Copley vs. Superior Court
"If you don't have access to documents, you don't have accountability"
-- Guylyn Cummins -- The Union-Tribune's attorney
"Police officers too should be held accountable..."
-- Merrick Bobb, President of Police Assessment Rersource Center | PARCy
"We have pretty much of a secret police force in this state"
-- Tom Newton, general counsel of the California Newspaper Publishers Assn.
September 1, 2006California State Supreme Court
determines that the public has no right to information
about law enforcement personnel involved in disciplinary cases.By Maura Dolan, Los Angeles Times Staff Writer
SAN FRANCISCO — Police disciplinary records will become more secret under a far-reaching ruling Thursday by the California Supreme Court.
The court ruled 6 to 1 that the public may not have access to police discipline records filed during administrative appeals, including the names of officers who have been terminated, unless the officers waive their rights to privacy.
The decision is expected to shut down public access to information about officers who come before civil service commissions, civilian review boards and other panels that hear police discipline cases.
The ruling does not, however, automatically close records in cases that go to Superior Court. "That will be the next battleground," said Deputy San Diego County Counsel William H. Songer, who represented the county in a lawsuit brought by the media.
As a result of Thursday's decision, "We have pretty much of a secret police force in this state," said Tom Newton, general counsel of the California Newspaper Publishers Assn. He said the ruling frowned upon even disclosing the names of officers involved in shootings.
Duke Law School professor Erwin Chemerinsky, a longtime police reform leader who filed a friend-of-the-court brief in the case, called the ruling "a stunning loss for the public and the right to know."
"It is very far-reaching," said Chemerinsky, a member of a board that studied the Rampart police scandal. "This is just a tremendous loss in the ability to check up on what police officers are doing."
Everett L. Bobbitt, who represented the San Diego police and sheriff deputies association in the case, agreed that the ruling will make it difficult, if not impossible, for the public to learn about officers who have committed misconduct.
Referring to the media, he said, "You are going to have to go back to your sources, you know, people who talk out of turn, which you guys do a good job of."
He said the police unions have sought privacy to prevent criminal defense lawyers from scouring public records for dirt on officers who are witnesses in cases.
"It is in the public interest not to have your police officers run through the wringer on many times bogus information," Bobbitt said.
Although the state high court did not specifically rule on whether appeal hearings must be closed to the public, all the case law cited in the decision means "there is no way you are going to get there," Bobbitt said.
Kelli Sager, a lawyer for the news media, including the Los Angeles Times, disagreed. She said the ruling did not foreclose open meetings in discipline appeal cases. Until Thursday's ruling, the public sometimes learned about disciplined officers only when they appealed sanctions to civil service or other personnel commissions. Internal discipline is confidential.
Such information has played a defining role in the recent history of Los Angeles, and helped usher in police reform. Both the 1991 Christopher Commission report, which analyzed the beating of Rodney G. King, and the Los Angeles Police Department's internal report on the Rampart scandal named officers involved in use of force incidents, sparking widespread public debate and eventual adoption of reform measures, including tracking of problem officers.
The Los Angeles Police Commission, on the advice of the city attorney, stopped naming officers involved in use-of-force incidents this winter. A spokesman for City Atty. Rocky Delgadillo said his office had not determined the ruling's effect in Los Angeles.
A lawyer for the Assn. for Los Angeles Deputy Sheriffs union called the decision "a sweeping and thorough rebuke of the forces that wanted to pry into the private lives of police officers" and said it would overturn the county Civil Service Commission's decades-long practice of opening appeal hearings and documents involving sworn personnel to the public.
"This is a final and thorough examination and it was determined that these records are confidential," lawyer Richard Shinee said. Shinee added that he believes sufficient protections remain in place to ensure "miscreant" officers are identified and punished.
But several community activists called the ruling a further setback in the struggle for the public to learn about problem officers.
The only time past allegations "come out about the officer is when you go to court," said Royce Esters, Compton-based president of the civil rights group National Assn. For Equal Justice in America. "You don't know what kind of person is patrolling your streets."
Merrick Bobb, who monitors the Los Angeles County Sheriff's Department for the Board of Supervisors, said, "One can open a newspaper and see which lawyers have been disbarred and doctors whose licenses have been suspended. Because law enforcement officers have the power of life and death it is vital that police officers too should be held accountable in a public way."
