Getting Police Records Is Still a Slog, One Year Into New Transparency Law - Voice of San Diego

Public Safety UNVEILING THE UNSEEN

Getting Police Records Is Still a Slog, One Year Into New Transparency Law

One year after SB 1421, a landmark police transparency law, went into effect, the public still doesn’t have a complete picture of how police agencies investigated instances of force and misconduct. 

At one point, Sheriff Bill Gore told various media outlets they’d need to pay hundreds of thousands of dollars to obtain misconduct records under SB 1421. He reversed his decision following public criticism. / Photo by Sam Hodgson

One year after SB 1421, a landmark police transparency law, went into effect, the public still doesn’t have a complete picture of how police agencies investigated instances of force and misconduct.

That’s because many police unions across the state attempted to stop the release of records by arguing, unsuccessfully, the California Legislature never intended for those records to see the light of day. Lawmakers clearly did. But the legal disputes and other obstacles — some of which were erected by the agencies that employ the officers — significantly delayed the process.

Some of the biggest police agencies around have begun releasing records online, but the case files are being published slowly.

Ensuring that police agencies would abide by the new law in 2019 required the time and resources of many dozens of media outlets and other interest groups.

By and large, the courts in California have sided with the press, arguing that the public has a right to know how law enforcement polices itself. But the way police unions and agencies acted after SB 1421 became law has only furthered the conviction among its proponents that it was a good thing after all.

“What we’ve seen since Senate Bill 1421 took effect in January has been both illuminating and deeply concerning, demonstrating why the measure was necessary to ensure that law enforcement is both transparent and accountable,” wrote state Sen. Nancy Skinner, the bill’s author, in November.

By last spring, more than 170 law enforcement agencies were either involved in litigation or refused to comply with the law until the courts gave more direction, according to the Los Angeles Times. By last summer, some of the largest law enforcement agencies in the state had failed to produce a single record.

Eight police unions based in San Diego County — representing the officers at various cities, schools and the port — filed a petition a few weeks after the law went into effect, arguing that it was not retroactive and therefore they weren’t required to release any existing records.

Although Skinner later insisted that SB 1421 applied to records created prior to 2019, the law did not explicitly address this point. Local police unions pounced, and a group of media organizations, including Voice of San Diego, intervened in court, as did the American Civil Liberties Union.

“The fact the law wasn’t in effect at the time of the incident doesn’t mean the records pertaining to those incidents aren’t subject to disclosure,” said Matthew Halgren, an attorney at Sheppard, Mullin, Richter and Hampton who represented the local media organizations.

He and the legal team representing San Diego press argued that the intent of the Legislature had been clear from the beginning. SB 1421 simply says “all” records “maintained” by an agency and relating to “any” incidents, regardless of date, must be disclosed. The law also does not impose new legal consequences on past behavior, and officers don’t have a right to keep their past actions hidden.

The San Diego County Superior Court agreed on those points, although the judge was sympathetic to the last of those arguments, because some officers might have resolved their cases differently had they known the records would someday be released. He and other judges across the state recognized, however, that the Legislature had made a determination that the public’s right to information trumped the privacy rights of individual officers.

But in the process, he held up the release of records for weeks to give the unions time to file an appeal. They didn’t in San Diego. But another police union elsewhere in California did.

After losing in the Contra Costa Superior Court, the Walnut Creek Police Officers’ Association appealed. But the 1st District Court of Appeal ruled that the previous decision had been right — SB 1421 did, in fact, compel the release of police records prior to 2019.

That position is precedent in all trial courts in California. Or it should be.

In June, a Ventura County Superior Court judge prohibited the release of police records prior to 2019, ruling that the California Legislature should go back and write a new law if that’s what it intended to do. He bucked court rulings up and down the state for reasons that are still unclear.

The Ventura County public defender is appealing. The office intervened in the case after the Ventura County Deputy Sheriffs’ Association sued to block the release of the records.

Statewide Findings

SB 1421 allows for the release of internal investigations only under a limit set of circumstances: if an officer used force, an officer lied, an officer was involved in a shooting or sexual misconduct. Until the state law came along, one of the only ways to figure out how an officer had been disciplined would be through the civil court process — typically if the victim or their family filed a lawsuit.

In March, Voice of San Diego combined efforts with dozens of other California media outlets, including the Union-Tribune, to gather up copies of the newly unsealed records. Since then, the group has shared with one another more than 5,000 audio, visual and physical files collected from agencies across the state. The records shed light not just on individual cases but troubling practices.

For starters, we learned that some agencies were ignoring court orders to produce the files or destroying documents altogether. The cities of Downey, Inglewood, Fremont and Morgan Hill purged police records before the start of the year. Yuba County destroyed years’ worth of internal investigations two weeks after SB 1421 went into effect.

Other agencies weren’t so defiant. They simply complained that the review process was putting too much strain on their operations, so they invoked upwards of a dozen extensions.

