SENATE COMMITTEE ON APPROPRIATIONS
Senator Anthony Portantino, Chair
2023 - 2024 Regular Session
SB 838 (Menjivar) - Victim compensation: use of force by a law enforcement officer
Version: February 17, 2023 Policy Vote: PUB. S. 5 - 0
Urgency: No Mandate: No
Hearing Date: April 10, 2023 Consultant: Matthew Fleming
Bill Summary: SB 838 would revise the definition of “crime” for purposes of the Victim Compensation Program (VCP) to include an incident in which an individual sustains serious bodily injury or death as the result of a law enforcement officer’s use of force.
Fiscal Impact: Unknown costs, in the hundreds of thousands to low millions, to pay claims for law enforcement officer use of force incidents (Restitution Fund*, General Fund). The California Victim Compensation Board (CalVCB) reports annual and ongoing costs ranging from $2.4 million to $5.78 million to pay compensation claims and $214,000 for salary and benefits for two additional Staff Service Analysts. See Staff Comments for additional detail.
*Structurally imbalanced
Background: The victim compensation program was created in 1965, the first such program in the country. The program provides compensation for victims of violent crime. It reimburses eligible victims for many crime-related expenses, such as counseling and medical fees. Funding for the CalVCB comes from restitution fines and penalty assessments paid by criminal offenders, as well as federal matching funds.
The victim compensation program is the payor of last resort, which means applicants are compensated for covered expenses that have not been and will not be compensated from any other source. The types of expenses that may be reimbursed include medical and dental expenses, funeral or burial expenses, wage or income loss, etc. Reimbursement is limited to the actual amount paid out-of-pocket or bills accrued by the victim. The maximum amount reimburse a victim or derivative victim is $35,000, except this amount may be increased to $70,000 if federal funds are available.
Payments are paid from a combination of state funds and federal matching funds.
Specifically, claims are paid from the Restitution Fund, which is a continuously- appropriated fund, and a 60-percent match (of state funds spent) from the federal Victims of Crime Act (VOCA) grant, which are calculated at 60 percent of the California state funds spent on the eligible compensation of victims from two years prior.
Existing law requires a victim or directive victim to file a claim for compensation within seven years of the date of the crime, seven years after the victim attains age 21, or seven years from the discovery that an injury or death had been sustained as a direct result of the crime, whichever is later. Last year, AB 160 (Committee on Budget), Chapter 771, Statutes of 2022, raised the maximum reimbursable amount and the SB 838 (Menjivar) Page 2 of 4
individual limits for specified expenses which will go into effect July 1, 2024, contingent on funds being available and appropriated in the 2024-2025 fiscal year.
This bill would allow compensation claims for incidents in which an individual sustains serious bodily injury or death as the result of a law enforcement officer’s use of force.
The Department of Justice (DOJ) Use of Force Incident Reporting for 2021 noted that in 2021, there were 628 law enforcement use of force incidents, and 660 civilians involved in incidents that involved the discharge of a firearm or use of force resulting in serious bodily injury or death. Of the 628 incidents, 300 occurred during a call for service,124 occurred while either a crime was in progress or while officers were investigating suspicious persons or circumstances, and 97 resulted from a vehicle/ bike/pedestrian stop.
Proposed Law:
Provides that “crime” includes, for purposes of eligibility for compensation, an incident occurring on or after January 1, 2024, in which an individual sustains serious bodily injury or death as a result of a law enforcement officer’s use of force, regardless of whether the law enforcement officer is arrested, charged, or convicted of committing a crime.
Provides that an application may be denied, in whole or in part, if the board finds that denial is appropriate because of the nature of the victim’s or other applicant’s involvement in the events leading to the crime, or the involvement of the person whose injury or death gives rise to the application, as specified. Provides that notwithstanding specified ineligibility factors, for a claim based on a victim’s serious bodily injury or death resulting from a law enforcement officer’s use of force, CalVCB shall not deny the application based on the victim’s or other applicant’s involvement in the qualifying crime that gave rise to the claim, unless both of the following conditions are met:
o The victim is convicted of a violent felony, as defined, or a crime that resulted in death or serious bodily injury, as defined; and,
o The crime that the victim is convicted of occurred at the time and location of the incident on which the claim is based.
Provides that the claimant may apply for compensation based on law enforcement officer’s use of force at any time for any expense but that CalVCB shall not consider the claim while charges are pending alleging that the victim committed a crime that may make the victim ineligible for compensation. Specifies that charges shall not be considered pending if the victim is deceased.