The court ruling stemmed from a lawsuit filed by Copley Press Inc., owner of the San Diego Union-Tribune, against San Diego County's Civil Service Commission. In 2003, Copley learned that the commission had scheduled a closed hearing in a deputy's discipline case. The newspaper filed requests under the California Public Records Act seeking information about the deputy and later went to court to force public disclosure. The San Diego Police Officers Assn. intervened. The commission eventually disclosed that the deputy had received a termination order for failing to arrest a suspect in a domestic violence incident and then lied about it, but it refused to release his name. He eventually quit.
Seeking more information, the newspaper went to the Court of Appeal, which said the commission should have released the deputy's name and more details about the case.
The police association appealed, winning Thursday's ruling. The decision, Copley vs. Superior Court, written by Justice Ming Chin, said the county's Civil Service Commission was the equivalent of an employer, and thus required to keep disciplinary matters private.
Chin said privacy rights are important to "protecting complainants and witnesses against recrimination or retaliation, protecting police peace officers from publication of frivolous or unwarranted charges, and maintaining confidence in law enforcement agencies.
Justice Kathryn Werdegar filed the sole dissent, saying the rest of the court had misconstrued the various laws on public records and peace officers.
"The majority overvalues the deputy's interest in privacy, undervalues the public's interest in disclosure, and ultimately fails to implement the Legislature's careful balance of competing concerns in this area," Werdegar wrote.
Guylyn R. Cummins, who represented Copley, said she was disappointed.
She said the Rampart scandal in Los Angeles showed that a police department "that scrutinizes and disciplines itself" out of the public eye "doesn't work."
Several media lawyers expressed hope that the Legislature would pass a law overturning the ruling. But Bobbitt, the lawyer for the police and sheriff deputies, said the police union's lobby has "typically been stronger than the newspaper industry's."
Police unions across the state are elated with the ruling, he said. "Trust me, they will fight any changes to this decision," Bobbitt said.
Times staff writers
Matt Lait, Scott Glover and Megan Garvey
contributed to this report.Maura Dolan: maura.dolan@latimes.com
THE WINNERS
Deputy San Diego County Counsel William H. Songer,
who represented the county in a lawsuit brought by the media.
The ruling does not, however, automatically close records in cases that go to Superior Court.
"That will be the next battleground,"
Everett L. Bobbitt,
who represented the San Diego police and sheriff deputies association in the case, agreed that the ruling will make it difficult, if not impossible, for the public to learn about officers who have committed misconduct. Several media lawyers expressed hope that the Legislature would pass a law overturning the ruling. But Bobbitt, the lawyer for the police and sheriff deputies, said the police union's lobby has "typically been stronger than the newspaper industry's." Police unions across the state are elated with the ruling, he said. "Trust me, they will fight any changes to this decision," Bobbitt said.
The Los Angeles Police Commission,
on the advice of the city attorney, stopped naming officers involved in use-of-force incidents this winter. A spokesman for City Atty. Rocky Delgadillo said his office had not determined the ruling's effect in Los Angeles.
Richard Shine
A lawyer for the Assn. for Los Angeles Deputy Sheriffs union
called the decision "a sweeping and thorough rebuke of the forces that wanted to pry into the private lives of police officers" and said it would overturn the county Civil Service Commission's decades-long practice of opening appeal hearings and documents involving sworn personnel to the public. "This is a final and thorough examination and it was determined that these records are confidential," lawyer Richard Shinee said. Shinee added that he believes sufficient protections remain in place to ensure "miscreant" officers are identified and punished.
San Diego County's Civil Service Commission
Justice Ming Chin
California State Supreme Court
The police association appealed, winning Thursday's ruling. The decision, Copley vs. Superior Court, written by Justice Ming Chin, said the county's Civil Service Commission was the equivalent of an employer, and thus required to keep disciplinary matters private. Chin said privacy rights are important to "protecting complainants and witnesses against recrimination or retaliation, protecting police peace officers from publication of frivolous or unwarranted charges, and maintaining confidence in law enforcement agencies.
Judgment of the Court of Appeal |
reversed and the matter is remanded.Opinion by Chin, J.
Joined by George, C.J., Kennard, Baxter, Moreno, Corrigan, JJ.Dissenting Opinion by Werdegar, J
Tom Newton
general counsel of the California Newspaper Publishers Assn. | Public Access Laws |
"We have pretty much of a secret police force in this state,"
Erwin Chemerinsky
Duke Law School professor,
a longtime police reform leader who filed a friend-of-the-court brief in the case, called the ruling "a stunning loss for the public and the right to know."
