Norberto Santana, Jr.
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The Association of Orange County Deputy Sheriffs won their bid on Thursday to shield deputy misconduct records from public release after a state law, SB 1421, was enacted that would allow release of public records about use of force incidents, sexual assaults or officers lying while on duty.
Judge Nathan Scott granted a temporary restraining order against any records releases, setting a hearing for full arguments on Feb. 7 at 2 p.m. in Orange County Superior Court, Department C15, which is on the fifth floor.
The action comes after California’s legislature passed sweeping reforms this past September – SB 1421 and AB 748 – requiring public disclosure of a select set of police misconduct records.
The new law has triggered many public records requests from members of the public and news media organizations seeking information about a series of controversial incidents.
That has prompted a series of county law enforcement unions to go into court in several counties across California as they seek to block any release of records, arguing that the legislature was unclear whether the new laws cover incidents that have already happened.
Just over the Christmas holiday, the San Bernardino County Deputy Sherriff’s union unsuccessfully went to the Supreme Court, which rejected their arguments.
News organizations, as well as advocacy groups like the First Amendment coalition, are opposing these efforts in court.
In Orange County, Voice of OC leads a media coalition including the Los Angeles Times and Southern California Public Radio that also appeared in court Thursday to oppose the deputy sheriff union’s request to seal records.
I wrote on Thursday morning about why we decided to go to court.
At the time of Gov. Brown’s signing of the legislation back in September, SB 1421 bill sponsor Sen. Nancy Skinner (D-Berkeley) told reporters, “California is finally joining other states in granting access to the investigatory records on officer conduct that the public truly has a right to know.”
The first few sections to Skinner’s bill seems to put the legislature clearly on the record regarding the importance of accountability in terms of maintaining public confidence in law enforcement.
“Peace officers help to provide one of our state’s most fundamental government services. To empower peace officers to fulfill their mission, the people of California vest them with extraordinary authority- the powers to detain, search, arrest, and use deadly force. Our society depends on peace officers’ faithful exercise of that authority. Misuse of that authority can lead to grave constitutional violations, harms to liberty and the inherent sanctity of civilian life, as well as significant public unrest.
The public has a right to know all about serious police misconduct, as well as about officer-involved shootings and other serious uses of force. Concealing crucial public safety matters such as officer violations of civilians’ rights, or inquiries into deadly use of force incidents, undercuts the public’s faith in the legitimacy of law enforcement, makes it harder for tens of thousands of hardworking peace officers to do their jobs, and endangers public safety.”
Now, the Association of Orange County Deputy Sheriffs is mainly arguing that SB1421 should not apply to incidents that have already occurred.
“Senate Bill 1421 contains no legislative direction for a retroactive application of the amendments to Penal Code Sections 832.7 and 832.8, including no such direction as to the amendment’s application to peace officer personnel records reflecting conduct or arising out of incidents occurring prior to January 1, 2019 – information deemed confidential as a matter of law,” reads the petition submitted by AOCDS to the court.
In court Thursday, Jacob A. Kalinski argued on behalf of the deputies union that the law “cannot be applied retroactively without any express intent in the law.”
Deputy County Counsel Laura Knapp told Judge Scott that the County of Orange opposed the deputies’ request holding the position that any relevant misconduct records are now public record.
Knapp said SB1421 had removed any sort of statutory protections for such misconduct records.
“The legislature changed the protections of those records,” Knapp argued.
Knapp told Judge Scott that Orange County supervisors would be meeting to discuss a production plan for such records in closed session on Jan. 29.
Attorney Kelly Aviles, who represents the media coalition opposing the deputy union request to seal records, told Judge Scott that the concept of retroactivity didn’t apply as the outcomes in previous cases and investigations have already played out.
The only thing the new law did, Aviles argued, was to take certain records and open them to public view.
“It just changed how the public can access the records,” Aviles said.
In an interview after the court session, County Counsel Leon Page agreed with Knapp and Aviles confirming he would be reviewing the matter with county supervisors in closed session.
“It’s not so much that it’s a retroactive law,” Page said. “It has a retroactive application.”
County officials are continuing with their effort to collect relevant records, Page said, adding that the new statute requires redactions before records can be made public. Sheriff’s officials have yet to finish their own internal search for relevant records, Page said.
This could be a long process and will present a resource challenge to agencies, Page noted.
Page – who is known for his public law advocacy on public records access issues – alerted media organizations Wednesday about the deputy union’s reverse Public Records Act action to block access to records.
“When this request came in I thought it was important for Voice of OC and others to be notified of the hearing,” Page said, adding that he was pleased the media coalition went into court. “If not, the rights of the public would be adjudicated today.”