Lines Drawn in Fight Over Historic Unsealing of Police Records

A new state law set to take effect Jan. 1 opens public access to police misconduct and use-of-force information unseen in California for decades. A Southern California law enforcement group has asked the state Supreme Court to block access to records created before 2019. (Alex Emslie/KQED)

When a landmark police transparency law was signed by Gov. Jerry Brown in September, civil liberties groups and advocates hailed the victory, citing a history of previous failed attempts to bring light to California's entrenched secrecy around police misconduct and use of force.

But the new law may turn out to be just part of a longer legal war. The next battle, over whether Senate Bill 1421 applies to past or only future misconduct, has already started — even before the law takes effect on Jan. 1.

Attorneys representing police unions throughout the state filed a petition with the California Supreme Court on Tuesday, asking for an order or other "extraordinary relief" before New Year's Day to block police agencies throughout the state from turning over any existing records.

Attorney Michael Rains argues that a law must explicitly state that it applies retroactively and that SB 1421 doesn't do that.

"We believe the law is clear that it does not allow agencies to disclose personnel records that pertain to events predating Jan. 1, 2019," Rains said.

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He concedes that interpretation is different from what many police agencies throughout the state and the bill's author believe.

"The main existing law that it modified is our public records act," state Sen. Nancy Skinner (D-Berkeley) said. "If the record exists, then it's disclosable."

Scope of Records Disputed

SB 1421 says findings that a California peace officer sexually assaulted someone while on duty or lied while conducting official duties — such as falsifying a police report — should be disclosed upon request. The law also mandates that police agencies release information about officer-involved shootings and any use of force that results in great bodily injury.

The new law amends state laws originating in the 1970s and further interpreted in a 2006 state Supreme Court ruling that essentially blocked all access to police misconduct and disciplinary information to protect the privacy of police officers.

Skinner said a separate law requires agencies to maintain records substantiated misconduct and shootings for five years, and she intended her legislation to apply that far back.

That was also Morgan Hill Police Chief David Swing's understanding of the law's intent. He's president of the California Police Chiefs Association, one of the main law enforcement groups that was at the table negotiating over SB 1421.

“Our understanding here in Morgan Hill is that it is retroactive, and having been involved in conversations with Sen. Skinner’s office during part of the process, I think that the intent of the law was for five years, as opposed to going back in perpetuity,” he said before the petition to the state Supreme Court was filed. He added that “agencies will make that determination on their own based on the advice of their legal counsel.”

After the petition was filed, Swing said in an emailed response that "the court is the best venue" to sort out the dispute.

"Personally, I support a prospective application," he wrote, meaning he'd prefer not to disclose information about past cases.

'Hail Mary'

California Attorney General Xavier Becerra confirmed his office would defend the law if the state Supreme Court decides to hear the petition, but he declined to comment on any merits of the case.

David Snyder, an attorney and executive director of the pro-transparency First Amendment Coalition, called the recent petition a "Hail Mary," "last-ditch" effort to undermine the new law.

“I think the bill is eminently clear that these records have to be made public," Snyder said. "They're asking the highest court in the state to essentially say the bill is nullified in its most important provisions.”

But police union attorney Rains said he's confident the court will end up blocking access to past records.

"We're going to have a lot of news agencies and perhaps other agencies that are going to be unhappy to be constrained not to get those records," he said, "but they are not going to get them."

Whichever prediction is right, the litigation is adding uncertainty to an already murky process. And it's only one tactic aimed at narrowing or blocking records that could be released. For example, the Los Angeles Times reported Saturday that the city of Inglewood plans to destroy police shooting records older than 5 years.

KQED informally polled several Bay Area and state law enforcement agencies, asking how they were preparing to implement the new law and for each agency's interpretation of what records will be unsealed.

Most seem to still be "working to develop policy and procedure to fully implement the requirements of this important legislation," as a California Highway Patrol spokesman responded. No agency provided details about how it is interpreting the law.

But Rains said he filed the state Supreme Court petition because many agencies throughout the state had told his law firm that they planned to provide records going back at least five years.

"They said that it's probably just easier for them to go ahead and provide records," Rains said. "It was clear to us that somebody needed to take a stance, and it was us."

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