On Thursday, February 14, the First Amendment Coalition filed a lawsuit challenging California Attorney General Xavier Becerra’s decision to withhold certain state police misconduct and use-of-force records publicly requested under a new police transparency law, SB 1421.
While a number of law enforcement agencies across the state, including the California Highway Patrol, have released personnel records and other files since SB 1421 went into effect on January 1, AG Becerra and many more top public safety officials have chosen to deny records requests made under the new law, citing pending police union-led lawsuits challenging SB 1421’s retroactivity.
For those unfamiliar, SB 1421 rolled back a 1978 law that, for four decades, shielded law enforcement records from public and media scrutiny, even in cases of serious misconduct–no state was more secretive.
The new law makes records related to police misconduct and serious and fatal uses of force available to the media and the public via California Public Records Act requests.
SB 1421 grants the public access to personnel records of officers who are found to have been dishonest in the “reporting, investigation, or prosecution of a crime.” Until this year, even prosecutors have been barred from accessing personnel records that may impact their cases, even for officers with a history of lying in police reports or planting evidence.
Records of on-duty sexual assault, including when cops exchange sex for leniency, also became newly available to the public under SB 1421.
Additionally, the new law says that police agencies must release records of incidents in which officers use certain kinds of force–including when cops discharge their firearms or Tasers, use a weapon to strike a person’s head or neck, or use force that results in serious bodily harm or death.
Law enforcement unions across the state were quick to seek court intervention to block the release of documents created before January 1, 2019, arguing that SB 1421 did not explicitly say it applied to past records. In some cases, officials went so far as to destroy police files likely to become public record under the new law.
In response to a records request from the free-speech-focused First Amendment Coalition, Attorney General Becerra’s office said it would not release files on Department of Justice cops, at least not before seeing whether the police union lawsuits prevailed in court. Becerra’s decision reportedly baffled advocates and Senator Nancy Skinner, who says she made sure to send a letter to the AG’s office clarifying that the bill she authored was intended to be retroactive and apply to all eligible records in police departments’ possession.
The Department’s refusal to release any records covered by SB 1421 is anathema to the new law’s purpose of increasing transparency,” the FAC wrote in its complaint. “As the Legislature found when it enacted the new law, the ‘public has a strong, compelling interest in law enforcement transparency because it is essential to having a just and democratic society.” And, FAC said, there was no “indication” that state legislators only intended for the public to know about future records of police misconduct when they wrote and passed the bill.
“As the highest law enforcement officer in the state, the Attorney General has an obligation to not only comply with the California Public Records Act, but to send the right message about transparency to police departments across the state,” said David Snyder, the executive director of the First Amendment Coalition. “Unfortunately, the Attorney General has done neither. By denying public access to these crucial files, he has given a green light to other departments to disregard the new law.”
So far, just one judge has issued a ruling in an SB 1421 case.
Earlier this month, a Contra Costa County Superior Court judge became the first jurist to rule on the issue of SB 1421’s retroactivity, dealing a major blow to the law enforcement unions fighting to limit the reach of the new law.
A similar decision is expected next week in Los Angeles. On Friday, February 15, an LA judge handling the SB 1421 case brought by the Los Angeles Police Protective League appeared poised to rule in favor of retroactivity, as well. The judge had previously granted the police union a temporary stay, blocking the LAPD from releasing records retroactively, pending a February hearing. Back in December, the City of Los Angeles called on the court to deny the LAPPL’s request, arguing that the “most reasonable interpretation” was that state lawmakers “intended SB 1421 to allow for disclosure of all Specified Records in an agency’s possession, regardless of when they were created.”