Provides that for a claim based on a victim’s death that resulted from a law enforcement officer’s use of force, CalVCB may deny an application based on the victim’s involvement in the qualifying crime that gave rise to the claim if there is clear and convincing evidence that the deceased victim committed a crime during which the deceased victim personally inflicted serious bodily injury, as defined, or SB 838 (Menjivar) Page 3 of 4
personally killed another person at the time and location of the incident on which the claim is based.
Provides that an application for a claim based on a victim’s serious bodily injury or death that resulted from a law enforcement officer’s use of force shall not be denied based on a victim or derivative victim’s failure to cooperate reasonably with a law enforcement’s agency.
Provides that notwithstanding any other law, for an application for a claim based on serious injury or death that resulted from a law enforcement officer’s use of force, the CalVCB shall not deny an application, in whole or in part, based solely on any of the following:
o The contents of a police report;
o Whether a police report was made;
o Whether a suspect was arrested or charged with the qualifying crime that gave rise to the claim.
Provides that the claimant may apply for compensation based on law enforcement officer’s use of force at any time for any expense but that CalVCB shall not consider the claim while charges are pending alleging that the victim committed a crime that may make the victim ineligible for compensation.
Specifies that charges shall not be considered pending if the victim is deceased.
Provides that for a claim based on a victim’s death that resulted from a law enforcement officer’s use of force, CalVCB may deny an application based on the victim’s involvement in the qualifying crime that gave rise to the claim if there is clear and convincing evidence that the deceased victim committed a crime during which the deceased victim personally inflicted serious bodily injury, as defined, or personally killed another person at the time and location of the incident on which the claim is based.
Provides that an application for a claim based on a victim’s serious bodily injury or death that resulted from a law enforcement officer’s use of force shall not be denied based on a victim or derivative victim’s failure to cooperate reasonably with a law enforcement’s agency.
Provides that notwithstanding any other law, for an application for a claim based on serious injury or death that resulted from a law enforcement officer’s use of force, the CalVCB shall not deny an application, in whole or in part, based solely on any of the following:
o The contents of a police report;
o Whether a police report was made;
o Whether a suspect was arrested or charged with the qualifying crime that gave rise to the claim.
SB 838 (Menjivar) Page 4 of 4
Related Legislation:
AB 160 (Committee on Budget), Ch. 771, Stats. of 2022, raised the maximum reimbursable amount and the individual limits for specified expenses which will go into effect July 1, 2024, contingent on funds being available and appropriated in the 2024-2025 fiscal year.
AB 767 (Grayson, 2019) would have expanded eligibility for compensation under the Victims Compensation Program (VCP) for injuries or death caused by use of force by a police officer. AB 767 was held on suspense in this committee.
SB 299 (Leyva, 2022) was substantially similar to this bill. SB 299 was ordered to the inactive file on the Assembly floor.
Staff Comments: A primary cost driver of this bill will be the number of claimants who seek compensation under its provisions, a number that cannot be known with certainty.
The Department of Justice’s (DOJ) Use of Force Incident Reporting for 2021 cited 628 use of force incidents involving 660 civilians, of which 149 were killed and 406 were injured. Of the 555 civilians that were injured or killed, it is unclear how many went on to be convicted of a violent crime that would make them ineligible for compensation under this bill’s provisions. However, the DOJ report indicates that 124 incidents occurred while either a crime was in progress or while officers were investigating suspicious persons or circumstances. Assuming that all 124 of those incidents would be ineligible for compensation that would leave approximately 430 claims that could have been filed under this bill, had it been in effect in 2021.
According to CalVCB, the average approved claimant receives approximately $1,200 in compensation, but that number is likely skewed by the fact that half of all eligible claimants never submit a reimbursable claim. The average amount for those who actually receive payment is $2,400. If 430 individuals were paid $2400 under SB 838, then the costs of this bill would exceed $1 million.
The Restitution Fund is the source of CalVCB reimbursements. It operated under a structural deficiency for a number of years. Although revenue has remained consistent, expenditures have outpaced revenues since FY 2015-16. The Governor’s 2023-24 budget proposes $39.5 million ongoing to backfill declining fine and fee revenues in the Restitution Fund and allow the California Victim Compensation Board to continue operating at its current funding level.
By expanding the criteria for CalVCB reimbursement claims, which are paid out of the continuously appropriated Restitution Fund, this bill would appropriate moneys from the General Fund. Staff notes that this bill is drafted in such a way as to be subject to triggering language that was enacted by budget trailer bill AB 160 (2022). Amendments may be necessary to clarify the operation of this bill. -- END --