Wednesday, December 26, 2018

Crime Victims United of California & the Sacramento Police Officers Association Seek a Stay of SB 1421 in the California Supreme Court

On December 21, 2018, our office filed an extraordinary writ of mandamus seeking to stay enforcement of Senate Bill 1421 on behalf of Crime Victims United of California and the Sacramento Police Officers Association.  By classifying peace officer personnel records and investigative files as not confidential notwithstanding Penal Code section 832.7(a) and Government Code section 6254 (f) “or any other law,” SB 1421 infringes on the privacy rights granted crime victims in the California Constitution.  Our writ seeks to deny SB 1421 its broad construction that would cause its disclosure requirements to supersede existing Constitutional and statutory protections from disclosure, such as the protections set forth in Marsy’s Law, the California Victims' Bill of Rights Act of 2008.(Cal. Const. Art. I, § 28(b)(4).) 

Largely written by the ACLU, the bill mandates disclosure of certain sustained disciplinary actions and critical incident investigations, including any incident wherein an officer discharges a firearm or deploys force that results in great bodily injury or death.   SB 1421 provides that these categories of records are not exempt from disclosure as confidential personnel records defined in Penal Code Section 832.7 or as law enforcement investigations pursuant to Government Code Section 6254(f). The poorly drafted bill has caused significant concern and uncertainty.  In particular, the bill was drafted to severely limit law enforcement agencies’ ability to redact sensitive information, such as victim information, and is silent as to retroactivity. 

The investigations, findings, and reports covered by SB 1421 contain multiple categories of information that are independently confidential or exempt from disclosure under the California Constitution and other state laws.  Critical incident investigations contain thousands of pages of documents, as well video recordings of the incident (if available) and of witnesses and victims.  One of the reasons the investigations are so comprehensive is that the investigations necessarily encompass the underlying crimes that caused law enforcement to respond.  Often, the suspect survives the use of force encounter and is subject to prosecution both for the underlying crime(s) and crimes against the officer that prompted his or her use of deadly force in self-defense.  In these circumstances, the officer is considered a victim as well under Marsy's Law.

SB 1421 requires the release of information that would otherwise be protected from disclosure pursuant to Article I, section 28 of the California Constitution or existing statutes, other than Penal Code section 832.7 or Government Code section 6254(f). SB 1421 eliminated 76 express exemptions in the CPRA, including Section 6254(k) which exempts records that are otherwise exempt from disclosure by state or federal statutes.  These exemptions permit agencies to redact confidential or sensitive information from the records, such as autopsy images, the personal information of victims, juvenile records, attorney-client work product, etc..  

SB 1421 provides only 5 very limited grounds for redaction, and narrows the protections of subsection (k) to material that is confidential under federal statutes, i.e. it eliminates the ability to redact information confidential under California law. SB 1421 deprives victims and peace officers of their privacy rights and negates Constitutional and statutory protections that would otherwise exempt crime victim information from disclosure, simply because the information is included in an investigation or record subject to disclosure under SB 1421.  A copy of the writ is attached here.

Crime Victims United of California and the Sacramento Police Officers Association are represented by David E. Mastagni and Isaac Stevens of Mastagni Holstedt, APC, and Nina Salarno-Besselman, who helped win the fight in 2008 to pass Marsy's Law.