LA Judge Deals Blow To Police Unions' Suing To Keep Records Secret  

(Maya Sugarman / For KPCC)

Updated Feb. 20:

It's been more than 45 days since a change in California law opened up police conduct records long kept secret from the public. For just as many days, police unions have sought to claw it back, arguing SB 1421 does not apply to incidents prior January 1, 2019, the date the law went into effect.

The records in question cover everything from police shootings to findings of lying and sexual assault by officers. Police unions across the state have sought temporary restraining orders to keep those records confidential.

On Tuesday, a Los Angeles County judge dealt a significant blow to those efforts, rejecting the positions of unions representing Los Angeles Police Department and Los Angeles County Sheriff's sworn personnel.

"This was a part of a coordinated attack by police unions up and down the state to prevent Californians from actually ever getting any real transparency and accountability for police officers," said Melanie Ochoa, staff attorney at the ACLU of Southern California, which is among the organizations and newsrooms, including KPCC/LAist, that are pushing back in court against the unions' efforts.

"I'm glad this is a step towards defeating that attack," Ochoa said.

NEXT STEPS

The matter is far from resolved. Attorneys representing the unions have indicated they'll likely appeal, which could keep a lid on older records while the matter is considered in the higher court.

"There's just something fundamentally unfair about going retroactively and saying that a right to privacy you that you thought you had in your personnel records, it turns out you didn't have them," Jacob Kalinski, a lawyer representing multiple police unions, told KPCC ahead of a hearing Friday.

Kalinski gave the example of attorney-client privilege: one wouldn't want to have a conversation with their attorney thinking it was confidential only for the rules to change later. Similarly, Kalinsky says it's unfair for officers to have potentially made decisions about disciplinary proceedings thinking the matter would remain private only to later find the records are public.

"There is no constitutional right to sexually assault someone and keep that private nor is there right to shoot someone and keep that secret," said Kelly Aviles, attorney for KPCC/LAist and the L.A. Times. "The constitution has never been interpreted to require secrecy for any of these kinds of records."

Aviles argued the union's retroactive claim was improper and clearly counter to the legislature's intent and that blocking access to records violates the rights of journalists and public they serve.

LAWMAKER'S INTENT

Senator Nancy Skinner, who introduced the bill, said she intended all records to be made public "regardless of when the those documents were created or when the underlying conduct occurred," according to a letter presented to the court.

Attorneys representing the City of Los Angeles said they agreed the "records are disclosable." Attorneys for Los Angeles County didn't take a position.

"We're taking the plan language of the law," LAPD Chief Michel Moore told KPCC's Airtalk Wednesday. "We're prepared to release records as they are requested regardless of how ever far back the request is."

Upon hearing arguments, Judge Mitchell Beckloff said Friday that such "expectations can be upended with legislation."

The Los Angeles Police Protective League issued a statement following the ruling, stating it "has a fiduciary responsibility to protect the legal rights of our members" and that "A decision will be made shortly as to whether we file an appeal to the Superior Court ruling."

The Association of Los Angeles Deputy Sheriffs has not provided comment.

The pair of cases in L.A. County are among the first losses for the unions. Similar cases up and down California are in court. In Riverside and Orange Counties police unions have succeeded in getting temporary restraining orders to block the release of records under SB 1421 while the retroactivity question is considered. In Ventura County, a judge sided with the deputy union request, which has gone unchallenged in court, granting a preliminary injunction to block the release of records.

A SECRETIVE HISTORY

Before SB 1421, California had been considered one of the most secretive states in the nation when it came to police conduct.

Efforts to change that gained traction with growing unrest over police shootings, especially those of unarmed black men, and criticism of what appeared to be lax consequences for the officers involved.

Skinner's bill was signed into law by then Governor Jerry Brown in September 2018. The fights going on now over how that law should be interpreted are the latest in a long-running battle between police union's efforts to increase privacy protections for members and transparency advocates who argue the public has a right to know about officers' behavior on the job.

So far, widespread litigation has resulted in the law being applied unevenly throughout the state. Some agencies, such as Burlingame Police Department near San Francisco, have already begun turning over records requested by journalists while others are waiting for clarity from the courts.

A HESITANT ATTORNEY GENERAL

California Attorney General Xavier Becerra has declined to provide pre-2019 records of his own officers until the courts have weighed in.

"I don't want a court to tell me 'That was not a document that you should have released,' Becerra told Capital Public Radio. "And those people who had that privacy violated have no real recourse."

Becerra's call sent reverberations throughout the state, influencing other law enforcement agencies' decisions to comply and provoking a sharp disapproval from press.

The Sacramento Bee Editorial Board called it a "calculated betrayal of both the public interest and the law by the person we elected to protect and uphold them."

The First Amendment Coalition, a free speech nonprofit, filed a lawsuit against Becerra and the California Department of Justice for "failing to comply with the state's new, landmark police transparency law."

Following Becerra's lead, the City of Long Beach sent letters to reporters last week stating it was refusing to fulfill records requests until the retroactive question is resolved by the courts.

"The public interest in accessing these records is clearly outweighed by the public's interest in protecting the privacy rights," wrote Taylor Anderson, deputy to Long Beach City Attorney Charles Parkin.

So far, there are signs that the past records eventually will be made public. A Contra Costa County judge ruled against several unions in the Bay Area earlier this month, but put a hold on the release of records while the unions appeal.

In the short term, however, access to records seems likely to remain limited while challenges to the law make their way to higher courts.

UPDATES:

Feb. 20, 12:30 p.m. This article was updated with the judge's decision in the LAPPL case.

This article was originally published Feb. 15 at 5:45 p.m.