By: Joseph Luiz, 3/27/2019
Bakersfield Police Department records relating to officer misconduct will remain confidential, at least for the near future.
Bakersfield Judge Eric Bradshaw issued a temporary order during a hearing on Wednesday prohibiting the city from releasing officers’ personnel records until at least May 2, when a hearing will be held on the matter.
While these records used to be confidential, Gov. Jerry Brown approved SB 1421 last year, which requires certain types of personnel records to be made available to the public if requested. These records involve officer-involved shootings, use of force, sexual assault involving an officer and dishonesty by an officer in an investigation.
“We’re going to comply with whatever order the judge gives us,” said Associate City Attorney Viridiana Gallardo-King. “Our job is to comply with the law and what the judge orders us to do.”
Following the passage of SB 1421, several news organizations and public interest groups filed requests for records from police agencies across the state, including BPD.
However, many police unions across the state are suing to prevent the release of the documents, one of which is the Bakersfield Police Officers Association. The association filed a suit against BPD and the city earlier this month.
According to Brian Ross, attorney with Rains Lucia Stern St. Phalle and Silver, PC out of Santa Monica who is representing the association in the case, BPOA’s chief complaint is that the law makes records prior to Jan. 1 of this year available to the public.
Ross said the law does not explicitly say that these records should be made retroactively.
“The problem is such a retroactive application can only occur if the statute sets forth that intent,” he said. “That’s not in the law, so it should not be retroactive.”
American Civil Liberties Union of Southern California Attorney Rekha Arulanantham said the law does not mention retroactivity because that is not what the law establishes. If someone requests records after Jan. 1 regarding incidents that happened in prior years, that’s not considered retroactive because the request is being made after Jan. 1.
“Unions are throwing out this issue about retroactivity but courts across the state have found this to be meritless,” she said.
Ross said he has heard these rebuttals but said the BPOA is sticking to its original complaint.
“Our position is their argument ignores the constitutional privacy rights of officers in their personnel files,” he said. “We want to protect those interests.”
Arulanantham said she attended the Bakersfield hearing on Wednesday, but as ACLU is not directly involved in the lawsuit and Judge Bradshaw wasn’t ready to issue a ruling, she was not allowed to intervene.
Arulanantham expects Bradshaw to allow an intervention at the next hearing, where the ALCU will be able to lay out their arguments in favor of releasing the records.
BPD Chief Lyle Martin was unavailable to provide comment Wednesday about the temporary restraining order. However, the department did release a statement from him last week about the issue.
“We await the court’s opinion and will abide by their decisions as we always do,” he said.
While Martin said the department has worked with the city Attorney’s Office to be compliant with the law, he said it comes with a few challenges for BPD.
“This legislation came with zero financial assistance, but requires city staff to defer their primary duties of serving our local community to comply with the time constraints associated with the requirements of SB 1421,” he said.
As for the lawsuit, Martin said he had consulted with BPOA prior to the filing and said them naming him in the suit is a “required part of the process,” as he has control over the records.
“This presents zero controversy or internal issues,” he said.