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California Regulations on Law Enforcement Misconduct Needs Opening Up

Posted by Joseph Tully | Sep 27, 2018


Stephon Clark, 22, armed only with a cell phone in his grandmother's backyard, lost his life in a hail of police bullets on March 18, 2018. His death at the hands of Sacramento police officers made national headlines, and Clark's family has accused the Sacramento Police Department of covering up officer misconduct.

Whether the family's questions are addressed remains to be seen, but Clark's killing has increased the call for more information about bad behavior by law enforcement personnel. Currently, the public receives virtually no information about such incidents.

In early April 2018, State Senator Nancy Skinner, D-Berkeley, introduced Senate Bill 1421, which would make public law enforcement records relating to an officer's use of force, as well as on-the-job sexual assault accusations or any dishonest dealings.

“Building trust between police and communities has to start with transparency,” said Skinner.

California, considered progressive in so many ways, falls behind other states when it comes to dealing with public access to this type of information. The majority of states provide personnel records on such matters to the public.

SB-1421 Requirements

In addition to information about the use of force, dishonesty, and sexual assault, SB-1421 would also require public access to records regarding the discharge of a firearm. Any incident resulting in death or serious injury would require a release of records.

It's not just the public that doesn't have access to such records at this time – neither do police hiring agencies. That allows serial offenders to move around from one police department or other law enforcement agency to another, with no one knowing their misconduct history.

Such a hire is likely the last thing that a law enforcement agency wants within its ranks, but there's no venue now for such information outside of the rumor mill. That's not an effective management strategy, and it erodes public trust.

Opinions Vary Among Law Enforcement Officials

When it comes to releasing more information about individual police misconduct, law enforcement authorities are divided. In the race for Sonoma County Sheriff, one of the three candidates, former Los Angeles police captain John Mutz, has said he supports SB-1421.

The other two candidates, Sheriff's Captain Mark Essick and Ernesto Olivares, a former Santa Rosa police lieutenant, and current Santa Rosa councilman, say they support greater transparency but not SB-1421. Essick claims the bill does not go far enough in supporting whistleblowers working for law enforcement agencies who report colleague misconduct.

He states Sheriff's Office employees make half of all misconduct allegations, and the names of those reporting the misdeeds would become public if SB-1421 becomes law.

Olivares says that police unions must get ready to discuss the issue. Los Angeles County Sheriff Jim McDonnell says he would like to inform prosecutors about deputies whose misconduct has been confirmed, but he can't under present law.

Right now, the Peace Officers Research Association of California, the largest and most influential organization of public safety officers in the state, is opposed to SB-1421. Police unions opposed a similar bill introduced two years ago.

Given how powerful and influential police unions are, it doesn't matter what law enforcement officials or candidates for office say about wanting more transparency – there's nothing they can do about it under current law.

Greater Public Pressure

A national movement toward greater police accountability is putting more pressure on disclosure of police misconduct, especially concerning prior uses of excessive force. Should SB-1421 fail to move forward, which is quite possible given the power of the police unions and the deference that the general public gives authority figures, such a legislative failure may push the issue towards a statewide voter initiative.

However, a voter initiative is not the best way to handle such a crucial matter, as it's easy to imagine the sensationalism that will accompany the issue, and further the already wide political divide. The bottom line is that the public should have the right to know about the abuse of police power, and this is not a subject that is going away.

Most people know about Brady v. Maryland, where the prosecution has to disclose material evidence that hurt its case or helps the defense's case. Why does California make an exception and shield an officer if a cop has been proven to be a liar or an abuser?

About the Author

Joseph Tully

Founding Partner, Criminal Law Specialist Our founding attorney, Joseph Tully, is sought out for his expert legal advice throughout California. With over 20 years of experience as a criminal lawyer, in 1000+ felony and other cases, Tully served as felony trial counsel as a public defender before...