Appellate Court Clarifies Meaning of "Sustained" Under SB 1421 to Trigger CPRA Release

Prior to January 2019, access to peace officer records was only permitted through a Pitchess motion. Then Senate Bill No. 1421 amended Penal Code sections 832.7 and 832.8 to require disclosure of certain serious misconduct records under the California Public Records Act ("CPRA"), if they have been sustained after opportunity to appeal.  The legislation did not address circumstances wherein an officer resigns prior to the completion of an investigation.  Effective January 1, 2021, Senate Bill 16 expanded the definitions of serious misconduct, and also required the disclosure of such records if the officer resigns prior to the completion of the investigation. 

The recent decision in Wyatt v., Kern High School addressed the novel issue of whether sustained findings of misconduct must he disclosed where the sustained findings were issued after the officer resigned, thus denying him an opportunity to appeal the findings.  

Kern High School District (KHSD) police officer Jerald Wyatt left the department while an internal affairs investigation was pending.  Subsequently in 2017, Wyatt discovered sustained findings for misuse of CLETS and dishonesty had been placed in his personnel file without notice or an opportunity to contest the findings.  In 2019, KHSD received several CPRA record requests from various news agencies and others seeking personnel records of KHSD officers pertaining to:

    (1) the discharge of a firearm at a person by an officer; 

    (2) the use of force by an officer resulting in death or great bodily injury;

    (3) sustained findings an officer engaged in sexual assault involving a member of the public; and

    (4) sustained findings of dishonesty-related misconduct by an officer.

Wyatt was notified that KHSD intended to disclose his sustained findings in response to the CPRA requests. Officer Wyatt filed suit to restrain KHSD from disclosing the records.  He asserted the records were not "sustained" within the meaning of Penal Code section 832.8(b) because he was never notified of the findings or afforded an “opportunity for an administrative appeal pursuant to Sections 3304 and 3304.5 of the Government Code.” KHSD argued that Officer Wyatt was not entitled to notice and appeal rights under the POBR once he resigned.  As such his opportunity for appeal was exhausted and the records could be disclosed.  The Superior Court ultimately sided with the officer and prohibited KHSD from releasing his records.  An appeal was filed.

The appellate court focused on whether the department's sustained findings met the definition in Penal Code section 832.8(b), which would trigger a disclosure. SB 1421 provides: "'Sustained' means a final determination by an investigating agency, commission, board, hearing officer, or arbitrator, as applicable, following an investigation and opportunity for an administrative appeal pursuant to Sections 3304 and 3304.5 of the Government Code, that the actions of the peace officer or custodial officer were found to violate law or department policy."

The appellate court noted that the Legislature failed to address this circumstance and that it was equally plausible that the Legislature intended for such sustained records to be disclosed or that the officers' privacy interests should prevail given that he was not afforded due process.  Refusing to speculate over the Legislative intent, the court found the records were not subject to disclosure under SB 1421.  In short, the officer was not provided an opportunity to appeal the findings so they could not be sustained within the meaning of SB 1421.  Thus, the records were not subject to disclosure at the time of the request in 2019.

The court expressly declined to issue an opinion as to whether or not the records would be disclosable pursuant to a request submitted after December 31, 2021, when SB 16 took effect.  SB 16 added Penal Code section 832.7(b)(3), which states, in part: "Records that shall be released pursuant to this subdivision also include records relating to an incident specified in paragraph (1) in which the peace officer or custodial officer resigned before the law enforcement agency or oversight agency concluded its investigation into the alleged incident."

As the court declined to opine beyond the issues appealed, open issues remain regarding resignations during pending investigations of serious misconduct.  SB 16 addresses circumstances wherein an officer resigned prior to the conclusion of an investigation, but seems to assume the investigation won't be concluded.  However SB 2 mandates completion of allegations of serious misconduct, effective January 1, 2023.  The statutes do not clearly address the situation wherein an officer transfers to another agency while an investigation of serious misconduct is ongoing, but later determined to be not sustained.   The not sustained finding and resignation trigger conflicting requirements.

Governor Newsom Signs Several New Firearm Restrictions Despite the Recent Supreme Court Ruling on the Second Amendment

     Following the SCOTUS New York State Rifle & Pistol Ass'n, Inc. v. Bruen decision, Governor Newsom signed four new bills concerning gun restrictions and safety: AB 1594, AB 2571, AB 1621, and SB 1327. Generally, these bills are intended to allow civil suit against gun-makers, restrict marketing to minors, restrict ghost guns, and limit the spread of assault weapons.  However, these laws are certain to be challenged under the legal standard in Bruen, which held "only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's ‘unqualified command.’”