Erwin Chemerinsky joined the Duke faculty in July 2004 after 21 years at the University of Southern California Law School, where he was the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science. Before that he was a professor at DePaul College of Law from 1980-83. Practiced law as a trial attorney, United States Department of Justice, and at Dobrovir, Oakes & Gebhardt in Washington, D.C. Received a B.S. from Northwestern University and a J.D. from Harvard Law School.Erwin Chemerinsky
Alston & Bird Professor of Law
and Professor of Political Science - Room 3176
Tel: 919-613-7173
Box 90360 Durham, NC 27708-0360
chemerinsky@law.duke.edu
Kelli Sager
a lawyer for the news media, including the Los Angeles Times
Kelli L. Sager Davis Wright
Tremaine LLP Los Angeles, CA
email: kellisager@dwt.comKelli Sager is a partner in the Los Angeles office of Davis Wright Tremaine. She has twenty years of experience in intellectual property and First Amendment-related litigation, including representation of television stations, radio stations, motion picture producers, newspapers, book authors, publishers, and national magazine clients, both at the trial and appellate levels of state and federal court. She currently is a member of the Board of the Los Angeles Copyright Society, former Chair and current Western Division representative for the ABA Forum on Communications Law, co-chair of the Attorney Representatives committee for the Central District of California, and has served as an Adjunct Professor in Constitutional Law (First Amendment) at USC Law School. Among other accolades, Ms. Sager was named as one of the top 50 women litigators in the country by the National Law Journal in December 2001, was named as one of the ?100 Most Influential Lawyers In California? by the Los Angeles Daiy Journal in 1998, 1999, 2001, 2002, 2003, and 2004, and has been included in Best Lawyers in America (Woodward/White, Inc.) since 1997.
Royce Esters
National Association For Equal Justice in America
The only time past allegations "come out about the officer is when you go to court," said Royce Esters, Compton-based president of the civil rights group National Assn. For Equal Justice in America. "You don't know what kind of person is patrolling your streets."
NAEJA
National Association For Equal Justice in America
Royce Esters / Beatrice Cary P.O. Box 663 Compton, CA 90223
a past president of the NAACP -- Internet links 1 |
Merrick Bobb
President of Police Assessment Rersource Center | PARC
Los Angeles County Board of Supervisors
Merrick Bobb, who monitors the Los Angeles County Sheriff's Department for the Board of Supervisors, said, "One can open a newspaper and see which lawyers have been disbarred and doctors whose licenses have been suspended. Because law enforcement officers have the power of life and death it is vital that police officers too should be held accountable in a public way."
Merrick BobbPresident of Police Assessment Rersource Center | PARC
e-mail: merrickbobb@parc.info
tel: (213) 689-4440Merrick Bobb is the founding director of PARC, a project Vera developed and launched in Los Angeles. A lawyer, he was the first person to occupy the role of police monitor and has become a nationally recognized expert on police oversight and reform. Merrick has monitored the Los Angeles County Sheriff's Department for seven years and has consulted with jurisdictions around the country and with the U.S. Department of Justice
Police Assessment Rersource Center | PARC
Unlike police management, police oversight is a new field, rapidly diversifying both within and outside departments. Long-standing internal affairs units are changing to meet public demand for greater accountability. Police departments are creating specialized risk-management bureaus. Police commissions, civilian review boards, and inspectors general are growing in number and taking on more authority. And "pattern and practice" lawsuits are breeding an entirely new form of external oversight: independent monitoring. Despite this growth, the field is without clear definitions and lacking an organization to advance best practices and spur innovation. The Police Assessment Resource Center (PARC) fills these needs.
Guylyn R. Cummins
who represented Copley, said she was disappointed. She said the Rampart scandal in Los Angeles showed that a police department "that scrutinizes and disciplines itself" out of the public eye "doesn't work.HAROLD W. FUSON
Copley Press, Inc.
7776 Ivanhoe Avenue 0 La Jolla, CAGUYLYN R. CUMMINS
Sheppard Mullin Richter & Hampton, LLP |
501 W. Broadway, 19th Floor - San Diego, CA
Justice Kathryn Werdegar |
California State Supreme Court |
filed the sole dissent, saying the rest of the court had misconstrued the various laws on public records and peace officers. "The majority overvalues the deputy's interest in privacy, undervalues the public's interest in disclosure, and ultimately fails to implement the Legislature's careful balance of competing concerns in this area," Werdegar wrote.
California State Supreme Court |Supreme Court Case: S128603 |
08/31/2006COPLEY PRESS v. S.C. (Superior Court -- COUNTY OF SAN DIEGO)
Petition for review after the Court of Appeal granted in part and denied in part a petition for peremptory writ of mandate. This case includes the following issue: When a request for information regarding a peace officer disciplinary proceeding is made under the California Public Records Act (Gov. Code. section 6250 et seq.), what information is protected from disclosure under Penal Code section 832.7 as a "personnel record"?
