Today's Law As Amended

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SB-1286 Peace officers: records of misconduct.(2015-2016)



SECTION 1.
 The Legislature finds and declares all of the following:
(a) Peace officers help provide one of our state’s most fundamental government services — keeping our communities safe. These working men and women risk their lives daily in order to protect the people of California. The public greatly appreciates peace officers’ hard work and dedication to public safety. The good names of these public servants should not be tarnished by the actions of those amongst their ranks who may engage in wrongdoing.
(b) To empower peace officers to fulfill their mission, the people of California vest them with extraordinary authority — the powers to detain, search, arrest, and use deadly force. Our society depends on peace officers’ faithful exercise of that authority. Its misuse can lead to grave constitutional violations, harms to liberty, and the inherent sanctity of human life, as well as significant public unrest.
(c) Concealing crucial public safety matters such as officer violations of civilians’ rights, or inquiries into deadly use of force incidents, undercuts the public’s faith in the legitimacy of law enforcement, makes it harder for tens of thousands of hardworking peace officers to do their jobs, and endangers public safety.
(d) The public has a strong, compelling interest in law enforcement transparency because it is essential to having a just and democratic society.

SEC. 2.

 Section 1043 of the Evidence Code is amended to read:

1043.
 (a) In any case in which  If  discovery or disclosure is sought of peace officer  or custodial officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code or  and for which that section or Section 832.7 of the Penal Code bar or limit disclosure, or  information from those records, the party seeking the discovery or disclosure shall file a written motion with the appropriate court or administrative body upon written notice to the governmental agency which that  has custody and control of the records. The written notice shall be given at the times prescribed by subdivision (b) of Section 1005 of the Code of Civil Procedure. Upon receipt of the notice the governmental agency served shall immediately notify the individual whose records are sought.
(b) The motion shall include all of the following:
(1) Identification of the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, the peace officer  or custodial officer whose records are sought, the governmental agency which that  has custody and control of the records, and the time and place at which the motion for discovery or disclosure shall be heard.
(2) A description of the type of records or information sought.
(3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.
(c) No A  hearing upon a motion for discovery or disclosure shall not  be held without full compliance with the notice provisions of this section except upon a showing by the moving party of good cause for noncompliance, or upon a waiver of the hearing by the governmental agency identified as having the records.
(d) A party to a proceeding pending in a court or administrative agency is not required to seek records through alternate means before filing a motion pursuant to this section.

SEC. 3.

 Section 1045 of the Evidence Code is amended to read:

1045.
 (a) Nothing in this article shall be construed to  This article does not  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 he or she perceived, and pertaining to the manner in which he or she performed his or her 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 all of the following  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.
(2) In any criminal 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 that  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 that  justice requires to protect the officer or agency from unnecessary annoyance, embarrassment embarrassment,  or oppression.
(e) The court shall, in any case or proceeding permitting the disclosure or discovery of any peace officer  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.
(f) This article does not bar or limit access in any proceeding to peace officer or custodial officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code for which Sections 832.5 or 832.7 of the Penal Code do not prohibit disclosure.

SEC. 5.SEC. 4.

 Section 832.5 of the Penal Code is amended to read:

832.5.
 (a) (1) Each A  department or agency in this state that employs peace officers shall establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies, and shall make a written description of the procedure available to the public.
(2) Each A  department or agency that employs custodial officers, as defined in Section 831.5, may establish a procedure to investigate complaints by members of the public against those custodial officers employed by these departments or agencies, provided however, that any procedure so established shall comply with the provisions of this section and with the provisions of Section 832.7.
(b) Complaints and any reports or findings relating to these complaints shall be retained for a period of at least five years. All complaints retained pursuant to this subdivision may be maintained either in the peace officer’s  or custodial officer’s general personnel file or in a separate file designated by the department or agency as provided by department or agency policy, in accordance with all applicable requirements of law. However, prior to any official determination regarding promotion, transfer, or disciplinary action by an officer’s employing department or agency, the complaints described by subdivision (c) shall be removed from the officer’s general personnel file and placed in a  separate file designated by the department or agency, in accordance with all applicable requirements of law.
(c) Complaints by members of the public that are determined by the peace officer’s  or custodial officer’s employing agency to be frivolous, as defined in Section 128.5 of the Code of Civil Procedure, or unfounded or exonerated, or any portion of a complaint that is determined to be frivolous, unfounded, or exonerated, shall not be maintained in that officer’s general personnel file. However, these complaints shall be retained in other, separate files that shall be deemed personnel records for purposes of the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and Section 1043 of the Evidence Code.
(1) Management of the peace officer’s  or custodial officer’s employing agency shall have access to the files described in this subdivision.
(2) Management of the peace officer’s  or custodial officer’s employing agency shall not use the complaints contained in these separate files for punitive or promotional purposes except as permitted by subdivision (f) of Section 3304 of the Government Code.
(3) Management of the peace officer’s  or custodial officer’s employing agency may identify any officer who is subject to the complaints maintained in these files which that  require counseling or additional training. However, if a complaint is removed from the officer’s personnel file, any reference in the personnel file to the complaint or to a separate file shall be deleted.
(d) As used in this section,  section and Section 832.7,  the following definitions apply:
(1) “Exonerated” means that the investigation clearly established that the actions of the peace officer or custodial officer that formed the basis for the complaint are not violations of law or department policy.
(1) (2)  “General personnel file” means the file maintained by the agency containing the primary records specific to each peace officer’s  or custodial officer’s employment, including evaluations, assignments, status changes, and imposed discipline.
(2) (3)  “Unfounded” “Sustained”  means that the investigation clearly established that the allegation is not true. disclosed sufficient evidence to prove, by a preponderance of evidence, the truth of the allegation in the complaint or that the actions of the peace officer or custodial officer violated law or department policy. 
(3) (4)  “Exonerated” “Unfounded”  means that the investigation clearly established that the actions of the peace or custodial officer that formed the basis for the complaint are not violations of law or department policy. allegation is not true. 

