On Wednesday, January 2, the California Supreme Court shut down a San Bernardino Sheriff’s Department union’s last-ditch efforts to drastically shrink the scope of a new police transparency law. The law, SB 1421, which went into effect on January 1, will grant the public long-denied access to law enforcement personnel records in the name of accountability and transparency.
Starting in 1978, California barred public access to police misconduct and use of force records, making it the most secretive state in the country when it came to law enforcement records. (Even in Texas, the public gains access to personnel information once a law enforcement agency finds an officer has committed misconduct.) Prosecutors in California have not even been allowed access to records of officers found guilty of committing misconduct under the color of authority, even those with a history of planting evidence or lying in police reports.
SB 1421 changes all that.
The new law requires law enforcement agencies across the state to release records related to incidents in which officers use force—specifically, 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.
The legislation also makes records of on-duty sexual assault, including when cops exchange sex for leniency, available to the public.
Under SB 1421, the public will also be able to access personnel records of officers who are found to have been dishonest in the “reporting, investigation, or prosecution of a crime.”
Some law enforcement opponents of the new law, including the SBSD employees’ union, resolved to put up a fight, however.
The Petition
On December 18, the union petitioned the court, seeking to determine whether SB 1421 is to be applied retroactively to all police records, or only to those created after Jan. 1. In the meantime, the union wanted the justices to put the law on hold.
The union’s “represented peace officers will suffer irreparable injury and damage by the retroactive application of SB 1421 in that such an application would unlawfully violate the constitutional and statutory protection of peace officers to the confidentiality of their peace officer personnel records regarding incidents or reflecting conduct occurring prior to January 1, 2019,” the petition states.
The union’s petition included a letter from the LAPD’s new police chief, Michel Moore, expressing “concern that Senate Bill 1421 (SB 1421) may be interpreted as retroactive,” thus putting an untenable strain on police resources. “Since the passage of SB 1421, the LAPD has been preparing for the massive influx in historical records requests it anticipates starting January 1, 2019,” Moore wrote to Sen. Nancy Skinner, the bill’s author. “If SB 1421 is implemented retroactively, the workload on the men and women of the LAPD could prove well beyond any reasonable expectation given the sheer volume of personnel complaints and uses of force (UOF) maintained in antiquated or archaic formats.”
First Amendment Coalition and News Groups Stand up for SB 1421
The First Amendment Coalition (FAC), along with the LA Times, KQED, and California News Publishers Association Services (CNPA), filed a brief seeking to challenge the union’s petition. “Remedial statutes [like SB 1421] must be construed liberally to further their purpose, and the purpose of SB 1421 would be substantially eroded if it applied only to conduct occurring after its effective date,” the FAC-led brief states. “Preventing the retroactive applicability of the SB 1421 would undermine its purpose and the public’s right to know all about serious police misconduct, officer-involved shootings, and other serious uses of force by police, in contravention of the plain intent of the Legislature. Thus, SEBA’s Petition is without merit and should be denied.”
The union, according to FAC, “alleges that peace officers hold a vested right to privacy and confidentiality” with regard to the records SB 1421 affects. However, the new law “does not affect any vested rights because peace officers have never had a right to maintain the confidentiality of the information regarding use of force or serious misconduct” found in police personnel records.
The two sections of the Penal Code that SB 1421 amends, 832.7 and 832.8, did not create “an unconditional right of privacy or confidentiality to this information,” the brief says. The two sections “merely provided procedural protections governing the disclosure of personnel records.”
“Such information has always been subject to disclosure in criminal and civil litigation by way of Evidence Code sections 1043 and 1045,” according to FAC and the news orgs. “SB 1421’s amendments to Penal Code sections 832.7 and 832.8 simply expand procedures that can be utilized to obtain and disclose certain categories of information by allowing disclosure through CPRA requests in addition to litigation discovery requests and orders.”
