Santana: Sheriff’s Union Seeks to Block Public Access to Misconduct Records

The Orange County Sheriff seal.

Orange County’s Deputy Sheriff’s union today will ask Superior Court Judge Nathan Scott to block the County of Orange from releasing any police misconduct or disciplinary records under a new state law that allows information on use of force, sexual assaults or lying while on duty to be released to the public.

News agencies like Voice of OC, Southern California Public Radio and the Los Angeles Times will also appear together in court today and oppose them.

Editors and reporters from these news agencies as well as other members of the public have filed nearly a dozen records requests with the OCSD under the California Public Records Act seeking documents about some of the most high profile police incidents and scandals across Orange County in recent years.

The requests for information came after California Governor Jerry Brown signed two new laws, SB1421 and AB 748, last September.

The legislation was credited by many at the time as dialing back decades of police secrecy in California, which now carries some of the strongest protections for police records in the nation.

At the time of Brown’s signing, 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.”

Skinner’s bill 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.

The only times I’ve ever seen a full blank slate cleaning of any accountability standard whatsoever, was connected to full disclosure of human rights violations in connection with Truth Commissions at the end of civil wars.

In those situations, the collective interest in healing, forgiveness and moving forward outweighed individual accountability.

I saw that process up close when I worked as an analyst with the Congressional Research Service and later with the National Endowment for Democracy in the mid 1990s, in-country examining the Salvadoran Truth Commission, which fully revealed horrors of war in exchange for a lack of individual accountability.

Despite protests, the process ended a three-decades old civil war and yielded free and fair elections.

Yet the disclosure standard for those processes was complete, total and raw.

The California legislature didn’t go that route.

Legislators chose a very select set of records with immense public policy interest – use of force, sexual assaults, lying while on duty.

In the age of Black Lives Matter protests along with the rising tide of incidents caught on video and body cam that raise legitimate public concerns about police training, racial profiling and accountability, legislators spoke clearly.

Since the law was adopted, police unions have scrambled to court en masse seeking to block the release of records all over the state.

Just over the Christmas holiday, the San Bernardino County deputies union went directly to the California Supreme Court seeking to block the release of records.

The court gave us all great guidance here and denied their request.

The fact that honest, sworn law enforcement officers and their unions want to block the release of records that would uncover bad officers and/or highlight training or management mistakes is truly sad.

These kinds of reverse public records lawsuits – where special interests like the Deputies union seek to block whole segments of public records – are also a direct threat to all of our First Amendment rights and a direct end run around the intent of the California state legislature.

It’s critical for news agencies and the public here in Orange County to stand up and argue for disclosure.

We must send our courts the clear message that our community standard is disclosure.

I very much understand, respect and appreciate that police unions are here to defend their members.

Yet it’s our responsibility as citizens to defend our democracy.

We have to defend the principle that law enforcement officers – people whom we entrust with life and death power – have to be held accountable for their official actions.

That is the bedrock of our democracy.

If not, we live in a police state.