AB 1594 is the Firearm Industry Responsibility Act. (Civ. Code, §§ 3273.50-3273.55). It creates a right of action to sue firearm industry members for injunctive relief, damages, and attorney’s fees and costs, as well as creating a firearm industry standard of conduct. According to the declaration, the Act will increase accountability for manufacturing, selling, distributing, and marketing products such as unserialized ghost gun build kits, bump stocks, and bullet button assault weapons. The provisions are modeled after other products liability laws and industry standards which prevent foreseeable and unreasonable risk to the public. Therefore, firearm-related products cannot be “abnormally dangerous and likely to create an unreasonable risk of harm,” such as having a design that is “most suitable for assaultive purposes” or promote illegal firearm conversion. An industry member must also reasonably prevent sales to anyone with which the industry member has “cause to believe is at substantial risk of using a firearm-related product to harm themselves or another” (i.e., straw purchasers, firearm traffickers, etc.). In addition, an industry member must prevent loss or theft. The indirect effect to consumers will likely be an increase in the cost of firearms and ammunition, because the firearm industry members will protect themselves financially by spreading the cost of insurance and litigation to consumers.

AB 2571 prohibits advertising firearm-related products to minors. (Bus. & Prof. Code, § 22949.80). Although advertising is usually protected under the First Amendment, existing laws restrict the content and placement of alcohol, cannabis, and tobacco advertisements to protect minors. The legislature used the same logic to justify restricting firearm marketing. The restrictions prohibit advertising of a firearm-related product in a way that is attractive to minors. Courts will consider the totality of the circumstances, including whether the ads use cartoons, offer brand-name merchandise for minors, sell products in sizes, colors, or designs for minors, use images of minors, or are placed in a publication created for an audience composed of minors.   This bill has already been applied to prohibit advertisement of youth shooting sports and caused the California State high School Clay Target League to fold.  In addition to the Second Amendment, this bill may also violate the First Amendment.

AB 1621 broadens restrictions of unserialized firearms, also known as “ghost guns.” (Pen. Code*). The restrictions redefine a firearm precursor part as “any forging, casting, printing, extrusion, machined body or similar article that has reached a stage in manufacture where it may readily be completed, assembled or converted to be used as the frame or receiver of a functional firearm.” This bill also creates a process for firearm users to apply for a determination of whether an item is a firearm precursor part. Owners of unserialized firearms must apply for a mark of identification before 2024. In addition, the bill includes the following changes to existing law: a person can only buy one completed frame, receiver, handgun, semiautomatic, or precursor part in a 30-day period, and a person convicted of manufacturing an unserialized firearm may not possess a firearm for 10 years.

SB 1327 creates a private right of action to sue various possessors in the firearm trade. (Bus. And Prof. Code §§ 22949.60-22949.71). Any person in the state can sue anyone who (1) manufactures, distributes, sells, or transports an unserialized firearm, an assault weapon, or a .50 BMG rifle; (2) purchases, sells, or transfers a precursor part that is not federally regulated; or (3) is a licensed dealer who sells or gives a firearm to anyone under 21. The requirements of SB 1327 can only be enforced through private civil actions.

Seeking to insulate these Constitutionally dubious laws for judicial review, SB 1327 provides that any person who unsuccessfully challenges the Constitutionality of any firearm regulation is jointly and severally liable to pay attorney’s fees and costs. (Code Civ. Proc. § 1021.11)  By affording attorney's fees and costs only against parties who sue to prevent enforcement of firearm regulations (and not for litigants who successfully prevent enforcement of unconstitutional firearm regulations), this section itself is subject to Constitutional challenge.  Ordinarily, a prevailing defendant can only recover attorney's fees where the suit is vexatious, frivolous or brought to harass the defendant.

As expected, gun-rights groups are already seeking legal recourse to limit the effect of these laws in light of Bruen. For example, Junior Sports Magazines and other youth-centric associations and businesses already filed a complaint against Attorney General Bonta regarding the new prohibition on advertising to minors. The complaint alleges several constitutional violations, including infringement on free speech, the right to association, and equal protection. As the law stands today, youth hunting clubs, school skeet shooting teams, and other sporting groups in rural areas are unable to fully promote their organizations.  Further, the California Rifle and Pistol Association recently commenced a federal action challenging the Unsafe Handgun Act which severely limits the number and type of handguns available for sale in California.

Considering the legal issues now surfacing and the current wave of lawsuits in response, you can expect to see more push-back in the coming months.

* Amendments, repeals, and additions to the Penal Code §§ 16515, 16517, 16519, 16520, 16531, 16532, 17312, 18010, 23910, 23920, 23925, 26835, 27510, 27530, 27535, 27540, 29180, 29181, 29182, 29185, 29805, 30400, 30401, 30405, 30406, 30412, 30414, 30420, 30442, 30470, 30485