Senate Bill 16 makes five significant changes to the law intended to aims to increase the level of transparency into allegations and investigations of peace officer misconduct, and accountability for such misconduct.
1. Expanded Disclosure of Peace Officer Personnel Records
SB 16 expands on Senate Bill 1421, enacted in 2018, in creating exceptions to the general rule that peace officer personnel records are confidential and not subject to disclosure. Under Penal Code Section 832.7, as amended by SB 1421, previously confidential peace officer personnel records are subject to disclosure under the Public Records Act if they relate to: (1) an officer-involved shooting, (2) use of force by a peace officer resulting in death or great bodily injury, (3) a sustained finding of dishonesty, or (4) a sustained finding of sexual assault by a peace officer. SB 16 expands this list, making the following records public:
- Records of a sustained finding that an officer used unreasonable or excessive force;
- Records of a sustained finding that an officer failed to intervene against another officer using unreasonable or excessive force;
- Records relating to sustained findings of unlawful arrest or unlawful searches;
- Records relating to sustained findings that a peace officer or custodial officer engaged in conduct involving prejudice or discrimination on the basis of certain legally protected classes.
The bill also provides that agencies are required to release records relating to a covered incident in which the officer resigned before the agency concluded its investigation. However, most of the covered categories of incidents still require a “sustained finding,” defined as “a final determination . . . following an investigation and opportunity for an administrative appeal pursuant to Sections 3304 and 3304.5 of the Government Code,” so it remains unclear how this provision will apply in practice.
SB 16 also contains provisions regarding the logistics of producing disclosable records. The bill specifies that when records are sought through the Public Records Act, which allows agencies to charge the requesting party for the cost of copying, those costs shall not include the costs of searching for, editing, or redacting the records, an issue that had been litigated in the courts. It also specifies that except where a longer period of withholding is specifically permitted under Section 832.7, records subject to disclosure must be provided at the earliest possible time, no later than 45 days from the date of a request for their disclosure. Moreover, the bill specifies that for purposes of releasing covered records, the attorney-client privilege does not protect any of the following:
- “Factual information” provided by the public agency to the attorney;
- “Factual information” discovered in any investigation conducted by, or on behalf of, the public entity’s attorney;
- Billing records related to work done by the attorney, except for records that relate to ongoing litigation, or that disclose information for the purpose of legal consultation.
2. Pre-Employment Background Check Requirement
Under existing law, specifically Section 832.12 of the Penal Code, every law enforcement agency in California is required to maintain records of misconduct investigations involving that agency’s peace officers. Peace officers who apply for employment with another agency are required to give written permission for the hiring agency to view his or her personnel file. SB 16 adds to this provision and requires that, before hiring a peace officer, the hiring department or agency must request and review that file.
3. Record-retention Requirement
Existing law requires all law enforcement agencies to establish a procedure to investigate complaints by members of the public against their employees, and requires agencies to keep records of such complaints and any related reports or findings for at least five years.
SB 16 amends the law to expand this retention requirement. Under SB 16, if there was not a sustained finding of misconduct, then the records must be retained for at least five years, but if there was a sustained finding of misconduct, then the records must be retained for at least fifteen years. In addition, the bill prohibits agencies from destroying any record while a request related to that record is being processed, or while any process or litigation is ongoing to determine whether that record is subject to release.
Interestingly, the amended statutory language specifies that records covered by these requirements include “all complaints and any reports currently in the possession of the department or agency.” This language appears to be intended to mean that, once SB 16 takes effect on January 1, 2022, all covered records must be retained for five or fifteen years, as applicable, starting on that date, regardless of how long the agency may have kept the records previously.
4. Individual Use-of-force Reporting Requirement
In addition to the above, SB 16 adds a requirement that every person employed as a peace officer shall “immediately” report all uses of force by that officer to their employing department or agency. The new law does not define what constitutes a “use of force,” which may raise some issues regarding when reporting may be required. For example, at present, if an officer applies a wristlock in detaining a subject, many agencies would not require the officer to make a report. However, a wristlock would likely qualify as a “use of force” and may need to be reported under the new law.
5. Expanded Use of Peace Officer Records in Litigation
In general, a party to criminal or civil litigation who seeks discovery or disclosure of confidential personnel records of peace officers and custodial officers (i.e. records not subject to mandatory disclosure under Penal Code 832.7) must file a written motion known as a “Pitchess” motion with the relevant court or administrative body showing good cause for disclosure of the records. If the reviewing court finds good cause for discovery, it reviews the pertinent documents in chambers and discloses only the information that falls within statutorily defined relevance standards. Under existing law, the court is required to exclude complaints concerning conduct that occurred more than five years before the event that is the subject of litigation. SB 16 removes the five-year limitation.
(SB 16 amends Section 1045 of the Evidence Code, and Section 832.5, 832.7, and 832.12 of the Penal Code, and adds Section 832.13 to the Penal Code.)
