California Judge Says Police-Transparency Law Likely Retroactive

MARTINEZ, Calif. (CN) – A Contra Costa County judge on Friday refused to block public access to records of police misconduct that occurred before California’s new transparency law took effect, the first ruling in a string of police-backed lawsuits filed across the state.

Ruling from the bench during a packed hearing in downtown Martinez, Judge Charles Treat denied a request by five police departments in Contra Costa County and the county sheriff’s office to bar the release of disciplinary records. He immediately stayed the order for 10 days to let the unions appeal, however.

“Although this is not an easy question, I do necessarily take the view at this point that petitioners have not shown any right to relief or any probability of success on the merits,” said Treat. “I’ve ruled on the merits.”

Introduced by state Sen. Nancy Skinner, SB 1421 for the first time opens up access to personnel records on police shootings, excessive uses of force that resulted in death or “great bodily injury,” and confirmed cases of sexual assault and lying by officers while on duty.

Numerous media outlets sought records once the measure took effect Jan. 1, including records in high-profile excessive force cases like that of Oscar Grant, a 22-year-old black man shot to death by a police officer at an Oakland BART station on New Year’s Day 2009.

Police unions in Contra Costa County near San Francisco and in Los Angeles, Orange, San Bernardino and Ventura counties in Southern California sued to halt the media demands, arguing SB 1421 isn’t “retroactive” because the Legislature didn’t expressly state that it is, and that disclosing pre-2019 records will violate officers’ constitutional and statutory privacy rights.

Temporary restraining orders were issued in Contra Costa, Orange, San Bernardino and Ventura counties.

The unions, led by Rains Lucia Stern St. Phalle & Silver attorney Timothy Talbot, made their privacy argument before Treat on Friday. The “default” rule in California is that statutes creating new rights or liabilities aren’t retroactive unless the Legislature says they are, Talbot said.

Section 3 of the state penal code – which SB 1421 amended – states that “no part” of the penal code “is retroactive, unless expressly so declared.” And because SB 1421 doesn’t reference retroactivity, it cannot apply to police records predating its enactment, he said.

“If the Legislature intended to eviscerate that right of the officers, it needed to be a lot more clear in that stated objective,” Talbot said. “If [the law] is ambiguous in any way, if we can’t glean [legislative] intent, then it’s ambiguous. And if it’s ambiguous, the California Supreme Court says you interpret it as unambiguously prospective.”

Treat was not persuaded. The judge instead accepted arguments proffered by American Civil Liberties Union of Northern California attorney Kathleen Guneratne, including that SB 1421 doesn’t create new liabilities for officers based on past conduct – it merely makes that conduct less confidential.

“If it was illegal in 2018, it’s illegal in 2019,” Treat said. “It doesn’t change the legal principles applicable to anyone’s conduct.”

Despite the decisive ruling Friday, a defeat for the unions isn’t assured. A day earlier in Orange County, a judge there deferred ruling on the preliminary injunction and will instead issue a written decision at a later date.

David Carillo, executive director of the California Constitution Center at the University of California, Berkeley, School of Law and a former Contra Costa County deputy district attorney, said the unions have a strong case.

“The core issue here is interpreting the Legislature’s act to determine whether or not it intended the law to apply retroactively,” Carrillo said in an interview. “There’s a well-established, strong presumption that no part of the penal code is retroactive, unless the Legislature expressly so declares.”

But other experts aren’t so sure. UC Hastings College of the Law professor David Levine said by phone the case isn’t “a slam dunk” for either side.

“In this case,” he said, “legislative silence would suggest retroactivity because they’re not imposing liability on somebody, they’re just…making [police files] less confidential than before.”

And First Amendment and police misconduct attorney Matthew Strugar predicted the unions’ challenge will ultimately fail.

“Cops get a lot of breaks in court,” Strugar, who practices in Los Angeles and isn’t involved in the union suits, said by phone. He called the retroactivity argument “a desperate argument,” so the police unions are suing in multiple counties to “see what sticks.”

According to a declaration filed by the ACLU in the Los Angeles case, the Los Angeles Police Protective League assumed SB 1421 would be retroactive, writing in a letter to the Senate Public Safety Committee that the bill would make records “available for public inspection irrespective of whether or not they occurred prior to the effective date of SB 1421.”

The LA police group also predicted “a wave of habeas petitions from convicted criminals . . . [and] [c]riminals previously arrested or investigated by an officer who is the subject of misconduct allegations would inundate the court system,” the ACLU said.

Cities, too, had expected SB 1421 to disclose existing records, Strugar said. “Why was Inglewood running its shredding machines 24/7 before the New Year?” he asked.

This past December, the LA County city began destroying investigative records involving police shootings that would have been made public under Skinner’s measure. Before that, Inglewood reportedly had a policy of retaining records of officer-involved shootings for 25 years after the close of an investigation.

“They’re likely going to find some purchase in at least one court, if for no other reason based on courts’ sympathy for police officers,” Strugar said.

Outside court Friday, Talbot denied the unions’ choice to file multiple suits was strategic.

“There isn’t a mechanism by which a single action by a particular party will have county-wide or state-wide application,” Talbot said.

Regardless of who wins in state trial court, any decision will probably be stayed pending appeal to the state’s appellate courts and, possibly, to the California Supreme Court. It could take up to three years to resolve those appeals, putting police records across California back in the deep-freeze for the foreseeable future.

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