California police unions are preparing to battle new transparency law in the courtroom
Just as a landmark police transparency law is going into effect, some California police agencies are shredding internal affairs documents and law enforcement unions are rushing to block the information from being released.
The new law, which begins to unwind California’s strictest-in-the-nation protections over the secrecy of law enforcement records, opens to the public internal investigations of officer shootings and other major uses of force, along with confirmed cases of sexual assault and lying while on duty. But the lawsuits and records destruction, which began even before the law took effect Jan. 1, could tie up the release of information for months or years, and in some instances, prevent it from ever being disclosed.
“The fact that police unions are challenging this law is on some level not surprising,” said Peter Bibring, director of police practices at the American Civil Liberties Union of Southern California, one of the principal supporters of the new law. “They have a long history of fighting tooth and nail against transparency.”
Before this year, the public couldn’t access police disciplinary records outside of a courtroom. The same prohibitions, which were first put into place four decades ago after a push from police unions, applied to prosecutors as well. California was the only state in the nation where that was the case.
Supporters of the new law, which then-Gov. Jerry Brown signed in the fall, argued more transparency was necessary to increase trust in law enforcement. The measure squeaked through the Legislature in the final days of its session over the objection of police labor groups, which contended the confidentiality laws prevented unwarranted intrusion into officers’ lives.
In the weeks before the law took effect, some police departments destroyed records that otherwise could have become public, though the agencies asserted that the purges had no connection to the change. California law says departments must keep investigations of officer shootings for five years with various retention requirements for other records.
Last month, the Inglewood Police Department shredded records of more than 100 police shooting investigations and other internal affairs cases dating from 1991 through 2016. City officials said the decision wasn’t made in response to the new law, but rather that the documents took up valuable space and were being kept longer than required.
The Long Beach Police Department has also come under scrutiny for destroying two decades’ worth of internal affairs files in December, but officials there said the move was part of a two-year-long effort to streamline records retention practices and had nothing to do with the new law.
Long Beach Police Department Cmdr. Erik Herzog said officials were careful to preserve all records related to current employees, officer shootings, in-custody deaths and allegations that could result in criminal charges, no matter how old. The 325 cases that were purged, which spanned from 1978 through 2001, were internal affairs records pertaining to former employees and may have included cases involving lying by officers, he said.
Some use-of-force and internal affairs documents from 2013 were also shredded as part of a routine purge separate from the larger records review.
It’s unclear how many other police agencies might have destroyed internal records before the transparency law took effect.
Bibring, the ACLU official, called agencies that are shredding records “rogue departments.”
“The departments that are frantically shredding records are the departments that are openly trying to thwart the intent of the Legislature,” he said.
Bibring singled out Inglewood, which has a long history of police misconduct, including intervention by the U.S. Department of Justice after a series of shootings in 2008.
“The act clearly suggests that the department’s records show mismanagement or cover-ups of police misconduct,” he said.
But David Swing, police chief in Morgan Hill and president of the California Police Chiefs Assn., said he wasn’t surprised that police agencies were reexamining how long they should be keeping internal records because the new law makes public activities that have long been kept private.
“That’s a sweeping change,” said Swing, whose organization backed the legislation. “It’s going to create some questions about how it’s applied.”
The shredding of misconduct records has a history in California. The 1978 law that inaugurated California’s police secrecy provisions was written in response to the Los Angeles Police Department’s shredding of four tons of personnel records after the information was subpoenaed in court. The law added requirements for law enforcement agencies to preserve records but also shielded them from public view.
The recent records destruction has caught the attention of California Atty. Gen. Xavier Becerra, whose office issued a bulletin to law enforcement agencies in the state instructing them to preserve all records that might be disclosed under the law.
But the bigger fight over the law looks to be in the courtroom. Last week, the California Supreme Court shot down a challenge to the new law from a police union in San Bernardino County, which argued that it only applies to incidents that occur in 2019 or later.
That decision, however, has not prevented police unions from seeking relief in other courts around the state.
On Dec. 31, a Los Angeles Superior Court judge issued a temporary stay preventing the Los Angeles Police Department from releasing records under the new transparency law that pertain to events before Jan. 1. The order came as part of a lawsuit by the Los Angeles Police Protective League, which argued that the measure, if applied retroactively, would violate officers’ privacy rights. A hearing is scheduled for Feb. 5.
Other unions could follow suit.
“It is possible that numerous lawsuits will be pursued by peace officer labor organizations in local courts throughout the state to prevent public agencies from releasing confidential information which is prohibited by law,” said a statement from Mike Rains, an attorney representing the San Bernardino union, in response to the Supreme Court’s decision not to hear the case.
Some departments have argued that complying with the law, even if it only applied to records generated after Jan. 1, would be a significant burden on staff resources.
The Los Angeles Police Department would have to hire additional staff and acquire expensive computers and software to fulfill requests under the new law, Chief Michel Moore said in a December letter to the law’s author, Sen. Nancy Skinner (D-Berkeley). Moore expressed concern that if the law were applied retroactively, some of his staff would be diverted from assignments to handle voluminous requests that could involve the painstaking work of redacting and converting reel-to-reel tapes, floppy discs and other outdated media.
The Los Angeles County Sheriff’s Department is requesting additional personnel to comply with the law.
Skinner said it was “very disappointing” that agencies destroyed records rather than allowing them to become public. Still, she said she wasn’t surprised by the lawsuits and plans to wait until cases are resolved before considering any changes to the law.
“Clearly since these agencies want to go the litigious route, let’s see how the courts opine,” Skinner said.
She said her intent was for the new law to apply to any records in a department’s possession. But if a court decided otherwise, Skinner believes the rules will provide a needed boost to transparency surrounding police activities.
“Certainly it is still a victory to give the public access even if it is prospective to help build community trust for effective law enforcement,” she said.
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