The FBI is investigating tattooed gangs of LA County Sheriff’s deputies and a suit filed by a former deputy includes allegations of gangs with matching tattoos controlling the Compton Station. Thus the idea that LASD gang tattoos may be subject to the California Public Records Act is in the air! So I thought that I would give you my amateurish and decidedly nonlawyerly take on it. The starting point for any such inquiry is the CPRA at §6253(a), where we read that:
Public records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided. Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.
This is very clear. If they’re public records they must be open to inspection unless they’re exempt.1 If Sheriff gang tattoos are public records, then we can look at them! So are they?
Definitions of terms used in the Public Records Act are found in §6252 Subsection (e) tells us that:
“Public records” includes any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.
And before we can talk about this we have to understand the word “writing,” which is defined at §6252(g) thus:
“Writing” means any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.
Obviously a tattoo is a “means of recording upon any tangible thing any form of communication or representation” and the fact that it’s stored in human skin is entirely irrelevant per the law’s statement that the “the manner in which the record has been stored” doesn’t affect its status as “writing.”
But per §6252(e) being a writing isn’t enough! The writing must contain “information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency.” This is the tricky part, but before we get into that, let’s talk about the part that’s not so tricky!
Tattoos are obviously possessed by the tattooed person. They own their own tattoos and they store them on a medium they own privately, namely their skin. However, the California Supreme Court found in 2017, in City of San Jose v. Superior Court, that text messages on private devices sent via private accounts were nevertheless public records if they met the definition. The private ownership of the medium of transmission didn’t alter the status of the record.
And if that’s true of text messages it seems like it must be true of tattoos as well. If it were not true it’s not hard to imagine public officials seeking to evade the CPRA writing notes to each other on their hands and claiming they weren’t subject. Tattooing oughtn’t to be different. I mean, what if the guy in Memento was a public official trying to conduct public business?
The two remaining requirements, that the tattoos contain information “information relating to the conduct of the public’s business” and that they be “prepared, owned, used, or retained by any state or local agency,” take a little more thought, the second less so than the first. Agencies are run entirely by the people that run them,2 and those people are the ones doing the preparing, owning, using, and or retaining the records.
The fact that tattoos are retained by individual deputies doesn’t mean they aren’t public records. All public records are prepared and used, and often retained, by individuals, and the fact that the legislature chose the word “or” in this phrase means that only one of the four is necessary. There is no question that individual deputies retain their tattoos, thus this criterion is met.
And now the last question, which is the trickiest one, I think. Is it true that LASD gang tattoos contain “information relating to the conduct of the public’s business”? The case can be made. The tattoos reveal gang membership and allegiance. There is sworn testimony from former deputies that gangs control work schedules and even assignments and other official matters in some stations. Prospectives reportedly kill people while on duty in order to gain membership, which is evidently known as “chasing ink.”
These gangs persist over decades, only deputies are members, and they actually carry out official functions of the Sheriff’s Department. They have had members of all ranks, including convicted former undersheriff Paul Tanaka. Acknowledged publicly or not, deputy gangs are part of the organizational structure of LASD, a public agency. As New York Magazine put it recently:
It’s hard to make sense of this phenomenon without acknowledging that discrete individual malfeasance is insufficient for explaining its scope and longevity. The existence of ten or more gangs operating within the law-enforcement agency that patrols America’s most populous county, and whose members have occupied its highest ranks, indicates a level of tolerance and normalization that cannot be isolated to any one person … police gangs are not necessary to promote illegal arrest quotas, work slowdowns, or internal plaudits for acts of brutality — though gangs are an especially brazen way of formalizing them.
So here’s why gang tattoos contain “information relating to the conduct of the public’s business”. Gangs are part of the organizational structure of LASD. They are intimately involved in the department’s official functions, such as setting work schedules and assignments and killing people under color of law. There’s no way to understand LASD’s activities, public business, without understanding the gangs. There’s no way to understand the gangs without knowing the members, and there’s no way to know the members without seeing the tattoos. Thus the tattoos contain “information relating to the conduct of the public’s business”.
LASD is famous for ignoring CPRA requests, even very standard ones. The chance that they’d accept any of these arguments is low. But the chance that they won’t respond at all to the request is high. In fact, arguably they already haven’t responded. There’s no required form for CPRA requests. They don’t even have to be in writing.
Which means that if his gang tattoos are indeed public records3 every time someone tells him to “show your tats” they’re making a CPRA request. I mean, it’s easier to have it in writing, but there are plenty of tweets at the guy saying the same thing. These are all requests! If we’re really going to court it will probably be better to submit a new request, but maybe not!
And let’s dream for a minute. What if we won on the preliminary issue and established that the tats are subject to CPRA? Well, the law allows the public to inspect the records.4 Would this require the Sheriff to show his tattoos every time anyone asked? Do we get to see him half-naked on request? During inspection the agency must allow the requester to make copies of the records with their own equipment.5 Not only do we get to look at the guy’s tats we get to take pictures of them!
And what if the Sheriff claims the tattoos are exempt? If there’s a dispute over this the law allows the judge to examine the records in camera to determine the validity of the exemption.6 Is the Sheriff going to strip in the judge’s chambers? Does this count as ex parte communication? Will the petitioner’s counsel be allowed in chambers, perhaps wearing a blindfold? Let’s hope we get the chance to find out!
- The bit about “except as hereafter provided” means there’s some exemption in the rest of the law that allows the records to be withheld from inspection.
- Of course it’s a tautology, but all great truths are tautologies. The converse, obviously, isn’t true. Or is it so obvious? Good thing it doesn’t matter for this post!
- OK, I mean if he has gang tattoos and they are public records, but so freaking what?!