Frequently Asked Questions about Copley Press and SB 1019
What was the Copley Press decision and what did it do?
On August 29, 2006, the California Supreme Court in Copley Press v. Superior Court held that records of an administrative appeal of sustained misconduct charges are confidential and may not be disclosed to the public. The decision prevents the public from learning the extent to which police officers have been disciplined as a result of misconduct.
Before Copley Press, Penal Code 832.7 prevented public access to citizen complaints held by a police officer's "employing agency." This meant that internal affairs records were confidential, while records of administrative appeals to outside bodies such as a civil service commission were open to the public. Also, in some jurisdictions independent civilian review boards functioned in public, hearing complaints separately from the police department.
The Copley Press decision essentially undid the legislatively enacted distinction between employing agencies and independent agencies, cloaking the records and findings of both in confidentiality. It held that San Diego Civil Service Commission records on administrative appeals by police officers were confidential because the Civil Service Commission performed a function similar to the police department in the disciplinary process and thereby functioned as the employing agency.
How has Copley Press affected agencies and the public's right to know?
Copley Press has effectively shut off all avenues for the public to learn about misconduct involving individual police officers, such as excessive force and dishonesty; officer-involved shootings; patterns of misconduct and leniency; previous discipline for misconduct by another agency; and even the identity of officers in misconduct cases. Among the agencies that have been effected are:
- San Francisco Police Department: For years, San Francisco Police Commission records have been open to the public, allowing the public to learn about serious misconduct cases ranging from excessive force to dishonesty. Following Copley Press, all hearings have been closed and related records – even the identity of the subject officers – are no longer released.
- Los Angeles Police Department: For decades the LAPD held public hearings in serious misconduct cases and the Commission regularly released information on use of force incidents, including officer-involved-shootings. Such information was included in both the Christopher Commission report and the Report of the Rampart Independent Review Panel, and helped play a critical role in bringing about much needed changes in the LAPD. Now, on advice of the Los Angeles City Attorney, the Commission no longer releases identifying information in officer-involved-shootings or other uses of force and all disciplinary information is closed to the public.
- Oakland Citizens Police Review Board: Since the early 1980s the CPRB has investigated cases of police misconduct and held open hearings, separate and apart from the Police Department's internal affairs unit, to provide an independent and public forum for examining police misconduct. After over 20 years, the CPRB hearings and records have been closed down, as have the records of other oversight agencies.
- Los Angeles County Sheriff: The Los Angeles County Sheriff by its own initiative set up an Office of Independent Review to audit internal affairs investigations and provide public reports on issues related to alleged police misconduct. Following the Copley decision, OIR attorneys have been barred from attending Civil Service Commission hearings on misconduct cases. In the words of OIR Chief Attorney and former Assistant US Attorney Michael Gennaco the decision "has had a tremendous effect on our ability to provide transparency. In one fell swoop, so much has been closed."
How does the proposed legislation solve this problem?
SB 1019 directly overturns Copley Press and will allow local jurisdictions and state agencies to provide greater transparency around police complaints. The bill effectively leaves the law as it was before Copley Press was decided. Local jurisdictions will be able to create open complaint review processes, like those that were in use before Copley Press. The bill also contains a provision that would allow certain information to be discussed in closed session if the chief officer certifies that the release of the information would jeopardize an officers' safety or operational security.
Why is it important that information about police misconduct be made public?
Public access to information on complaints about police misconduct and a department's response deters police misconduct and generates public confidence in the ability of government to hold police accountable. According to Merrick Bobb, Executive Director of the Police Assessment Resource Center and Independent Monitor of the Los Angeles County Sheriff Department, there is "broad agreement that whether or not police retain the power to investigate themselves, law enforcement's business, in general, is the public's business, and therefore must be an open and transparent process."
Furthermore, open and independent oversight benefits officers themselves. Only a transparent complaint process can convincingly clear a police officer of misconduct charges in the eyes of the public. According to Professors Jerome Skolnick and James Fyfe – also a former Deputy Commissioner for the New York Police Department – "in the long run, only an independent investigative body can allay public suspicions of the police and render a convincing exoneration of police who have been accused of misconduct."
Finally, current law undermines the credibility of law enforcement agencies by preventing them from communicating publicly about significant cases. As Los Angeles Police Chief William Bratton recently said: "I am in support of change... I am very frustrated by [the current process]. The public has no access to it. The media has no access to it. That's crazy, absolutely crazy. We have nothing to hide in the Los Angeles Police Department.
Shouldn't police officers be entitled to the same confidentiality rights as other public employees?
Yes. Whereas for other public employees and for doctors and lawyers, records on misconduct and any resulting disciplinary action are public, under current law, similar records are "confidential" for police officers. While the proposed legislation provides greater access, it still allows less access to police records than for records of other public employees.
How do other states treat complaints about police?
California is in a minority of states that completely shield records on police discipline. Other states allowing greater access include: Georgia, Florida, Indiana, Utah, Oklahoma, Hawaii, Ohio, and Texas.
Why were confidentiality measures imposed in the first place?
In 1974 the California Supreme Court decision Pitchess v. Superior Court allowed a criminal defendant access to certain kinds of information in citizen complaints. Several law enforcement agencies "launched mass record-shredding campaigns to evade court orders pursuant to Pitchess," resulting in the dismissal of criminal charges in those cities. After the state legislature required files to be maintained for five years, police unions pushed for confidentiality measures, and the result is the current restrictive law.