4th Appellate District Div 1
Trial Court Case: GIC807922
Court of Appeal Case: D042251 |
Supreme Court Case: S128603Case Caption: Copley Press, Inc. v. County of San Diego et al.
Case Type: Civil
Filing Date: 06/03/2003Cross Referenced Cases
D042640 The Copley Press, Inc. v. County of San Diego et al.
D042941 Copley Press, Inc. v. City of San Diego
Justices say police officer discipline not a public record
DAVID KRAVETS
Associated PressSAN FRANCISCO - The public does not have a right to personnel or other records of police officers challenging their discipline or firing, the California Supreme Court ruled Thursday.
The San Diego Union-Tribune's case settled conflicting lower court decisions and drew sharp dissent from one justice who said the California Public Records Act demands disclosure.
Justice Ming Chin, writing for the majority, said the act adopted in 1968 and repeatedly amended, has a number of exemptions.
"The right of access under the CPRA is not absolute," Chin wrote.
The newspaper's owner, The Copley Press Inc., challenged the San Diego County Civil Service Commission's closure and sealing of the record regarding an unnamed officer who fought dismissal in 2003.
The issue was only listed on a commission agenda as "case No. 2003-0003."
"Public scrutiny of disciplined officers is vital to prevent the arbitrary exercise of official power by those who oversee law enforcement and to foster public confidence in the system," the publisher told justices.
But police officers, Chin wrote, are different than other government employees whose hearings challenging sanctions or firing usually are public records. The Legislature clearly favors officers, even forbidding their personnel files to be a part of a civil or criminal case unless the file contains conduct germane to the case.
Everett Bobbitt, attorney for the San Diego Police Officers Association and the San Diego County Deputy Sheriff's Association, applauded the decision.
An officer's credibility is always under attack, especially by criminal defendants who have been arrested by them, he said. The decision means police personnel records can only be divulged in a criminal or civil proceeding, and only if they are relevant to a case.
"We've been trying to get to this position for the past 10 years," Bobbitt said.
Chin was joined by
Chief Justice Ronald George, and
justices Marvin Baxter, Joyce Kennard, Carlos Moreno and Carol Corrigan.In dissent,
Justice Kathryn Mickle Werdegar
wrote that the majority "incorrectly holds that every aspect of the deputy's administrative appeal should remain secret, including even the deputy's name."The majority, Werdegar added, "overvalues the deputy's interest in privacy, undervalues the public's interest in disclosure, and ultimately fails to implement the Legislature's careful balance of the competing concerns in this area."
In Thursday's case, the justices said police officers deserve more protection than other government employees to, among other things, shield "peace officers from publication of frivolous or unwarranted charges."
It was not the first time the justices held police officers in higher regard than other government employees.In 2002, Chin wrote for the court that
First Amendment concerns took a back seat when it came to speech targeting police officers.At the time, the justices upheld a California criminal law adopted after the 1991 Rodney King beating that made it punishable by up to six months in jail for citizens to knowingly lodge false accusations against police officers. The law was adopted in 1995 after a flood of hostile complaints against officers statewide following King's 1991 taped beating.
In November, a federal appeals court tossed the law, declaring it an unconstitutional infringement of speech.
The Union-Tribune's attorney, Guylyn Cummins, said "the whole reason behind the case was to safeguard accountability."
"If you don't have access to documents, you don't have accountability," Cummins added.
The case concerns records of administrative proceedings when an officer challenges a dismissal or sanction. Some police agencies handle such affairs internally, while others, like San Diego County, have created a commission.
The justices said a lower court went too far when it ordered the county's Civil Service Commission to divulge the record and the name of an officer being fired for misconduct. After a volley of public record requests, the commission eventually turned over parts of the record but did not release the deputy's name.
Cummins said the record in the case underscores the need for openness.
The documents showed that the officer was challenging being fired for not arresting a domestic violence suspect. The officer failed to write a report of the incident and falsely wrote in a patrol log that the victim had no visible injury and the suspect was gone.
The sheriff's deputy and the county reached an agreement in which the challenge and complaints were dropped and the outcome was listed as "terminated-resignation by mutual consent."
The case is
The Copley Press Inc. v. San Diego County Superior Court, S128603.Editors: David Kravets
has been covering state and federal courts for more than a decade.News Story |
Note:
An officer fired for misconduct.