Unions Appeal After Contra Costa County Judge Rules in Favor of Releasing Police Records

Update 1:45 p.m. Monday, Feb. 18: Half a dozen police unions have appealed a Contra Costa County judge's early February ruling that serious misconduct and use-of-force records from past years should be released under a new state law.

The appeals filed Friday requested an immediate stay of Judge Charles Treat's Feb. 8 ruling, which would have unsealed Tuesday any records held by six law enforcement agencies in the county: Walnut Creek, Martinez, Concord, Antioch, Richmond and the county sheriff.

The appeals court granted the stay, meaning those agencies remain barred from releasing any of the records at issue. Briefs opposing the unions' arguments are due by March 1.

The unions continue to assert that the law should not apply "retroactively" — to records created before Jan. 1, 2019, when Senate Bill 1421 took effect.

Disclosing records of on-duty sexual assault, official dishonesty and severe use of force, as each of the six agencies planned to do in response to public records requests from KQED and the Bay Area News Group, "eviscerates peace officers' pre-existing and prior-acquired right to maintain the confidentiality of the information contained within those records," the Walnut Creek Police Officers' Association's appeal says.

The law's author, as well as First Amendment groups and news organizations, argue that SB 1421 removes confidentiality from any records held by an agency, regardless of when they were created.

Treat agreed in his Feb. 8 ruling.

"Such a chronological distinction would make sense if, but only if, the Legislature thought that the police were entitled to conceal the records of their actions before this year," he wrote. "The text of the new statute says nothing to suggest that that is what the Legislature thought, and it makes very little sense to assume that that is what the Legislature meant."

Update 4:29 p.m. Friday, Feb. 8: In the first such ruling on California's new police transparency law, a Contra Costa County judge on Friday ruled that years of officer discipline and use-of-force documents can be made public, rejecting the arguments of law enforcement unions that records prior to Jan. 1 should be kept secret.

Judge Charles Treat immediately stayed the ruling to give the unions time to appeal. But his decision, made from the bench following a hearing that lasted more than 90 minutes, was lauded by First Amendment and police reform advocates as a victory in what they expect will be a long fight.

"The judge got the answer right," making it "clear to all police departments" that years worth of past records can be released, said David Snyder, executive director of the San Rafael-based First Amendment Coalition, which intervened in the case, along with KQED, the Bay Area News Group and the Center for Investigative Reporting.

Police lawyer Tim Talbot said outside of court that the unions will consider an appeal. He said he wasn't surprised by Treat's ruling.

"I think the issue is more political than legal, and I'll just leave it at that," Talbot said. He added that Treat seemed to be accepting of Talbot's privacy arguments "then seemingly at the end he denies it, without an explanation."

Treat asked pointed questions of Talbot: “The Legislature has clearly indicated, at least prospectively, ‘We the Legislature think that (disciplinary) documents should not be confidential and should be publicly available.' " the judge said from the bench. "Didn’t the Legislature think that insufficient access to police records were the problem last year?”

About 15 police reform advocates demonstrated outside the Contra Costa County courthouse in Martinez before the hearing, chanting "Release the records! Release the records."

"Give us the information," said Antioch resident Kathleen Wade, who said her son was crippled in a police beating. "We need to know who these police officers are. They know who we are. Why won't they just release the documents?"

Friday's ruling "is a victory for us," Frank Running Horse of Concord said after the hearing. We know it's going to be a back-and-forth battle. We know they're going to appeal."

Rick Perez, whose son, Richard "Pedie" Perez III died in a 2014 Richmond police shooting, said after the hearing he felt "like the man on the moon, it's one small step toward getting justice but one big step for all these families involved."

Original Post, 10:42 a.m. Friday, Feb. 8:

In what could be a long legal fight that will ultimately end up before the California Supreme Court, a Contra Costa County judge will hear arguments Friday afternoon on whether the state's new police transparency law applies to officer misconduct and use-of-force investigations that occurred before this year.

The court battle pits police unions against open government advocates, news organizations and police reformers, who are scheduled to argue before Judge Charles Treat.

The new law, Senate Bill 1421, "is a landmark bill that provides for sorely needed public scrutiny of police misconduct," said David Snyder, executive director of the San Rafael-based First Amendment Coalition. That organization is intervening in the case, along with KQED, the Bay Area News Group, Investigative Studios and the Center for Investigative Reporting.

