Why Wasn’t SB 1286, the Police Transparency Bill, Allowed to Go Through the Legislative Process?

Late last week, SB 1286, a bill that would have allowed greater public access to certain peace officer disciplinary records, was deep-sixed via a technical move in the state senate’s appropriations committee without any kind of discussion, or an up-or-down vote.

This is a pity. Whether one favored or opposed this particular bill, the topic of law enforcement transparency is an important issue in which there is strong interest, and both sides of the argument would have benefited if SB 1286 had gone more fully through the legislative process, complete with testimony, lively discussion, the possibility of amendments—and a public vote.

But that’s not what occurred.

If you’re not familiar with SB 1286, the broad strokes are as follows:

If it had passed in its present form, Californians would have full access to records of investigations and discipline in police shootings and other serious uses of force by police, and also in cases where law enforcement agencies have formally determined that their officers have violated the rights of members of the public.

In addition, Californians who file complaints alleging misconduct would be informed as to how the department responded. If the complaint was rejected, they would be told why. If it is sustained, they would be told what corrective action is to be taken.

On top of that, civilian oversight bodies and local governments would have access to the law enforcement records they need to carry out their duties. At the same time, those bodies would be required to keep confidential records to which they have access.

To protect the safety and privacy of officers, courts would be empowered to withhold records if there is a risk or danger to an officer or to someone else, or if disclosure would be an unwarranted invasion of officers’ privacy.

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STATES THAT ALLOW PUBLIC ACCESS, STATES THAT DON’T, AND STATES THAT SORTA DO

In 27 states police discipline records are either entirely public or are public, but with some restrictions.

In the rest of the 23 states—California included—law enforcement’s disciplinary records are mostly, or entirely confidential.

With some of those states that favor confidentiality, like California and New York, the laws preventing public access to records are particularly stringent, and even when an officer has been subject to severe discipline for misconduct, like a lengthy suspension, or termination, the public has no right to know.

In our state, the only exception to that rule is a legal request known as a Pitchess motion, which may be used to attempt to obtain a small portion of a police officer’s confidential personnel records if a judge deems the damage of not forking over those records for evidentiary use in a civil or criminal proceeding, to be greater than any possible consequences that disclosure might bring about.

(WNYC Public Radio investigated the laws in each state and, using their handy info graphics, you too can check out which states restrict or allow what.)

In contrast, Texas generally allows police disciplinary records to be made public. Yet, in certain areas of the state, local codes provide tighter rules. Even in those regions, however, the public may access files pertaining to disciplinary actions where the officer received at least a suspension or loss of pay (providing the discipline was in writing).

In still other states, like Washington, Utah, Arizona, North Dakota, Florida and Alabama, police disciplinary records are available to the public virtually across the board, unless an active disciplinary investigation is underway, or if the information will compromise an officer’s personal privacy or safety.

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THE ISSUES OF PRIVACY & SAFETY

When in February of this year, California state senator Mark Leno (D-San Francisco), together with a bi-partisan list of co-authors, introduced SB 1286, it was not clear whether on not the controversial bill had a chance of passing, but many advocates felt it did indeed have a shot and, failing that, the believed that some version of the proposed legislation will likely pass in the next year or two. After all, in addition to law enforcement reform advocates it had gathered the vocal support of San Francisco District Attorney, George Gascon, and San Francisco Public Defender Jeff Adachi.

The bill was strongly opposed by police unions and other law enforcement organizations, along with the Los Angeles County Federation of Labor, led by Executive Secretary-Treasurer, Rusty Hicks, who sent a letter to Senator Leno announcing the group’s opposition to the bill, which he said would strip peace officers of privacy in their personnel records.

“The thing that we heard is that it was about officer safety, and officer privacy,” said Peter Bibring, director of police practices for the ACLU of California. (The ACLU was another of the bill’s sponsors.) “But the bill specifically protected officer safety and officer privacy.”

And, Bibring said, “opponents have never pointed to a single instance where officers were harmed or where there was a threat of harm because of records being released.

“So it’s not really really about safety. It’s a worry about public scrutiny,” he said. “But the thing is, People mistrust decisions that are made behind closed doors Courts are open. The legislative process is open.” But we can know nothing, he said, about “when a police officer takes a civilian’s life.

“And without the facts, people react to the withholding of information. They don’t like it.”

Bibring also stressed that, “it’s only serious uses of force and actual findings of misconduct,” that would be disclosed under the proposed legislation. “So the bill, even if it had passed, would have left police with significant more confidentially that any other public employee.” Yet, he said, a change in the law would go a long way in improving public trust of their police.

George Hofstetter, the head of ALADS, the LA County Sheriff’s Department’s deputies’ union, disagreed.

“If allowing the wholesale invasion of police personnel files would lead to increased trust or accountability in law enforcement,” he wrote, “surely the proponents could cite an example. They note that twenty three states allow the type of access they seek to impose in California—yet there isn’t a single study which shows the level of trust in peace officers or accountability of law enforcement is any greater than in California.”

All points that could have come into hearing testimony for the bill. But instead, senate appropriations committee chair, Sen. Ricardo Lara (D-Los Angeles), simply unilaterally spiked SB 1286 by failing to call it to a vote.

In doing so he did the rest of us a disservice.