I wrote a pretty scathing op-ed that was published Friday in our premium newsletter, on the Democratic legislature and their failure to pass AB 931. But as important as AB 931 was, I would say if I could only get one bill passed this year, it would have to be SB 1421. (Shameless plug: if you become a Subscriber, you can receive our premium newsletter)
I have been working on police issues for the Vanguard since 2006 and prior to that as an activist. A key barrier has been a ridiculous one put up by court cases like Copley (the 2006 California Supreme Court ruling in Copley Press, Inc., v. Superior Court) and misguided legislation like the police officers bill of rights.
A lot of people do not realize that if a police officer commits misconduct, the public has had no way of getting ahold of records of sustained complaints.
In fact, it is worse than that – under existing law, “not even prosecutors are allowed access to records of officers found guilty of committing egregious misconduct under the cover of authority, even those with a history of planting evidence or lying in police reports.”
Furthermore, “California police departments are also barred from sharing with the public the factual findings of their investigations following police shootings. Nearly half of states in the country make some or all police misconduct records available to the public.”
Some have suggested that defense attorneys can gain access to these records through a Pitchess motion (named after the 1974 decision in Pitchess v. Superior Court). I don’t think anyone involved in the system likes the Pitchess motion process.
It is a fairly low level threshold, but it also doesn’t deliver much either. In order for a defendant to get access to an officer’s confidential personnel records, the defense makes an allegation that the officer committed misconduct or lied or prepared a false police report.
If the motion is granted, the court then searches through the personnel files for prior complaints against the officer, on a variety of topics ranging from unlawful arrest, false testimony, fabrication of evidence, planting evidence, false police reports and the popular catchall provision, “moral turpitude.”
The defense does not get to view those files if the motion is granted and the search finds something disclosable. All it gets is information by which the defense investigator might be able to track something down.
The current law is a huge barrier to transparency, even when officers committed demonstrable and proven wrongdoing. We are talking about the release and availability not just of allegations of wrongdoing but actual sustained complaints.
As the Sacramento Bee pointed out in their May 21 op-ed, “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.”
They go on to point out: “If an officer has been accused repeatedly of abuse, or disciplined for lying, or denied a promotion because of unprofessional behavior, that information can’t be disclosed. The public can’t know unless a judge orders it as part of a criminal case or lawsuit. In some cases, in fact, it’s even blocked from the view of other law enforcement agencies.”
Like everything else, this is not a perfect remedy. Far from it.
SB 1421 will make public three categories of information that are specific to the powers of police officers or their potential for abuse:
* use of deadly force;
* sexual assault tied to the abuse of power to coerce a victim into sexual acts; and
* perjury or the fabrication of evidence tied to police officers’ unique powers in investigating and prosecuting crimes.
So we get findings on the use of deadly force. That means when a police officer shoots and kills someone, the report on that gets released. That is a big deal. There were a lot of people in Sacramento angry that the police never explained why officers who shot and killed Joseph Mann or Dazion Flenaugh were exonerated. Likely this means that the shooting of Stephon Clark will have its report released.
The veil will be lifted, but, as the Bee pointed out, for only “the most egregious misconduct and most grave outcomes.”
The Bee writes: “Only if an officer shoots, kills, seriously injures or sexually assaults a member of the public, or is proven to have planted evidence, committed perjury or otherwise been dishonest in an investigation would the state be able to release personnel records.”
But it’s worse than that, “even then, information could be withheld or redacted to protect the safety of officers and witnesses, or avoid invasion of privacy.”
SB 1421 clearly is not enough. But, as the Bee points out, “at this dysfunctional point, almost anything would be progress.”
That was my view on bail reform and my view on this. Let us get our foot in the door and then we can revise and improve at the next round. It is far easier to amend and revise than it is to start from scratch. A big reason is that many in law enforcement will recognize that this isn’t the end of the world, and if a little information gets out about the worst offenders, it might actually help improve trust that the majority of police are doing their jobs properly.
—David M. Greenwald reporting