Police Officers, Qualified Immunity & Asset Protection Estate Planning Under CA SB2
On September 30, 2021, California Senate Bill 2 (the "Bill") became law with the goal of ensuring peace officers are held accountable for engaging in misconduct, by both creating a decertification process and limiting some qualified immunities protecting peace officers from civil liability. With the limits on qualified immunity going into effect January 1, 2022, the question of asset protection through estate planning has again arisen in our office.
Overview of the Bill
Firstly, however, we would like to provide a brief overview of the 4 key provisions on the Bill:
The Bill first requires law enforcement agencies to investigate and report all serious misconduct complaints. "Serious Misconduct" is not expressly defined in the Bill, however the Bill does specifically include examples such as dishonesty, abuse of power, physical abuse (including use of excessive force), sexual assault, prejudice or bias based on a protected classification, sufficiently egregious or repeated violations of law, participation in a law enforcement gang, failure to cooperate in an investigation into potential police misconduct, and failure to intercede when present and observing another officer using force that is clearly beyond what is necessary.
Next, the Bill requires law enforcement agencies to then report these cases of serious misconduct to a new Commission, the Commission on Peace Officer Standards and Training, and to do so within 10 days of the incident in question. Additionally, if the agency fires the officer, then the agency must also submit a documenting Affidavit (a sworn statement) on the matter.
The Bill also creates a process for peace officer decertification by said Commission, similar to one existing in 46 other states. The Commission is authorized to suspend or revoke peace officer certification where the Commission finds they engaged in serious misconduct.
To investigate the reports filed by law enforcement agencies, the Bill empowers a Board, called the Accountability Advisory Board, to review the reported cases and make recommendations to the Commission on decertification, suspension and revocation. To be clear, the Board does not make the determination, but merely makes a recommendation to the Commission, who then votes and must meet a two-thirds (2/3) threshold to act (under a clear and convincing evidence standard).
The Board cannot initiate proceedings on incidents occurring before January 1, 2022, unless: (i) instances of serious misconduct are found; (ii) there was use of deadly force resulting in death or serious bodily injury; or, (iii) the employing agency concludes their investigation after January 1, 2022.
Finally, the most controversial aspect of the Board is the make-up of its members. The Board will have 9 members. 2 of those members are required to be current or former peace officers. The remaining 7 members are to be civilians with at least 1 lawyer with experience in peace officer oversight. However, at least 2 of these positions are earmarked with "strong consideration" for those who have been subject to excessive force by peace officers or who has survived a family member killed by excessive force.
Lastly, the Bill removes some immunity provisions for peace officers and employing public entities in certain lawsuits brought by citizens alleging a violation of their civil rights. These include:
California Government Code section 821.6 which held a peace officer had immunity from injury caused by a peace officer's instituting or prosecuting of any judicial or administrative proceeding within the scope of their employment, even if acting maliciously and without probable cause.
California Government Code section 844.6 providing an immunity for peace officers from injuries proximately caused by any prisoner or injuries to any prisoner in the officer's charge.
California Government Code section 845.6, which provided an immunity from injury proximately caused by the failure of a peace officer to furnish medical care for a prisoner in their custody.
However, the Bill does require public entities to indemnify their current and former employees pursuant to rules already put in place, California Government Code section 825.
Asset Protection in Estate Planning
All this brings us to the question of asset protection and estate planning - specifically, whether a revocable living trust can provide some asset protection from legal liability resulting from a lawsuit?
No, the typical revocable living trust is not an asset protection trust or vehicle in CA. There does not exist the requisite separations between yourself and the trust for that protection to exist. In order to create that kind of separation, extensive planning is required and likely more than what the average individual would like in terms of management and the cost of setup and maintenance. Additionally, you would have to agree to a significant lack of control over the assets in your estate you spent your entire career building up to begin with.
There are other protections that one should keep in mind, however. Firstly, the Bill requires public entities to indemnify their current and former employees, meaning that if the public entity conducts the defense of the officer with that officer's good faith cooperation, the public entity shall pay any judgment based on that suit or any compromise or settlement of the claim to which the public entity has agreed.
Additionally, California law does provide for at least a partial homestead exemption between $300,000 and $600,000; the actual amount will equal the prior year’s median home sale price amount if it is within this range (as of January 1, 2021, thanks to California Assembly Bill 1885). This means that all, if not a significant portion, of one's home equity will be protected from a creditor's reach, including judgements stemming from lawsuits that have been waged against you.
Additional Resources:
California Government Code section 821.6 - Legislature.ca.gov
California Government Code section 844.6 - Legislature.ca.gov
California Government Code section 825 - Legislature.ca.gov
California Government Code section 825.6 - Legislature.ca.gov
California Senate Bill SB2 - Openstates.org
