Bill Text: CA SB1220 | 2019-2020 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Peace and custodial officers.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Vetoed) 2020-09-30 - In Senate. Consideration of Governor's veto pending. [SB1220 Detail]
Download: California-2019-SB1220-Amended.html
Bill Title: Peace and custodial officers.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Vetoed) 2020-09-30 - In Senate. Consideration of Governor's veto pending. [SB1220 Detail]
Download: California-2019-SB1220-Amended.html
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Amended
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Senate
June 18, 2020 |
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Amended
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Senate
April 29, 2020 |
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Amended
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Senate
March 25, 2020 |
CALIFORNIA LEGISLATURE—
2019–2020 REGULAR SESSION
Senate Bill
No. 1220
| Introduced by Senator Umberg |
February 20, 2020 |
An act to amend Section 1045 of the Evidence Code, and to amend Section 832.7 of the Penal Code, relating to peace officers.
LEGISLATIVE COUNSEL'S DIGEST
SB 1220, as amended, Umberg.
Peace and custodial officers.
Existing law requires each department or agency in this state that employs peace officers to establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies, and to make a written description of the procedure available to the public. Existing law generally makes the personnel records of peace officers and custodial officers and records maintained by a state or local agency pursuant to these requirements, or information obtained from these records, confidential and exempt from disclosure in a criminal or civil proceeding. Existing law provides discovery procedures for peace or custodial officer personnel records, and other records pertaining to peace or custodial officers, as specified. Existing law defines a Brady list as a system, index, list, or other record containing the names of peace officers whose personnel files
are likely to contain evidence of dishonesty or bias, as specified.
This bill would, on and after January 1, 2022, require any state or local law enforcement agency maintaining personnel records of peace officers and custodial officers to, upon request, provide a prosecuting agency a list of names and badge numbers of officers employed by the agency in the 5 years preceding the request who meet specified criteria, including, among other things, that the officer has had sustained findings for conduct of moral turpitude or group bias against a protected class or that the officer is on probation for a criminal offense. The bill would require the prosecuting agency to keep this list confidential, except as constitutionally required. The bill would additionally require a prosecuting
agency, when prior to placing an officer’s name on a Brady list, to notify the officer as soon as practicable and provide the officer an opportunity to request the prosecuting agency remove the officer from the list. present information to the prosecuting agency against the officer’s placement on the list, except as specified.
By imposing new duties on local law enforcement agencies, this bill would create a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 1045 of the Evidence Code is amended to read:1045.
(a) Nothing in this article shall be construed to affect the right of access to records of complaints, or investigations of complaints, or discipline imposed as a result of those investigations, concerning an event or transaction in which the peace officer or custodial officer, as defined in Section 831.5 of the Penal Code, participated, or which the officer perceived, and pertaining to the manner in which the officer performed their duties, provided that information is relevant to the subject matter involved in the pending litigation.(b) In determining relevance, the court shall examine the information in chambers in conformity with Section 915, and shall
exclude from disclosure:
(1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought, unless the information is required to be disclosed pursuant to Brady v. Maryland (1963) 373 U.S. 83.
(2) In any criminal proceeding proceeding, the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code.
(3) Facts sought to be disclosed that are so remote as to
make disclosure of little or no practical benefit.
(c) In determining relevance where the issue in litigation concerns the policies or pattern of conduct of the employing agency, the court shall consider whether the information sought may be obtained from other records maintained by the employing agency in the regular course of agency business which that would not necessitate the disclosure of individual personnel records.
(d) Upon motion seasonably made by the governmental agency which has custody or control of the records to be examined or by the officer whose records are sought, and upon good cause showing the
necessity thereof, the court may make any order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression.
(e) The court shall, in any case or proceeding permitting the disclosure or discovery of any peace or custodial officer records requested pursuant to Section 1043, order that the records disclosed or discovered may not be used for any purpose other than a court proceeding pursuant to applicable law. However, if the records are released to a prosecuting agency, the prosecuting agency may, with leave of a superior court judge, release the records in a subsequent criminal case when the officer to whom the records pertain will be testifying in order to comply with the requirements of Brady v. Maryland (1963) 373 U.S. 83.
