California has tightest restrictions on law-enforcement records, access advocates say
03/17/2014 12:00 AM
03/17/2014 6:39 AM
Gov. Jerry Brown was in the final months of his first term when he signed a bill championed by law enforcement groups to limit criminal defendants’ access to peace officers’ personnel records.
The measure “represents a substantial step forward in protecting the rights of law enforcement officers in this state,” then-Attorney General Evelle Younger, Brown’s Republican rival in the upcoming fall election, said in a letter urging Brown’s support.
More than 35 years later, the 1978 law is part of a nearly impenetrable barrier restricting public access to law enforcement disciplinary records and civilian complaints in California.
Eighty-three percent of voters backed enshrining the state’s open-records law in the Constitution a decade ago. Even so, open-records advocates say California residents today have some of the least access to law enforcement records of anywhere in the country. Bills to tighten the restrictions, pushed by politically influential law enforcement unions, routinely sail through the Legislature. Attempts to provide more disclosure have been few and unsuccessful.
Under state law, peace officer personnel records are confidential, including personal data, promotion, appraisal and discipline records, and “any other information the disclosure of which would constitute an unwarranted invasion of personal privacy.” Only a judge can order their release as part of a criminal case or lawsuit.
The restrictions regularly come into play. In Lodi, police officials have released little about the officers involved in the Jan. 25 shooting of Parminder Singh Shergill, an Iraq War veteran. In West Sacramento, Latino groups demanded information after the June 2005 police beating of brothers Ernesto and Fermin Galvan. There also was anger at the lack of details following the April 2009 shooting of Luis Gutierrez Navarro by Yolo County sheriff’s deputies.
Civil-rights lawyer Cruz Reynoso said community members in such cases confront a police “wall of silence.”
“It’s practically impossible to get that information,” said Reynoso, a former California Supreme Court justice. “The more we know, the better.”
While critics say the restrictions fuel a distrust of police, law enforcement groups argue that the laws protect public servants in a dangerous profession. Defense attorneys could use baseless complaints against an officer to undermine a legitimate case, they say, and criminals could try to retaliate against an off-duty officer.
“It is very easy for the public to file a complaint against an officer,” said Ron Cottingham, a former San Diego County sheriff’s deputy and past president of the Peace Officers Research Association of California, an umbrella group of law enforcement unions. “We shouldn’t be painting someone before all the information has come out. A lot of these things turn out to be not sustained or unfounded.”
Cottingham, a former internal affairs investigator, says rule-breaking officers already face tough investigations from within their own departments, as well as possible federal inquiries. There is no need to inject the public into the process, he and others said.
“The supervisors of cops don’t tolerate crap. They are hard-nosed,” said Paul R. Curry, a former San Bernardino County sheriff’s lieutenant who, as a Capitol lobbyist for the department, helped write legislation on the subject.
Curry has been on multiple sides of the issue: as a rank-and-file deputy, as department management, and most recently, as the chief executive officer of United Reporting Publishing Inc., which compiles arrest information for newspapers and other media. In the past, the company has allied with the California Newspaper Publishers Association, a critic of the restrictions on law enforcement records.
The newspaper association is wrong in this case, Curry said.
“It’s being taken care of. Whose business is it, anyway?” Curry said of the records. “Defense attorneys want to try the officer instead of the crook.”
Jim Ewert, general counsel of the publishers association, said the California restrictions make it impossible for the public to track problem officers from agency to agency. Rogue officers, he added, can cost taxpayers a lot of money, pointing to the financial hits to Los Angeles and Oakland from those cities’ Rampart and Riders scandals, respectively.
“There is a definite public interest in protecting that,” Ewert said of officers’ safety. “But there is also a public interest in identifying officers who go beyond the standards of accepted police conduct.”
Florida is among the states that offer much more access to law enforcement records. In 2011, the Herald Tribune in Sarasota, Fla. reviewed 22,000 misconduct cases to publish a nine-day series, “Unfit for Duty,” which highlighted problem officers. The paper posted a searchable database of officers’ employment records and other data.
Such scrutiny is impossible in California. California’s restrictions applied even in the case of Christopher Dorner, the former Los Angeles Police Department officer who went on a murderous rampage in February 2013. Department leaders were able to discuss the circumstances of Dorner’s 2009 dismissal only because Dorner, after he failed to overturn his firing through the city’s civil service appeals process, went to court and a judge did not seal the case, said Martin J. Mayer, an attorney for police departments and sheriffs around the state.
The public unfairly blames law enforcement agencies for the restrictions, Mayer said. “They didn’t create these rules,” he said. “The California legislative process created these rules.”
California’s laws on the subject date from the 1970s. In 1976, lawmakers approved the Public Safety Officers Procedural Bill of Rights Act. It sets rules on department managers’ interrogations of police officers, bans lie detector tests and allows officers to review their personnel files.
Two years later, lawmakers approved another set of protections for officers. The 1978 law prohibited agencies from releasing officers’ personnel records and came after the California Supreme Court ruled in the Pitchess v. Superior Court case that defense attorneys could seek access to an officer’s personnel file in cases when a client claimed self-defense.
The bill would “prevent criminal defendants from conducting a fishing expedition in their attempt to ‘beat a rap,’ ” then-Willits Police Chief D. L. Collinske wrote Brown in a letter urging his signature.
Some disciplinary records continued to become public. That happened in Los Angeles and other places with civil service commissions or other panels that reviewed disciplinary cases. Some officials interpreted the law as allowing the records’ release at that point.
That ended in 2006, when the California Supreme Court ruled in Copley Press Inc. vs. Superior Court that the records should never be released, regardless of who has custody of them. The following year, Ewert’s group and others backed legislation that would have restored the pre-Copley interpretation. The bill narrowly passed the Senate with bipartisan support but failed in its first Assembly committee.
“The lineup of those testifying against the bill extended way outside the back of one of the largest hearing rooms in the building. They repeatedly said if you pass this, cops will die,” Erwert recalled.
There has been only one attempt to improve disclosure in recent years in California. State law requires the attorney general’s office to collect statewide statistics on citizen complaints against peace officers. Last year’s bill, AB 807, would have required officials to provide additional data as well as show totals by agency. It stalled in the Senate after opponents said it would be too expensive.
“It’s dismal,” Francisco Lobaco of the American Civil Liberties Union, said of the legislative prospects for similar bills in the future. The group backed the 1976 bill of rights law but has since butted heads with law enforcement unions and other groups on the issue. “The police unions carry an incredible amount of political weight, and they have stymied attempts to open it up.”
The Legislature’s majority Democrats are longtime allies of organized labor. And many Republican lawmakers, who normally disagree with labor, have friendly ties with public safety unions. In the months leading up to the 2012 election, the three largest statewide law enforcement unions – the Peace Officers Research Association of California, the California Statewide Law Enforcement Association, and the California Correctional Peace Officers Association – had at least $6.6 million in campaign spending. Local unions also spent heavily.
“We all have to choose our battles,” said state Sen. Mark Leno, D-San Francisco, who carried another post-Copley bill. “We recognize the seriousness with which opinions from law enforcement are received by legislators.”
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