Lawsuits proliferate on police personnel records issue

As the state attorney general doubled down on his stance to deny retroactive disclosures of certain law enforcement personnel records, a Los Angeles County judge tentatively struck down the local police association's request for protection from the law that would require such disclosures.

On Friday, Judge Mitchell Beckloff issued a tentative ruling denying the Association for Los Angeles Deputy Sheriffs a preliminary injunction against retroactive enforcement of SB 1421, the state's new law expanding the disclosures required under the Public Records Act. Beckloff stated, "The unambiguous language [of the statute] demonstrates the operation of SB 1421 has nothing to do with the date on which a personnel record was created -- it applies to all records."

Also on Friday, Attorney General Xavier Becerra defended his stance that he will not force disclosures of records created prior to Jan. 1. Becerra's Feb. 1 comments that he would not apply the law to records until various legal challenges play out led to a lawsuit by the First Amendment Coalition, which was filed in San Francisco Superior Court Thursday. First Amendment Coalition v. Becerra, CPF19516545 (S.F. Super. Ct., filed Feb. 15, 2010).

When asked about the lawsuit at a press conference concerning the state's response to President Donald J. Trump's declaration of a state of emergency, Becerra said he will act once there is "clarity" from the judiciary.

"I'm not trying to block anything," Becerra told the reporters. "Remember, when you're talking about a person's private information, to disclose it and be told by a court that was the wrong thing to do, I can't provide that privacy thereafter. You get one chance to do this right."

"I just said to you I'm preparing to sue Donald Trump because he has overreached, because he's not following the rules," he continued. "Please don't ask me to do exactly what Donald Trump does and not follow the rules."

The attorney general's office also noted Becerra instructed all law enforcement agencies to "preserve all records that may be subject to disclosure" in an information bulletin dated Jan. 3, 2019.

First Amendment Coalition Executive Director David Snyder said the attorney general's response is not a legally sound reason for denying the group's initial records request because the Public Records Act, even prior to the Jan. 1 amendments, requires an agency to give a specific exemption for a denial, not a wait-and-see approach.

"He's the highest law enforcement official in the state, and he's setting the tone for all other law enforcement agencies," Snyder said. "Right now, he's sending the message they can just disregard the law."

SB 1421, which was signed by Gov. Jerry Brown last September, lifted disclosure protections on records relating to incidents where an officer discharged a firearm, where use of force resulted in death or great bodily injury or an agency found an officer sexually assaulted a member of the public.

But since the law went into effect, police associations across the state have filed petitions seeking preliminary injunctions from superior courts.

So far, results have been mixed. On Feb. 11, Ventura County Superior Court Judge Henry Walsh granted an injunction at the request of the Ventura County Deputy Sheriffs' Association three days after Contra Costa County Judge Charles S. Treat wrote a 32-page order denying requests for injunctions by police unions in Walnut Creek, Concord, Martinez, Richmond and Antioch, and the Contra Costa County Sheriff's Office. Richmond Police Officers Assn. v. City of Richmond, 19-0169 (Contra Costa Super. Ct., filed Jan. 24, 2019).

On Thursday, petitioners in the Contra Costa case appealed, which was actually good news for Michael T. Risher, a sole practitioner in Berkeley who's hoping a wide net of litigations regarding the new law will land the issue before a higher court, which will presumably provide the kind of clarification Becerra is seeking.

To that end, Risher is not only consulting with former colleagues at the ACLU Foundation of Northern California regarding intervener briefs in the police association suits, he is also filing affirmative cases against law enforcement agencies regarding their denial of requests for records. In addition to representing the First Amendment Coalition, he is working as co-counsel with ACLU attorneys in a lawsuit against the city of Berkeley regarding its disclosure of peace officer records. Berkeleyside v. City of Berkeley, RG19004749 (Alameda Super. Ct., filed Jan. 30, 2019).

A third case against law enforcement agencies, with which Risher is not involved, was filed by the Sacramento Bee and the Los Angeles Times.

"Police unions claim that applying this law to preexisting records is an impermissible retroactive application of the law," Risher said. "If somebody had requested the records last year, that would be a retroactive application. But everything relevant is occurring after the start of the year."

With respect to the attorney general in particular, Risher said his response has prompted a laissez faire attitude from city attorneys who have filed petitions for injunctions without a thorough investigation. Risher said to prevent future injunctions, a comprehensive legal counter has to be available. As such, the American Civil Liberties Union has sought ex parte applications to intervene on cases where police associations are seeking injunctions. They've been granted status in Contra Costa County as well as San Diego.