California’s New Police Accountability Law—Forty Years in the Making

Current California law forbids police departments from sharing information about officers’ criminal backgrounds. The ACLU Center for Advocacy & Policy reports that “the majority of other states recognize that disclosure of records of [officers’] critical incidents is a basic element of peace officer oversight—peace officer disciplinary records are available to the public in some form in 27 states.” But in California, all disciplinary actions against sworn police officers must be kept secret.

The prohibition includes situations such as evidence being planted on innocent people, sexual assault of members of the public, and any job-related lying by an officer. The ACLU report goes on to say that “in California, there is a complete shroud of secrecy over these records that is unique to police officers—complaints against all other types of government employees aren’t kept confidential if the complaint is well‐founded or there’s a strong public interest in disclosure.” The good news: California law changes on January 1, 2019.

Prelude to California’s Senate Bill 1421 (SB 1421)

A report of data for 2016 published in September 2017 by the FBI “estimates that [US] law enforcement agencies made about 10.7 million arrests in 2016 (excluding arrests for traffic violations).” Such a high number suggests a likelihood of criminal or negligent policing. Police are well-screened and well-trained professionals, but like all professionals, they make mistakes—or worse—commit intentional acts of conduct with the intent of harming others.

The ACLU reports that “SB 1421 [Peace Officers: Release of Records], introduced by Senator Nancy Skinner (D-Berkeley), [makes] public information about confirmed cases of misconduct—including sexual assault and job-related dishonesty—and serious uses of force by peace officers in California.” Parts (a) and (b) of section 1 of the law succinctly show the legislative premise and purpose of the new law:

(a) Peace officers help to provide one of our state’s most fundamental government services. To empower peace officers to fulfill their mission, the people of California vest them with extraordinary authority—the powers to detain, search, arrest, and use deadly force. Our society depends on peace officers’ faithful exercise of that authority. Misuse of that authority can lead to grave constitutional violations, harms to liberty and the inherent sanctity of human life, as well as significant public unrest.

(b) The public has a right to know all about serious police misconduct, as well as about officer-involved shootings and other serious uses of force. Concealing crucial public safety matters such as officer violations of civilians’ rights, or inquiries into deadly use of force incidents, undercuts the public’s faith in the legitimacy of law enforcement, makes it harder for tens of thousands of hardworking peace officers to do their jobs, and endangers public safety.

The Fall 2018 “ACLU News,”[1] in a rightfully self-congratulatory article entitled “It Took 40 Years—Finally Key Police Reform Is Signed into California Law,”[2] includes a statement that got my attention:

It may come as a surprise, but California is one of the most secretive states when it comes to police officer records. In the 1970s, the California Legislature caved to the law enforcement lobby and changed state law to hide officer misconduct and use-of-force records from the public.

What Does the New Law Do?

On September 30, 2018, Governor Jerry Brown signed SB 1421 into law and with a stroke of his pen opened up three categories of information. This action initiates a change from how police officers’ employment and personal backgrounds have been hidden, giving power to police officers and disguising their potential for abuse. In effect, SB 1421 amends California Penal Code section 832.7 to generally require disclosure of records and information relating to incidents in response to a request under the California Public Records Act (CPRA), the state’s version of the Freedom of Information Act. The ACLU site lists these three types of incidents:

• Use of serious or deadly force [or the discharge of a firearm]
• Sexual assault tied to the abuse of power to coerce a victim into sexual acts
• Perjury or fabrication of evidence tied to police officers’ unique powers in investigating and prosecuting crimes

In addition, Assembly Bill (AB) 748, a companion bill to SB 1421, was signed into law by the governor on the same day.

AB 748 requires [police] agencies, effective July 1, 2019, to produce video and audio recordings of “critical incidents,” defined as an incident involving the discharge of a firearm at a person by a peace officer or custodial officer, or an incident in which the use of force by a peace officer or custodial officer against a person resulted in death or great bodily injury, in response to CPRA requests.

The public’s need to know about the conduct of police officers is exemplified in a May 28, 2018, Op-Ed in the Sacramento Bee:

Yet because of a 40-year-long build-up of bad law, unanticipated court rulings and political deference to police unions, we, the taxpayers, know next to nothing about most of the 162 cases last year in which California law enforcement officers on our payroll killed people in our name.

According to the Washington Post, 987 people were shot and killed by police in the United States in 2017.

Conclusion

California is correct to fall in line with the twenty-seven states that currently provide mechanisms for the disclosure of information about police officers. Transparency about officers’ conduct on the job, and beyond, is a good effort toward putting into check, by way of public information, the unique power officers have over the freedom and lives of citizens. The reality of this transparency is evident in situations such as the one highlighted in the further reading, below.

Further Reading

You’ll want to read this ACLU article: California Mother Whose Son Was Killed by Police Applauds Committee Approval of Bill to Open Police Records.

Your comments are always welcome.

Image courtesy of 123rf.com.

[1] The newsletter of the ACLU of Northern California, volume LXXXII, issue 4, page 1.

[2] SB 1421 was cosponsored by the ACLU of California along with Alliance for Boys and Men of Color, Anti Police-Terror Project, Black Lives Matter California, California Faculty Association, California News Publishers Association, Communities United for Restorative Youth Justice, PICO California, PolicyLink, and Youth Justice Coalition LA.