BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 1286       Hearing Date:    April 12, 2016    
          
           ----------------------------------------------------------------- 
          |Author:    |Leno                                                 |
          |-----------+-----------------------------------------------------|
          |Version:   |February 19, 2016                                    |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Urgency:   |No                     |Fiscal:    |Yes              |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Consultant:|JRD                                                  |
          |           |                                                     |
           ----------------------------------------------------------------- 


                  Subject:  Peace Officers:  Records of Misconduct



          HISTORY

          Source:   American Civil Liberties Union of California;  
                    California Newspaper Publishers Association; PICO  
                    California; Youth Justice Coalition

          Prior Legislation:AB 1648 (Leno) - died in Assembly Public  
          Safety, 2007
                         SB 1019 (Romero) - died in Assembly Public  
                    Safety, 2007
                         
          Support:  ACCE Action; Anti-Racist Action - Los Angeles/People  
                    Against Racist Terror; BerekelyLaw; Black and Pink  
                    Prison Abolition Now; Black Lives Matter Sacramento;  
                    Black Lives Matter Long Beach; Bill of Rights Defense  
                    Committee / Defending Dissent Foundation; Boys and Men  
                    of Color, Santa Ana; California Immigrant Youth  
                    Justice Alliance; California Public Defenders  
                    Association; California Immigrant Policy Center;  
                    Californians for Justice; Chinese for Affirmative  
                    Action; California Attorneys for Criminal Justice;  
                    Coalition for Grassroots Progress; Community  
                    Coalition; Courage Campaign; Critical Resistance;  
                    Dignity and Power Now; Ella Baker Center for Human  
                    Rights; Fathers and Families of San Joaquin; Friends  








          SB 1286  (Leno )                                          PageB  
          of?
          
                    Committee on Legislation of California; Islamic Shura  
                    Council of Southern California; Justice Not Jails;  
                    Legal Services for Prisoners with Children; Los  
                    Angeles Workers Assembly; National Center for Youth  
                    Law; A New PATH; A New Way of Life Re-Entry Project;  
                    Partnership for the Advancement of New Americans;  
                    Public Counsel; Riverside Temple Beth El; Riverside  
                    Coalition for Police Accountability; San Diego  
                    Immigrant Rights Consortium; Silicon Valley De-Bug;  
                    Skid Row Housing Trust; Southeast Asia Resource Action  
                    Center; Transgender, Gender Variant and Intersex  
                    Justice Project; UAW Local 2865; UNITE HERE Local 30;  
                    Unite for Reproductive and Gender Equity; Urban Peace  
                    Institute; The W. Haywood Burns Institute; Women's  
                    Foundation of California; Youth ALIVE! Youth Justice  
                    Coalition


          Opposition:Association for Los Angeles Deputy Sheriffs;  
                    Association of Orange County Deputy Sheriffs;  
                    California College and University Police Chiefs  
                    Association; California Correctional Peace Officers  
                    Association; California District Attorneys  
                    Association; California Peace Officers Association;  
                    California Correctional Supervisors' Organization;  
                    California Narcotic Officers Association; California  
                    Police Chiefs Association; California School Employees  
                    Association; California State Sheriffs' Association;  
                    California Statewide Law Enforcement Association;  
                    Fontana Police Officers Association; Fraternal Order  
                    of Police; Labor Coalition; Long Beach Peace Officers  
                    Association;  Los Angeles County Federation of Labor,  
                    AFL-CIO; Los Angeles County Professional Peace  
                    Officers Association; Los Angeles Police Protective  
                    League; Office of the District Attorney, County of  
                    Ventura; Office of the San Diego County District  
                    Attorney; Orange County Employees Association; Peace  
                    Officers Research Association of California;  
                    California Association of Highway Patrolmen; Riverside  
                    Sheriffs Association; San Diego Police Officers  
                    Association; Sacramento County Deputy Sheriffs  
                    Association; Southern California Alliance of Law  
                    Enforcement










          SB 1286  (Leno )                                          PageC  
          of?
          


                                       PURPOSE
          

          The purpose of this legislation is to provide greater public  
          access to peace officer personnel records and administrative  
          hearings, as specified. 

          Current law requires that in any case in which discovery or  
          disclosure is sought of peace officer or custodial officer  
          personnel records or records of citizen complaints against peace  
          officers or custodial officers or information from those  
          records, the party seeking the discovery or disclosure shall  
          file a written motion with the appropriate court or  
          administrative body upon written notice to the governmental  
          agency which has custody and control of the records, as  
          specified.  Upon receipt of the notice, the governmental agency  
          served must immediately notify the individual whose records are  
          sought.

          The motion must include all of the following:

                 Identification of the proceeding in which discovery or  
               disclosure is sought, the party seeking discovery or  
               disclosure, the peace officer or custodial officer whose  
               records are sought, the governmental agency which has  
               custody and control of the records, and the time and place  
               at which the motion for discovery or disclosure must be  
               heard.

                 A description of the type of records or information  
               sought.

                 Affidavits showing good cause for the discovery or  
               disclosure sought, setting forth the materiality thereof to  
               the subject matter involved in the pending litigation and  
               stating upon reasonable belief that the governmental agency  
               identified has the records or information from the records.

          No hearing upon a motion for discovery or disclosure shall be  
          held without full compliance with the notice provisions, except  
          upon a showing by the moving party of good cause for  
          noncompliance, or upon a waiver of the hearing by the  









          SB 1286  (Leno )                                          PageD  
          of?
          
          governmental agency identified as having the records.  (Evidence  
          Code § 1043.)

