BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1286 Hearing Date: April 12, 2016
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|Author: |Leno |
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|Version: |February 19, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JRD |
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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
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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
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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
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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
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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,
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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
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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.)
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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
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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.
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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
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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
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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
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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"
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(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
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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
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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
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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.)
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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
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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
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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
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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
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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.
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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.
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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.
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