"The argument that police can keep secret records from past years and decades is simply wrong," Snyder said.

The ACLU of Northern California and the father of a man killed in 2014 by Richmond police officers are separately intervening in the case, also arguing that the law applies to past investigations.

Unions representing police officers in Antioch, Richmond, Martinez, Walnut Creek and Concord, and county sheriffs' deputies, sued last month to block release of officer disciplinary records requested by a statewide coalition of news organizations, including KQED, going back at least five years. The unions argue the new law should not apply to past records, which they contend are private under other laws that grant special privacy protections to peace officers.

Treat temporarily barred all six agencies from releasing records two weeks ago.

About 15 similar legal challenges, mostly in Southern California, are also working their way through the courts. At a hearing Thursday in Orange County a judge did not immediately rule. A hearing is also scheduled for Friday in Los Angeles.

As of Friday, 60 agencies have released at least partial records to the coalition of news organizations. Some, like Rio Vista, where two officers were fired for use-of-force violations and dishonesty, provided complete internal affairs case files. Others, like Burlingame and Watsonville, which fired officers for sexual misconduct, released summary information outlining what records they possess and are preparing for release.

In legal papers filed with Treat, lawyers for the unions wrote that because the old records were based on events that occurred before the new law was signed by then Gov. Jerry Brown, "rescinding the confidentiality of that information constitutes a ‘new legal consequence to the events completed before’ the new law’s operative date."

Lawyers for the news organizations countered in legal papers:

SB 1421 has opened, at least partially, a window into information that has been unjustifiably withheld from public access under the [California Public Records Act] for too long. This work is of critical public importance in rebuilding the public's trust in law enforcement, and if members of law enforcement want the public's trust, they should have no problem exposing those who disgrace their honored profession. The few records ... received so far show officers fired for sexual misconduct, using excessive force, lying to investigators and tampering with documents to cover up wrongdoing.

State Attorney General Xavier Becerra, a Democrat, said the California Department of Justice will not release records about police officers it employs until the legal issues are decided.

"Historically, peace officers have had a significant privacy right in their personnel records," Becerra's office said in response to requests. "Until the legal question of retroactive application of the statute is resolved by the courts, the public interest in accessing these records is clearly outweighed by the public’s interest in protecting privacy rights."

It was not immediately known how the ultimate decision in the Contra Costa County cases will affect Becerra's thinking on the matter.

Officials at four public agencies have informed KQED and the Bay Area News Group that they are considering positions similar to the attorney general's.

But the author of SB 1421, state Sen. Nancy Skinner, D-Berkeley, tweeted Wednesday there is no doubt the law applies to old records. "If a record exists, it is disclosable. Any legal tactic to withhold the records circumvents the law."

The head of the California Police Chiefs Association said he thinks it's prudent to let the courts settle the matter before records are released.

"I think it’s the appropriate course of action to wait, because once a law enforcement agency releases that information, if the courts upheld the application of the law that’s non-retroactive, of course we can’t pull that information back," said David Swing, who is also the Morgan Hill Police chief.

Four of the departments that Treat had temporarily stopped from disclosing records — Antioch, Concord, Richmond and the Contra Costa Sheriff — have seen a total of at least 12 fatal police shootings during the past five years, according to records and news reports. SB 1421 requires the release of investigative case files on those deaths. The Sheriff's Department saw at least 13 in-custody deaths between 2014 and 2019. Reports on those cases must also be released.

At an Antioch City Council meeting Tuesday night, two activists called for the immediate release of records under the law.

“When the police are the watchers, they are the ones that make us comply with the law," Frank Running Horse of Concord said. "Now there’s a law that makes their misdeeds available to the public so we can watch them. We pay their salaries — we have a right to know, and so this is what this Senate Bill 1421 does."

Antioch resident Frank Sterling noted that the new law exposes when officers "commit crimes, falsify documents or lie. He urged council members to release the records in their city.

"Wouldn’t you want to know if that is happening on your force?" he asked the city council. "Do you want to keep officers that are doing that on the force? I would hope not."

Judith Prieve of the East Bay Times, Ted Goldberg and Sukey Lewis of KQED News and UC Berkeley Graduate School of Journalism students Josh Slowiczek and Susie Neilson contributed to this report.

This story was reported in collaboration with the Bay Area News Group and Investigative Studios, an independent nonprofit news organization affiliated with the Investigative Reporting Program at UC Berkeley.