SEC. 6.SEC. 5.

 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  set forth in subdivision (c), peace officer or custodial officer personnel records and  records maintained by any 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 shall 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) This section shall 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, the Attorney General’s office, civilian review agencies, inspectors general, personnel boards, police commissions, civil service commissions, city councils, boards of supervisors, or any entities empowered to investigate peace officer misconduct on behalf of an agency, conduct audits of peace officer discipline on behalf of an agency, adjudicate complaints against peace officers or custodial officers, hear administrative appeals pursuant to Section 3304.5 of the Government Code, or set policies or funding for the law enforcement agency.
(2) An entity allowed access to the personnel and complaint records of peace officers or custodial officers under this subdivision shall comply with the confidentiality provisions of this section.
(b) (c)  (1) Notwithstanding subdivision (a), subdivision (f) of Section 6254 of the Government Code, or  any other law, all of  the following peace officer or custodial officer personnel records and records maintained by any state or local agency shall not be confidential and shall be made  pursuant to Section 832.5 shall be  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) (A)  An incident in which the  A record related to the investigation or assessment of any  use of force by a peace officer or custodial officer against a person resulted in death, or in great bodily injury. that is likely to or does cause death or serious bodily injury, including, but not limited to, the discharge of a firearm, use of an electronic control weapon or conducted energy device, and any strike with an impact weapon to a person’s head. 
(B) (i) A  Any  record relating to an incident in which a sustained finding was made by any related to any finding by a  law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving  assault, an excessive use of force, an unjustified search, detention or arrest, racial or identity profiling, as defined in subdivision (e) of Section 13519.4, discrimination or unequal treatment on the basis of race, color, ethnicity, national origin, age, religion, gender identity or expression, sexual orientation, or mental or physical disability, or any other violation of the legal rights of  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 any participant in a cadet, explorer, or other youth program affiliated with the agency.
(C)  Any A  record relating to an incident in which a sustained finding was made by any related to any finding by a  law enforcement agency or oversight agency of  of job-related  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 or destruction or concealment  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 what discipline to impose or corrective action to take; documents setting forth  include, but are not limited to, the framing allegation or complaint, the agency’s full investigation file, any evidence gathered, and any  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. findings, discipline, or corrective action taken. 
(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) (3)  To  A record disclosed pursuant to this section shall be redacted only 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 officers and custodial officers, to preserve the anonymity of complainants and witnesses, or to  protect confidential medical, financial, or other information of which disclosure is specifically prohibited by federal law or  in which disclosure  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. officers, or where there is a specific, 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 others. 
(D) Where 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, where, 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 by 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) (4)  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  An agency may withhold a record that is disclosable pursuant to paragraph (1) during an investigation into the use of force until the peace officer’s employing  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  policy or until the district attorney with jurisdiction over the use of force determines whether to file criminal charges for  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. whichever is later, but shall not withhold a record that is disclosable pursuant to paragraph (1) for longer than 180 days from the date of the use of force. 
(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) (d)  Notwithstanding subdivisions (a) and (b), (c),  a department or agency shall release to the complaining party a copy of his or her own statements at the time the complaint is filed.
(d) (e)  Notwithstanding subdivisions (a) and (b), (c),  a department or agency that employs peace officers  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 does not identify the individuals involved.
(e) (f)  Notwithstanding subdivisions (a) and (b), (c),  a department or agency that employs peace officers  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 he or she knows to be false concerning the investigation or the imposition of disciplinary action. Information may not be disclosed by the peace officer’s  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 officer  or custodial officer or his or her agent or representative.
(f) (g)  (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. The notification shall include, at a minimum, the charges framed in response to the complaint, the agency’s disposition with respect to each of those charges, any factual findings on which the agency based its dispositions, and any discipline imposed or corrective action taken. 
(2) The notification described in this subdivision shall not be 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) (h)  This section does not affect the discovery or disclosure of information contained in a peace officer’s  or custodial officer’s personnel file pursuant to Section 1043 of the Evidence Code.
(h) 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.
(i) Nothing in this chapter is intended to 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.
SEC. 6.
 The Legislature finds and declares that Section 6 of this act, which amends Section 832.7 of the Penal Code, furthers, within the meaning of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the purposes of that constitutional section as it relates to the right of public access to the meetings of local public bodies or the writings of local public officials and local agencies. Pursuant to paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the Legislature makes the following findings:
The public has a strong, compelling interest in law enforcement transparency because it is essential to having a just and democratic society.
SEC. 7.
 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, this act creates a legislative mandate that is within the scope of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.