The Mercury News

Bill would open police discipline records

Past misconduct is hidden in court as a result of state privacy laws, study reveals

- By Liam Dillon

In the 1970s, Los Angeles police officers were furious that past complaints against them increasing­ly were making their way into court cases.

So LAPD officials did something radical: They took more than four tons of personnel records dating to the 1940s and shredded them.

That decision resulted in the dismissal of more than 100 criminal cases involving officers accused of wrongdoing whose records had been purged, sparking public outrage.

The Legislatur­e responded by passing a law that ensured officer discipline records would be preserved — but also made it nearly impossible for anyone to learn about them. The action, driven by police unions, began a decadeslon­g process that has made Cali-

fornia the strictest state in the nation when it comes to protecting police confidenti­ality.

That could change in the next few weeks, with lawmakers in Sacramento considerin­g a landmark effort to increase disclosure.

Police unions repeatedly have argued that California’s confidenti­ality rules protect officer safety and privacy — and prevent cops’ names from being dragged through the mud.

But this year, a group of California legislator­s is confrontin­g police unions in ways once unthinkabl­e. They argue the organizati­ons are out of touch with public sentiment over how officers use force and interact with communitie­s of color. The shift comes amid the backdrop of the Black Lives Matter and criminal justice reform movements.

“It’s hard to build trust ... when police keep secret how they respond to killing members of the public and hide serious misconduct,” said Peter Bibring, director of police practices at the American Civil Liberties Union of California.

The latest proposal to make some misconduct records public faces a key decision in the Legislatur­e this week. While passage is far from assured, some union leaders privately are conceding that a measure of disclosure might be inevitable.

Robert Harris, a director for the union that represents rank-and-file LAPD officers, said high-profile videos capturing police using force — and the protests that followed — have put his side on the defensive.

“We’re kind of at the table trying to work with them, not because of the validity of their arguments but because we’re watching this movement create some hostility in our communitie­s,” Harris said. “The profession of law enforcemen­t is under siege.”

No other state has locked away citizen complaints and internal investigat­ion files like California.

Records of misconduct that result in suspension­s and other significan­t discipline are public in 21 states. Only California, Delaware and New York have specially enshrined confidenti­ality laws that single out police disciplina­ry files. California is alone in denying prosecutor­s direct access to the records.

A Times investigat­ion found that past misconduct, whether alleged or proven, routinely is kept hidden in court as a result of California’s police privacy laws.

The road to secrecy began in 1974, when the California State Senator Mark Leno, D-San Francisco, introduced a police transparen­cy bill in 2016, his final year in the Senate

Supreme Court ruled that defendants had a right to know about complaints that had been lodged against officers testifying in their cases. Defense attorneys started asking for informatio­n that might cast doubt on officers’ testimony.

It was during the barrage of requests that the LAPD destroyed complaints dating to 1949 that hadn’t resulted in a finding of wrongdoing. The leader of the Peace Officers Research Associatio­n of California — the state’s largest law enforcemen­t labor organizati­on — complained that criminal defendants could now “embark on fishing expedition­s into peace officers’ personnel files.”

In 1978, state Attorney Gen. Evelle Younger sponsored the legislatio­n that required department­s to keep misconduct records but also expressly blocked public access and made it much more difficult to view them in criminal court.

Under the bill, defendants would have to persuade a judge to examine an officer’s confidenti­al file, in private, and decide if there was relevant informatio­n to disclose.

The Legislatur­e passed the measure unanimousl­y, sending it to Gov. Jerry Brown, then in his first term, who signed it.

Later that year, after Brown won re-election, his chief of staff credited law enforcemen­t as one of most significan­t endorsemen­ts that led to his victory.

After the law took effect, a slice of police misconduct records remained available to the public.

In Los Angeles, Oakland, San Francisco and other major cities, civil service commission­s or police review boards considered officer discipline issues in open hearings. In 2006, the California Supreme Court ruled that the confidenti­ality law

also applied to those hearings.

That prompted Sen. Gloria Romero, a Democrat from Los Angeles, to introduce a bill to reopen disciplina­ry hearings and make some police records directly available to the public.

Law enforcemen­t unions fiercely opposed what they described in letters to lawmakers as an attempt to undermine their “sacred” right to privacy.

John Stites, a union leader from Southern California, warned in an email to a lobbyist that if the bill passed, police would try to defeat a ballot measure seeking to extend the time some legislator­s could remain in office.

“There is no compromise on this. Ensure it be understood that this will only be the beginning,” Stites wrote in the message, which quickly made its way to lawmakers.

The bill died without a vote.

Around the time of Romero’s first bill, Assemblyma­n Mark Leno, D-San Francisco, introduced a similar proposal. It failed to win enough support to merit even a committee vote.

A year later, in 2008, Leno was running for the state Senate when opponents set up a political action committee called Protect Our Kids that ran ads attacking his votes to cut education spending. San Francisco’s police union, which was critical of Leno’s unsuccessf­ul bill, was one of its top donors.

The lawmaker, who is openly gay, said he considered the committee’s name to be a clear reference to homophobic stereotype­s about gay men as child predators.

“That’s how they play,” Leno said. “You come after us, we’ll come after you.”

San Francisco police labor officials did not return calls for comment. At the

time, a union leader told reporters they were upset about Leno’s votes on public safety and education issues.

Leno won the election but waited until his final year in the Senate before introducin­g a new police transparen­cy bill in 2016.

The timing followed the rise of the Black Lives Matter movement and the 2014 killing of Michael Brown, a black teenager shot by a white officer in Ferguson, Missouri.

Even so, the bill quickly died in a Senate fiscal committee.

“It was just too hot,” Leno said.

Two years later, a hearing on the latest disclosure bill showed how far the tone surroundin­g police issues has changed in the Capitol.

Sen. Holly Mitchell, DLos Angeles, told union lobbyists in April that they were out of touch with how communitie­s perceived officers. No longer, she said, would the unions always get their way.

“Those days are over,” Mitchell said.

Her warning came less than a month after protests erupted near the Capitol in the wake of the fatal shooting of Stephon Clark, an unarmed black man, by Sacramento police.

Senate Bill 1421 would open records from investigat­ions of officer shootings and other major force incidents, along with confirmed cases of sexual assault and lying while on duty. The bill must clear an Assembly fiscal committee this week en route to passage in the Legislatur­e by the end of August, when lawmakers break for the year.

Its author, Sen. Nancy Skinner, D-Berkeley, has argued lawmakers must heed calls from black and Latino residents who want to know what happens to officers they accuse of misbehavio­r.

 ?? RICH PEDRONCELL­I — THE ASSOCIATED PRESS ??
RICH PEDRONCELL­I — THE ASSOCIATED PRESS

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