          Existing law states that nothing in this article can be  
          construed to affect the right of access to records of  
          complaints, or investigations of complaints, or discipline  
          imposed as a result of those investigations, concerning an event  
          or transaction in which the peace officer or custodial officer,  
          as defined in Section 831.5 of the Penal Code, participated, or  
          which he or she perceived, and pertaining to the manner in which  
          he or she performed his or her duties, provided that information  
          is relevant to the subject matter involved in the pending  
          litigation.

          In determining relevance, the court examines the information in  
          chambers in conformity with Section 915, and must exclude from  
          disclosure:

                 Information consisting of complaints concerning conduct  
               occurring more than five years before the event or  
               transaction that is the subject of the litigation in aid of  
               which discovery or disclosure is sought.

                 In any criminal proceeding, the conclusions of any  
               officer investigating a complaint filed pursuant to Section  
               832.5 of the Penal Code.

                 Facts sought to be disclosed that are so remote as to  
               make disclosure of little or no practical benefit.

          (Evidence Code § 1045(a) and (b).)

          Existing law states that when determining relevance where the  
          issue in litigation concerns the policies or pattern of conduct  
          of the employing agency, the court must consider whether the  
          information sought may be obtained from other records maintained  
          by the employing agency in the regular course of agency business  
          which would not necessitate the disclosure of individual  
          personnel records.  (Evidence Code § 1045(c).)

          Existing law states that upon motion seasonably made by the  
          governmental agency which has custody or control of the records  
          to be examined or by the officer whose records are sought, and  
          upon good cause showing the necessity thereof, the court may  









          SB 1286  (Leno )                                          PageE  
          of?
          
          make any order which justice requires to protect the officer or  
          agency from unnecessary annoyance, embarrassment or oppression.   
          (Evidence Code § 1045(d).)

          Existing law states that the court must, in any case or  
          proceeding permitting the disclosure or discovery of any peace  
          or custodial officer records requested pursuant to Section 1043,  
          order that the records disclosed or discovered may not be used  
          for any purpose other than a court proceeding pursuant to  
          applicable law.  (Evidence Code § 1045(e).)

          Existing law requires that in any case, otherwise authorized by  
          law, in which the party seeking disclosure is alleging excessive  
          force by a peace officer or custodial officer, as defined in  
          Section 831.5 of the Penal Code, in connection with the arrest  
          of that party, or for conduct alleged to have occurred within a  
          jail facility, the motion shall include a copy of the police  
          report setting forth the circumstances under which the party was  
          stopped and arrested, or a copy of the crime report setting  
          forth the circumstances under which the conduct is alleged to  
          have occurred within a jail facility.  (Evidence Code § 1046.)

          Existing law provides that any agency in California that employs  
          peace officers shall establish a procedure to investigate  
          complaints by members of the public against the personnel of  
          these agencies, and must make a written description of the  
          procedure available to the public. (Penal Code § 832.5(a)(1).)

          Existing law provides that complaints and any reports or  
          findings relating to these complaints must be retained for a  
          period of at least five years. All complaints retained pursuant  
          to this subdivision may be maintained either in the officer's  
          general personnel file or in a separate file designated by the  
          agency, as specified. However, prior to any official  
          determination regarding promotion, transfer, or disciplinary  
          action by an officer's employing agency, the complaints  
          determined to be frivolous shall be removed from the officer's  
          general personnel file and placed in separate file designated by  
          the department or agency, as specified. (Penal Code § 832.5(b).)

          Existing law provides that complaints by members of the public  
          that are determined by the officer's employing agency to be  
          frivolous, as defined, or unfounded or exonerated, or any  
          portion of a complaint that is determined to be frivolous,  









          SB 1286  (Leno )                                          PageF  
          of?
          
          unfounded, or exonerated, shall not be maintained in that  
          officer's general personnel file. However, these complaints  
          shall be retained in other, separate files that shall be deemed  
          personnel records for purposes of the California Public Records  
          Act and Section 1043 of the Evidence Code (which governs  
          discovery and disclosure of police personnel records in legal  
          proceedings). (Penal Code § 832.5(c).)

          Existing law provides that peace or custodial officer personnel  
          records and records maintained by any state or local agency  
          pursuant to Section 832.5, or information obtained from these  
          records, are confidential and shall not be disclosed in any  
          criminal or civil proceeding except by discovery pursuant to  
          Sections 1043 and 1046 of the Evidence Code. This section shall  
          not 
          apply to investigations or proceedings concerning the conduct of  
          peace officers or custodial officers, or an agency or department  
          that employs those officers, conducted by a grand jury, a  
          district attorney's office, or the Attorney General's office.  
          (Penal Code § 832.7(a).) 

          Existing law states that a department or agency must release to  
          the complaining party a copy of his or her own statements at the  
          time the complaint is filed. (Penal Code § 832.7(b).)

          Existing law provides that a department or agency that employs  
          peace or custodial officers may disseminate data regarding the  
          number, type, or disposition of complaints (sustained, not  
          sustained, exonerated, or unfounded) made against its officers  
          if that information is in a form which does not identify the  
          individuals involved. (Penal Code § 832.7(c).)

