Public safety officer records: What’s in the rearview mirror and what’s up ahead

It has been almost a year since Senate Bill 1421, California's amendments to Penal Code Sections 832.7 and 832.8, went into effect. The key language in the amendments changes certain public safety officer records that were previously confidential to public records disclosable under the Public Records Act. These changes include records relating to incidents where an officer discharges a firearm; uses force that results in death or great bodily injury; engages in a sexual assault; or where there is a sustained finding of dishonesty. Penal Code Section 832.7(b)(1). Jan. 1, 2019, the effective date of the changes, saw the service of numerous requests for records under the PRA to law enforcement agencies all over California.

Then came the litigation. Multiple lawsuits brought throughout the state were filed either by peace officer associations against the law enforcement agencies or the agencies themselves to try and prevent disclosure of documents created prior to Jan. 1, 2019. Their theory? That the statutory changes were not retroactive and that the production of documents created prior to the effective date would be a retroactive application of the new disclosure law.

Determining whether or not the changes were retroactive was straightforward. Retroactive effect is given "only if it [the statute] contains express language of retroactivity or if other sources provide a clear and unavoidable implication that the Legislature intended retroactive application." Bullard v. California State Automobile Assn., 129 Cal. App. 4th 211, 217 (2005). "A statute that is ambiguous with respect to retroactive application is construed ... to be unambiguously prospective." Meyers v. Philip Morris Companies, Inc., 28 Cal. 4th 828, 841 (2002). SB 1421 contains no language with respect to retroactive application.

The remaining question to be decided was what would constitute retroactive application of the statute? One of the first cases out of the trial courts was a coordinated decision in six separate cases filed in Contra Costa County Superior Court. In Walnut Creek Police Officers' Association v. City of Walnut Creek, et al., the court ruled that the statute was not retroactive and that applying the production requirements to documents created prior to the effective date was not a retroactive application of the new law. The court stated that retroactive effect occurs when the law in question changes the legal consequences of past conduct by imposing new or different liabilities based on that same conduct. "[A] law is retroactive only when it attaches new consequences to, or increases a party's liability for, an event, transaction, or conduct that was completed before the law's effective date." Quarry v. Doe I, 53 Cal. 4th 945, 955 (2012). A law is not applied retroactively just because it utilizes facts that exist prior to the enactment where the law relates to procedures to be followed in the future. See Elsner v. Uveges, 34 Cal. 4th 915, 936-37 (2004). Actions that were unlawful before the effective date remained unlawful after that date. No legal claims that existed before the enactment were altered. The only change is who can discover information related to specified officer conduct. The Contra Costa cases were soon followed by a similar ruling out of Los Angeles County Superior Court.

Writs of supersedeas to the 1st District Court of Appeal were filed in the Contra Costa cases. The Court of Appeal made short work of the retroactive application claims finding that "[a]lthough the records may have been created prior to 2019, the event necessary to 'trigger application' of the new law -- a request for records maintained by an agency -- necessarily occurs after the law's effective date." The Los Angeles County case was appealed and subsequently dismissed prior to briefing.

With the question of retroactivity effectively settled, the issue of what the term "great bodily injury" means remains. In the Sacramento Bee et al. v. Sacramento County Sheriff's Department, the Sacramento County Superior Court recently addressed part of this question. In Bee, the Sacramento County Sheriff's Department has taken the position that the term "great bodily injury" as used in Penal Code Section 832.7(b)(1)(A)(ii) is the equivalent of "serious bodily injury" from Government Code Section 12525.2, which defines "serious bodily injury" as one "that involves a substantial risk of death, unconsciousness, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member or organ." Gov. Code Section 12525.2(d). The Sacramento Bee countered that the definition of "great bodily injury" is "a significant or substantial physical injury" as the phrase is defined in Penal Code Section 12022.7. The Sacramento Superior Court rejected the interpretation of the Sheriff's Department in favor of the Penal Code definition. In so doing, the court noted that the Penal Code definition was broader than the one found in the Government Code. The court also found that the legislative history revealed that Legislature was aware of the two different terms and intentionally selected "great bodily injury" over "serious bodily injury." As such, in keeping with cardinal rule of statutory construction that the Legislature knows and understands the meaning of a term of art when used in a statute, there was no reason not to follow the plain meaning of the words actually used in the statute. While the time to appeal has not yet run, no appeal has been taken in the Sacramento Bee case.

Unfortunately for those who have the responsibility of reviewing and classifying what records are required to be produced under the new amendments, rejection of a more narrow definition in the form of "serious bodily injury" does not resolve the question of what constitutes a "great bodily injury." In the criminal law, the determination is most often left for the jury to decide if an injury is a "great bodily injury" under Penal Code Section 12022.7. In People v. Caudillo, 21 Cal. 3d 562, 588 (1978), the California Supreme Court held that a "great bodily injury" is significant and substantial as opposed to those which are transitory and short lived. This loose definition is still vague. For instance, in People v. Nava, 207 Cal. App. 3d 1490 (1989), the Court of Appeal addressed the question is a fractured bone "great bodily injury?" Noting that there are "206 bones in the human body ranging in size from the femur of the leg to the ungual phalange of the little toe," and that fractures vary from compound of major bones to hairline of minor ones and range from life threatening and crippling to an annoyance, the court answered the question in the most lawyerly of ways... it depends. People v. Nava, 207 Cal. App. 3d at 1496-97.

The end result, for better or worse depending on one's perspective, is that it has been and will likely continue to be a busy time for California law enforcement as agencies as they work their way through a backlog of once confidential personnel documents that are now public records. 