SEC. 2.
Section 832.7 of the Penal Code is amended to read:832.7.
(a) Except as provided in subdivision (b), the personnel records of peace officers and custodial officers and records maintained by a state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. This section does not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, or an agency or department that employs those officers, conducted by a grand jury, a district attorney’s office, or the Attorney General’s office.(b) (1) Notwithstanding subdivision (a), subdivision (f) of Section 6254 of the Government Code, or any other law, the following peace officer or custodial officer personnel records and records maintained by a state or local agency are not confidential and shall be made available for public inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code):
(A) A record relating to the report, investigation, or findings of any of the following:
(i) An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
(ii) An incident in which the use of force by a peace officer or custodial officer
against a person resulted in death, or in great bodily injury.
(B) (i) A record relating to an incident in which a sustained finding was made by a law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public.
(ii) As used in this subparagraph, “sexual assault” means the commission or attempted initiation of a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of leniency or other official favor, or under the color of authority. For purposes of this definition, the propositioning for or commission of any sexual act while on duty is considered a sexual assault.
(iii) As
used in this subparagraph, “member of the public” means any person not employed by the officer’s employing agency and includes a participant in a cadet, explorer, or other youth program affiliated with the agency.
(C) A record relating to an incident in which a sustained finding was made by a law enforcement agency or oversight agency 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, a sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence.
(2) Records that shall be
released pursuant to this subdivision include all investigative reports; photographic, audio, and video evidence; transcripts or recordings of interviews; autopsy reports; all materials compiled and presented for review to the district attorney or to any person or body charged with determining whether to file criminal charges against an officer in connection with an incident, or whether the officer’s action was consistent with law and agency policy for purposes of discipline or administrative action, or the form of discipline to impose or corrective action to take; documents setting forth findings or recommended findings; and copies of disciplinary records relating to the incident, including any letters of intent to impose discipline, any documents reflecting modifications of discipline due to the Skelly or grievance process, and letters indicating final imposition of discipline or other
documentation reflecting implementation of corrective action.
(3) A record from a separate and prior investigation or assessment of a separate incident shall not be released unless it is independently subject to disclosure pursuant to this subdivision.
(4) If an investigation or incident involves multiple officers, information about allegations of misconduct by, or the analysis or disposition of an investigation of, an officer shall not be released pursuant to subparagraph (B) or (C) of paragraph (1), unless it relates to a sustained finding against that officer. However, factual information about that action of an officer during an incident, or the statements of an officer about an incident, shall be released if they are relevant to a sustained finding against another officer that is
subject to release pursuant to subparagraph (B) or (C) of paragraph (1).
(5) An agency shall redact a record disclosed pursuant to this section only for any of the following purposes:
(A) To remove personal data or information, such as a home address, telephone number, or identities of family members, other than the names and work-related information of peace and custodial officers.
(B) To preserve the anonymity of complainants and witnesses.
(C) To protect confidential medical, financial, or other information of which disclosure is specifically prohibited by federal law or would cause an unwarranted invasion of personal privacy that clearly outweighs the
strong public interest in records about misconduct and serious use of force by peace officers and custodial officers.
(D) If there is a specific, articulable, and particularized reason to believe that disclosure of the record would pose a significant danger to the physical safety of the peace officer, custodial officer, or another person.
(6) Notwithstanding paragraph (5), an agency may redact a record disclosed pursuant to this section, including personal identifying information, if, on the facts of the particular case, the public interest served by not disclosing the information clearly outweighs the public interest served by disclosure of the information.