          Existing law provides that a department or agency that employs  
          peace or custodial officers may release factual information  
          concerning a disciplinary investigation if the officer who is  
          the subject of the disciplinary investigation, or the officer's  
          agent or representative, publicly makes a statement he or she  
          knows to be false concerning the investigation or the imposition  
          of disciplinary action.  Information may not be disclosed by the  
          peace or custodial officer's employer unless the false statement  
          was published by an established medium of communication, such as  
          television, radio, or a newspaper.  Disclosure of factual  
          information by the employing agency pursuant to this subdivision  
          is limited to facts contained in the officer's personnel file  









          SB 1286  (Leno )                                          PageG  
          of?
          
          concerning the disciplinary investigation or imposition of  
          disciplinary action that specifically refute the false  
          statements made public by the peace or custodial officer or his  
          or her agent or representative. The department or agency shall  
          provide written notification to the complaining party of the  
          disposition of the complaint within 30 days of the disposition.   
          (Penal Code § 832.7(d) and (e).)

          Existing law provides that, as used in Section 832.7, "personnel  
          records" means any file maintained under that individual's name  
          by his or her employing agency and containing records relating  
          to any of the following:

                 Personal data, including marital status, family members,  
               educational and employment history, home addresses, or  
               similar information.

                 Medical history.

                 Election of employee benefits.

                 Employee advancement, appraisal, or discipline.

                 Complaints, or investigations of complaints, concerning  
               an event or transaction in which he or she participated, or  
               which he or she perceived, and pertaining to the manner in  
               which he or she performed his or her duties.

                 Any other information the disclosure of which would  
               constitute an unwarranted invasion of personal privacy. 

          (Penal Code § 832.8.) 

          Existing law states that an administrative appeal instituted by  
          a public safety officer under this chapter is to be conducted in  
          conformance with rules and procedures adopted by the local  
          public agency.  (Government Code § 3304.5.)
           
           Existing law creates the California Public Records Act, and  
          states that the Legislature, mindful of the right of individuals  
          to privacy, finds and declares that access to information  
          concerning the conduct of the people's business is a fundamental  
          and necessary right of every person in this state. (Government  
          Code §§ 6250 and 6251.)









          SB 1286  (Leno )                                          PageH  
          of?
          

          Existing law provides that public records are open to inspection  
          at all times during the office hours of the state or local  
          agency and every person has a right to inspect any public  
          record, except as hereafter provided. Any reasonably segregable  
          portion of a record shall be available for inspection by any  
          person requesting the record after deletion of the portions that  
          are exempted by law. (Government Code § 6253(a).)

          Existing law provides that any public agency must justify  
          withholding any record by demonstrating that the record in  
          question is exempt under express provisions of this chapter or  
          that on the facts of the particular case the public interest  
          served by not disclosing the record clearly outweighs the public  
          interest served by disclosure of the record. (Government Code §  
          6255(a).)

          Existing law provides that records exempted or prohibited from  
          disclosure pursuant to federal or state law, including, but not  
          limited to, provisions of the Evidence Code relating to  
          privilege, are exempt from disclosure under the California  
          Public Records Act. (Government Code § 6250, et seq.) 

          This bill would, notwithstanding any confidentiality afforded  
          the personnel records of peace officers or custodial officers,  
          authorize a municipality or local public agency that employs  
          peace officers or custodial officers to hear and adjudicate  
          administrative appeals, or to empower a body to hear and  
          adjudicate those appeals, in proceedings that are open to the  
          public and in which some or all documents filed are available  
          for public inspection, as specified.

          This bill would require a department or agency to provide, in  
          the written notification to the complaining party of the  
          disposition of a complaint, at a minimum, the charges framed in  
          response to the complaint, the agency's disposition with respect  
          to each of those charges, any factual findings on which the  
          agency based its dispositions, and any discipline imposed or  
          corrective action taken, as specified. 

          This bill would authorize a municipality, county, or agency that  
          employs peace officers to do both of the following:

                     Hold hearings, which may be open to the public, to  









          SB 1286  (Leno )                                          PageI  
          of?
          
                 hear complaints by members of the public, consider  
                 evidence, and adjudicate the complaints or recommend  
                 adjudications. 

                     Establish a body to hold these hearings.
          This bill would expand the scope of the exceptions to the  
          California Public Records Act for investigations or proceedings  
          concerning the conduct of peace officers or custodial officers,  
          to apply to, among other things, investigations or proceedings  
          conducted by civilian review agencies, inspectors general,  
          personnel boards, police commissions, civil service commissions,  
          city councils, boards of supervisors, or any entities empowered  
          to investigate peace officer misconduct on behalf of an agency,  
          conduct audits of peace officer discipline on behalf of an  
          agency, adjudicate complaints against peace officers or  
          custodial officers, hear administrative appeals, or set policies  
          or funding for the law enforcement agency.  The bill would also  
          require an entity described in those exceptions to comply with  
          specified confidentiality provisions.

          This bill would require, notwithstanding any other law, certain  
          peace officer or custodial officer personnel records and records  
          relating to complaints against peace officers and custodial  
          officers to be available for public inspection pursuant to the  
          California Public Records Act, including: 

                 A record related to the investigation or assessment of  
               any use of force by a peace officer that is likely to or  
               does cause death or serious bodily injury, including but  
               not limited to, the discharge of a firearm, use of an  
               electronic control weapon or conducted energy device, and  
               any strike with an impact weapon to a person's head.