Moreover, the brief says, legislators meant for SB 1421 to open up the misconduct records “regardless of when the conduct occurred or when the records were created.” Otherwise, lawmakers would have embedded time restrictions within the bill.
“The legislative history shows that the Legislature recognized from the outset that SB 1421 was retroactive in nature and passed it with that understanding,” the court doc continues. “Third, the Legislature passed SB 1421 in the context of public debate regarding access to information on police misconduct and use of force, and the legislative history specifically refers to incidents in which members of the public were thwarted from obtaining meaningful information regarding past incidents and investigations of use of force by police―information that would not be available if the Legislation is not retroactive in application.”
Fighting SB 1421 With a Shredder
The SBSD employee’s union is not the only party that has taken steps to blunt the force of the new law.
Earlier this month, in anticipation of SB 1421 going into effect, the Inglewood City Council voted to destroy more than 100 Inglewood PD shooting records and other internal investigation documents.
The FAC brief addressed the issue, calling on the state’s high court to immediately ban police agencies from destroying records that would be subject to disclosure under the new law, if the justices chose not to deny the law enforcement union’s petition for an injunction against SB 1421.
Does SB 1421 Apply to Brady Lists?
In addition to denying the SBSD union’s petition, on Wednesday, the California Supreme Court brought questions related to SB 1421 into a separate case before the high court.
In 2017, then-Los Angeles County Sheriff Jim McDonnell tried to hand over a list of approximately 300 LASD members accused of lying and other misconduct to the LA County District Attorney’s Office. The local deputies’ union, the Association for Los Angeles Deputy Sheriffs—or ALADS—sued to stop McDonnell from sharing the so-called “Brady list” with the DA, a move McDonnell said he believed was in compliance with the 1963 US Supreme Court Brady v. Maryland ruling that required prosecutors give defense attorneys any potentially exculpatory evidence–including if a testifying officer has a history of dishonesty.
A state appeals court ruled in favor of ALADS in 2017, and McDonnell appealed the decision.
Now, the issue of McDonnell’s Brady list is before the state supreme court. On Wednesday, the justices asked both parties in the lawsuit—ALADS and the sheriff’s department (now headed by the newly elected sheriff, Alex Villanueva) to brief the high court on “what bearing, if any” SB 1421 has on the issue of police agencies sharing their Brady lists with prosecutors.
The parties must file their briefs with the court before the end of the month.
I’m perplexed as to why Police Unions are reluctant to transparency. Former Los Angeles County Sheriff Jim McDonnell was in cleanup mode to expose the “bad genes” in the Sheriff’s Department. SB 1421 is another way to “skin a cat”.
When one has nothing to hide, there should be nothing to worry about.
Sheriff Villanueva knows a thing or two about reluctance and refusal by unions when he was shunned as an ALADS representative for seeking information within the organization. It’ll be interesting to see his take on briefing the court regarding SB 1421.
Let’s see how old Alex is looked at when he’s forced to hand over the names.
1.3 million dollars says he won’t fork over any names.
How right you are. My partners and I will be over to search your house and car this afternoon. Nothing to hide; nothing to worry about.
See you then.
“Come at me Bro”….I’m not going anywhere.
If he goes toe to toe with DeLeon publicly, my opinion of him could be swayed. The strength of a true leader is to have some that opposed you change their mind, who will then influence others. Alex, I’m watching. Let’s see the moneyshot. Don’t hand over the names if ordered to by a Court of Law. I love bad boys!
Clean up mode? Ol’ Fresh Eyes took a very strange path to “cleanup mode” if that’s what you call it these days, LOL.
Dose of Reality, the difference is that we pay your salary. You are an employee and the public is your employer. In fact, you work for me and Los Angeles County Tax Payer. Could you imagine the security guard at Walmart getting away with this. Besides, isn’t the if-you-have-nothing-to-hide argument the one you use when stop someone for a broken light and want to search the car? By the way, can you give us your name so that we can request your records to see what you are trying to hide.
