State senator moves to expand police transparency law

Skinner revives bill to widen range of misconduct subject to disclosure

Three months after the legislative clock ran out, a Bay Area state senator is asking her colleagues to reconsider in their new term expanding a landmark police transparency law mandating disclosure of officer misconduct records, to cover allegations of racist behavior and close avenues used to ward scrutiny off problem officers.

On Monday, Nancy Skinner, D-Berkeley, reintroduced her bill to bolster Senate Bill 1421, which went into effect as law in 2019. That law compelled police agencies across the state to release previously protected personnel records involving police officers who used deadly force or inflicted serious injuries on the job, or were proven by their agency to have committed onduty sexual assault or dishonesty.

Skinner’s initial attempt to widen the bill’s purview, in the form of SB 776, failed after the bill did not make it to the Senate floor for a vote before the coronavirus-shortened 2020 legislative session ended Aug. 31. Given its 5315 bipartisan approval in the state Assembly beforehand, there is reason to believe that the second try will be smoother.

The revived bill would primarily expand the footprint of what is covered under the current law, including expanding the types of use- offorce cases that would mandate disclosure to broadly cover force deemed “unreasonable or excessive” and sustained cases where officers engaged in racist or biased conduct, including unlawful arrests or searches. The bill would also eliminate purging schedules for misconduct records and limit what agencies can charge to “the actual cost of copying records.”

“This is the kind of policy that in most cases, and for most officers, will not be necessary, since they do their job and do it well with community trust,” Skinner said. “But we know from incidents we learn about later, there’s some number of officers who tend to be the same ones who engage in behavior that communities don’t want. This will ensure we know about it, and if an agency retains the officer, they do so with full knowledge.”

Several components of the bill address processes that allowed scrutinized officers to stymie internal investigations or keep the records under seal. For instance, Skinner’s bill would bar agencies from summarily claiming attorneyclient privilege to challenge an otherwise valid records request.

It would also require that records be released even if an officer resigns in the middle of an internal investigation; under current convention, an officer quitting also typically ends a misconduct probe. Skinner said her bill would also compel the completion of such an investigation, regardless of whether the officer is still with the agency.

Along those same lines, the bill expansion would require police agencies to obtain, share

and review disciplinary records and the complaint history of an officer when they seek employment with another agency. This provision is aimed at eliminating situations where records protections prevent a police agency from fully knowing they are hiring an officer with a troubled past.

“These safeguards are so an officer can’t just quit and get a new job,” she said. “Whatever misconduct they’re accused of goes with them.”

That evokes related efforts to institute a decertification process in the state for officers with significant misconduct records. California is one of only five states that doesn’t have such a process; an investigation by this news organization based on SB 1421 records found dozens of police officers with criminal records were still working in departments across the state.

A decertification bill proposed in the last legislative session by state Sen. Steven Bradford, a noted collaborator of Skinner’s, similarly failed to get a full vote before the session ended. He has vowed to reintroduce that bill.

David Snyder, executive director of the First Amendment Coalition, said SB 1421 was always meant to be a first step in increasing the public’s understanding of how police misconduct is handled in the state.

“This was a watershed bill that cracked the door, but that door is still just a crack compared to the availability of records for other public officials accused of misconduct,” Snyder said. “The public has made abundantly clear that more transparency is necessary. My hope is they will continue opening this door.”

Skinner’s bill would also empower courts to issue civil fines of up to $1,000 a day for nondisclosure, and civil damages in related lawsuits. Police agencies across the state have been sued over their speed of compliance; this news organization and its partners are currently involved in records litigation with law enforcement in Bay Area jurisdictions including San Jose, Richmond and Contra Costa County.

Eric R. Nuñez, president of the California Police Chiefs Association and chief in Los Alamitos, contends the imposition of fines is not warranted.

“CPCA supported Senator Skinner’s original legislation to allow the release of police files, but that came with high costs and increased workload to agencies,” Nuñez said in a statement. “Clearly, police chiefs support transparency, but if we expand the original law it should be balanced with consideration for the economic crisis cities are facing today, and we should avoid creating new civil fines that unfairly penalize local governments.”

On that point, Skinner said she agrees, and added she hopes that conflicts don’t reach the point of monetary fines and civil damages.

“I hope that they never have to be used,” she said. “I hope they see the Legislature is taking the law seriously, and that we expect same from every local government and every police department.”