October 2018 Warning Bells article

The war on police is alive and well

AB 931, a bill by Assembly Member Weber that would have radically changed the standard for uses of force from “objectively reasonable” to “no other reasonable alternative,” was narrowly defeated largely to the efforts of LAPPL Directors Rob Harris and TJ Tarjamo, the support of other California labor organizations, and an LAPPL lobbying team.

Rob and TJ banged on dozens of doors in Sacramento personally lobbying with the legislators and explaining why this bill would be disastrous to law enforcement. A Force Option Simulator was also transported up there and set up for legislators and staff to find out what officer-involved shootings were really like. That’s the good news. The bad news is that AB 931 will be back next year when the legislative year begins again.

More bad news is that, despite a valiant effort by our Directors and lobbyists, Senator Skinner’s SB 1421 bill did pass. It destroys a large piece of the confidentiality that previously existed in your personnel records. California Public Record Act requests will now be largely successful and plentiful as leaves on trees.

In 1974, in Pitchess v. Superior Court, the California Supreme Court allowed a criminal defendant access to certain kinds of information in citizen complaints against law enforcement officers. The natural result was that police departments started destroying their records. We can’t share what doesn’t exist! The natural result of this was that the state legislature mandated records be kept for at least five years. As a result, police departments demanded confidentiality measures.

In the end, 832.7 was passed in 1978. Personnel records were confidential unless there was a motion filed for disclosure under the Evidence Code. The famous Pitchess Motion was born.

SB 1421 will reduce the need for such motions in the future. In passing this bill, the legislature made several “findings.” It found that misuse of police authority leads to grave constitutional violations and public unrest. It found that the public has the right to know all about serious police misconduct. And it found that “the public has a strong, compelling interest in law enforcement transparency because it is essential to having a just and democratic society.”

These are not just pretty words. They will be used by the courts to interpret how SB 1421 is to be applied, and you’ll notice that “citizens have a duty to follow the lawful orders of a peace officer” is not part of their findings.

So, what does SB 1421 do? It adds an entire section to 832.7 PC that removes confidentiality for specified personnel records and makes them subject to release under the California Public Records Act.

What records are no longer confidential?

Any record relating to the discharge of a firearm by an officer or an incident in which the use of force by a peace officer resulted in death or great bodily injury. Any record relating to an incident in which a sustained finding was made that a peace officer engaged in sexual assault involving a member of the public. And any record relating to an incident in which a sustained finding was made of dishonesty directly related to the reporting, investigation or prosecution of a crime, or to any sustained finding of perjury, false statements, filing false reports, destruction, falsifying or concealing of evidence.

Note that for the use of force reports, there is no requirement regarding a finding. If it occurred, it is not confidential. For the sexual assault and dishonesty, a sustained finding is required before it loses its confidentiality. A sustained finding, if appealed to a Board of Rights or Administrative Appeal, is not conclusive until the Chief makes his final decision after the appeal has concluded.

What is meant by a record?

A lot. All investigative reports, photos, audio and video evidence, transcripts or recordings of interviews, autopsy reports, all materials compiled for the District Attorney to consider criminal filing or for the Department for purposes of discipline or administrative action, what corrective action or discipline was imposed, documents setting forth findings and recommendations of findings, copies of disciplinary records related to the incident including letters of intent to impose discipline, and documents reflecting modifications of discipline including letters of intent to impose discipline due to the Skelly or grievance process, letters indicating final imposition of discipline or other documentation reflecting implementation of corrective action.

Does this include releasing prior incidents?

No, unless a separate and prior investigation is independently subject to disclosure under this statute.

What about multiple officers with multiple allegations in an investigation?

If an allegation is not sustained against an officer, it will not be released. However, factual information about the action of an officer during an incident or the statements of an officer about an incident shall be released if they are relevant to a sustained finding against another officer that is subject to disclosure.

Can portions of the released reports be redacted?

Yes, but only to remove personal data, such as home address and phone number, or identities of family members. Or to preserve the anonymity of complainants and witnesses. Or to protect confidential medical, financial or other personal information that is an unwarranted invasion of personal privacy. Or where the personal privacy clearly outweighs the strong public interest in the records. Or where there is a specific, articulable and particularized reason to believe that disclosure of the record would pose a significant danger to the physical safety of a person.

When are reports supposed to be released?

When a California Public Records Act is served in writing on the Department, they have 10 days to decide if they are going to release the reports. If they are going to release them, it is supposed to be done 10 days henceforth.

Can the release of the use of force reports be delayed if there is a criminal investigation?

During an active criminal investigation, disclosure may be delayed for 60 days after the use of force occurred or when the District Attorney determines whether to file criminal charges, whichever occurs first. After 60 days, further delay can be had if the disclosure would interfere with a criminal enforcement proceeding against an officer. Written reasons are required, under seal, if necessary.

Can the release of the use of force reports be delayed if there is an administrative investigation?

The agency may delay the disclosure of records until the investigating agency determines whether the use of force violated a law or agency policy, but no longer than 180 days after the date of the use of force, or 30 days after the dose of any criminal investigation, whichever is later.

Are records of incidents that occurred prior to the passing of the act subject to disclosure?

Yes. No limitations as to date of occurrence exist in the act. Confidentiality for certain records are removed. Thus, when the request under the California Public Records act is filed, any record that meets the criteria, whenever created, must be disclosed. Not much need for Pitchess Motions anymore. The question is how will the Department satisfy the flood of Public Records Act requests that are about to hit them? For instance, a recent officer-involved shooting had hundreds of hours of BWV, DICVS and security camera video, all now subject to release. How many people will it take to put that together with the thousands of pages of reports, review it all for redaction and put it in a form to be released? And how many lawsuits will be filed when the Department releases something they should have withheld or redacted? The ACLU and its buddies in Sacramento are closing down law enforcement, but I guess that is the goal. Note: since this article was published, the League has obtained a TRO temporarily blocking the release of records prior to Jan 1, 2019. A hearing on the matter will be held on 2/5/19.

Be legally careful out there.

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