The California Supreme Court on Wednesday declined to clarify whether a new state law requiring California law enforcement agencies to make police misconduct records public applies to misconduct that took place before the new law went into effect on Jan. 1 — whether the law is retroactive.
Since the high court will not weigh the retroactivity issue, it also declined to issue an injunction against the enforcement of the law, as was also requested.
The upshot: California law enforcement agencies will have to begin fulfilling requests made by the public, the media or anyone else who asks for them. If police departments want to challenge the way retroactivity applies to the law, that will have to be decided in lower courts, on an individual basis — a lawsuit over the matter was filed in Los Angeles County on Dec. 31. If lower court decisions on the matter are appealed, the California Supreme Court could eventually be forced to rule on the matter.
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The lawsuit was filed by a union representing San Bernardino County Sheriff’s Department deputies, and was intended to leapfrog lower courts and get a statewide ruling directly from the state’s highest court.
The recently-enacted law, SB 1421, requires police departments to make public internal investigation records regarding officers’ use of force, sexual assault and lying on reports.
However, the San Bernardino County Sheriff’s Employees’ Benefit Association, which represents deputies from the county’s sheriff’s department, asked the court on Dec. 18 to determine whether Senate Bill 1421 should be applied by the departments retroactively.
Mike Rains, the union’s attorney, said in a statement that the court issued a summary denial without explanation.
“The Court’s action was simply a decision to decline to exercise its original jurisdiction in this matter,” Rains said in the statement. “The Court did not adjudicate the merits of the case, nor did it issue any legal precedent regarding the issues raised.”
The court also denied the union’s motion to delay the implementation of the transparency bill until the retroactivity issue is adjudicated.
The union’s president, Grant Ward, said in a statement that the union is fighting the new law’s retroactivity in order to look out for police officers’ best interests.
“SEBA is very concerned about any plans to retroactively apply Senate Bill 1421,” Ward said in the statement. “We believe retroactive application violates our members’ rights and we hope the California Supreme Court will consider the serious issues raised by our legal challenge.”
State Senator Nancy Skinner, D-Berkeley, who drafted the legislation said California’s previous restrictions against releasing information about investigations into police officer misconduct did not serve the best interest of the public.
“When incidents such as a police shooting occurs, the public has a right to know that there was a thorough investigation,” Senator Skinner said in a statement released while the bill was making its way through the legislature in 2018. “Without access to such records, communities can’t hold our public safety agencies accountable.”
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Now in effect, SB 1421 allows the public to use the California Public Records Act to unseal internal investigation records related to when officers use weapons on people, commit sexual assault or lie in police reports. The records may include evidence, recordings of interviews, autopsy reports, reports to the district attorney to determine whether to file charges and copies of disciplinary records.
While the bill keeps unfounded complaints from reaching the public, records that are disclosable will be unsealed 18 months after the incident.
The union’s case was filed as law enforcement agencies across California prepared for a wave of requests to release officer misconduct investigations.
Los Angeles Police Department Chief Michel Moore wrote in a letter included in the filing, that his department has established an SB 1421 Task Force to prepare for the “massive influx in historical records requests it anticipates.”
Moore wrote in the letter that the influx of requests could be “beyond any reasonable expectation given the sheer volume of personnel complaints and uses of force (UOF) maintained in antiquated or archaic formats”.
With the new law in effect, Rains, the union’s attorney, said he expects lower court could rule in contradictory ways on the retroactivity issue, meaning different interpretations in different jurisdictions, which could mean the lawsuit ends up back before the state supreme court.
“The possibility of multiple lawsuits being filed and litigated in numerous counties throughout the state, and the potential for conflicting decisions at the Superior Court level was the impetus for the action we filed,” Rains said.
Rains filed a similar case attempting to bar retroactive enforcement of SB 1421 in the Los Angeles Superior Court on behalf of the Los Angeles Police Protective League. The superior court granted the union’s request to delay retroactive enforcement of the law on Dec. 31, but the case remains open.
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Nikki Moore, an attorney for the California News Publishers Association, said every police department in California will have to determine how to comply with SB 1421.
But Michelle Blakemore, an attorney who works for San Bernardino County, wrote in a letter included as an exhibit in the lawsuit that the county has reviewed SB 1421 and plans to enforce it retroactively.
“In anticipation of SB 1421 taking effect, the Sheriff’s Department has been diligently reviewing the changes to the law and carefully considering how to implement these changes,” Blakemore wrote. “Based on this review, and on the advice of counsel, the Department intends to apply these changes retroactively.”
The union argued in the filing that the county’s plan is based on an incorrect interpretation of the law because SB 1421 does not explicitly order agencies to retroactively enforce the law.
“Respondent incorrectly contends that, notwithstanding the absence of any express retroactivity provision, SB 1421 must be applied and enforced as to personnel records and information reflecting specified peace officer conduct occurring prior to January 1, 2019,” the union wrote in the court filing.
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