(CN) — Police records and privacy were on the minds of a three-judge appellate panel on Thursday as they listened to attorneys argue about the purpose of a California law that expanded the state’s public records law.
Over 400 police agencies in California found themselves under a new law in 2019 that made available non-confidential records on misconduct, use of excessive force and police shootings. Numerous police unions fought to limit the law in court. They argued the law should not be applied to police records created before the law went into effect.
Most court decisions have gone against the police unions — all except for Ventura County Superior Court Judge Henry Walsh’s June 2019 decision.
Walsh went against multiple previous rulings from other courts and found that Senate Bill 1421 does not apply retroactively, because the California Legislature in The Right To Know Act did not specify retroactivity.
Multiple police agencies, including the California Attorney General’s Office, argued this in courts across the state and most lost those arguments.
Walsh’s ruling was the outlier.
He found that the California Legislature did not specify if the law should apply to shootings and other misconduct that took place before the law went into effect. He ruled in favor of the Ventura County Deputy Sheriffs Association and the county public defender’s office appealed the ruling.
On Thursday, a three-judge panel from the Second Appellate District Court heard oral arguments on why the lower court’s decision should be reversed. The panel included Presiding Justice Arthur Gilbert, Associate Justice Kenneth Yegan and Justice Steven Perren.
Attorney Kelly Aviles for the intervenors Los Angeles Times joined Senior Deputy Public Defender Michael McMahon in arguing to reverse the lower court’s decision. She maintained that the previous court decisions did not say the law worked retroactively.
“This is the fundamental problem with the union’s position in their lawsuit,” Aviles said. “They go directly to the question about whether there was some statement by the Legislature intent plain language about whether this was intended to apply to records before 2019. That’s inherently the wrong question.”
She argued the law does not change a municipality’s response to a record request from the past.
Aviles quoted Former Chief Justice of the United State Melville Fuller, “If every time a man relied on existing law in arranging his affairs, he were made secure against any change in legal rules.”
Gilbert stopped her and quoted former Associate Justice of the Supreme Court Oliver Holmes Jr., “I don’t care what the Legislature meant, what did it say.”
The California Legislature did not specify if the law applied retroactively and that has been the brunt of the legal arguments carried by police unions.
McMahon said the issue was most recently decided in the First Appellate District in Contra Costa County in Walnut Creek Police Officers’ Assn. v. City of Walnut Creek. A three-judge panel there found that the request for an officer’s records does not predate the law and it does not change the legal consequences for police conduct before 2019.
“The court of appeal was aware that this debate was going on in trial courts, to my knowledge no judge, no reasonable jurist — whether in the Superior Court or in the Court of Appeal – has interpreted the statute not to apply to records before the operative date of the statute,” McMahon said.
Attorney Richard Levine for the Ventura County Deputy Sheriffs' Association argued that the Walnut Creek case was decided with the wrong test and said their case in Ventura County raised a strong argument about the elimination of any privacy rights.
Gilbert pressed Aviles on whether an officer was entitled to privacy if there was information in their record that should not be disclosed, like a medical condition, that had nothing to do with a shooting or misconduct.
Aviles said the statute provides a sort of balancing test and not the “complete black hole” on accessing police records that police have received in the past.
“This isn’t a question about whether an officer had a reasonable belief that his records would be secure. He had a reasonable expectation in the procedure,” Aviles said. “Procedure is given by the Legislature and can be taken away.”
Levine argued Aviles’ framing about procedure on privacy rights is wrong.
“This is far more than just a change of procedure,” Levine said. “This goes to the crux of the right of privacy.”
The arguments were taken under submission. The panel did not say when they would issue their ruling.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.