(7) An agency may withhold a record of an incident
described in subparagraph (A) of paragraph (1) that is the subject of an active criminal or administrative investigation, in accordance with any of the following:
(A) (i) During an active criminal investigation, disclosure may be delayed for up to 60 days from the date the use of force occurred or until the district attorney determines whether to file criminal charges related to the use of force, whichever occurs sooner. If an agency delays disclosure pursuant to this clause, the agency shall provide, in writing, the specific basis for the agency’s determination that the interest in delaying disclosure clearly outweighs the public interest in disclosure. This writing shall include the estimated date for disclosure of the withheld information.
(ii) After 60 days from the use of force, the agency may continue to delay the disclosure of records or information if the disclosure could reasonably be expected to interfere with a criminal enforcement proceeding against an officer who used the force. If an agency delays disclosure pursuant to this clause, the agency shall, at 180-day intervals as necessary, provide, in writing, the specific basis for the agency’s determination that disclosure could reasonably be expected to interfere with a criminal enforcement proceeding. The writing shall include the estimated date for the disclosure of the withheld information. Information withheld by the agency shall be disclosed when the specific basis for withholding is resolved, when the investigation or proceeding is no longer active, or no later than 18 months after the date of the incident, whichever occurs sooner.
(iii) After 60 days from the use of force, the agency may continue to delay the disclosure of records or information if the disclosure could reasonably be expected to interfere with a criminal enforcement proceeding against someone other than the officer who used the force. If an agency delays disclosure under this clause, the agency shall, at 180-day intervals, provide, in writing, the specific basis why disclosure could reasonably be expected to interfere with a criminal enforcement proceeding, and shall provide an estimated date for the disclosure of the withheld information. Information withheld by the agency shall be disclosed when the specific basis for withholding is resolved, when the investigation or proceeding is no longer active, or by no later than 18 months after the date of the incident, whichever occurs sooner, unless extraordinary
circumstances warrant continued delay due to the ongoing criminal investigation or proceeding. In that case, the agency must show by clear and convincing evidence that the interest in preventing prejudice to the active and ongoing criminal investigation or proceeding outweighs the public interest in prompt disclosure of records about use of serious force by peace officers and custodial officers. The agency shall release all information subject to disclosure that does not cause substantial prejudice, including any documents that have otherwise become available.
(iv) In an action to compel disclosure brought pursuant to Section 6258 of the Government Code, an agency may justify delay by filing an application to seal the basis for withholding, in accordance with Rule 2.550 of the California Rules of Court, or any successor rule thereto, if
disclosure of the written basis itself would impact a privilege or compromise a pending investigation.
(B) If criminal charges are filed related to the incident in which force was used, the agency may delay the disclosure of records or information until a verdict on those charges is returned at trial or, if a plea of guilty or no contest is entered, the time to withdraw the plea pursuant to Section 1018.
(C) During an administrative investigation into an incident described in subparagraph (A) of paragraph (1), the agency may delay the disclosure of records or information until the investigating agency determines whether the use of force violated a law or agency policy, but no longer than 180 days after the date of the employing agency’s discovery of the use of force, or allegation of use
of force, by a person authorized to initiate an investigation, or 30 days after the close of any criminal investigation related to the peace officer or custodial officer’s use of force, whichever is later.
(8) A record of a civilian complaint, or the investigations, findings, or dispositions of that complaint, shall not be released pursuant to this section if the complaint is frivolous, as defined in Section 128.5 of the Code of Civil Procedure, or if the complaint is unfounded.
(c) Notwithstanding subdivisions (a) and (b), a department or agency shall release to the complaining party a copy of the complaining party’s own statements at the time the complaint is filed.
(d) Notwithstanding subdivisions (a) and (b), a
department or agency that employs peace or custodial officers may disseminate data regarding the number, type, or disposition of complaints (sustained, not sustained, exonerated, or unfounded) made against its officers if that information is in a form which that does not identify the individuals involved.
