SB 1421 and AB 748 (Effective July 1 2019) are significant items of legislation signed on September 30th 2018 requiring changes as to how police (peace) records are made available. Widely seen as a response to shootings of unarmed minority males by police. The statutes shift some impetus towards the public when requesting police records which prior to this were only available via the Pitchess process i.e. by requesting access under the CPRA (California Public Records Act). The Pitchess motion was more often used in a criminal action by a defendant to gain access to an arresting officer’s personnel record. The name or term ‘Pitchess’ derives from a Supreme Court Case (California) in 1974 and was further codified within California Evidence Code (1043-47). SB 1421 amends section 832.7 (Government code) requiring records and information disclosure relative to particular incidents in response to requests under the CPRA
Asides from SB 1421 and AB 748 police transparency bills a number of other laws were signed in by Gov Brown including the minimum age for prosecution, juvenile justice and Gun Control (SB 1200). Over one thousand laws were signed within his final year and Gov Brown left office on 7th January. Both SB 1421 and SB 748 took effect Jan 1 2019 and therein lies some contention. The ACLU of Northern California together with Berkeleyside sued The City of Berkeley in Alameda County Superior Court. The action was in response to the refusal to release police records under SB 1421:
Senate Bill 1421 allows public access to police records in cases of force, as well as investigations that confirmed the lack of honesty in their work or sexual misconduct.
However police unions and their legal representatives (RLS (Rains Lucia Stern St. Phalle & Silver)) have taken the position that these records prior to Jan 1 2019 remain confidential. There are a proliferation of lawsuits from First Amendment groups and media outlets stating that the law should now apply to all records and should be released. A number of restraining orders have been sought by the police union’s lawyers to prevent access to earlier records, a number of temporary orders have been granted (Contra Costa, Antioch, Richmond, Martinez and Walnut Creek). In December 2018 RLS had requested State Supreme Court to make the law applicable from Jan 1 2019 onward but the petition was denied along with a refusal to issue a stay.
Some law enforcement agencies in California though have been more amenable such as Burlingame Pd and Emeryville PD. Making available details of officers who were fired offering to trade sex for help with a DUI charge and lying in the course of an investigation respectively. The city of Berkeley maintained that in respect of “dishonesty or sexual assault” and “force relating in great bodily injury or death” it did not have to impart these records but went on that it had sifted through 5 years of misconduct records but found nothing. Following a unanimous vote the City council confirmed SB 1421 should apply to records pre dating January 1 2019. Thereafter it revised it’s stance and stated it was evaluating applicability to pre 2019 police records and would further confirm by February 11th. No additional records were provided along with no further explanation.
A further question was raised as to how far reaching SB 1421 was highlighted by another lawsuit between the Association of Los Angeles Deputy Sheriffs and the Los Angeles County Sheriff. The court was asked to consider on what circumstances, under the Brady List, an officer’s name could be disclosed. The Brady lists are collated by law enforcement agencies and are secretive by their nature in that they detail acts of dishonesty and moral turpitude by officers. While the misconduct typically isn’t made evident they do point to those officers that may have jeopardised a case by their misconduct i.e. lying or the fabrication of evidence.
If details are requested under SB 1421 it may well be interpreted as encompassing names in the Brady List, if requested under the Public Records Act. If this is the case it may well render lawsuits and arguments (employers V unions) about the disclosure of names within the Brady List irrelevant. Some agencies do not hold lists but The San Francisco and Los Angeles Police Department’s do. Brady lists first came about in 1963 (Brady v Maryland) in California which sought to comply with the U.S. Supreme Court. The lists relate to whether an arresting officer has ever behaved in a way that impeached his or her integrity. Interestingly the Supreme Court now asks whether SB 1421 has a bearing on these Brady lists.