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The goal of the Daily Kos group Support the Dream Defenders is to place our Over-Policed Rights Act on the ballot in California, and we have made good progress. Right now, the Legislative Analyst's Office is asking us for any information we would like to provide about the policy of the new law and the potential costs.
Brief History of Our Michael Brown Over-Policed Rights Act
As you may recall, within two months of the murder of Michael Brown by Darren Wilson we presented a preliminary draft of the Michael Brown Over-Policed Rights Act to the community. Some 700 members of Daily Kos responded to our plea for help and, we believe, made our rough draft into the first-ever Internet crowd-sourced bill. Executive members of the NAACP and the ACLU voiced their approval of our bill, with the NAACP including the MBOPRA in a group of laws that they forwarded to Congress. With our California Initiative, we are fighting to get our law on the California ballot.
Under California law, the potential costs to tax payers is included with the ballot measure. We think our law would be revenue neutral, but that is something for the LAO to decide. Help us figure out how to approach that task. Please look at the summaries below, pick them apart, and let us know what we can do to make them better. Thank you!
POLICY (OVER-POLICED RIGHTS ACT)The California Legislature recently passed a bill called the Racial and Identity Profiling Act of 2015. It was signed into law by Governor Jerry Brown on October 3, 2015. On the very next day, the Los Angeles Times ran an article about the new law. "Lt. Craig Lally, president of the union that represents Los Angeles police officers, called the new measure 'another one of these feel-good laws' that will be impossible to enforce."
Mr. Lally's statement contains a kernel of truth. The Racial and Identity Profiling Act of 2015 would provide some evidence if the Federal Department of Justice were ever to investigate claims of discrimination raised against a local, California law enforcement agency. However, the FBI has indicated that there are over 18,000 law enforcement agencies in the United States, so the likelihood that the Federal DOJ would be investigating any particular California law enforcement agency is minimal simply based on population statistics.
On the other hand, the data gleaned from the Racial and Identity Profiling Act would be available to local news media outlets, and that does serve a kind of deterrent function. Just not enough of one. In this respect, Mr. Lally's statement was true.
The Over-Policed Rights Act ("OPRA") would change this flaw in the otherwise excellent Racial and Identity Profiling Act of 2015 by providing an enforcement provision. The Proponents of The Over-Policed Rights Act view the proposed law as a deterrent to law enforcement agencies that, for whatever reason, took the easy (and illegal) way out by discriminating against its citizens.
Borrowing from provisions in the Voting Rights Act of 1965, the OPRA would provide a citizen of the law enforcement agency's jurisdiction the right to file a lawsuit against that law enforcement agency in the Superior Court. (The idea of volunteer observers is also borrowed from the Voting Rights Act of 1965.).
A Superior Court judge would decide, based on data from the Racial and Identity Profiling Act of 2015 or other reliable statistics, whether the law enforcement agency had acted discriminatorily for an extended (i.e. more likely to be statistically significant) length of time.
Unchecked power, as hinted at by police spokesman Lally, can be abused. The OPRA provides the best possible deterrent for that.
COST ANALYSIS (OVER-POLICED RIGHTS ACT)The major cost to local taxing authorities would involve attorney fees involved in defending a local law enforcement agency accused of being in violation of the Over-Policed Rights Act. This is minimized by a number of facts (and, admittedly, a few assumptions):
(1) It is a fact that the procedures contained in the Over-Policed Rights Act would require a very quick resolution--compared to other legal cases--and thus ease the tax payer burden. The proposed law supposes a judicial resolution within six months of a complaint being filed. A judge is allowed to provide one continuance "for good cause."
(2) It is a fact that the standard in the OPRA--what lawyers have to prove or disprove--is very open and shut. That is, if the law enforcement agency has not been discriminating according to the standard, the statistics will bear this out. If the law enforcement agency has been discriminating according to the standard, then the statistics will bear that out. This means that there is little "wiggle room" for lawyers to bill large amounts to the local taxing district.