(e) Notwithstanding subdivisions (a) and (b), a department or agency that employs peace or custodial officers may release factual information concerning a disciplinary investigation if the officer who is the subject of the disciplinary investigation, or the officer’s agent or representative, publicly makes a statement the officer or the officer’s agent or
representative knows to be false concerning the investigation or the imposition of disciplinary action. Information shall not be disclosed by the peace or custodial officer’s employer unless the false statement was published by an established medium of communication, such as television, radio, or a newspaper. Disclosure of factual information by the employing agency pursuant to this subdivision is limited to facts contained in the officer’s personnel file concerning the disciplinary investigation or imposition of disciplinary action that specifically refute the false statements made public by the peace or custodial officer or the officer’s agent or representative.
(f) (1) The department or agency shall provide written notification to the complaining party of the disposition of the complaint within 30 days of the
disposition.
(2) A notification described in this subdivision is not conclusive or binding or admissible as evidence in any separate or subsequent action or proceeding brought before an arbitrator, court, or judge of this state or the United States.
(g) (1) Notwithstanding subdivision (a), subdivision (f) of Section 6254 of the Government Code, or any other law, any state or local law enforcement agency maintaining personnel records of peace officers and custodial officers shall, on and after January 1, 2022, upon request, provide a city, county, or state prosecuting agency a list of the names and badge numbers of officers employed by the agency in the five years preceding the request who have had sustained findings for conduct described in subparagraphs (B) and
(C) of paragraph (1) of subdivision (b), who have had sustained findings for conduct of moral turpitude or bias against a protected class,
group bias, who have been convicted of a crime of moral turpitude, who are facing currently pending criminal charges, or who are on probation for a criminal offense. For purposes of this paragraph, conduct and crimes of “moral turpitude” means conduct or crimes found to be conduct or crimes of moral turpitude in published appellate court decisions.
(2) A prosecuting agency given a list pursuant to paragraph (1) shall keep that list confidential. However, the prosecuting agency may provide the name and badge number of an officer, along with notification that the officer is an officer on the list provided pursuant to paragraph (1), to an
attorney of record in order to comply with the requirements of Brady v. Maryland (1963) 373 U.S. 83 or with the agency’s statutory criminal discovery obligations.
(3) The information notification described in paragraphs (1) and (2) may be used by either a prosecuting attorney or a criminal defense attorney to establish good cause for the discovery or disclosure of the relevant personnel records of a peace officer or custodial officer as described in paragraph (3) of subdivision (b) of Section 1043 in camera review by
a court under Sections 1043 and 1045 of the Evidence Code.
(4) When a prosecuting agency has placed a peace officer’s name on a Brady list, as defined in Section 3305.5 of the Government Code, the prosecuting agency shall notify the officer as soon as practicable and provide the officer an opportunity to request that the prosecuting agency remove the officer from the list. Before placing a peace officer’s name on a Brady list, as defined in Section 3305.5 of the Government Code, a prosecuting agency shall notify the officer and provide the officer an opportunity to present information to the prosecuting agency against the officer’s placement on the list. If that prior
notice cannot be provided consistently with the prosecutor’s discovery obligations, the prosecuting agency shall notify the officer as soon as practicable and provide the officer an opportunity to present information to the prosecuting agency favoring the officer’s removal from the list. The decision to place or retain a peace officer’s name on a Brady list shall be within the sound discretion of the prosecuting agency. This paragraph does not create a right to judicial or administrative review of the prosecuting agency’s decision to place or retain a peace officer’s name on a Brady list.
(h) This section does not affect the discovery or disclosure of information contained in a peace or custodial officer’s personnel file pursuant to Section 1043 of the Evidence Code.
(i) This section does not
supersede or affect the criminal discovery process outlined in Chapter 10 (commencing with Section 1054) of Title 6 of Part 2, or the admissibility of personnel records pursuant to subdivision (a), which codifies the court decision in Pitchess v. Superior Court (1974) 11 Cal.3d 531.
(j) This chapter does not limit the public’s right of access as provided for in Long Beach Police Officers Association v. City of Long Beach (2014) 59 Cal.4th 59.
