On September 30, 2021, Governor Newsom officially signed Senate Bill 16 into law. Given the implications that it will have, GRT wants to provide a complete legal analysis to answer any questions or concerns you may have.
SB 16 passed by a margin of 57-13 in the California State Assembly on Friday, September 1, 2021. After being signed by the governor, the bill is set to be in effect on January 1, 2022. This new law will make many changes to the Evidence Code and Penal Code. But how exactly will it affect you?
- SB 16 Will Redefine Which Records Are Subject to Disclosure.
Current law makes peace officer and custodial officer personnel records confidential and prohibits the disclosure of these records in a criminal or civil proceeding, except by discovery. Since SB 1421 was passed, the exceptions to this policy included records relating to specified incidents involving the discharge of a firearm, sexual assault, perjury, or misconduct by a peace officer or custodial officer.
SB 16 would add to that exemptions list and make a sustained finding involving force that is “unreasonable or excessive”, and any sustained finding that “an officer failed to intervene against another officer using unreasonable or excessive force”, subject to disclosure. So, specifically, under the California Public Records Act (CPRA), this bill will make personnel records related to the following categories of incidents subject to disclosure:
a) Records of every incident involving unreasonable uses of force, or excessive uses of force.
b) Records related to sustained findings that an officer failed to intervene against another officer using unreasonable or excessive force.
c) Records related to sustained findings of unlawful arrests and unlawful searches.
d) Records related to sustained findings of officers engaged in conduct involving prejudice or discrimination on the basis of specified protected classes.
One extremely important distinction with SB 16 is that in the past, if an officer resigned before an investigation was completed, the disclosure of records would not be permitted. This new law permits the disclosure of records that would be otherwise NOT be subject to disclosure when they relate to an incident in which an officer resigned before an investigation is completed.
2. This Bill Will Expand Authorizations on The Delay of Disclosing Certain Records
Existing law authorizes an agency to delay the release of a record involving the discharge of a firearm or the use of force during an active criminal investigation, as provided. This bill would expand the authorization to delay the release of records during an investigation to include records of incidents involving sexual assault, dishonesty by officers, incidents involving prejudice or discrimination, wrongful arrests, and wrongful searches that are required to be made public by this bill.
Furthermore, existing law requires a court, in determining the relevance of evidence, to exclude from trial any information consisting of complaints concerning peace officer conduct that is more than 5 years older than the subject of the litigation. SB 16 would delete that provision.
3. SB 16 Would Make Further Changes to Procedural Requirements and Considerations
This bill will require that agencies retain all complaints and related reports or findings currently in the possession of a department or agency. SB 16 will also require that each law enforcement agency request and review the prior personnel files of any officer they hire, as well as require that every officer employed as a peace officer immediately report all uses of force by the officer to the officer’s employing agency.
The phases-in implementation of this bill will be such that records relating to incidents that qualify in the new categories of offenses added by this bill that occurred before January 1, 2022, shall not be required to be disclosed until January 1, 2023. However, records of incidents that occur after January 1, 2022, shall be subject to disclosure pursuant to the provisions of this bill.
Goyette, Ruano & Thompson has decades of experience with representing peace officers and public safety personnel in California. The situation at hand is rapidly evolving, so please check back for updates and additional or subsequent posts regarding SB 16, law enforcement reform, and how it will impact you & your agency.
If you have any questions or comments, or are in need of representation, please contact Goyette, Ruano & Thompson at email@example.com or at (916) 851-1900.