                 A record related to any finding by a law enforcement  
               agency or oversight agency that a peace officer or  
               custodial officer engaged in sexual assault, an excessive  
               use of force, an unjustified search, detention or arrest,  
               racial or identity profiling, as defined in subdivision (e)  
               of Section 13519.4, discrimination or unequal treatment on  
               the basis of race, color, ethnicity, national origin, age,  
               religion, gender identity or expression, sexual  
               orientation, or mental or physical disability, or any other  
               violation of the legal rights of a member of the public.










          SB 1286  (Leno )                                          PageJ  
          of?
          
                 A record related to any finding by a law enforcement  
               agency of job-related dishonesty by a peace officer or  
               custodial officer, including, but not limited to, perjury,  
               false statements, filing false reports, or destruction or  
               concealment of evidence.

          The bill would provide that this information includes but is not  
          limited to, the framing allegation or complaint, the agency's  
          full investigation file, any evidence gathered, and any findings  
          or recommended findings, discipline, or corrective action taken.  
          The bill would require records disclosed pursuant to this  
          provision to be redacted only to remove personal data or  
          information, such as a home address, telephone number, or  
          identities of family members, other than the names and  
          work-related information of peace officers and custodial  
          officers, to preserve the anonymity of complainants and  
          witnesses, or to protect confidential medical, financial, or  
          other information in which disclosure would cause an unwarranted  
          invasion of personal privacy that clearly outweighs the strong  
          public interest in records about misconduct by peace officers  
          and custodial officers, or where there is a specific,  
          particularized reason to believe that disclosure would pose a  
          significant danger to the physical safety of the peace officer,  
          custodial officer, or others, as specified.

          This bill would specify that the provisions that establish  
          discovery procedures for obtaining peace officer personnel files  
          do not bar or limit access in any proceeding to peace officer or  
          custodial officer personnel records or records relating to  
          complaints against peace officers and custodial officers, and  
          would provide that those provisions do not require a party to a  
          proceeding pending in a court or administrative agency to seek  
          records through alternate means before filing a motion pursuant  
          to the discovery provisions described above.
                                                 
                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  









          SB 1286  (Leno )                                          PageK  
          of?
          
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
           
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  









          SB 1286  (Leno )                                          PageL  
          of?
          
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          



          COMMENTS

          1.  Need for This Legislation 

          According to the author: 

               SB 1286 is a reasonable commonsense measure that increases  
               government transparency, and improves accountability and  
               trust in law enforcement.

               Our state's hardworking peace officers risk their lives  
               daily to protect the people of California.  The good work  
               of these dedicated public servants should not be tarnished  
               by the actions of the few among their ranks who may engage  
               in wrongdoing.

               However, recent events - such as excessive deadly uses of  
               force, sexual assaults, and other types of police  
               misconduct - have sparked widespread concerns about police  
               accountability.  

               Polls show, for example, that only 30% of Americans believe  
               that law enforcement agencies do a good or excellent job of  
               holding officers accountable, and that number drops to just  
               10% amongst Black Americans. 

               To build public trust and legitimacy, the President's Task  
               Force on 21st Century Policing recommends that law  
               enforcement agencies establish a culture of transparency  









          SB 1286  (Leno )                                          PageM  
          of?
          
               and accountability-both cornerstones of our democracy.   

               However, in California, when it comes to the tax-paying  
               public having access to information about police-community  
               interactions, law enforcement agencies cannot tell the  
               public whether an officer engages in misconduct.  Law  
               enforcement agencies cannot tell the public if discipline  
               is imposed on an officer who violates a law, department  
               policy or community norms, nor meaningfully inform the  
               public about officer-involved shootings or other serious  
               uses of force. 

               By contrast, in states like Texas, Kentucky, Utah, and  
               approximately a dozen others, such information is made  
               public when an officer is found to have engaged in  
               misconduct.  In addition, at least ten other states;  
               including Florida, Ohio, and Washington; provide  
               transparency irrespective of the conclusion.  

               In addition, a recent poll found that almost four in five  
               California voters (79%) believe the public should have  
               access to the findings and conclusions of investigations  
               when police are found to have engaged in misconduct. 

               SB 1286 addresses the crises of confidence in our system of  
               policing by providing transparency for serious use of force  
               incidents and when egregious misconduct - such as racial or  
               identity profiling, sexual assault, or an illegal search or  
               seizure - is found to have occurred.

          2.  What Is the Discovery ("Pitchess") Process for Obtaining  
          Police Personnel Records? 

          The California Supreme Court has described the discovery  
          process, also known as a Pitchess motion, for a party obtaining  
          information from a police officer's personnel records. 

               In 1978, the California Legislature codified the privileges  
               and procedures surrounding what had come to be known as  
               "Pitchess motions" (after our decision in Pitchess v.  
               Superior Court (1974) 11 Cal. 3d 531 [113 Cal. Rptr. 897,  
               522 P.2d 305]) through the enactment of Penal Code sections  
               832.7 and 832.8 and Evidence Code sections 1043 through  
               1045. The Penal Code provisions define "personnel records"  









          SB 1286  (Leno )                                          PageN  
          of?
          
