San Francisco Chronicle - (Sunday)
John Diaz: Police unions fight law requiring disclosure of records
For years, police unions fought mightily to defeat legislation that would give Californians a right to inspect records of serious misconduct — defined as an officer discharging a firearm or causing great bodily injury or a substantiated charge of sexual misconduct or perjury.
Finally, and thankfully, they lost that battle last year.
But the forces against sunshine are not giving up.
SB1421, authored by state Sen. Nancy Skinner, D-Berkeley, and signed into law by Gov. Jerry Brown, mandates that records of serious officer misconduct should be open to the public. That should have settled the issue. If an officer engages in serious misconduct against the people’s interest, it is not a confidential personnel matter.
The legislation was important because, as a result of court rulings, since 2006 California had become one of the most secretive states in the nation on public access to records of officer misconduct and use of force.
Attempts to change those standards have run into consistent resistance from law enforcement. Former state Sen. Mark Leno, D-San Francisco, had been one of the most valiant — and, ultimately, frustrated — champions of legislation to restore public access.
“CNPA and the ACLU spent nearly 15 years trying to end the secrecy that protected cops who engaged in unfettered corruption and malfeasance from public scrutiny,” said Jim Ewert, general counsel for the California News Publishers Association. “Each attempt was crushed by the powerful law enforcement lobby. Frankly, I never thought I would see a change to this law in my lifetime.”
Yet even before the law took effect on Jan. 1, police unions began filing legal actions to try to undercut it. In December, the California Supreme Court declined to rule on a petition from the San Bernardino County Sheriff ’s Employees’ Benefit Association to pause the law until the courts could determine whether it is retroactive.
Lawsuits have been pouring in from officer unions from the Bay Area (Contra Costa County, Concord, El Cerrito, Richmond, Antioch, Walnut Creek) to San Diego. More than 20 have been filed to date. On Friday, a Contra Costa County judge dissolved temporary restraining orders that had blocked the release of pre-2019 records, a key victory for the defenders of SB1421.
But appeals are expected to keep the legal fight going.
Here is the outrage of these disingenuous lawsuits: These cop unions knew full well that the law would apply to records on file before Jan. 1. The fact that past misdeeds would be fair game for public inspection was one of their primary arguments against SB1421. Consider this letter to the Legislature from the Los Angeles County Professional Peace Officers Association:
“Our reading of Senate Bill 1421 is that making the records of an officer’s lawful and in policy conduct is retroactive in its impact,” the association wrote.
Of course, that letter is misleading in its own right, because, by definition of SB1421, “records of unfounded complaints” are to be remained sealed. Leno, who as an assemblyman then state senator authored two bills to open misconduct records, recalled how he went to extraordinary efforts to address law enforcement concerns. One was to extend public access only in allegations that were sustained by an internal investigation. Another would allow a department to go to court to show that the danger to an officer and his or her family was greater than the public benefit of the revelation.
“What are they afraid of ?” Leno said in a Friday interview. “These are a very small slice of all the allegations, and of cases having gone through internal review. And we’re talking about serious actions such as racial profiling or abuse of force where someone was seriously injured or died, or a sexual assault. Why should the community not know who’s doing these things if it’s determined by their own department to be true?
Now the cop unions are singing a different tune — that the bill is not retroactive.
“Our goal is to protect our members’ privacy rights in incidents that occurred before this law went into effect,” Grant Ward, president of the San Bernardino County Sheriff ’s Employees’ Benefit Association, said in a statement after a court agreed to halt release of the files. “We have a strong legal position that the bill shall not be applied retroactively.” The law is silent on that point.
In an interview Tuesday, Skinner emphasized that her bill merely extended the treatment of police misconduct records to the state Public Records Act — which stipulates that records on file, and subject to disclosure under law, should be available.
“I don’t like to even use that term,” she said of retroactivity. “They (SB1421 opponents) understood it would be retroactive in its impact. It’s a smokescreen.”
The notion that any misconduct prior to 2019 should be shielded from public view is simply absurd, if not undemocratic.
Without a doubt, one of the driving factors behind the success of Skinner’s bill was public alarm and disgust with the misconduct Californians saw with their own eyes in this cell-phone era: the fatal shooting of Stephon Clark, an unarmed black man, by a police officer outside Sacramento; the volley of police bullets that killed Mario Woods in San Francisco in 2015, caught on video; or the Oakland police sex scandal in which officers sexually exploited a teen and the serial misconduct was not discovered until the 2015 suicide of an officer.
“I always preface my comments by saying: We don’t have a civil society without the dangerous daily work that law enforcement officers engage in,” Leno said. “We respect that, and we appreciate their work, but they can only be successful in that work if there is trust between law enforcement and the communities they serve. And there can be no trust if there’s no transparency.”
Skinner also is quick to stress that the vast majority of honorable officers should not be cast in the dark light of the relatively few wrongdoers, and the law-enforcement groups that are resisting
“What we did do is say: We’re modifying the Public Records Act. Under that act, if a record (on officer misconduct) exists, it’s in a government agency’s possession, and it’s disclosable, you must disclose it. Period.” State Sen. Nancy Skinner, D-Berkeley, after receiving a “Free Speech Champion” award from the California News Publishers Association in Sacramento Tuesday night for her work on SB1421.
this transparency, while formidable and determined, do not represent everyone in public safety.
“We have many, many law enforcement jurisdictions who are complying, many very happily,” Skinner said. “And they are happy to comply to demonstrate that their agencies did proper investigations and did not allow those officers in their hire who were engaged in serious misconduct to get away with it. That’s really why we want this sunshine.”