By Anika Khubchandani and Lisbeth Martinez
VENTURA – The First Amendment Coalition (FAC)—a non-profit public organization committed to freedom of speech, transparency and accountability in government, and community involvement in civic life—has found itself battling police unions attempting to stop the disclosure of officer files.
The San Raphael-based FAC, founded in 1988, focuses on providing legal consultations on First Amendment issues in addition to overseeing legislation on free speech.
Since the passing of Senate Bill 1421 in 2019, all police records, including officer use-of-force incidents, sexual assault, and acts of dishonesty, must be made accessible to the public. But it hasn’t been easy with pushback from unions representing law enforcement.
And, FAC has now become involved in many cases throughout California “in which unions representing law enforcement have sought to enjoin the disclosure of records required to be made public.”
Before the law went into effect, many law enforcement unions challenged Section 832.7 of SB 1421 in the courts, arguing that the Public Records Act only applied to records regarding incidents after January 1, 2019, making pre-2019 incidents retroactively impermissible. Courts throughout California have ruled that SB 1421 requires the disclosure of pre-2019 records.
Except California’s Second District Court of Appeal in Ventura County.
In this case, the Ventura County Deputy Sheriff’s’ Association (VCDSA) made the same argument as many law enforcement unions, claiming that the privacy rights of police officers would be violated with the disclosure of pre-2019 records.
And now FAC has submitted an amicus brief in support of Appellant Todd E. Howeth, acting in his capacity as Public Defender of Ventura County.
Since this case is the only exception in which a court has failed to fully apply SB 1421 to all reports of police misconduct, “this outlier decision creates a prohibition on access to public records” and makes it difficult for the public to hold police officers accountable for gross injustices due to a lack of transparency,” said FAC.
FAC explains that SB 1421 has “clear language” requiring “all records maintained by public agencies of officer-involved shootings, serious uses of force, and incidents of sexual assault and dishonesty resulting in sustained findings, regardless of whether or not they concern pre-2019 incidents.”
Mandating the disclosure of these records is not “impermissibly retroactive because retroactivity turns on the ‘triggering’ activity, which in this case is the request for the records, not the incident described in the records,” the brief added.
Moreover, there is no legislative intent suggesting that the law was expected to exclude pre-2019 records, according to the FAC, noting the main function of the legislation was to “increase transparency regarding all records of serious misconduct and use of force by peace officers to which it applies.”
The VCDSA’s entire basis of argument “is wrong” because “California case law is clear that peace officers have never had unfettered privacy rights in the types of records at issue here,” argued FAC.
The Superior Court’s judgment in support of VCDSA’s stance on prohibiting Ventura County from disclosing pre-2019 records “is wrong” because it fails to “follow binding authority from the Court of Appeal, First Appellate District,” insisted FAC.
And the pleading charges the Superior Court is also wrong on the merits because SB 1421 mandates the transparency of pre-2019 records to the public, and VCDSA’s arguments fail to follow these merits.
The FAC filing continues: “Considering the application of SB 1421 to pre-2019 incidents does not attach any new legal consequences to past events, the disclosure of the records will not make any conduct that was previously legal illegal or punishable by law. Therefore, since no liability is imposed on police officers for their past conduct, SB 1421 only expands the number of people that can access and obtain “certain categories of police personnel records.”
These records have always been available in many circumstances—now they just include members of the public who make requests for information under the California Public Rights Act.
Since transparency and accountability are the foundations of a free and democratic society, FAC urges the Court to reverse the judgment of the Superior Court and compel Ventura County to join other counties in “disclosing all applicable public records under SB 1421.”
Anika Khubchandani is a 4th year student at UC Davis majoring in both Political Science and Economics. She is from San Jose, CA.
Lisbeth Martinez is a third year at UC Davis, double majoring in Communication and Political Science. She currently lives in Shafter, California.
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