               (Pen. Code, § 832.8) and provide that such records are  
               "confidential" and subject to discovery only pursuant to  
               the procedures set forth in the Evidence Code. (Pen. Code §  
               832.7.) Evidence Code sections 1043 and 1045 set out the  
               procedures for discovery in detail. As here pertinent,  
               section 1043, subdivision (a) requires a written motion and  
               notice to the governmental agency which has custody of the  
               records sought, and subdivision (b) provides that such  
               motion shall include, inter alia, "(2) A description of the  
               type of records or information sought; and [para.] (3)  
               Affidavits showing good cause for the discovery or  
               disclosure sought, setting forth the materiality thereof to  
               the subject matter involved in the pending litigation and  
               stating upon reasonable belief that such governmental  
               agency identified has such records or information from such  
               records." 
               A finding of "good cause" under section 1043, subdivision  
               (b) is only the first hurdle in the discovery process. Once  
               good cause for discovery has been established, section 1045  
               provides that the court shall then examine the information  
               "in chambers" in conformity with section 915 (i.e., out of  
               the presence of all persons except the person authorized to  
               claim the privilege and such other persons as he or she is  
               willing to have present), and shall exclude from disclosure  
               several enumerated categories of information, including:  
               (1) complaints more than five years old, (2) the  
               "conclusions of any officer investigating a complaint . .  
               ." and (3) facts which are "so remote as to make disclosure  
               of little or no practical benefit." (§ 1045, subd. (b).) 

               In addition to the exclusion of specific categories of  
               information from disclosure, section 1045 establishes  
               general criteria to guide the court's determination and  
               insure that the privacy interests of the officers subject  
               to the motion are protected. Where the issue in litigation  
               concerns the policies or pattern of conduct of the  
               employing agency, the statute requires the court to  
               "consider whether the information sought may be obtained  
               from other records . . . which would not necessitate the  
               disclosure of individual personnel records." (§ 1045, subd.  
               (c).) The law further provides that the court may, in its  
               discretion, "make any order which justice requires to  
               protect the officer or agency from unnecessary annoyance,  
               embarrassment or oppression." (§ 1045, subd. (d), italics  









          SB 1286  (Leno )                                          PageO  
          of?
          
               added.) And, finally, the statute mandates that in any case  
               where disclosure is permitted, the court "shall . . . order  
               that the records disclosed or discovered shall not be used  
               for any purpose other than a court proceeding pursuant to  
               applicable law." (§ 1045, subd. (e), italics added.) 

          (City of Santa Cruz v. Mun. Court, 49 Cal. 3d 74, 81-83 (1989,  
          footnotes and citations omitted.).) 

          A so-called "Pitchess motion" is most commonly filed when a  
          criminal defendant alleges the officer who arrested him or her  
          used excessive force and the defendant wants to know whether  
          that officer has had complaints filed against him or her  
          previously for the same thing. The Supreme Court described the  
          purpose of this discovery process: "The statutory scheme thus  
          carefully balances two directly conflicting interests: the peace  
          officers just claim to confidentiality, and the criminal  
          defendant's equally compelling interest in all information  
          pertinent to his defense." (City of Santa Cruz v. Mun. Court,  
          supra, at, 84.) 

          3. Copley Press, Inc. v. Superior Court
          
          The California Public Records Act, provides generally that  
          "every person has a right to inspect any public record," except  
          as specified in that act.  As described above, there is another  
          set of statutes that make peace officer personnel records  
          confidential and establish a procedure for obtaining these  
          records, or information from them.  The complex interaction  
          between these interrelated statutory schemes has given rise to a  
          number of decisions interpreting various specific provisions.   
          Perhaps the most notorious of these decisions is Copley Press,  
          Inc. v. Superior Court.  

          In August of 2006, the California Supreme Court held in Copley  
          Press, Inc. v. Superior Court, that the right of access to  
          public records under the California Public Records Act did not  
          allow Copley Press to be given access to the hearing or records  
          of an administrative appeal of a disciplinary action taken  
          against a San Diego deputy sheriff. (Copley Press, Inc. v.  
          Superior Court, 39 Cal. 4th 1272 (2006).)  Copley, additionally,  
          provides that a public administrative body responsible for  
          hearing a peace officer's appeal of a disciplinary matter is an  
          "employing agency" relative to that officer, and therefore  









          SB 1286  (Leno )                                          PageP  
          of?
          
          exempt from disclosing certain records of its proceedings in the  
          matter under the California Public Records Act. (Id.) 

               In January 2003, The Copley Press, Inc. (Copley), which  
               publishes the San Diego Union-Tribune newspaper, learned  
               that the Commission had scheduled a closed hearing in case  
               No. 2003-0003, in which a deputy sheriff of San Diego  
               County (sometimes hereafter referred to as County) was  
               appealing from a termination notice. Copley requested  
               access to the hearing, but the Commission denied the  
               request. After the appeal's completion, Copley filed  
               several CPRA requests with the Commission asking for  
               disclosure of any documents filed with, submitted to, or  
               created by the Commission concerning the appeal (including  
               its findings or decision) and any tape recordings of the  
               hearing. The Commission withheld most of its records,  
               including the deputy's name, asserting disclosure  
               exemptions under Government Code section 6254, subdivisions  
               (c) and (k).  

          (Id. at 1279.)

          Copley Press then filed a petition for a writ of mandate and  
          complaint for declaratory and injunctive relief.  The trial  
          court denied the publisher's disclosure request under the  
          California Public Records Act. The Fourth District Court of  
          Appeal reversed. The California Supreme Court then reversed and  
          remanded the matter to the Court of Appeal. 

          In reversing and remanding the matter, the California Supreme  
          Court held that "Section 832.7 is not limited to criminal and  
          civil proceedings."  (Id. at 1284.)
               
