New law – SB 1421 – makes certain records relating to police use of force and misconduct public under the California Public Records Act.
After decades of secrecy, SB 1421 makes certain records relating to police use of force and misconduct available upon request under the California Public Records Act ("CPRA").
SB 1421 a bill authored by Senator Nancy Skinner (D-Berkeley) and signed by Governor Brown, opens up certain police records relating to use of force and misconduct to the public for the first time. The bill takes effect on January 1, 2019.
The bill applies to peace officers and custodial officers and amends Penal Code Section 832.7 to require disclosure of records under three circumstances: (1) in cases where an officer discharges a firearm or causes a person great bodily injury; (2) where there has been a "sustained finding" against an officer of sexual assault; or (3) where there has been a "sustained finding" against an officer of dishonesty relating either to the reporting, investigation, or prosecution of a crime or relating to another officer's misconduct.
Currently, agencies often withhold records related to use of force and police misconduct under the California Public Records Act (Cal. Gov. Code § 6250, et seq.) and the so-called Pitchess statutes. Cal. Penal Code §§ 832.7-832.8. Agencies often cite to the investigatory records exemption in Cal. Gov. Code § 6254(f), as well as the catch-all exemption in Cal. Gov. Code § 6255(a) in choosing to withhold records related to use-of-force incidents, while the Pitchess statutes prohibit agencies from releasing officer “personnel records” including records relating to discipline and complaints or investigation of complaints. Cal. Penal Code § 832.8. However, agencies are generally required to disclose the identities of officers who use deadly force. Long Beach Police Officers Association v. City of Long Beach (2014) 59 Cal.4th 59.
SB 1421 greatly expands the records that are available.
Records related to officer use of force:
SB 1421 makes records related to officer use of force available. Cal. Penal Code § 832.7(b)(1)(A) will provide access to records related to two types of use-of-force scenarios: (1) an incident involving the discharge of a firearm at a person by a peace officer or custodial officer; and (2) an incident in which the use of force by [an officer] against a person resulted in death, or in great bodily injury. Disclosable records are those "related to" the report, investigation, or findings of such incidents, and, under § 832.7(b)(2), will include a litany of records such as investigative reports, transcripts of interviews, autopsy reports, video evidence, disciplinary documents, and more.
Records related to sexual assault by an officer:
SB 1421 makes available, under Cal. Penal Code § 832.7(b)(1)(B)(i), records related to cases where a "sustained finding" was made by a law enforcement agency or oversight agency that an officer engaged in sexual assault involving a member of the public.
The provision will define a "sustained" finding as one in which there is a final determination by an investigating agency, commission, board, hearing officer, or arbitrator, following an investigation and opportunity for administrative appeal, that the officer violated the law or department policy. Cal. Penal Code § 832.8(b).
The definition of "sexual assault" under this provision is the "commission or attempted initiation of a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of leniency or other official favor, or under the color of authority" and includes the "propositioning for or commission of any sexual act while on duty." Cal. Penal Code § 832.7(b)(1)(B)(ii). "Members of the public" are any persons not employed by the officer's employing agency, including individuals participating in a youth program affiliated with the agency. Cal. Penal Code § 832.7(b)(1)(B)(iii).
As with the use-of-force records, the scope of disclosure is broad and includes "any record relating to an incident" including all the types of records listed in Cal. Penal Code § 832.7(b)(2).
Records related to officer dishonesty:
SB 1421 makes available, under Cal. Penal Code § 832.7(b)(1)(C), records related to cases where a "sustained finding" was made by any law enforcement agency or oversight agency of officer dishonesty. In order for disclosure to be triggered, the dishonesty must either be "directly relating to the reporting, investigation, or prosecution of a crime" or "directly relating to the reporting of, or investigation of misconduct by, another officer." (Id.) The dishonesty may include, but is not limited to, "any sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence." (Id.)
SB 1421 contains several limitations on disclosure, as well as provisions for various scenarios which may arise. For example, SB 1421 addresses what information an agency is permitted to redact from records, the time limits for disclosure when investigations are ongoing, and how an agency must address requests when multiple officers are involved in an incident.
In addition to the substantive provisions, SB 1421 contains legislative pronouncements that will aid advocates for transparency in asserting the public interest in law enforcement records. Section 1(b) of SB 1421 declares:
“The public has a right to know all about serious police misconduct, as well as about officer-involved shootings and other serious uses of force. Concealing crucial public safety matters such as officer violations of civilians' rights, or inquiries into deadly use of force incidents, undercuts the public's faith in the legitimacy of law enforcement…and endangers public safety.”
Section 4 of SB 1421 likewise states: "[t]he public has a strong, compelling interest in law enforcement transparency because it is essential to having a just and democratic society."
The bill was championed by the California News Publishers Association and the ACLU. In my estimation, the bill would not have been possible without the sacrifices and efforts of the many courageous activists who have organized and demonstrated for police accountability and reform as part of Black Lives Matter and other movements.