Commencing January 1, 2019, California law regarding the confidentiality of certain police records will undergo a significant change. Records of officer-involved shootings and certain uses of force will become accessible to the general public, as will records relating to sustained findings of dishonesty or sexual assault by a police officer.
Earlier this month, we presented a webinar that provided a detailed overview of the changes in the law under SB 1421. We recommend viewing the webinar to understand the basics of SB 1421. Once you are up-to-speed on the statutory changes, please read on for an advanced look at five SB 1421 related issues that your agency will likely encounter when the law is effective.
Issue 1: What are the strategic implications of the new requirement that investigations resulting in sustained findings of dishonesty must be disclosed?
The distinction between how SB 1421 handles sustained findings of dishonesty as opposed to other sustained findings will change how both law enforcement agencies and their officers approach the discipline process. Under Penal Code § 832.7(b)(1)(C), investigations that result in sustained findings of dishonesty will no longer be confidential. IA investigations that are not affected by SB 1421, however, will remain confidential.
Assume, for example, that a police department investigates an officer for an on-duty motor vehicle accident and alleged false statements made by the officer to cover-up the accident. Prior to SB 1421, the entire investigation would remain confidential regardless of the findings. A police department who believed that its officer had been dishonest in reporting the accident might opt to impose a 30-day suspension on the officer, rather than terminating the officer. The officer, avoiding termination, might choose to accept that level of discipline, knowing that his career will continue.
SB 1421 changes the analysis for both the department and the officer in this example. If the department concludes that the officer was dishonest, the entire IA investigation will become public, which makes it less likely that the department will retain the officer. Termination will become more common when an agency concludes that an officer was dishonest. As an alternative, a police department that does not want to terminate an officer may opt instead to sustain a finding for the underlying motor vehicle accident rather than for the alleged dishonesty. If the sustained finding were for the motor vehicle accident only, the investigation would remain confidential.
Issue 2: Are there any considerations to keep in mind given SB 1421’s definition of sexual assault?
Under SB 1421, law enforcement agencies must now release any record relating to an incident in which a sustained finding was made by any law enforcement department or oversight agency that a peace officer or custodial officer engaged in a sexual assault involving a member of the public. The Bill defines “sexual assault” as the commission or attempted initiation of a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of leniency or other official favor, or under the color of authority. This initial definition is consistent with the definition of sexual assault found in Penal Code § 243.4 because it reaffirms the notion that non-consensual sexual contact is unlawful and is a sexual assault.
However, SB 1421 goes further than the Penal Code because it also expands the definition of sexual assault to include “the propositioning for or commission of any sexual act while on duty.” This broad definition encompasses on duty consensual relationships and contacts such that, theoretically, an officer who engages in sexual conduct with a spouse, while on duty, would have committed a sexual assault. While it is unclear if that was the intention of the legislature, the express language of the Bill would place law enforcement agencies in a difficult position if they learned that an officer had engaged in sexual conduct, even consensual, while on duty.
Issue 3: Is Pitchess dead?
Under SB 1421, records relating to Officer Involved Shootings (OIS), uses of force that result in Great Bodily Injury (GBI) or Death, sustained allegations of sexual assault against a member of the public, and sustained allegations of dishonesty, are no longer confidential and must be disclosed. Therefore, a Pitchess Motion is no longer needed for these records and both criminal defendants as well as other members of the public can obtain copies of the records by filing a Public Records Act (PRA) request with the public entity. Notwithstanding this, Pitchess is not yet dead since individuals requesting law enforcement personnel records that do not fall within the category of records described above will still be required to file a Pitchess motion and comply with the procedural requirements necessary for obtaining access to confidential files.
In addition, it will likely take time for the criminal defense bar and the judiciary to adjust to the change in law. In the interim, law enforcement agencies should anticipate that Pitchess motions will continue to be filed for all categories of records in an officer’s file. Law enforcement agencies will have to decide whether they will construe these motions to be PRA requests for those files that are no longer confidential, and then prepare formal opposition to the motions for other files that are not covered by SB 1421. Furthermore, attorneys representing law enforcement agencies should be prepared to explain the differences in disclosure requirements when they make court appearances in response to both PRA and Pitchess requests.
Issue 4: How are “no hit” shootings handled under SB 1421?
Penal Code § 832.7(b)(1)(A) requires the disclosure of investigations into “[a]n incident involving the discharge of a firearm at a person by a peace officer or custodial officer.” Most law enforcement agencies have clear protocols for investigating officer-involved shootings. These protocols usually involve the involvement of specialized trained investigators, thorough evidence collecting, and the involvement of local prosecutors. Some agencies, however, do not apply the same protocol when an officer-involved shooting is classified as a “no hit” shooting, which occurs when no person is struck in the shooting. While SB 1421 does not require an agency to investigate “no hit” shootings in the same fashion as shootings that result in injury or death, SB 1421 does change the disclosure requirements for “no hit” shootings in the same fashion. Therefore, agencies should be mindful that “no hit” shootings will be investigated in a manner that complies with SB 1421.
Issue 5: Will the “balancing test” will be sufficient to justify redaction or withholding records?
Probably not. Under SB 1421, a public agency may redact or delay a record disclosure if the public interest served by not disclosing the information clearly outweighs the public interest served by disclosing the information. While the balance test amended into this bill reflects current law, this exemption is rarely, if ever, used.
Furthermore, if this exemption is invoked, law enforcement agencies would have to contend with costly legal challenges and would not be able to recover their costs even if the agency prevailed. On the other hand, if agencies were unsuccessful, they would be on the hook for costs in addition to attorney fees. Ultimately, the burdens and risks are substantial and given the legislature’s intent to make these documents public, the circumstances where records could be withheld or redacted are likely limited. Agencies should consult with counsel prior to withholding records using this test.