Over the past ten years, we’ve been bombarded with news of law enforcement officer and police officer misconduct. And it seems, it may be getting worse. Headlines related to excessive force, sexual harassment, and even wrongful death perpetrated by law enforcement officers seem to fill our headlines on a near daily basis. In an attempt to counteract this trend and bring greater transparency to this issue, California passed a law giving greater access to reports of officer misconduct which went into effect in early January 2019.
We all remember it, on March 2, 1991, four police officers viciously attacked Rodney King. While the officers kicked him and hit him with batons, the abuse of power was caught on video by bystanders. Despite this documentary evidence, the 4 officers involved in the beating were found not-guilty, demonstrating the cognitive dissonance between violent abuses of power, and our understanding of the criminal justice system. The absence of appropriate safeguards and the lack of retribution for the officers involved exposed a societal inability to process what we saw in the highly publicized video.
Nearly 28 years after the Rodney King incident, we regularly see video of officer misconduct. Proliferation of mobile phones containing high end camera and video software have inundated us with evidence. Even more recently, officers wearing “body cams” record the experience from their point of view. Public viewing of use of force has drastically increased as a result of video, body cams and related technology.
Until the beginning of this year however, the public had no right to view disciplinary records of officers accused of wrongdoing. Only in litigation, through a Pitchess motion, would the public discover an officers’ history of misconduct. As a result of this limited access, the public would have no way to confirm whether a specific accusation was the first time a specific officer had been reported, or whether this officer had a long history of similar instances of misconduct.
All of this changed when SB 1421 went into effect. It requires California law enforcement agencies to produce records of officer misconduct. SB 1421 amended Penal Code section 832.7 “to allow disclosure of records related to officer use of force or confirmed instances of officer sexual assault or dishonesty via a Public Records Act request.”
Naturally, in line with the effective date of this new law, litigation abounds. Officer unions and agencies have filed restraining orders and lawsuits to determine if SB 1421 has retroactive application. The California Supreme Court has already been asked to weigh in. For now, they’ve declined to provide guidance and refused to enjoin enforcement of the revised law. As such, officer disciplinary records are currently discoverable. It will take some time to see how matters move through the lower courts to understand how this retroactivity issue, will be resolved.
What does “abuse of power” litigation have to do with legal analytics?
The passing of SB 1421 will certainly have an impact on litigation against law enforcement agencies. Accusations of excessive force, sexual assault, and dishonesty now have greater transparency and records which may make these claims easier to prove are now accessible. Making such records more easily discoverable improves public accountability and transparency — a necessity if trust in our justice system is to be rebuilt. Where police personnel have too many excessive force complaints or accusations of dishonesty, an officer may find themselves looking for alternate forms of employment as the department now faces greater exposure related to these claims.
Litigation analytics and related trend data will not only lead to greater ‘abuse of power’ litigation claims, but will also assist with the successful prosecution of such cases. For example, those who bring excessive force or wrongful death actions now have the ability to review all litigation surrounding an officer. In the last 2 years, more than 24 matters involving “officer misconduct” have been filed in Los Angeles County alone.
If you’re filing a Pitchess motion in CA state court, it may be helpful to see the 42 other instances where this issue has been addressed in Los Angeles County and how each of the judges have ruled on the related motions. Understanding your judge’s tendencies, rational and preferred case law related to Pitchess motions will help you better craft your argument. For instance, Hon. Dennis J. Landin had this issue arise in at least 6 different matters last year.
Combining SB 1421 with legal analytics will drastically improve a lawyer’s performance in cases of officer misconduct… which may in turn start to change some officer and police department behavior. There is no doubt that SB 1421 is going to open the floods gates of officer discipline information. Legal analytics will be necessary to assist in curating the data for relevant litigation and bringing forth necessary societal change.