California Police Unions Fight New State Law Promising Transparency on Misconduct Records
Senate Bill 1421 requires law enforcement agencies to make public investigative records of officer-involved shootings and uses of force resulting in great bodily harm. But law enforcement unions argue that the law threatens the privacy of their members.
Darwin BondGraham Feb 20, 2019
Police unions across California are lobbying cities and suing local governments in a last-ditch effort to prevent the release of police misconduct records under a new law that promises greater transparency.
Senate Bill 1421, which went into effect on Jan. 1, requires law enforcement agencies to make public on request the investigative records of officer-involved shootings and uses of force resulting in great bodily harm. The law also requires disclosure of cases of sustained sexual misconduct and dishonesty.
Previously, these records were strictly confidential. Civil rights groups like the ACLU of California and news organizations including the California News Publisher Association support the new law as an accountability measure. Public defenders also favor the new rules.
“It’s a game changer,” said Brendon Woods, Alameda County’s chief public defender. “All police agencies should support this legislation and comply because it doesn’t require them to disclose much. It’s items they should want to disclose, information that the public has a right to know.”
After the law went into effect, Woods’s office filed records requests with every police agency in Alameda County, as have other public defenders in their respective jurisdictions. Information about officer-involved shootings and the misconduct history of officers could be used to defend poor clients who are arrested by officers with a history of dishonesty or other wrongdoing. Before SB 1421, the only way defense attorneys could obtain this kind of information was through a Pitchess motion, a request in which a judge would review an officer’s personnel file in secret and determine whether any of its contents could be handed to the defense. But even then, the material would usually still be sealed from the broader public.
Cities, police unions square off on implementation of SB 1421
Police unions see SB 1421 as a threat to the privacy of their members. They are now lobbying the cities and counties that employ them not to retroactively apply SB 1421. And where cities and counties disagree with their stance on SB 1421, the unions are filing lawsuits seeking court orders to stop them from applying the law to older records.
For example, in Richmond, an industrial city northeast of San Francisco in Contra Costa County, the question of how to implement SB 1421 has turned into a bitter fight between the police officers union and the city.
Richmond has received between 15 and 20 requests under the new law, city officials said in January. One was made by a coalition of media organizations that includes the East Bay Times and San Francisco-based public radio station KQED, seeking all newly disclosable records of police misconduct and use of force investigations conducted within the past five years.
Richmond’s attorneys, city manager, and police chief interpret the law as applying to all non-exempt records—the four categories of shootings, use of force, sexual assault, and dishonesty that SB 1421 addressed—regardless of the date they were produced, a position that police unions oppose. Like other police unions, Richmond’s officers hope to limit SB 1421’s application only to records produced after Jan. 1 of this year, thereby keeping information about past misdeeds secret.
“The stakes are high in considering retroactive application of SB 1421,” Detective Benjamin Therriault, who is president of the Richmond Police Officers Association, wrote in a Jan. 3 email to an assistant city attorney and Police Chief Allwyn Brown.
Although the Richmond Police Department enjoys a reputation for progressive community-oriented work, in 2016 several of its officers were found to have sexually exploited a teenage girl who used the pseudonym “Celeste Guap.” After an internal investigation into the conduct of 11 officers, Chief Brown wrote that some of them had engaged in “activities that violate multiple Department policies and the professional Code of Ethics.”
However, records of this internal investigation were never made public due to the previous confidentiality rules. Not even the number of officers disciplined in the Guap case was disclosed. Now, under the new law, some of these investigative files might be released.
In an effort to stop this disclosure, the Richmond police union’s attorney sent letters to the city’s manager, attorney, and police chief after SB 1421 passed last year demanding a “meet and confer” session. The union had hoped to convince the city not to retroactively apply the measure to its members’ files.
“All personnel record material related to conduct occurring prior to SB 1421’s effective date is required to be maintained as confidential,” Rockne Lucia, an attorney with Rains Lucia Stern St. Phalle & Silver, which represents the union, argued in a Nov. 27 letter to City Manager Carlos Martinez. The Appeal obtained the letter through a Public Records Act request.
Ultimately, the two sides met, but not before the police union accused the city of failing to properly consult with them. The city also continues to disagree with the union. Richmond officials plan to release all SB 1421 records, regardless of date, unless a court order prevents them from doing so. The city’s attorneys also said that they plan on compiling an index of all records that are now subject to disclosure.
On Jan. 24, the police union followed up with its threat to sue the city by filing for an injunction in Contra Costa County Superior Court. The next day, Judge Charles Treat approved a temporary restraining order blocking the city from releasing misconduct records.
Rains Lucia Stern also represents several other police unions, including the San Bernardino County Sheriff’s Employees’ Benefit Association, which sought an injunction in December from the California Supreme Court to block every law enforcement agency in the state from retroactively applying SB 1421. But on Jan. 2, the court declined to accept the case.
This left the door open for police unions like the Richmond Police Officers Association to challenge the law locally. The Los Angeles Police Protective League, which represents LAPD officers, and unions in Orange, Ventura, and San Bernardino counties have also filed separate lawsuits in the superior courts to block the retroactive application of SB 1421. Also on Jan. 24, Rains Lucia Stern filed lawsuits on behalf of four other police unions in Contra Costa County to prevent disclosure of misconduct records.
