Attorneys argue over scope of SB 1421 earlier than appellate courtroom panel

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Judge Henry Walsh, Ventura County Supreme Court

The attorneys advanced their final arguments in front of the appeals court on Thursday to determine whether a landmark law on police records applies to incidents before the law went into effect.

With the draft of the Senate Act 1421, certain records of police misconduct were made available to the public from January 1, 2019. The law was passed as part of an ongoing discussion on law enforcement transparency and officials were held accountable.

A three-judge panel of the 2nd District Court of Appeals, acting as attorneys for the Ventura County Deputy Sheriffs’ Association, the Public Defender’s Office, and multiple media outlets including The Star, heard whether the law was applicable to incidents prior to 2019.

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“I just don’t think there is any plain language 1421 or (state penal code) 832.7 that there should be retroactivity one way or another, and not individual intent,” said Richard Levine, law enforcement attorney for the law enforcement union.

At his hearing, Levine referred to the Criminal Code, which keeps peace officers’ personal files confidential.

The Star has filed requests for public records for these pre-2019 wrongdoing records as well as investigative records of the 2018 shootings at the Borderline Bar & Grill. The star has also sued the county for withholding borderline records in violation of public record legislation.

Kelly Aviles, The Star’s attorney, also made arguments to the Appellate Body Thursday. Aviles is also representing the Los Angeles Times and Associated Press on the borderline lawsuit.

However, it was the Ventura County Public Defender’s Office that intervened when Ventura County’s Supreme Court Justice Henry Walsh issued a court order blocking the release of pre-2019 records in June 2019.

The public defense office appealed to overturn Walsh’s decision and overturn his order.

Assistant Attorney Michael McMahon said there was no conflict between the plain language of SB 1421. It specifically states that all records held by law enforcement are subject to the law, McMahon said.

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In addition, McMahon pointed to a decade-long amendment to the state constitution that any law revising “laws governing public access must be interpreted broadly when it extends public access and narrowly when it restricts”.

The senior assistant defense attorney also pointed to a ruling in a case from Contra Costa County, another appellate district, confirming the law’s applicability to pre-2019 records.

Levine, for the union, said the verdict was wrong and continued to explain to the local appeals court the privacy rights at issue. Peace officials had privacy rights to these records of wrongdoing before the laws were passed, and the bill immediately incorporated this.

Aviles, the media attorney, said that wasn’t necessarily true. Before the bill was passed, people could file a pitchess request to get access to their personnel files. They would be notified of the request and a judge would review the file and post any relevant information under protection order, Aviles said.

Under SB 1421, the peace commissioner will also be notified if the public requests a record of their personnel history. You also have the option to get certain information like addresses or private medical information, Aviles said.

If law enforcement doesn’t edit it, the peace officer could get a lawyer and file a lawsuit.

“Privacy rights must be asserted by the individual,” said Aviles.

The appeals court has a few months to comment on this matter.

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Megan Diskin is a court and news reporter for The Star. Reach them at [email protected] or 805-437-0258.