San Diego Judge Finds Police Transparency Law to Be Retroactive

SAN DIEGO (CN) – A San Diego Superior Court judge on Friday afternoon joined the chorus of judges across California who have found in legal challenges to the state’s new police transparency law on personnel records the statute applies retroactively to records from before Jan. 1.

“I think it is very clear. This was not a hard call for the court … It is clear this applies retroactively. It doesn’t get any clearer,” Judge Eddie Sturgeon said in denying a writ of mandate by eight police unions in San Diego County, led by the Carlsbad Police Officers Association.

Sturgeon’s finding the law applies retroactively to personnel records and investigations prior to Jan. 1 echoes that found by other judicial officers across the state who have made the same call in San Bernardino, Los Angeles, Ventura and other counties throughout the state.

The San Diego police unions filed the petition in January challenging the retroactive application of SB 1421, a bill which went into effect Jan. 1 and amended penal code sections related to peace officer personnel records to provide certain records should not be confidential and subject to disclosure under the California Public Records Act.

The unions’ attorney Richard Pinckard with Bobbit, Pinckard & Fields, argued in court Sturgeon should make a distinction, or bifurcate, the statue between the incident report records and personnel disciplinary records subject to disclosure under the new law.

Pinckard said the unions didn’t take issue with records related to use of force or use of force causing serious injury or death being subject to public disclosure but that internal disciplinary records should not be retroactively made available.

“It flies in the face of what the Public Records Act is about,” Pinckard said.

“What public good is served in dredging something up that is 45-years-old? That’s the concern we have. That’s the privacy interest we’re addressing,” he added.

David Loy, legal director for the American Civil Liberties Union of San Diego and Imperial Counties, argued on behalf of the civil rights organization and its client Flora Rivera, who intervened in the case.

“There’s no constitutional right to privacy in public records of egregious conduct,” Loy said.

Loy disputed the unions’ contentions the law does not explicitly state the bill applies retroactively, pointing out the use of the word “maintained” in the statute regarding personnel records “by definition” refers to current or older records kept by departments.

“It gives the public the right to know why an officer did what they did and how they were disciplined,” Loy said.

Attorney James Chadwick with Sheppard, Mullin, Richter & Hampton, representing a host of San Diego news organizations who intervened in the case – including The San Diego Union-Tribune, KPBS, Voice of San Diego and several TV news outlets – argued the police unions did not have standing to bring the suit because they could not assert privacy rights on behalf of their members which he said are personal and “cannot be asserted by anyone other than the individual who holds them.”

“The purpose of the law is to cast light on law enforcement agencies and officers. If we know, then we can observe, then we can trust,” Chadwick said.

He disputed the argument raised by Pinckard who suggested personnel records going as far back as the 1800s could be subject to disclosure, pointing out there are laws in place which require departments maintain records for five years.

Sturgeon said it was a “troubling” call and that he had a “big concern” regarding potential years-old disciplinary records being made public, but he ultimately found “there is not a constitutional vested right of privacy” for law enforcement officers and that the law applies retroactively to personnel records prior to Jan. 1.

A status conference in the case is set for April 5.

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