               Copley's first argument-that section 832.7, subdivision  
               (a), applies only to criminal and civil proceedings-is  
               premised on the phrase in the statute providing that the  
               specified information is "confidential and shall not be  
               disclosed in any criminal or civil proceeding except by  
               discovery pursuant to Sections 1043 and 1046 of the  
               Evidence Code." In Bradshaw v. City of Los Angeles (1990)  
               221 Cal. App. 3d 908, 916 [270 Cal. Rptr. 711] (Bradshaw),  
               the court opined that the word "confidential" in this  
               phrase "is in its context susceptible to two reasonable  
               interpretations." On the one hand, because the word "is  









          SB 1286  (Leno )                                          PageQ  
          of?
          
               followed by the word 'and,' " it could signify "a separate,  
               independent concept [that] makes the [specified] records  
               privileged material." (Ibid.) "On the other hand," the word  
               could also be viewed as merely "descriptive and prefatory  
               to the specific legislative dictate [that immediately]  
               follows," in which case it could mean that the specified  
               records "are confidential only in" the context of a  
               "'criminal or civil proceeding.'" (Ibid.) The Bradshaw  
               court adopted the latter interpretation, concluding that  
               the statute affords confidentiality only in criminal and  
               civil proceedings, and not in "an administrative hearing"  
               involving disciplinary action against a police officer.  
               (Id. at p. 921.)

               We reject Copley's argument because, like every appellate  
               court to address the issue in a subsequently published  
               opinion, we disagree with Bradshaw's conclusion that  
               section 832.7 applies only in criminal and civil  
               proceedings. When faced with a question of statutory  
               interpretation, we look first to the language of the  
               statute. (People v. Murphy (2001) 25 Cal.4th 136, 142 [105  
               Cal. Rptr. 2d 387, 19 P.3d 1129].) In interpreting that  
               language, we strive to give effect and significance to  
               every word and phrase. (Garcia v.  [1285]  McCutchen (1997)  
               16 Cal.4th 469, 476 [66 Cal. Rptr. 2d 319, 940 P.2d 906].)  
               If, in passing section 832.7, the Legislature had intended  
               "only to define procedures for disclosure in criminal and  
               civil proceedings, it could have done so by stating that  
               the records 'shall not be disclosed in any criminal or  
               civil proceeding except by discovery pursuant to Sections  
               1043 and 1046 of the Evidence Code ? ,' without also  
               designating the information 'confidential.' (Pen. Code, §  
               832.7, subd. (a).)" (Richmond, supra, 32 Cal.App.4th at p.  
               1439; see also SDPOA, supra, 104 Cal.App.4th at p. 284.)  
               Thus, by interpreting the word "confidential" (§ 832.7,  
               subd. (a)) as "establish[ing] a general condition of  
               confidentiality" (Hemet, supra, 37 Cal.App.4th at p. 1427),  
               and interpreting the phrase "shall not be disclosed in any  
               criminal or civil proceeding except by discovery pursuant  
               to Sections 1043 and 1046 of the Evidence Code" (Pen. Code,  
               § 832.7, subd. (a)) as "creat[ing] a limited exception to  
               the general principle of confidentiality," we "give[]  
               meaning to both clauses" of the provision in question.  
               (Hemet, supra, 37 Cal.App.4th at p. 1427.) 









          SB 1286  (Leno )                                          PageR  
          of?
          


          The Court goes on to state: 


               . . .Bradshaw's narrow interpretation of section 832.7  
               would largely defeat the Legislature's purpose in enacting  
               the provision. "[T]here is little point in protecting  
               information from disclosure in connection with criminal and  
               civil proceedings if the same information can be obtained  
               routinely under CPRA." (Richmond, supra, 32 Cal.App.4th at  
               p. 1440.) Thus, "it would be unreasonable to assume the  
               Legislature intended to put strict limits on the discovery  
               of police personnel records in the context of civil and  
               criminal discovery, and then to broadly permit any member  
               of the public to easily obtain those records" through the  
               CPRA. (SDPOA, supra, 104 Cal.App.4th at p. 284.) "Section  
               832.7's protection would be wholly illusory unless [we  
               read] that statute ? to establish confidentiality status  
               for [the specified] records" beyond criminal and civil  
               proceedings. (SDPOA, supra, at p. 284.) We cannot conclude  
               the Legislature intended to enable third parties, by  
               invoking the CPRA, so easily to circumvent the privacy  
               protection granted under section 832.7.   We therefore  
               reject Copley's argument that section 832.7 does not apply  
               beyond criminal and civil proceedings, and we disapprove  
               Bradshaw v. City of Los Angeles, supra, 221 Cal. App. 3d  
               908, to the extent it is inconsistent with this conclusion.  


          (Copley Press, Inc. v. Superior Court, supra, at 1284-86  
          (footnotes omitted).)

          The Copley court additionally held that the "Commission records  
          of disciplinary appeals, including the officer's name, are  
          protected under section 832.7."  (Id. at 1286.)

               [I]t is unlikely the Legislature, which went to great  
               effort to ensure that records of such matters would be  
               confidential and subject to disclosure under very limited  
               circumstances, intended that such protection would be lost  
               as an inadvertent or incidental consequence of a local  
               agency's decision, for reasons unrelated to public  
               disclosure, to designate someone outside the agency to hear  









          SB 1286  (Leno )                                          PageS  
          of?
          
               such matters. Nor is it likely the Legislature intended to  
               make loss of confidentiality a factor that influences this  
               decision. 