So far, the police unions have failed in the courts. On Feb. 8, a Contra Costa Superior Court Judge rejected the position taken by six police unions, including the Richmond Police Officers Association, that the law can only apply to records created after Jan. 1. However, while the judge disagreed with the police unions, he issued a stay preventing cities from immediately making older misconduct records public. After the hearing, an attorney for the police unions said they will likely file an appeal.
“You need to be as transparent as possible, so you have nothing to hide. That’s how you gain trust back.”
In response, media organizations like the Sacramento Bee and Los Angeles Times have filed lawsuits against the Sacramento County Sheriff’s Department for failing to release records under the new law. Sheriff Scott Jones earlier responded to public records requests from both newspapers by informing them that his agency has police misconduct records, but it won’t disclose them because of the pending lawsuits from police unions to block disclosure of pre-SB 1421 materials. On Feb. 14, a San Rafael-based free speech organization called First Amendment Coalition sued California Attorney General Xavier Becerra over his office’s refusal to turn over internal police records.
The growing number of lawsuits brought by police unions may yield a messy statewide legal fight that could limit the reach of the new transparency law. Trial courts might end up issuing contradictory decisions and the dispute could eventually be sent back up to the state Supreme Court.
“This shouldn’t be controversial,” said Jael Myrick, a Richmond City Council member who supports the greater transparency promised by SB 1421. Myrick said he believes that the Richmond police are still the “most community-oriented police department in the country,” but that recent scandals and the shooting of 24-year-old Richard “Pedie” Perez by Officer Wallace Jensen undid years of trust building.
On Sept. 14, 2014, Jensen responded to a nuisance call and found Perez drunk in a convenience store. After Jensen ordered him to sit outside, Perez tried to walk away. Jensen attempted to arrest Perez and a scuffle ensued. Jensen then shot Perez three times, killing him. The officer said Perez reached for his firearm during a brief struggle, but some witnesses at the scene said Perez was simply trying to break away from the officer.
Following an internal investigation, Jensen was cleared by his department, but the Richmond’s civilian police review board later found that he violated policy and needlessly used deadly force. In July 2016, Jensen retired on medical disability. Critical records in the killing of Preez, including those in Jensen’s personnel file, have never been made public; SB 1421 could unlock some of these documents.
“All those things combined created some question marks on behalf of the community,” said Myrick. “My view is that you need to be as transparent as possible, so you have nothing to hide. That’s how you gain trust back.”
City with history of police violence destroys personnel records
Not all cities are implementing the new law in a manner that opens up misconduct records from previous years. For example, in Berkeley, the hometown of SB 1421 author, state Senator Nancy Skinner, the city’s policy is to apply the new law only to records created after Jan. 1, 2019.
Other cities have taken even more drastic steps that undermine the transparency goals of the law.
In Inglewood, a small Los Angeles County city that has a long history of police scandals and shootings, including two Black residents killed in their vehicle by officers in 2016, the City Council voted in December to destroy over 100 personnel records dating back to 1991. The decision was condemned by civil rights groups who said the city was rushing to hide past misdeeds.
Inglewood’s destruction of records also caught the attention of Contra Costa County’s chief public defender, Robin Lipetzky, who sent a letter to the county District Attorney Diana Becton on Dec. 24, 2018, requesting she “ensure that there be no destruction” of police misconduct records by police agencies.
Like other public defenders, Lipetzky’s office has requested police misconduct files from each agency in Contra Costa County. In an interview, Lipetzky said she’s unaware of any Contra Costa police agency destroying records and that she sent the letter as a precaution.
But lobbying local governments against retroactively applying SB 1421, and suing those that do, is only the latest move by police unions to block public access to misconduct files.
Last summer, a coalition of police unions urged state lawmakers to reject SB 1421. When that failed, they requested the bill be amended so that records could only be disclosed after binding arbitration in each specific case. The unions also attempted to insert language that would have raised the standards required to sustain a misconduct investigation from the “preponderance of evidence” to “clear and convincing,” which would result in fewer officers being disciplined and fewer records disclosed.
This stance caused the California Police Chiefs Association to break with the unions because it would impair ability of police commanders to discipline their officers.
The law enforcement coalition that typically blocks criminal justice reform measures was further disrupted after it was learned that in 2018 the ACLU conducted a poll demonstrating public support for a potential 2020 statewide ballot measure that would open up an even wider range of police misconduct records, according to an internal California Police Chiefs Association memo written by one of the group’s lobbyists.
Asked about the poll, the ACLU of Northern California declined to comment, and the ACLU of Southern California did not respond to a request for more information.
Ultimately, the police chiefs came to see SB 1421 as inevitable and necessary to prevent a broader 2020 ballot measure on transparency and the shifted their stance on the bill from neutral to supportive.
“The ACLU has raised millions since the last presidential election and when combined with other social justice groups, we likely would have been vastly outspent,” the police chiefs’ lobbying team wrote in the memo. “On top of that, major statewide non-law enforcement labor groups like the CA Nurses Association, CA Faculty Association, SEIU, and others support SB 1421, making for an almost insurmountable coalition in a campaign fight. Killing SB 1421 was not an option, and we had to make sure the rank-and-file groups did not gain traction with their amendments.”
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