Los Angeles County Sheriff Alex Villanueva refused to even search for records. Instead, he demanded that reporters identify specific cases — an obvious attempt to slow down the disclosure process because people cannot request what they don’t know about. SB 1421 has revealed numerous discipline records for lying and sexual misconduct that the public hadn’t previously been aware of.

Last month, KQED and the Bay Area News Groups reported that even when police kill people with gunshots and restraint holds, some departments weren’t following their own investigative policies.

In an op-ed for the Sacramento Bee, Skinner argued that making this type of information public was only the beginning. Prosecutors needed to take a closer look at the files themselves and stop sending people to prison with the help of officers who’d been labeled dishonest by their own employers.

She pointed to a Los Angeles Times report in September showing that a Los Angeles County sheriff’s homicide detective had testified in numerous cases without jurors, judges or defense attorneys knowing he had once been suspended for punching a suspect and lying about it. More than 30 criminal cases could now be under review.

“Access to such information is necessary to preserve public trust in the integrity of the criminal justice system,” Skinner wrote. “With criminal cases often hinging upon law enforcement testimony, an officer’s word can end up being the difference between innocence and guilt.”

Responses From Local Agencies Varied

From the beginning, the county made clear that it considered SB 1421 an “unfunded mandate” from the state, forcing officials to divert hundreds of hours of work to ensure compliance.

So I wasn’t surprised when the Sheriff’s Department began looking at local media outlets to make up the difference. California law requires that public agencies omit certain information, such as confidential sources, from public documents. The courts have been sympathetic to government officials who argue that the public ought to pick up the cost of readying electronic records for release because, unlike paper records, they take longer to review and redact.

But I was surprised by how much the county was asking for.

In February, I got an email from Sheriff Bill Gore’s legal adviser. She said the county was willing to produce the dozens of files I’d requested, but officials would need to hire an employee at a cost of $33.80 per hour. Officials estimated “that it will generally take approximately two hours to extract every one minute of video, one hour to extract every 100 electronic pages, and one hour to extract each hour of audio.”

If I wanted the records, Voice of San Diego would be on the hook for $246,759. The county also asked KPBS to cough up $354,524.

After the figures went public, the sheriff backed down. He told the Union-Tribune editorial board that he wasn’t trying to discourage the public from filing big records requests in the future. Instead, he began rolling out any SB 1421-related files on the county website. A spokesman told me that the county would prioritize records based on the order in which requests were received, but the order could change depending on other factors, such as the size of the case file and whether there’s video and audio that needed review.

The San Diego Police Department responded in kind. The city is uploading all its SB 1421-related files to the city’s records request portal — more than 20 since May.

But as KPBS noted in July, SDPD does not believe that SB 1421 applies to cases of officers killing people in accidental car crashes. We know of at least one. It has also kept secret records related to an officer who accidentally discharged his weapon into an infant’s crib, and records involving the same officer regarding his killing of an unarmed man in 2015.

Some smaller agencies have moved quickly. To their credit, Escondido officials got me everything I’d requested within a couple months. The city’s officers hadn’t tried to block the process in court.

Other agencies have put different priorities on different files. KPBS reported in May that El Cajon was releasing the most recent cases first and working backward, whereas National City was releasing its oldest cases first and working toward the present.

Litigation is still pending against several agencies in San Diego County “because they have not disclosed all records they possess and they have refused to agree to reasonable terms for the disclosure,” Halgren said.

What Are We Finding?

Examples of embarrassing and reckless behavior by individual officers, some of which led to criminal charges. But also the way in which police brass responded when they thought no one was looking.

For instance, one Chula Vista officer had sex near a school while he was in uniform, NBC San Diego reported. He resigned before the chief could fire him.

The Union-Tribune highlighted several examples of sheriff’s deputies being fired after they lied about what they did, didn’t do or saw. The report included one deputy who bit his wife and another who went to Starbucks instead of responding to a service call.

A third was accused of embezzling more than $100,000 worth of donations from her Logan Heights church. The church, however, chose not to press criminal charges after she promised to pay back the money, name the house of worship as a beneficiary on her life insurance policy and donate a portion of her retirement. Not everyone at the church agreed that the matter should be handled internally, but the pastor told investigators the church was “in the business of forgiveness.”

Multiple media outlets reported on a deputy who was arrested in 2018 for groping a teen in a Panda Express and another who allegedly groped a homeless woman. Both officers resigned. Two others were fired for allegedly sexually assaulting women.

KPBS also obtained details about a deadly La Mesa standoff in 2017 and a National City officer who in 2001 shot an unarmed man who was running away. Although the man in the second case had dropped his gun, an internal report concludes that the officer believed the man was still armed, in part, because he was a known gang member and “wearing baggy clothes.” National City police determined that the shooting was not reasonable.

The district attorney’s office found that the shooting was justified, however.  The officer was later fired.

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