New State Bill Would Open Police Misconduct, Serious Use-of-Force Files

Updated 6:45 p.m. Friday, Feb. 19:

Civil rights and transparency advocates are rallying behind proposed changes to state laws that for decades have hidden misconduct, discipline and other personnel records for California peace officers.

A bill introduced Friday by state Sen. Mark Leno (D-San Francisco) would make information related to serious uses of force open to public records requests, without regard to whether any given incident was ultimately found to be illegal or a breach of a police department's policy.

"If we can agree that law enforcement’s business is the public’s business, then greater transparency and accountability will benefit both," Leno said at a press conference announcing Senate Bill 1286.

"We’ve reached a critical point in the public’s perception of how law enforcement is doing its critically important work," he said. "Officer-involved shootings around the country revealed on video have raised serious concerns."

The California American Civil Liberties Union helped write the bill, along with the state's NAACP and the California Newspaper Publishers Association.

"Our democracy depends on the public having access to what the government is actually doing," said Peter Bibring, the ACLU of Southern California's police practices director. "Here you have possibly the greatest power people give their government, the power to take a person’s life based on split-second decisions, and decisions about how that power is used are hidden from public view."

Leno's bill would open other records beyond serious use of force. It would also allow civilians who make complaints of officer misconduct to learn the disposition of those cases. Currently, complainants are allowed scant details about whether an officer they accuse of wrongdoing is found to have committed the offense and is disciplined.

And complaints of serious misconduct -- like excessive force, sexual assault or discrimination -- found to have merit would be opened to anyone who asks for them.

The bill would also allow cities and counties to decide whether to hold public hearings on officer discipline, quasi-judicial proceedings that are currently held in secret.

"If the public can determine whether an officer has been disciplined, they can assess if our accountability mechanisms are working," San Francisco District Attorney George Gascón said, adding that prohibiting access to that information "contributes to the feeling that police departments are hiding something when they are not, which ultimately adds to the mistrust between police and the communities they serve."

Gascón spent the bulk of his career as a police officer in the Los Angeles Police Department, working under California's restrictions on police discipline records. But he spent three years as police chief of Mesa, Arizona, a state that allows greater public access.

"Not only did it not harm the well-being of police officers to have an open records policy, I would also tell you that it actually helped police officers and police departments be closer to their community," he said. "And as the chief of police it allowed me the ability to be very transparent about the work that I did."

A representative of the Peace Officers Research Association of California -- a statewide labor organization -- said the bill, if it becomes law, could degrade public safety and allow criminals to publicly attack the reputation of good police officers.

PORAC legal administrator Edward Fishman said he had not yet seen the text of the law, but from what he could tell from Leno and others' press releases, "PORAC certainly opposes the bill in its current form."

"The initial reaction is one of disappointment," he said. "It was disappointing to have this bill be submitted without even a telephone call for input from PORAC or other law enforcement organizations."

Fishman said his organization has advocated for greater transparency in law enforcement for the past several years, including support for body cameras, but "the law always has to carefully balance the need for privacy against the need for transparency."

Bill proponents cite a 2014 Pew Research poll that found dwindling confidence in the ability of police departments to hold rogue officers accountable.

"Only 30 percent of Americans believe law enforcement does a good or excellent job of holding officers accountable for misconduct," Leno said. "Among African-Americans, that number drops to 10 percent."

Dan Daniels of the California NAACP said police "need to rebrand," and that opening up discipline information in California could help them do that.

"We as African-Americans, we're still at the back of the bus when it comes to criminal justice," he said. "Racial injustice is at an all-time high in our country."

Penal code sections that would be revised by the bill were developed in the 1970s and '80s, but their protections were more broadly interpreted by a 2006 state Supreme Court decision in Copley Press v. Superior Court.

Then a state assemblyman, Leno tried to walk the Copley decision back in 2007, but his bill and its state Senate companion died in committee after facing strong opposition from statewide peace officer labor groups.

"Ideas have their own time, despite my own force of will," Leno said. "Some things just don’t happen until they're ripe, until that idea seems to have come of age. Just with all that’s going on around the country, here in San Francisco, the polling that we’ve looked at, I think that this is an idea whose time has come."

The California Supreme Court chiseled away some police personnel protections in 2014, ruling in Long Beach Police Officers Association v. City of Long Beach (Los Angeles Times Communications) that the names of officers involved in shootings should generally be released to the public, absent a credible threat to officer safety.

The ruling noted a trend of law enforcement to construe more and more records as personnel files that could potentially be related to officer discipline, and "such a broad reading of the statute would sweep virtually all law enforcement records into the protected category of 'personnel records.' "

San Francisco supervisors London Breed and Malia Cohen joined Leno in announcing his latest legislative attempt to open some police discipline files, and both invoked the December high-profile police shooting of Mario Woods.

"Trust is a two-way street," Board of Supervisors president Breed said. "We have a lot of work to do."

Cohen linked opening police discipline and use-of-force information to recent state and San Francisco pushes for better data collection in policing.

"This data is important; it’s irrefutable," she said, adding that those trying to access information about law enforcement often hit a "wall."

"That is the wall that we’re trying to chip away and to bring down," she said.

Cohen and Breed did not respond to a question about whether they would support open hearings on officer discipline in San Francisco, which the city could choose to do if Leno's bill becomes law.

Leno said he forwarded the bill to both San Francisco's sheriff and police chief. A spokeswoman for the San Francisco Sheriff Vicki Hennessy said the sheriff had not yet reviewed the legislation and had no comment. The police department and chief did not respond to requests for comment.

This report was updated with comments from the Peace Officers Research Association of California.