Norberto Santana, Jr.

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Los Angeles County Superior Court Judge Mitchell Beckloff today is poised to become the latest jurist to rule against deputy sheriff unions’ efforts to block public access to misconduct and use of force records kept by local law enforcement agencies.

Here in Orange County, Superior Court Judge Nathan Scott could return a decision in a similar case any day.

Beckloff issued a tentative ruling Friday going against the central arguments put forth by attorneys representing the Los Angeles County Deputy Sheriff’s union seeking to block public review of relevant police records. A Contra Costa County judge also ruled against a local deputy sheriff’s union there earlier this month.

In what is quickly becoming the most intense battle ever over the reach of the state’s Public Records Act – all these police unions are heading into court to fight off implementation of SB 1421, which was enacted by the legislature last fall and signed into law by former Gov. Jerry Brown.

The law – passed with bipartisan support – made a series of use-of-force and misconduct records available for public review under California’s PRA by amending two sections of California’s penal code.

In the past, such records were largely considered confidential in California.

Now, police unions argue in court that the legislature can’t just unilaterally change the status of those records without the express intent of doing so.

It’s what they’ve termed a “retroactive” application of the law.

Except, judges so far seem to disagree.

“Nothing prevents the legislature from modifying the statutory rights it previously provided to Petitioner’s members,” Beckloff wrote in his Friday tentative ruling. “Nothing prevents the legislature from changing the law.”

In his Friday ruling, Beckloff argued that the plain language of the statute passed by the legislature is what offers judges the clearest indication of legislative intent.

“The question of retroactive intent is of no consequence where, as here, on its face, SB 1421 does not operate retroactively. SB 1421 prescribes a law enforcement agency’s prospective duty as of January 1, 2019 to make certain categories of peace officer personnel records available to a requestor through the CPRA. The statute dictates as of January 1, 2019, a law enforcement agency has a disclosure duty as to certain records requested after January 1, 2019. It does not impose an obligation or a burden on a law enforcement agency to revisit responses it may have made to CPRA requests prior to January 1, 2019. Thus, the statute does not ‘create a new obligation, impose a new duty, or attach a new disability, in respect to transactions or considerations already in the past.’”

In his decsion, Judge Beckloff sides with SB 1421 author state Senator Nancy Skinner, who stressed to me herself that the law pays no attention to when the misconduct or use of force occurred.

Skinner – who recently got the legislature to further adopt a letter stating the intent to make past records discloseable – insists that the simplicity of the statute offers all the direction needed.

Judge Beckloff agreed.

“The unambiguous language demonstrates the operation of SB 1421 has nothing to do with the date on which a personnel record was created – it applies to all records. The statute speaks to a law enforcement agency’s obligation to disclose certain personnel records ‘maintaned’ by it when requested under the CPRA after January 1, 2019.”

Beckloff really dived into the intentionally straightforward language of SB 1421.

He writes in his tentative order, “The word ‘maintained’ is a past tense verb meaning ‘kept possession and care of’ while ‘any’ means without limit and no matter what kind. Thus, as argued by intervenors, ‘any’ and ‘all’ records ‘maintained’ by the law enforcement agency would necessarily include records created prior to the statute’s effective date so long as they are “maintained” by the law enforcement agency and requested after Jan. 1, 2019.

“Given the prospective nature of the duty created by the statute, the court finds SB 1421 does not operate retroactively.”

That may indeed be the legislation’s most effective message and legacy.

The best way to get SB 1421 through the legislature was to keep it lean.

But not mean.

“SB 1421 does not attach any new legal consequence to any discipline imposed on a police officer,” wrote Beckloff. “The statute does not subject the peace officer to further or different discipline; there is no legal consequence to disclosing the personnel record.”

This may the smartest part of SB 1421, which allowed legislators to end decades of corrosive police secrecy in California.

It will not change the outcomes of any past events or misdeeds.

Just like the Truth Commissions that ended 1990s-era civil conflicts in South Africa or in El Salvador, which I witnessed up close as an in-country elections monitor, disclosure allows healing. It allows people to move forward.

But Beckloff’s words are prescient, in that SB 1421 will indeed shine an uncomfortable light on what has been allowed in California.

“The court finds SB 1421 does not substantially change the legal effect of past events such that it has an impermissible retroactive effect – even to the extent it may ‘unsettle expectations and impose burdens on past conduct’ by removing the confidential designation to records where there was some past expectation of privacy.”

That’s the process that county CEO’s, Sheriff’s, District Attorneys and elected officials should all be talking about and preparing for.

How will public agencies keep public confidence with what will be coming out?

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