Viewpoints

Want police held accountable in California? Back a bill to increase transparency

Police set up a command post at the scene of an officer-involved shooting in south Los Angeles on Aug. 7.
Police set up a command post at the scene of an officer-involved shooting in south Los Angeles on Aug. 7. Los Angeles Times/TNS

In the flurry of bills being considered by the California Legislature in the final week of the session, one to enhance police accountability is especially important.

Senate Bill 1421, introduced by Sen. Nancy Skinner, D-Berkeley, would make police disciplinary records public when an officer has been found to have committed sexual assault or lied on the job, such as by falsifying reports or planting evidence. The bill also would ensure that investigations and reports related to an officer’s use of serious or deadly force would be subject to the state’s Public Records Act.

California law provides more secrecy for police records than almost any other state and SB 1421 is a crucial step to greater transparency. If a police officer shoots and kills someone, records of the internal investigation remain confidential, even if the officer is found to have acted improperly or fired for misconduct.

SB 1421 has passed the Senate. Now the Assembly needs to approve it and Gov. Jerry Brown should quickly sign it into law.

Opinion

California has an excellent Public Records Act, but there is a broad exception for personnel records of police and other peace officers. This includes personnel files and all records maintained by state and local agencies.

In a 2006 case in which a newspaper sought records of a disciplinary hearing involving a fired San Diego County deputy sheriff, the state Supreme Court gave this exception a very broad interpretation, ruling that it requires secrecy of all administrative records of disciplinary appeals, including officer names.

Erwin Chemerinsky (2).JPG
Erwin Chemerinsky

The court also rejected the argument that there’s a First Amendment right to such records, concluding that there is “no constitutional right to have access to particular government information, or to require openness from the bureaucracy.”

As then-Justice Kathryn Werdegar noted in her dissent: “By so doing, the majority overvalues the deputy’s interest in privacy, undervalues the public’s interest in disclosure, and ultimately fails to implement the Legislature’s careful balance of the competing concerns in this area.”

The decision effectively shut off all avenues for the public to learn about misconduct by individual law enforcement officers, such as excessive force, dishonesty, patterns of misconduct and leniency. It keeps secret previous discipline for misconduct by another agency, and even the identity of officers in misconduct cases. Often, other law enforcement agencies cannot see this information, which means that officers with repeated incidents of misconduct can go from job to job without detection.

SB 1421 is carefully crafted and designed to protect the public’s right to know while also safeguarding officer privacy. Specifically, it would require law enforcement agencies to give public access to records related to the discharge of a firearm; use of force that results in death or serious injury; on-duty sexual assault, including coercion or exchanging sex for leniency; and dishonesty in reporting, investigating or prosecuting a crime.

Opponents of SB 1421 argue against it based on the privacy of officers. But they are public employees, and there is no reason that they should have greater privacy protections than all others who work for the government.

In fact, precisely because law enforcement officers have so much power — including over people’s lives and liberty — they must be subjected to even greater scrutiny.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu.

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