February 20, 2019

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Santana: OC Judge To Rule Soon on Releasing Deputy Misconduct Records

Feb 11, 2019 | ,

A judge in Northern California late Friday issued a significant blow to the statewide effort by police unions to prevent the release of misconduct records deemed public record by state legislators last fall.

Here in Orange County, Judge Nathan Scott this week considers his own ruling on the issue after hearing arguments last Thursday from both the Association of Orange County Deputy Sheriffs and a media coalition led by Voice of OC and including the Los Angeles Times and Southern California Public Radio.

At issue is SB 1421, which amended the state’s criminal procedure code to indicate that any state or local agencies maintaining a select set of police misconduct records – covering use of force, sexual assault or lying while on duty – should make them available for public review.

The potential availability of such records has created a storm of interest from numerous families and communities affected by use of force issues, sexual assaults by police or lying while on duty – such as the snitch scandal that gripped Orange County jails in recent years.

Just before the state law went into effect on Jan. 1, police unions started to gear up to block implementation.

The first effort to block disclosure was a lawsuit filed by the San Bernardino County Deputies union during the holiday season directly to the state Supreme Court, which ultimately denied a hearing.

That triggered a slew of local lawsuits, including the recent effort in Orange County by the county deputies union seeking to block release of any misconduct records.

Last week, Scott agreed that the local media had a right to intervene in the case, against the objections of AOCDS.

All of these local lawsuits are all almost assured to be appealed all the way up to the state Supreme Court in what could be the most wide-sweeping and intense statewide public records legal battle since the establishment of the 1968 California Public Records Act.

Then-Gov. Ronald Reagan signed this landmark government transparency law into effect and it’s ignited a steady debate ever since, over the question of how much should citizens of this state really know about their government.

When it comes to law enforcement, the standard in California for the last 40 years has been next to nothing

Our state is one of the most secretive in the nation, especially when it comes to looking into bad cops, errors in officer judgment or just bad departmental policies.

From my interviews last week with state legislators like SB 1421 sponsor Sen. Nancy Skinner, (D – Berkeley) and co-sponsor Sen. John Moorlach, (R – Costa Mesa), it’s very clear the legislature clearly intended to change that situation, allowing for the release of records that could shed light on instances of use of force, sexual assault or lying while on duty.

Skinner even got the full legislature to endorse a letter clearly stating their intent after police union lawsuits began questioning it.

While attorneys for law enforcement unions have argued several legal arguments in their court documents – such as that police have vested privacy rights that can’t be changed – they seem to have focused in open court on the fact that the legislature did not specifically state in the language of SB 1421 that the bill would cover incidents that had already occurred prior to the bill’s enactment on Jan. 1, 2019.

It’s what they call retroactive application.

Skinner calls the argument a “smokescreen.”

She said her bill very clearly states that select misconduct records kept by state or local agencies are deemed available for public review.

A host of media groups across the state have gone into court to defend their rights to have pending public records requests for such documents honored. Numerous newsrooms are also working together to review relevant records and publish stories.

A day after our own Voice of OC-led media coalition appeared in Orange County court Feb. 7, Contra Costa County Judge Charles Treat issued his own ruling in a similar case brought by law enforcement unions representing police officers in Antioch, Richmond, Martinez, Walnut Creek and Concord as well as county sheriff’s deputies.

Treat ruled against the law enforcement unions seeking to block public review of select misconduct records saying the legislature’s intent was clear in what they wanted to do, which is make those records public.

According to the San Jose Mercury News’ coverage of the hearing, Treat said the legislature’s intent with SB 1421 was clearly to open access, not hinder it.

“The legislature has clearly indicated, at least prospectively, ‘We the legislature think that (disciplinary) documents should not be confidential and should be publicly available’,” the judge said. “Didn’t the legislature think that insufficient access to police records was the problem last year?”

Now even though your state legislature clearly opened up public access to these records, getting them on a local level is another challenge because of the raw political power of law enforcement unions.

While some jurisdictions have fought the police union effort to keep the records secret, many such as the County of Orange, have partnered with them.

I reported earlier this month how County Counsel Leon Page’s first natural inclination as a public attorney was to fight the effort to block records. Yet after county supervisors – who have received critical campaign support from the deputies union – publicly protested his actions, county opposition ceased.

It is certainly a stark and sad statement from our local county board of supervisors – with three Republicans and one Democrat – about their own view on the public’s right to know.

It’s also a topic that is likely to become a permanent part of election forums across Orange County, such as those being planned around the upcoming March special election for an open seat on the board of supervisors representing the Third District.

Keep in mind that Orange County residents only have a chance to potentially see these records because Voice of OC – along with the Los Angeles Times and Southern California Public Radio – opted to stand up with little notice and fund the needed legal defense team to defend our collective First Amendment rights.

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