GBI and the CPRA: Debate over ‘great bodily injury’ heats up

In 2019, the California Legislature began enacting a series of police-related reforms that have shaken the law enforcement community to its core. The most famous reform included changes to Penal Code Section 835a: setting more restricted standards for when law enforcement officers are allowed to use deadly force. But a pair of sibling policing reforms have roiled the law enforcement community with far more chaotic effects: the 2019 amendments to Penal Code Section 832.7 (Senate Bill 1421) and Government Code Section 6254(f) (Assembly Bill 748).

Taken together, these 2019 statutory amendments carved out complicated exceptions to the sturdy exemptions from disclosure that had been available under the California Public Records Act for police investigatory files and for officer personnel file records. While there are a number of exceptions that can make such investigation and personnel file records CPRA-disclosable -- e.g., when there is a sustained finding of officer sexual assault -- one of the more problematic exceptions in both statutes often makes disclosable those records and recordings of a police use of force incident that "resulted in death or in great bodily injury."

For countless law enforcement agencies, the scope of disclosures they are legally required to make often turns on what constitutes a "great bodily injury" under the CPRA. Unfortunately, the scope of "GBI" is one among many ambiguous terms used in these CPRA statutes.

The problematic nature of CPRA's GBI ambiguity becomes clearer by analysis of a typical in-custody death case involving drugs and restraint. In many such cases, a restrained person receives presumably painful abrasions and contusions from contact with the ground during resistance to the restraining officers. However, in many such cases, the subject receives no other restraint-related injuries, and that subject then dies in custody -- but the cause of death is then forensically determined to be a drug overdose, and the police restraint and asphyxia are specifically excluded from the cause of death. In such cases, whether records pertaining to that case are CPRA-disclosable often turns on just what scope of injury GBI encompasses.

As a result, the exact scope of what constitutes GBI has become the subject of a heated debate.

Broad GBI

Some argue that the scope of CPRA-disclosable public records is meant to be broadly construed, and thus exemptions from CPRA disclosure are meant to be narrowly construed. See, e.g., POST v. Superior Ct., 42 Cal. 4th 278, 305-06 (2007). The broad GBI proponents rely on perhaps the only statutory definition of what constitutes GBI: Penal Code Section 12022.7(f). Under that section, which deals with additional penalties for bodily harm committed during a felony, "'great bodily injury' means a significant or substantial physical injury" -- as opposed to "moderate harm" or "trivial or insignificant injury." See, e.g., People v. Escobar, 3 Cal. 4th 740, 746 (1992). On its face, this Penal Code definition of GBI thus seems innocuous.

However, controlling case law has clarified that Section 12022.7(f)'s GBI extends itself to include a broad array of injuries resulting in mere abrasions/scrapes, contusions/bruises, burns, punctures, lacerations and even just physical pain. See, e.g., People v. Washington, 210 Cal. App. 4th 1042, 1047-48 (2021). If the broad GBI definition controlled for CPRA disclosures, then, in essence, all pain-inducing police uses of force and any injury-inducing uses of force, no matter how minor, would become CPRA-disclosable. The flood of CPRA disclosure work that the 2019 amendments have imposed upon our law enforcement agencies would then become a costly deluge under this view.

Narrow GBI

Fortunately, statutory construction doctrines undermine the broad GBI view. Specifically, as to the doctrine of determining legislative intent by analyzing legislative history, and the doctrine of construing statutes to avoid absurd results, both weigh against a construction of GBI that would effectively include all police uses of force. See, e.g., Walnut Creek Manor v. Fair Emp. & Hous. Comm., 54 Cal. 3d 245, 268 (1991); Riverside County Sheriff's Department v. Stiglitz, 60 Cal. 4th 624, 630 (2014).

This is because rejected precursors to the 2019 reforms included broader ranges of CPRA disclosable force than just shootings and force causing death or GBI. For example, a rejected prior version of SB 1421 would have included among disclosable uses of force TASERs -- which typically cause abrasions and/or punctures -- or baton or beanbag-style projectile strikes to the head -- which can cause contusions and/or fractures. After removing TASERs and impact weapon head strikes from the CPRA-disclosable uses of force, the California Senate advised that: "SB 1421 opens police officer personnel records in very limited cases ... to provide greater transparency around only the most serious police complaints."

It would be absurd to construe CPRA GBI to match the broad Penal Code GBI that extends down to include abrasions, punctures, contusions, fractures and even just physical pain. The Legislature clearly sought to narrow the scope of the 2019 reforms to remove types of force that caused such injuries from the CPRA-disclosable list of police uses of force.

Along related lines, the context of the reform statutes weighs against embrace of the broad view. The 2019 police reform measures only won the approval of the California Police Chiefs Association after their scope was narrowed. Yet, there are two possible statutory definitions of "serious bodily injury." The narrowest definition of SBI comes from Government Code Section 12525.2(d), defining what types of police force must be reported to the Department of Justice, including force resulting in SBI. Under that section, SBI "means a bodily injury 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." A slightly broader definition not specifically tied to police use force comes from Penal Code Section 243(f)(4): adding concussion, bone fracture and a wound requiring extensive suturing to the Government Code SBI definition. Moreover, controlling case law holds that Penal Code SBI and Penal Code GBI "have essentially the same meaning." See, e.g., People v. Hawkins, 15 Cal. App. 4th 1373, 1375 (1993).

Additionally, one of the companion 2019 police reforms, AB 392's revisions to Penal Code Section 835a mandates that, "a peace officer is justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary ... [t]o defend against an imminent threat of death or [SBI] to the officer or to another person" or to prevent the escape of a fleeing subject who, unless stopped, threatens death or SBI. In that companion reform, "deadly force" is defined as "any use of force that creates a substantial risk of causing death or [SBI], including but not limited to, the discharge of a firearm." Penal Code Section 835a(e)(1).

If, as California law otherwise suggests, SBI and GBI are the same thing, and deadly force can only be used if someone is threatening death or SBI, one could argue that any force that caused even a minor injury, like a scrape or a bruise, or that caused physical pain, could only be lawful if the officer was confronted with an immediate threat of death or SBI. Such a novel standard would either mean that officers could never use any force, even firm grips, unless facing death or SBI, or, alternatively, that officers could use deadly force even if only threatened with physical pain. It would be illogical to believe that Cal Chiefs, let alone the Legislature, meant to embrace such broad constructions of SBI and GBI -- as the results of such would necessarily be absurd.

As a result, the construction of GBI that is most consistent with the doctrines of statutory construction would be the narrow GBI. Thus, until the courts say otherwise, it is perhaps wiser to construe the 2019 CPRA amendments to mean that police uses of force are only CPRA-disclosable if they cause death or SBI: namely, "unconsciousness, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member or organ." In such an event, returning to our typical drug-overdose death in custody case, where the restraint and asphyxia was excluded from the cause of death, such an incident would not trigger the SB 1421 or AB 748 exceptions mandating disclosure: and such incidents would thus remain exempt from CPRA disclosure.

However, until the courts resolve this debate, the scope of CPRA's GBI is likely to remain a hotly debated topic and a source of confusion and undue burden for all law enforcement agencies. 