From: VC Star
By: Megan Diskin
Attorneys on Thursday made their final arguments to the appellate court tasked with deciding whether a landmark police records law applies to incidents before the law went into effect.
Senate Bill 1421, the law in debate, made certain police misconduct records open to the public as of Jan. 1, 2019. The legislation was passed amid an ongoing discussion about transparency in law enforcement and holding officers accountable.
A three-justice panel out of the 2nd District Court of Appeal listened as attorneys for the Ventura County Deputy Sheriffs' Association, public defender's office and multiple media outlets, including The Star, discussed whether the law applied to incidents from before 2019.
"I just don’t think there's any plain language in 1421 or (state penal code) 832.7 that there should be retroactivity one way or another and no individuation of an express intent," said Richard Levine, the attorney representing the law enforcement union.
In his oral argument, Levine referenced the penal code that makes peace officer personnel records confidential.
The Star has submitted public records requests for these pre-2019 misconduct records, and investigative records into the officer-involved shooting at the Borderline Bar & Grill in 2018. The Star has also sued the county over withholding the Borderline records in violation of public records laws.
Kelly Aviles, The Star's attorney, also made arguments Thursday before the appellate panel. Aviles also represents the Los Angeles Times and Associated Press in the Borderline lawsuit.
It was the Ventura County Public Defender's Office, however, that intervened when Ventura County Superior Court Judge Henry Walsh issued a court order blocking any pre-2019 records from being released in June 2019.
The public defender's office filed an appeal to overturn Walsh's ruling and vacate his order.
Senior Deputy Public Defender Michael McMahon said there is no conflict between the plain language of the SB 1421. It explicitly states all records in possession of the law enforcement agency are subject to the law, McMahon said.
Moreover, McMahon pointed to a decades-old change to the state constitution that any statute enacted to revise "public access laws has to be interpreted broadly if it expands public access and narrowly if it restricts."
The senior deputy public defender also pointed to a decision in a Contra Costa County case from another appellate district that upheld the law's applicability to pre-2019 records.
Levine, for the union, said that the ruling was decided incorrectly and continued to explain to the local appellate court the privacy rights at stake. Peace officers had privacy rights for these misconduct records before the legislation was passed and the bill took that right away.
Aviles, the media attorney, said that wasn't necessarily accurate. Before the bill was passed, people could file a Pitchess motion to gain access to their personnel records. They would be notified of the request and a judge would look through the file and release any relevant information under protective order, Aviles said.
Under SB 1421, the peace officer is also notified when records regarding their personnel history are requested by the public. They also have an opportunity to get certain information like addresses or private medical information, Aviles said.
If the law enforcement agency fails to redact it, the peace officer could get a lawyer and file a court action.
"Privacy rights must be asserted by the individual," Aviles said.
The appellate court has a few months to issue an opinion on the matter.