SAN FRANCISCO (CN) – Police commissioners in San Francisco Monday attempted to craft a policy that adheres to a new state law requiring the disclosure of police misconduct files while also respecting officers’ due process rights.
Last year, the California State Assembly passed Senate Bill 1421, which requires law enforcement agencies to disclose records on police use of force and “sustained” findings that an officer committed a sexual assault or lied. The measure took effect January 1, 2019.
Police Commissioner Cindy Elias said Monday that developing the disclosure policy is challenging, because it is a guessing game as to how California judges will interpret the statute's text.
"1421 is new, and it hasn't been litigated so there's no court precedent to say what certain terms mean," Elias said.
The police commission, aided by the San Francisco City Attorney's office, must make its own judgments on what constitutes a "sustained finding" of wrongdoing, what types of off-duty conduct are covered under the law, and what categories of information can be redacted from files that are released.
The American Civil Liberties Union, police unions, members of the public and the city’s police watchdog agency – the Department of Police Accountability – offered suggestions to the commissioners on what the policy should entail.
Attorney Monique Alonso of the law firm Messing Adam & Jasmine represented the San Francisco Police Officers Association, a trade union, at the meeting. She insisted the city's draft policy lacks key details on how and when officers will be notified of an impending disclosure so they can challenge it in advance.
"There's no process here," Alonso said. "What's the timeline? How will it be communicated?"
The law empowers police departments to withhold records if there is a determination that disclosure would pose significant danger to the physical safety of an officer or any other person.
The police union previously argued the city should only disclose files related to an incident in which an officer fired a gun at a person, and not those related to officers firing a gun in the air, at an animal or in self-defense while off-duty.
ACLU Attorney Kathleen Guneratne said that an officer's use of force, even in self-defense, can raise serious questions about whether that officer's actions were appropriate and that the public has a right to scrutinize such incidents.
"The commission should err on the side of disclosure," Guneratne said.
Police Sgt. Brian Knueker, of the San Francisco Asian Police Officers Association, noted that all domestic violence victims, including police officers, have privacy rights. He said records relating to an officer using force to defend him or herself from domestic violence should not be made public.
Under the terms of a draft disclosure policy, files relating to sexual assault or dishonesty may only be released after an administrative appeal process is exhausted – even if the police commission fires an officer for misconduct.
Some of the interested parties questioned the inclusion of an attorney-client privilege exception in the draft policy. The ACLU maintains that adding this exception could enable the city to wrongly withhold certain files under the guise of attorney-client privilege.
"We have strong concerns that an agency might seek to circumvent SB 1421 by hiring an attorney to conduct internal investigations of its police officers and then claiming everything is privileged," Guneratne wrote in a 23-page critique of the city's draft disclosure policy.
Deputy City Attorney Lisa Powell rejected that concern and said that the city cannot disregard other laws that require certain records be kept confidential.
"We don't read SB 1421 as overturning all other laws that require confidentiality," Powell said.
The city did not accept the recommendation to cut the attorney-client privilege exception, but Elias said the police commission was leaning toward embracing two other recommendations suggested by the ACLU, which would require the inclusion of a reason for every redaction in released files and the posting of files on a publicly accessible website.
Elias asked all of the stakeholders to submit proposed changes to the draft policy within the next two weeks.
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