The scene after the police shooting of Luis Gongora in 2016. Photo by Laura Waxmann

A last-ditch effort by a law enforcement union may block the public from gaining access to records related to police shooting investigations and officer misconduct created before 2019.

On Tuesday, the San Bernardino County Sheriff’s Employees’ Benefit Association (SEBA) filed a petition with the California Supreme Court, asking the court to prevent the San Bernardino Sheriff’s Department from releasing records filed before a new law — SB 1421 — takes effect on Jan. 1, 2019.

If successful, the San Bernardino case could induce a cascading effect throughout the state. In fact, it already is: As a result of the San Bernardino petition, the San Francisco Police Department is consulting with the City Attorney’s Office on whether it, too, must provide such records dated before Jan. 1, 2019, confirmed police spokesman Sgt. Michael Andraychak.

Andraychak added that: “The department does not plan to challenge the legislation” and is “currently working to devise a plan to respond anticipated requests.”

SB 1421, penned by Sen. Nancy Skinner (D-Berkeley), passed the legislature in October and was subsequently signed into law by Gov. Jerry Brown. It makes certain records related to officer misconduct and police shooting investigations available to the public. For example, the public can, come January, request certain materials related to any officer’s personnel file — incidents related to the officer that involve the discharge of a firearm, use of force resulting in death or great bodily injury, on-the-job sexual assault, and dishonesty in reporting or investigating a crime.

At present, the law’s intent is to grant everyday citizens — as well as prosecutors and defense attorneys — the opportunity to know the backgrounds of the officers patrolling their streets and testifying in criminal cases.

The San Bernardino-based union argues that the law does not specifically state that it applies retroactively, and is asking the court to order the San Bernardino Sheriff’s Department to restrict requests for records created before Jan. 1, 2019.

The San Bernardino Sheriff’s Department told the Los Angeles Times, however, that it plans to respond to records requests with “all the information it has” — meaning it will comply with the law moving forward.  

But the union’s president, Grant Ward, noted: “We believe retroactive application violates our members’ rights and we hope the California Supreme Court will consider the serious issues raised by our legal challenge.”

Skinner, who authored the legislation, disagreed with the challenge. She argued that “retroactivity was silent” in the bill because a portion of it modified the California Public Records Act, which already applies to extant records for all public employees in the state.

If the record exists, and it fits the category of records that are being opened under SB 1421, it should be available,” Skinner said.

She added that these matters should have been discussed during the legislative session, when various stakeholders had the chance to chime in — not after the law was passed.

“Of course I’m going to monitor what the court’s response is,” Skinner said. “Clearly, we’re talking about public employees. We shall see if the court agrees.”

San Francisco Police Chief Bill Scott said during a forum last week that the new law could help solve the lack of transparency around police shootings that can lead to “spin, soundbites innuendo, speculation” in the news media — coverage, he said, that “skewed the issue to an unacceptable level.”

“That’s a transparency issue,” Scott said. “In California, the laws will change Jan. 1, and these cases will be open. And through public records requests, people will be able to have access to these investigations.”

If the San Bernardino union succeeds, however, any police shooting investigation conducted before the new year could be buried indefinitely.

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Julian grew up in the East Bay and moved to San Francisco in 2014. Before joining Mission Local, he wrote for the East Bay Express, the SF Bay Guardian, and the San Francisco Business Times.

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