I have no love for anyone on the job that’s dishonest and could care less if their stuff is made public but the release of use of force data can and will be used to harm good people trying to do their job by every ambulance chasing attorney and psycho that hates law enforcement. Perhaps we have reached the point where no one should be using force beyond pepper spray. If that fails, call in CF to save the day. I don’t know why you dislike cops, “CF” but a lot of us work damn hard and tolerate more abuse than you can come close to imagining. We respond to help people like you, that hate our guts. And we wake up the next day and willingly do it again. Why don’t you put a hold on your snotty remarks, go on a ride-a-long and get an idea of what we really do.
Sure, champ, right after you give me your name and DOB so I can publish your criminal history.
The reasons for strict privacy for peace officers is a long and sordid affair, one I’m sure you couldn’t care less about. What you and the youtube generation want is for cops to be publicly shamed any time they do something you disagree with. Take a bad guy into custody, you applaud. See it happen, in all its gritty, technicolor cell phone video glory, and you’ll want our skins.
Remember the Rodney King incident? There were people all over the country flooding LAPD’s 911 system with complaints about what they saw on TV. Yes, on fucking TV, clear across the country. In this internet age, all stories are local. What you “transparency” advocates are really for is ruining the lives of those who protect your ass as soon as you’re done with them.
The internet age keep assholes in check and exposes them, including bad cops. Amazing how you gloss over the Rodney King “incident” with your next sarcastic whine convincing yourself that LAPD Rampart was also a “incident”. Chew your tobacco, keep your bodycam on and do your job or you’ll join Paul Tanaka in federal prison.
Take A Breath: Excellent Post.
Sadly, CF will not be swayed by even the most well thought out articulate posts. He/She is just to angry, ignorant and purely racist to try and have a rational conversation with.
Gentlemen, please, no one hates police officers. No one is asking that all information be public, only some and only for some officers. Do you really not think the public has a right to know when you shoot someone? I’m still trying to figure out what the problem was with Ezel Ford. We recently had a hefty payout because of Officers Nichols and Valenzuela, two fine officers, “heros” before they were arrested, did not have enough game to get dates without the badge and gun. Are there really no more officers like that in our employ now that those two have been arrested? You gentlemen now there are and you know who they are. Or, how about the officers that have lied, should the public not know who they are? For gods sake, if you lie you should get fired.
The pendulum swings. If you really feel so strongly about it, do the principled thing and quit. If enough of you do that, the pendulum will probably swing the other way if we can’t hire officers. You didn’t really think you could hide behind the badge and union for long? The people won’t take it anymore.
CF: Regardless of your popularity amongst the WLA commentators, your first three sentences are spot on. No decent or fair cop would disagree.
CF: That was your most articulate comment yet!!!! I agree with ALL of it. Now we can have some dialogue that just might get us somewhere.
The public absolutely has a right to know more than we let out. What we are afraid of is the mob scene in front of our houses threatening us and our families for doing our jobs correctly. You have to admit, that we as a society, rush to judgement FAR TO QUICKLY because of an ugly looking video or accusation.
What needs to happen, in every case, is a very transparent dialogue with the citizenry about the individual case. If certain aspects of the case need to kept confidential for the time being to protect its (The case) integrity then by all means we need to communicate why. Basically, we need to be more transparent about why we’re not being more transparent if that makes sense.
Then, when all the fact are investigated and/or litigated, then by all means let it out including the officers name if wrong doing was discovered.
You could burn lying, racist, child molesting cops in the public square for all I care. But each and every case has to thoroughly investigated, by us and civilian panels before we start crucifying good people.
CF, please understand that we are gun shy (pun intended) because several of us have been raked over the coals because of false allegations or an ugly set of circumstances where we acted honorably and were doing our jobs well.
You mentioned the pendulum. We as a society tend to swing them way to far when trying to fix a problem, only to create 3 more problems in the process. The pendulum definitely needs swinging, but we need to be careful with how far.