          (Id. at 1295.)

          The Court repeated continuously throughout the opinion that  
          weighing the matter of whether and when such records should be  
          subject to disclosure is a policy matter for the Legislature,  
          not the Courts, to decide:

               Copley's appeal to policy considerations is unpersuasive.  
               Copley insists that "public scrutiny of disciplined  
               officers is vital to prevent the arbitrary exercise of  
               official power by those who oversee law enforcement and to  
               foster public confidence in the system, especially given  
               the widespread concern about America's serious police  
               misconduct problems. There are, of course, competing policy  
               considerations that may favor confidentiality, such as  
               protecting complainants and witnesses against recrimination  
               or retaliation, protecting peace officers from publication  
               of frivolous or unwarranted charges, and maintaining  
               confidence in law enforcement agencies by avoiding  
               premature disclosure of groundless claims of police  
               misconduct. "? the Legislature, though presented with  
               arguments similar to Copley's, made the policy decision  
               "that the desirability of confidentiality in police  
               personnel matters does outweigh the public interest in  
               openness." ... [I]t is for the Legislature to weigh the  
               competing policy considerations. As one Court of Appeal has  
               explained in rejecting a similar policy argument: "[O]ur  
               decision ... cannot be based on such generalized public  
               policy notions. As a judicial body, ... our role [is] to  
               interpret the laws as they are written." 

          (Copley Press, Inc. v. Superior Court, supra, 1298-1299,  
          citations omitted, emphasis added.)


          5.  Effect of This Bill



          Public Access to Peace officer Personnel Records 









          SB 1286  (Leno )                                          PageT  
          of?
          

          

          Peace officer personnel records are currently protected under  
          Penal Code 832.7.  This legislation loosens those protections by  
          providing the public access to records related to: 

               1.     The investigation or assessment of any use of force  
                 by a peace officer that is likely to or does cause death  
                 or serious bodily injury, including but not limited to,  
                 the discharge of a firearm, use of an electronic control  
                 weapon or conducted energy device, and any strike with an  
                 impact weapon to a person's head.

               2.     Any finding by a law enforcement agency or oversight  
                 agency that a peace officer or custodial officer engaged  
                 in sexual assault, an excessive use of force, an  
                 unjustified search, detention or arrest, racial or  
                 identity profiling, as defined in subdivision (e) of  
                 Section 13519.4, discrimination or unequal treatment on  
                 the basis of race, color, ethnicity, national origin,  
                                                                                               age, religion, gender identity or expression, sexual  
                 orientation, or mental or physical disability, or any  
                 other violation of the legal rights of a member of the  
                 public.

               3.     Any finding by a law enforcement agency of  
                 job-related dishonesty by a peace officer or custodial  
                 officer, including, but not limited to, perjury, false  
                 statements, filing false reports, or destruction or  
                 concealment of evidence.

          While relaxing the protections of 832.7, this legislation  
          provides for redaction of those documents when disclosure would  
          cause an unwarranted invasion of personal privacy that clearly  
          outweighs the strong public interest in records about misconduct  
          by peace officers and custodial officers, or where there is a  
          specific, particularized reason to believe that disclosure would  
          pose a significant danger to the physical safety of the peace  
          officer, custodial officer, or others.

          Public Access to Hearings

          As discussed above, Copley held that Penal Code section 832.7  









          SB 1286  (Leno )                                          PageU  
          of?
          
          protections extended beyond civil and criminal proceedings, thus  
          denying public access to certain disciplinary appeals hearings.   
          Post-Copley, the First District Court of Appeals in California  
          held that a police review commission's investigative and hearing  
          process were, additionally, subject to the protections of penal  
          code 832.7.  (Berkeley Police Assn. v. City of Berkeley, 167  
          Cal. App. 4th 385 (Cal. App. 1st Dist. 2008).) 

          This legislation provides for public access to such hearings, if  
          localities so chose.  Specifically, this legislation authorizes  
          a: 

                 Municipality or local public agency that employs peace  
               officers or custodial officers to hear and adjudicate  
               administrative appeals, or to empower a body to hear and  
               adjudicate those appeals, in proceedings that are open to  
               the public and in which some or all documents filed are  
               available for public inspection.

                 Municipality, county, or agency that employs peace  
               officers to hold public hearings to hear complaints by  
               members of the public, consider evidence, and adjudicate  
               the complaints or recommend adjudications.


          6.  Argument in Support

          The American Civil Liberties Union of California states, 

               California law currently makes peace officer misconduct and  
               discipline confidential.  This means law enforcement agencies  
               cannot tell the public whether an officer engages in  
               misconduct, or when discipline is imposed on officers who  
               violate a laws, department policies or community norms, nor  
               meaningfully inform the public about officer-involved  
               shootings or other serious uses of force. 

               California is among the most restrictive states in the U.S.  
               on public access to information about peace officer  
               misconduct and investigations into critical police-community  
               incidents. Texas, Florida, Kentucky, Utah, and nearly a dozen  
               other states, provide public access to such information when  
               misconduct is confirmed. In addition, at least 10 other  
               states make records related to complaints against officers  









          SB 1286  (Leno )                                          PageV  
          of?
          
               publicly available regardless of whether misconduct is found  
               to have occurred.

               SB 1286 will resolve the deficit in California law by  
               allowing public access to information about serious uses of  
               force and misconduct by peace officers.  It would also allow  
               people who file complaints about officer misconduct to find  
               out what happened in response to their complaints, permit  
               cities and counties to hold public hearings and appeals on  
               allegations of misconduct, and allow governmental bodies to  
               review officer personnel files while keeping them  
               confidential.   

