Civil Rights Enforcement
California's Bane Act no longer serves as an effective check against police brutality. Major changes are needed to restore proper civil rights protections.

Illegal Use of Force & the California Civil Rights Bane Act’s Role in Seeking Justice

We are experiencing an unprecedented and dangerous tipping point in the relationship between police and the communities they are sworn to protect. Community trust is undermined when corrupt officers act with impunity and mistreat our citizens. California must act now to hold bad cops accountable for illegal use of force and to ensure our civil rights laws work in the pursuit of justice when legal rights are violated.

Restoring our California civil rights law is a necessary step towards restoring trust in government and our police.

THE PROBLEM:

In California, law enforcement officers operate without accountability. Most cases of police brutality can be traced to a small cadre of violence-prone officers that create an unsafe culture for their fellow officers and the citizens they protect. In California and beyond, law enforcement agencies have proven ineffective at policing their own sworn officers.

Meanwhile, the primary civil rights law that protects Californians against police abuse – called the Tom Bane Civil Rights Act or the Bane Act – has been undercut by bad court decisions. We must act now to restore these protections to keep our communities safe.

The Bane Act was enacted by AB 63 in 1987 as part of a renewed effort to combat the disturbing rise in civil rights violations motivated by hatred and discrimination. The Bane Act was once among the most robust laws protecting civil rights in the nation, but it no longer serves as an effective check against police brutality, having been weakened in the following ways:

  • It no longer alerts municipalities of harmful policing practices so corrective action can be taken.
  • It no longer gives innocent victims of police brutality an effective civil recourse for justice and accountability.
  • It no longer acts to hold police accountable to do the right thing.

California is considered a beacon of progressive democracy, but it has fallen behind other states that have adopted forceful civil rights protections against police abuse. We can restore public trust in law enforcement and give victims of police brutality the ability to seek justice.

THE ANSWER:

We need to enact three major changes to the Bane Act to restore proper civil rights protections:

  • Intent: A 2017 appellate court ruling tossed aside three decades of precedent and weakened our California civil rights by now requiring a showing of specific intent for a civil rights violation. This nearly impossible threshold requires that a victim of police brutality get inside the mind of an officer to prove he or she specifically intended to violate the civil rights of a victim. California needs to restore the original standard of the act, which required general intent to prove a civil rights violation.
     
  • Accountability: Another 2017 court ruling granted officers sweeping immunity, even for violating one’s fundamental Constitutional rights. For example, officers who plant evidence, fabricate police reports, or lie under oath are immune from a malicious prosecution claim – no matter how egregious the conduct. Law enforcement officers should not be immune – as they are now, due to this court ruling – to accountability for any excessive force injuries (or deaths) to “prisoners,” a broad term that can include anyone from an inmate to someone being held under arrest. As a result, our jails have become Constitution-free zones even for totally innocent people, due to these cases applying any and all immunities to our civil rights.
     
  • Wrongful death: California must close the loophole, created by one aberrant case, that restricts the ability of families of those killed by law enforcement to successfully sue for wrongful death. Currently, the only redress that families can seek for illegal death is funeral costs.

Note: None of these changes would lead to increased personal liability for police officers, nor would they act to discourage police recruitment. Why? California law already requires that public entities indemnify employees, including peace officers, for damages awards that result from conduct taken in the course and scope of their employment. One study of 81 jurisdictions over a six-year period found that no California law officer paid a single penny in a civil rights settlement or judgment.

California must act now to stop the illegal use of force by bad cops and ensure our civil rights law works for those who seek justice when the law is violated.