Tuesday, April 2, 2019
Court of Appeal:
Third District Says There’s No Impermissible Retroactive Application of Amendments Where Records Created Prior to Jan. 1 Effective Date Are Released to Public
By a MetNews Staff Writer
Amendments to a statute which increases public access to personnel files of peace officers may permissibly be applied to records that were in existence prior to the Jan. 1 effective date of the legislation, the First District Court of Appeal has held.
Div. Four’s decision comes in a “By the Court” order denying petitions for writs of supersedeas filed by the Walnut Creek Police Officers’ Association and others in five consolidated matters. The panel was comprised of Presiding Justice Stuart R. Pollak and Justices Alison M. Tucher and Tracie L. Brown.
The order was filed March 12 and certified for publication on Friday, in response to requests for publication by attorney Karl Olson, for the Sacramento Bee, and by the ACLU of Northern California, an intervenor in the case.
Under Penal Code §832.7(b)(1), there may be public inspection, through the Public Records Act, of any “record relating to the report, investigation, or findings” relating to the discharge of a firearm by a peace officer or custodial officer, the use of force by such officer resulting in death or great bodily injury, or a “sustained finding” that such an officer “engaged in sexual assault involving a member of the public.”
It also calls for disclosure of any “sustained finding…of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence.”
Appeals Court Order
Placer Superior Court Charles “Steve” Treat in February held that pre-2019 records are covered by the statute. Declining to keep a stay in effect, the Third District justices said in their order:
“Appellants assert that applying the 2019 amendments to compel disclosure of records created prior to 2019 constitutes an improper retroactive application of the new law. For the reasons stated by the trial court, appellants’ argument is without merit. Although the records may have been created prior to 2019, the event necessary to ‘trigger application’ of the new law—a request for records maintained by an agency—necessarily occurs after the law’s effective date.”
The order continues:
“The new law also does not change the legal consequences for peace officer conduct described in pre-2019 records….Rather, the new law changes only the public’s right to access peace officer records.”
Northern California Unions
The Walnut Creek police union sued the city to block the release of records created before the new provisions, created by SB1421 went into effect. Also suing, in separate actions, were the Richmond Police Officers’ Assn., the Contra Costa County Deputy Sheriffs’ Assn., the Antioch Police Officers’ Assn., the Martinez Police Officers’ Assn., and the Concord Police Assn.
Intervening were the California First Amendment Coalition, represented by Sheppard, Mullin, Richter & Hampton LLP, and others.
The order denying the petitions declares that “Appellants have not shown that ‘substantial questions will be raised on appeal,’ ” announces that a temporary stay it issued on Feb. 15 would be lifted at 5 p.m. on March 19, and denied the interveners’ motion for calendar preference and expedited briefing.
The case is Walnut Creek Police Officers’ Assn. v. City of Walnut Creek, 2019 S.O.S. 1557.
Late on March 19, records were released by Walnut Creek showing that an officer, Curtis Borman, came close to being fired n 2016 for filing false reports. He wound up being suspended for a month without pay, records show.
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