               Addressing police secrecy is critical to improving the lack  
               of community trust in our system of justice, especially in  
               communities of color, where people are killed by police at  
               alarming rates. As an example, a recent Pew Research Center  
               poll found that only 30 percent of all Americans believe law  
               enforcement agencies are doing a good or excellent job of  
               holding officers accountable for misconduct and that number  
               drops to a mere 10 percent when the same question is asked of  
               black Americans specifically.  Another poll shows that nearly  
               80 percent of Californians believe the public should have  
               access to information about confirmed officer misconduct, and  
               nearly two-thirds believe that the public should have access  
               in all cases in which an officer is accused of misconduct.   
               As the LA Times Editorial Board stated this February: 

                   Far from being a beacon of transparency,  
                   California - when it comes to the public's ability  
                   to assess the performance of its law enforcement  
                   agencies - is the nation's information black hole  
                   . . . [SB  1286] would restore the disclosure that  
                   Californians once considered a basic element of  
                   police oversight here, as it still is in many  
                   other states.<1> 

               Under current law, the public is all too often left in the  
               dark when there appears to be police wrongdoing.  Each  
               instance of police secrecy erodes public trust.  Californians  
               do not know why officers were allowed to shoot Fridoon Nehad  

               --------------------------
          <1>  
          http://www.latimes.com/opinion/editorials/la-ed-0224-police-trans 
          parency-20160224-story.html.








          SB 1286  (Leno )                                          PageW  
          of?
          
               in San Diego, Charlie "Africa" Keunang on Skid Row in Los  
               Angeles, or Mario Woods in San Francisco. We do not  
               understand why officers were permitted to beat Marlene  
               Pinnock, or threaten people over social media. SB 1286 would  
               break this wall of silence, and allow the tax-paying public  
               to get meaningful answers.

               Public trust in law enforcement cannot be improved without  
               true openness about how agencies address serious uses of  
               force and proven misconduct.  

          





          7.  Argument in Opposition

          According to the Ventura County District Attorney, 

               I agree that peace officers are given great responsibility  
               and that allegations of misconduct must be thoroughly  
               investigated.  But I do not believe that existing  
               procedures to address allegations are inadequate.  My  
               experience has been that law enforcement agencies take  
               complaints seriously, investigate them responsibly, and  
               impose appropriate discipline.  I do not believe that SB  
               1286 would accomplish the stated goal of increasing public  
               confidence in peace officers.  

               The longstanding protections for peace officer personnel  
               files are based on officers' unique job responsibilities.   
               Unlike any other profession, peace officers' duties include  
               using physical force against others and engaging in daily  
               confrontations with criminals.  Unfortunately, some  
               individuals they encounter have no scruples against  
               fabricating charges in order to escape criminal liability  
               for themselves or to seek financial gain.  No other  
               group-teachers, firefighters, etc.-are placed in this  
               position.  But SB 1286 would actually give officers fewer  
               protections tha[n] other professions, who are generally  
               entitled to closed hearings and confidential records for  
               disciplinary matters. 









          SB 1286  (Leno )                                          PageX  
          of?
          

               Under the Ralph M. Brown Act, public employees accused of  
               misconduct are entitled to closed hearings unless they  
               request a hearing.  (Gov. Code, § 54957, subd. (b).)  An  
               employee's personnel records are presumed to be  
               confidential, and require a judicial weighing of public  
               interest before they are released.  (Cal. Const., art. I, §  
               1; Board of Trustees v. Superior Court (1981) 119  
               Cal.App.3d 516, 525-526; Johnson v. Winter (1982) 127  
               Cal.App.3d 435.)   SB 1286 would not only eliminate  
               existing protections for peace officers, but would go too  
               far the other way, depriving them of privacy rights  
               accorded other professions.

               SB 1286 would amend Penal Code section 832.7 to provide  
               sweeping and unwarranted exceptions to the confidentiality  
               of peace officer personnel files.  The bill would allow  
               Public Records Act access to the full investigative file,  
               all evidence gathered, and the specific discipline imposed  
               for several categories of internal investigations.  This is  
               in stark contrast to other provisions of the Public Records  
               Act, which exempt from disclosure personnel records (Gov.  
               Code, § 6254, subd. (c)) and law enforcement investigatory  
               files.  (Gov. Code § 6254 (f).) SB 1286 would give peace  
               officers lesser privacy rights in investigation files than  
               those afforded murderers, pedophiles, and other criminals. 

               In sharp departure from longstanding Pitchess protections,  
               dissemination of peace officer personnel records and would  
               not be limited to those who have a need for them in court.   
               In addition, this bill would eliminate the effect of  
               protective orders, currently required to limit use of peace  
               officer personnel information to the case in which the  
               information is obtained.  (Evid. Code, § 1045, subd. (e).)   
               Elimination of these protections is not justified. 

               Open hearings on complaints against peace office[r]s may  
               actually discourage members of the public from coming  
               forward.  Investigations are currently handled with  
               confidentiality and discretion that protects not only the  
               officer but the complaining parties and witnesses.  The  
               prospect of having to testify against police at a public  
               meeting is likely to discourage some citizens from  
               complaining at all. 









          SB 1286  (Leno )                                          PageY  
          of?
          

                                      -- END -