(3) It is assumed that, once the OPRA is enacted, law enforcement agencies would be less likely to act in a discriminatory or excessive fashion.
(4) It is further assumed that, once the Racial and Identity Profiling Act of 2015 comes into effect for all California law enforcement agencies--it comes into effect in a staggered fashion with large police departments coming on line first, followed by slightly smaller police departments, and so on--that law enforcement agencies will become more cognizant of any practices that have resulted in discriminatory law enforcement and will change them. This would, in turn, lead to a lessened likelihood of a suit under the OPRA. Law enforcement agencies will become cognizant of this as the results are tallied, and as local media obtain and publish those results.
(5) It is further assumed that there would be potential savings to the local taxing district if the goal of deterrence is accomplished (or at least approximated) with the enactment of the Over-Policed Rights Act. If law enforcement agencies are, because of the OPRA, using less discriminatory, excessive or abusive law enforcement procedures, those law enforcement agencies are less likely to be sued for millions of dollars of damages by individual citizens affected by, for example, police brutality or excessive force.
As reported in The Washington Post, Oakland has paid out $74,000,000 since 1990 to settle 417 lawsuits involving police misconduct. Attorney fees and other costs of litigation in these massively expensive and long-duration lawsuits will rival the amount spent on settlements.
In 2011 alone, The Washington Post reported that Los Angeles paid out a total of $54,000,000 in police misconduct case settlements.
At a minimum, the OPRA would be likely to deter the actions that resulted in some, if not many, of these high-dollar lawsuits. If the OPRA deterred one, it would have saved taxpayers money.
An additional cost that could be associated with the implementation of the Over-Policed Rights Act is litigation costs beyond those of attorney's fees. This would, for the most part, deal with the standard paper copying, courtroom exhibit production and expert witness fees.
Again, because of the simple nature of a suit under OPRA, one would not expect the usual panoply of high-priced expert witnesses that one would normally associate with a police misconduct lawsuit, including forensic experts, pathologists, neurologists, etc. Those are the high-dollar experts in the world of expert testimony. At most, one could envision a risk-averse city attorney agreeing to hire a statistician or a use-of-force expert (the low-dollar experts). But even then, why? The numbers are the numbers are the numbers. The statistics will be known to both parties. Either the law enforcement agency is, statistically, in violation of the OPRA, or it is not.
As for use of the court system, it is already up and running now. Sure, it is overwhelmed, but any additional cost would be negligible, especially as the OPRA has a specific provision permitting Superior Court judges to "consolidate" cases.
Another potential cost of the Over-Policed Rights Act relates to what improvements a law enforcement agency might have to make if found to be an "Over-Policed Rights Act Jurisdiction" under the new law. This is all, of course, conditional. It is conditioned on the fact that a law enforcement agency, knowing that its statistics will be posted, still makes a discriminatory percentage of, for example, stops of a certain minority or language-minority. It is also conditioned on a Superior Court judge finding that the law enforcement jurisdiction is at fault.
Moreover, it is conditioned on the existence of an individual brave enough to file a lawsuit against the police department in his or her neighborhood.
The OPRA does give the Superior Court judge authority to order the local policing unit to obtain and use body cameras, and it would require blood screens in the event of a use of force while the jurisdiction was under "probation." There are also additional reporting requirements for any jurisdiction that is under "probation," but those are just paper reports, and the cost is negligible.
A final state-wide cost created by the OPRA involves the California Attorney General. The Attorney General must create a training aid for "volunteer observers," which is likely a one-time cost with a video placed on the internet. The Attorney General, at his or her election, may become more deeply involved in the matter, including appearing in court to assist in the prosecution of the matter, receive reports from any "probationary" law enforcement agencies, and may appoint a local representative to be its designee. All except the latter are costs that can be subsumed into the current budget of the Attorney General's office and be effected by current personnel.
CONCLUSION: We believe that The Over-Policed Rights Act would be revenue neutral, and, in the long term, save California tax-paying jurisdictions money, as it only needs to prevent a single major lawsuit for police misconduct to pay for itself.
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