencies are involved in a stop. However, this provision and the remainder of the proposed regulations appear to be silent on what occurs when a stop is conducted in conjunction with one or more non-reporting agencies.
We recommend the proposed regulations be revised to add clarifying language that officers subject to these reporting requirements are always required to report a stop, even if a stop is done in conjunction with one or more non-reporting agencies. - Peace Officer Interactions That Are Reportable Only If the Officer Takes Additional Specified Actions. Section 999.227(c)(1) and (2) require officers to report interactions whereadditional specified actions and then references “the data values set forth in section 999.226,subdivision (a)(6)(A)”. However, the actions listed in subdivision (a)(6)(A) include a data value for “None of the above”. To ensure clarity, the reference to section 999.226 should be revised.
We recommend the proposed regulations be revised to change the references in sections999.227(c)(1) and (2) to “subdivision (a)(6)(A)” to explicitly exclude “None of the above”, currently section 999.226(a)(6)(A)(15). - Traffic control of vehicles due to a traffic accident or emergency situation. Section999.227(c)(1)(A) excludes from reporting requirements “[t]raffic control of vehicles due to a traffic accident or emergency situation that requires that vehicles are stopped for public safety purposes.” While the exclusion of traffic control in accidents or emergencies is appropriate, we are concerned that this language could be interpreted to include some traffic stops based on individualized suspicion of traffic or equipment violations if there is a justifiable public safety purpose behind enforcement – such as a stop for a broken tail-light. Because an individualized traffic stop outside a traffic accident or emergency situation may be a pretext for other enforcement, it is crucial that such stops be recorded.
We recommend that this exception be clarified to indicate that stops of particular vehicles based on individualized suspicion of suspected traffic or equipment violations must always be reported. - The undersigned signatories to these written comments commend the OAG and DOJ for incorporating feedback from community groups and organizations working with and on behalf of individuals most impacted by frequent law enforcement interactions and stops. In addition to previously submitted recommendations, we sincerely hope OAG and DOJ consider the objections and recommendations contained within this letter and revise the proposed regulations to reflect comprehensive and robust data collection that will allow both law enforcement and the public to determine when and where biased policing exists so that evidence-based and meaningful solutions may be implemented.
- Sincerely,
- ACLU of California
- Alliance for Boys and Men of Color
- Asian Americans Advancing Justice – Asian Law Caucus Asian Americans Advancing Justice, LA
- Community Health Councils
- Fathers and Families of San Joaquin
- National Compadre Network
- PolicyLink
- Youth Justice Coalition, LA
- [ADD YOUR ORGANIZATION HERE]
- Cc: RIPA Board Members (via request to the Attorney General’s Office)