A slew of records related to police shootings and misconduct is headed for public disclosure in 2019 after a remarkable turnaround from secrecy to transparency in California.
Beginning Jan. 1, the San Francisco Police Department is one of many such agencies statewide preparing to process public records requests that will apply to personnel records that involve police misconduct toward members of the public, due to the passage of SB 1421. Six months later, on July 1, the similarly structured AB 748 will take effect, covering video and audio files involving “critical incidents.”
Such incidents apply to police or custodial officers discharging a firearm or using force that results in death or great bodily injury, including sexual assault. Personnel records may be uncovered after a certain period of time and if an investigation affirms any allegations.
“This is really a long time coming,” says Nikki Moore, outgoing legal counsel for the California News Publishers Association, which trained members such as SF Weekly on the new legislation. “For people who have experienced loss or encounters with the police that have gone horribly wrong. … That’s cathartic and gives families closure.”
Law enforcement agencies may delay releasing information — 45 days under AB 748 and 60 days under SB 1421 — if disclosure would impede an active investigation or give time to file criminal charges. After a year, it should prove by “clear and convincing evidence” that further delay is necessary.
In other words, the public may now have access to previously locked-away records involving police misconduct — although it could be months or years before they become known. For example, police fatally shot 21-year-old Jehad Eid at the Amazon Barber Shop on Geneva and Mission streets in March, and his family filed a lawsuit in December. Many more months may elapse before all the facts come to light.
Further, the public still doesn’t have the full details in cases like the fatal shooting of Mario Woods in 2015. A video of the shooting that cast doubt on officer accounts, which KQED obtained, was only recently unsealed in October due to a lawsuit by Woods’ mother.
While the laws don’t explicitly apply to or exclude incidents before Jan. 1, some police departments are trying to wiggle out of releasing files related to cases from before that date. The San Bernardino County Sheriff’s Employees’ Benefit Association filed a petition on Tuesday to prevent its retroactive application, arguing that it violates the rights of law enforcement officers.
Moore doesn’t find that to be a winning legal argument, especially considering that the Legislature did not discuss any intent to leave out past cases and its members were moved by public sentiment around police shootings and misconduct.
But groups like CNPA and First Amendment Coalition are keeping an eye on a case involving the city of Hayward that could allow jurisdictions to charge money for the review and dispersing of public records. The California Supreme Court took up the case on Wednesday.
Gov. Jerry Brown’s final stamp of approval prevents the shredding of similar records and rectifies his blocking of public access during his first term, in 1978. A 2006 California Supreme Court ruling expanded this confidentiality by preventing discipline issues from being discussed in open hearings held during commission meetings.
The national mood toward police shootings has since shifted dramatically, thanks in part to movements such as Black Lives Matter. The fatal shooting of Stephon Clark in his grandmother’s backyard in Sacramento this March served as an example close to home as the Legislature debated SB 1421 and AB 748.
“The secrecy didn’t serve California and the public for the past 40 years,” Moore says. “If you hide corruption, you don’t get rid of it.”
In 2019 and for the years to come, there could be a lot fewer places for that corruption to hide.