Fresno de­fies trans­parency law gov­ern­ing po­lice shoot­ings

The Fresno Bee (Sunday) - - Front Page - BY BRI­ANNA CALIX [email protected]­nobee.com

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.

FRESNO’S RE­SPONSE

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.

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