In the past four years, California has enacted two “Racial Justice Acts” (Acts) that allow individuals to petition courts for relief if they believe there was racial bias in their charges, convictions or sentences. The laws were enacted due to concern that criminal prosecutions and sentences in the state “are not always race neutral.” A recent case, involving an arrest made by a police officer who claimed he did not know the race of the man he arrested, adds a new element to the Acts’ protections. An appellate court has ruled that “bias can be unconscious and implied as well as conscious and express.”

The case began when Tommy Bonds, a Black man, was subjected to a traffic stop by Officer Ryan Cameron of the San Diego Police Department (SDPD). Cameron was a member of SDPD’s Special Operations Unit, which was commonly referred to as the “gang suppression team.” The stop led to Bonds’ arrest for carrying a concealed firearm. Bonds argued that he was stopped, searched and arrested because of his race. Cameron disagreed, testifying that race did not play any role in his decision to pull Bonds over because he could not “see what race was in that vehicle.”

San Diego Superior Court Judge Howard H. Shore believed Cameron. Noting that the parties “briefs discuss a host of complex and interesting questions” about the Racial Justice Act, a unanimous panel of three justices from Division One of California’s Fourth District Court of Appeal ruled that the denial of Bond’s Racial Justice Act motion “ignored a central premise of the Act” that says “bias can be unconscious and implied as well as conscious and express.”

In a unanimous 3-0 opinion authored by Justice William Dato on February 14, the appellate court said that when Shore relied on his conclusion that Cameron was not lying, he “ignored the possibility that the officer’s actions were a product of implicit bias that associated things the officer did know -- the location of the stop and the clothing Bonds was wearing—with race.” As a result, the appellate court issued a writ directing the court to conduct a new hearing to consider whether Cameron’s actions exhibited “implied bias on the basis of race.”

Dato explained that Bonds will bear the burden of proving, by a preponderance of the evidence, that Cameron “exhibited bias or animus toward the defendant” because of his race, as mandated by the California Penal Code. The traffic stop was recorded on Cameron’s “body-worn camera.” The recording showed what occurred when Bonds pulled into a gas station after he saw the flashing lights of the police car. Cameron approached Bonds and said, “What’s goin’ on, bro’? How you doin’?” Both Bonds and Cameron acknowledged they had met during a previous traffic stop.

During the exchange, Bonds quickly asked Cameron if he had been stopped because he was Black. Cameron said, “Well, part of it the hoodies up and stuff…” Bonds said his clothing was worn because it was cold outside and directly asked Cameron, “Do you all pull over white people like that?” Cameron said he pulled over white people as well, and then he asked Bonds whether “there were guns or anything like that” in his car. Bonds admitted he had a legally registered firearm in the vehicle.

Cameron then arrested Bonds and later charged him with violating a section of the California Penal Code that reads, “A person is guilty of carrying a concealed firearm when the person…carries concealed within any vehicle that is under the person’s control or direction any pistol, revolver, or other firearm capable of being concealed on the person.”

Bonds then filed a motion for relief under the Racial Justice Act. His motion included studies and statistics that showed “significant racial disparities in local policing.” Shore dismissed this evidence, saying he was “not really considering the studies or conclusions of the experts” and “prefer to rely on the specific facts of the case.” He did, however, order an evidentiary hearing, at which Bonds offered three experts on racial bias – a professor of public affairs, a police policy expert, and a sociologist and professor who specialized in race studies related to law enforcement. He also called Cameron who claimed his actions could not have been based on race because he could not see the race of the car’s occupants.

Judge Shore denied Bond’s motion, explaining that the experts’ testimonies were “entitled to little weight” because the court could not draw conclusions about what happened in Bond’s case from “general statistics.” Dato wrote, “In the end, the issue for the trial court was a simple one. Was Officer Cameron telling the truth when he said he did not know and could not see that the occupants of Bonds’ vehicle were Black?” When his motion was denied, Bonds appealed to the superior court’s appellate division, which affirmed Shore’s decision in three sentences. Bonds next filed a petition in the Court of Appeal, which took up the case.

While agreeing that the Racial Justice Act is relatively new and thus subject to uncertainties, Dato still wrote that it contained things that “were abundantly clear.” He wrote that “the primary motivation for the legislation was the failure of the judicial system to afford meaningful relief to victims of unintentional but implicit bias.” He quoted the Legislature that said, “Implicit bias, although often unintentional and unconscious, may inject racism and unfairness into proceedings similar to intentional bias.

“The intent of the Legislature is not to punish this type of bias, but rather to remedy the harm to the defendant’s case and to the integrity of the judicial system.” And he concluded “The trial court seems to have misunderstood this crucial element of the statute,” and further explained that “… implicit bias is, by definition, unintentional and unconscious.”

The opinion also pointed out that Cameron’s claim of ignorance about the occupants of Bonds’ car was dubious because he described the “hoodies” the occupants wore. He quoted one of the expert witnesses who explained, “There’s an assumption that the hoodie means something about criminality when it’s connected to . . . people of color.”

The opinion therefore summarized, “In short, the court applied an incorrect legal standard in concluding that Officer Cameron could not exhibit racial bias unless he ‘knew’ the race of the vehicle’s occupants before initiating the traffic stop.” The appellate court then issued a peremptory writ of mandate directing the superior court to vacate its order denying Bonds’ motion for relief under the Racial Justice

Act and to conduct a new hearing consistent with the views expressed in this opinion.”