If you’re reading this blog you’re very likely aware that on January 1, 2019 the monumental SB1421 took effect, basically ending exemptions which, until now, have prevented the release of records documenting even the most extreme cases of police misconduct. Police agencies all over the state are freaking out about this, and some even asked the California Supreme Court to declare that the law didn’t reply retroactively. The justices shot down that malarkey last week, and then upped the stakes by asking to be briefed on whether the new law required the release of even more material than had been anticipated.
And thus police departments are beginning to release these records. For instance, there’s this case of an officer in Burlingame who’d been fired for offering to help a drunk driver with her charge in exchange for sex. And this newly released information evidently has the San Mateo County D.A. reconsidering his earlier decision not to criminally charge the officer. Which is how this law is supposed to work. And it seems that that’s how it is working.
Except, it turns out, in the City of Los Angeles. It doesn’t seem to have been widely reported on,1 but it seems that here, the Los Angeles Police Protective League filed an emergency petition on December 31, 2018, asking the Superior Court to stop the LAPD from applying SB1421 retroactively. And shockingly, astoundingly, appallingly, the court agreed and issued an order to that very effect, which is in effect at least until the scheduled hearing on February 5, 2019.2
The LAPPL’s whole argument seems to be that officers have made crucial career decisions relying on the privacy of the records, and that therefore it would be manifestly unfair to publish them now. For instance, according to Craig Lally in a sworn declaration, police officers often agree not to appeal findings of misconduct even though they think they’re innocent just to get things settled quickly and not disrupt operations. But, says Lally, they would never have done this had they known that the records would be published at some point.3
And apparently there’s really nothing to be done about this until the hearing. We are just not going to get these records right away. Oh, except it’s possible to read all the pleadings filed in the case. The City of Los Angeles hasn’t yet responded, but I obtained copies of everything that there is so far and published it here on Archive.Org. It’s upsetting, but it’s better to know. Turn the page for a linked list of everything and a transcription of selections from Lally’s declaration.
- Notice of ex parte application — This is necessary to get a hearing on an emergency basis before the other side has a chance to respond.
- LAPPL Petition — States the case, which is basically that the law doesn’t explicitly say it’s meant to apply retroactively and that police officers will suffer irreparable harm if the law is applied retroactively.
- Memo of points and authorities — Detailed argument with supporting authorities for the LAPPL’s position.
- Declaration of Craig Lally — Explaining in great detail the putative and putatively irreparable harm that will be done to police if these records are released retroactively.
- One declaration of Richard Levine — This is the LAPPL’s lawyer. Basically it’s a bunch of requests for judicial notice of various facts.
- The other declaration of Richard Levine — Here the LAPPL’s lawyer has to swear that he did his very best to inform the respondents of the petition and the hearing.
- Minute order — The case was assigned to James Chalfant but he wasn’t around to hear the supposedly emergency thing, so some other judge heard it and then put it on Chalfant’s calendar for February 5, 2019.
- Order — This is the dirty deed right here, forbidding LAPD from releasing the records.
- Notice of trial setting conference — In April. One hopes that after February 5 this will be less important.
- Letter from LAPD chief Michel Moore — This is part of Craig Lally’s declaration, but it’s of great independent interest. It’s a letter from the LAPD chief outlining the difficulties the department anticipates in complying with the law. It goes into great detail about what it will take to produce records in just one case.
I, Craig Lally, do declare:
1. I have personal knowledge of the facts contained herein and am competent to testify if called upon to do so.
2. I am the President of the Los Angeles Police Protective League (“LAPPL”). The LAPPL is an employee organization as defined in Government Code Section 3500 et seq. recognized to represent all police officers, police detectives, sergeants and lieutenants employed by the City of Los Angeles with regard to all matters concerning wages, hours and working conditions and employer-employee relations. The League’s represented employees are peace officers as defined within the California Penal Code Section 830.1.
3. Prior to the effective date of Senate Bill 1421, Chapter 988 of the 2017-2018 Regular Session (“SB 1421”), information contained within LAPPL’s represented peace officers’ personnel files was deemed confidential pursuant to California Penal Code Sections 832.7 and 832.8, and subject to exemption from disclosure pursuant to the California Public Records Act (“CPRA”), Government Code section 6250 et seq. Such confidential information included all complaints of misconduct, investigation of complaints and discipline of peace officers.
4. The existing right of privacy of LAPPL’s represented peace officers, and the corresponding legal obligation by the City of Los Angeles /Los Angeles Police Department (“LAPD”) to maintain such peace officer personnel records as confidential, caused such members to make significant employment decisions in reliance on that confidentiality and privacy. For instance, LAPPL’s represented employees are legally entitled to administratively appeal findings of misconduct and imposed discipline pursuant the City Charter, applicable City/Police Department rules and regulations, and collective bargaining agreements. The existence of such confidentiality of peace officer personnel records is often a factor in the decision by officers to forgo their right to appeal accusations of alleged misconduct or severity of discipline, and instead, reach a prompt resolution with the LAPD in the furtherance of positive labor relations and in preservation of resources; despite an officer’s underlying disagreement with the propriety of such disciplinary action. However, if peace officers understood that they did not or would not maintain privacy in their personnel records, they likely would have made different decisions with respect to their ability to appeal accusations of alleged misconduct.
5. Pursuant to a letter dated December 3,2018 from Police Chief Michel Moore, the LAPD has been preparing for a retroactive application of SB 142 l’s amendments; meaning that the LAPD and the City will respond to CPRA requests for records reflecting specified conduct prior to SB 1421’ s effective date by disclosing such records. Attached hereto as Exhibit A is a true and correct copy of Chief Moore’s December 3,2018 letter.
6. Pursuant to a letter dated December 26, 2018 to me, from Arif Alikhan, Director of Constitutional Policing and Policy for the Los Angeles Police Department, it was confirmed that the Los Angeles Police Department intends to retroactively apply SB 1421 beginning January 1, 2019 absent a stay or other ruling from the California Supreme Court or another court of competent jurisdiction. Attached hereto as Exhibit B is a true and correct copy of the December 26, 2018 letter.
7. Unless and until a Stay Order is issued by the Court in this case, Petitioner’s represented peace officers will suffer irreparable injury and damage by the retroactive application of Senate Bill 1421, in that such an application would unlawfully violate the constitutional and statutory protection of peace officers to the confidentiality of their peace officer personnel records regarding incidents or reflecting conduct occurring prior to January 1, 2019; a right on which many LAPPL-represented peace officers relied in making decisions to appeal or not to appeal accusations of alleged misconduct.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct to the best of my knowledge and was executed on December 31st 2018 at Los Angeles, California.
Image of Craig Lally is ©2019 MichaelKohlhaas.Org.
- Aside from a passing mention in this fine article by Thomas Peele: “A Los Angeles County Superior Court judge issued an injunction on New Year’s Eve barring the LAPD from releasing similar records until a hearing is conducted next month concerning the law’s retroactivity.”
- At 1:30 p.m. in Department 85 at the Stanley Mosk Courthouse.
- This seems beyond implausible, but that’s what the guy claims.