Fresno defies transparency law governing police shootings
Despite a new California law to increase transparency in law enforcement, the Fresno Police Department is continuing its practice of denying public-records requests to media agencies and the general public.
Chief Jerry Dyer and city officials cite legal challenges to the new law and the massive workload required to handle those requests as just a couple of reasons why the city hasn’t been releasing information under the law.
That stance is leading some critics to question the city’s practices.
According to the American Civil Liberties Union, the city’s behavior is nothing less than a “last-ditch effort to thwart the will of the people and the right to transparency.”
The law, Senate Bill 1421, took effect Jan. 1 and opens public access to internal investigations of police shootings and other incidents in which an officer killed or seriously injured someone. It also allows the public to have access to investigations where allegations of sexual assault or lying on the job were proven.
Kathleen Guneratne, a senior staff attorney with the ACLU of Northern California, said Senate Bill 1421 is clear in what it requires, and other agencies across the state are complying.
She expressed disappointment in Fresno’s response so far, which has been to deny all public records requests.
“It’s disappointing, because we think the law is clear in that agencies and the government should comply with the law and turn these records over,” Guneratne said. “We don’t think it’s ambiguous or a close call.”
Since the new law went into effect, the Fresno City Attorney’s Office has denied all requests so far, citing conflicting court rulings on the new law and the position of state Attorney General Xavier Becerra.
Dyer said law enforcement is
trying to strike a balance between transparency and protecting personnel rights. He said the department does not intend to thwart the will of the people.
“It’s important we share as much as we possibly can with the community, in not only what we do but how we do it,” Dyer said in an interview with The Bee.
“At the same time, it’s important we not paint our employees with a broad brush and open up personnel files which could ultimately taint their reputation in the community and prevent them from being able to serve.”
The city also can’t violate the state’s Public Safety Officers Bill of Rights and other privacy policies, he said.
News agencies such as The Bee, KFSN-TV (better known as ABC30) and the Los Angeles Times submitted requests in January for the newly releasable information, as well as the American Civil Liberties Union, among other groups.
State police union groups have challenged the new law in court, arguing that it shouldn’t apply retroactively. Becerra has argued that the law should apply retroactively, but he has declined to provide records dated before Jan. 1 from his own office.
The L.A. Times and The Sacramento Bee sued the Sacramento Sheriff’s Office for records under the new law, arguing that denying the requests violated the California Public Records Act.
The city of Fresno and Fresno Police Department received about 10 requests for records citing the new law, said Francine Kanne, Fresno’s chief assistant city attorney.
That has created hundreds of hours of work for staff in both the city attorney’s office and the police department. Because the requests were submitted, city staff is tasked with reviewing four bankers boxes of hardcopy documents, thousands of electronic documents and hundreds of hours of body camera footage, she said in an interview with The Bee.
Dyer said that under the new law, police staff must review every single internal affairs case to determine whether the law applies. The department currently purges personnel and internal affairs documents about every five years, which both Kanne and Dyer called a common practice among larger police agencies.
Purging the documents after five years also reduces liability for lawsuits against the police department, Dyer said.
“California is a very litigious state,” he said. “Attorneys representing law enforcement have demonstrated to city and county governments how ancient disciplinary actions can be used against them and increase their liability.”
Making matters more complicated, Kanne said, the terms and definitions in the law, such as “great bodily injury,” aren’t consistent with terms used in the police department. Both she and Dyer hope the vague language will be clarified either through the courts or policy.
Guneratne from the ACLU said those comments would come as a surprise to anyone who served longer jail or prison sentences for great bodily injury enhancements.
“Great bodily injury is not vague. It’s clearly defined in the California penal code and in case law,” she said. “Police officers are sworn to uphold the law. They don’t get to decide that the penal code is vague when it applies to their officers.”
Kanne said SB 1421 isn’t clear whether its intent was to define great bodily injury the same way the penal code does.
It could be a year before a higher court makes any kind of ruling to clarify what’s releasable under the new law, Kanne said.
“Our goal is to be as transparent as possible and follow the law,” Kanne said. “We’re doing the people’s business, and they have a right to know what we’re doing.”
On a related note concerning SB 1421, in February the Fresno Deputy Sheriffs Association filed a civil suit against Fresno County, asking a judge to order the county not to release public personnel records that existed before Jan. 1.
On Thursday, a Judge Jeffrey Y. Hamilton ordered the county not to release the records, unless arguing for the release in court. Hamilton also ordered the county not to apply SB 1421 prior to Jan. 1.
BODY CAMERA FOOTAGE
When it comes to body camera footage of officerinvolved shootings, Dyer currently chooses what to release to the public on a case-by-case basis.
He and city attorneys weigh factors including whether a juvenile is involved, or if an officer’s safety is put at risk.
Other considerations include whether the footage will add context to the shooting for the public, or whether the footage will clear up any misconceptions or rumors.
Another new law, Assembly Bill 748, requires police departments to release within 45 days audio or video footage of shootings or other incidents involving serious use of force, unless it would interfere with an active investigation.
AB 748 takes effect in July.
At this point, Dyer said “absolutely nothing” is preventing the police department from releasing recordings under that new law, save for more recent investigations being tainted.
But, he added, the department isn’t compelled to release footage until the law goes into effect. Despite that, there’s been three instances in which he chose to release body cam footage of officerinvolved shootings anyway.
Todd Fraizer, Fresno Police Officers Association president, said the union has serious concerns with the new laws. Ultimately, he said, the laws will prove that police officers conduct themselves professionally and seek the truth in investigations.
“We feel this is just another attack on law enforcement and will funnel personnel and badly (needed) public safety funding away from protecting our cities,” he said in an email to The Bee.