Amended  IN  Senate  March 25, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill
No. 1220

Introduced by Senator Umberg

February 20, 2020

An act to amend Section 245.6 of the Penal Code, relating to hazing. An act to amend Section 1045 of the Evidence Code, to amend Section 3305.5 of the Government Code, and to amend Section 832.7 of the Penal Code, relating to peace officers.


LEGISLATIVE COUNSEL'S DIGEST


SB 1220, as amended, Umberg. Hazing. Peace and custodial officers.
Existing law, the Public Safety Officers Procedural Bill of Rights Act, grants public safety officers, as defined, a variety of administrative and procedural employment protections and prohibits a punitive action, or denial of promotion on grounds other than merit, solely on the basis that an officer’s name has been placed on a Brady list. Existing law defines a Brady list as a system, index, list, or other record containing the names of peace officers whose personnel files are likely to contain evidence of dishonesty or bias, as specified.
This bill would require a prosecuting agency to provide specified notices to a peace officer before and after any consideration of placing that officer’s name on a Brady list. The bill would also require the public employer of a peace officer to forward those notices to the peace officer. The bill would additionally require a prosecuting agency that maintains a Brady list to adopt a policy that includes, among other things, the criteria used by the agency to place an officer’s name on the Brady list and an officer’s right to request reconsideration of that placement. By imposing new duties on local government, the bill would impose a state-mandated local program.
Existing law requires each department or agency in this state that employs peace officers to establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies, and to make a written description of the procedure available to the public. Existing law generally makes the personnel records of peace officers and custodial officers and records maintained by a state or local agency pursuant to these requirements, or information obtained from these records, confidential and exempt from disclosure in a criminal or civil proceeding. Existing law provides discovery procedures for peace or custodial officer personnel records, and other records pertaining to peace or custodial officers, as specified.
This bill would, on and after January 1, 2022, require any state or local law enforcement agency maintaining personnel records of peace officers and custodial officers to, upon request, provide a prosecuting agency a list of names and badge numbers of officers employed by the agency in the 5 years preceding the request who meet specified criteria, including, among other things, that the officer has had sustained findings for conduct of moral turpitude or the officer is on probation for a criminal offense. The bill would require the prosecuting agency to keep this list confidential, except as constitutionally required. By imposing new duties on local law enforcement agencies, this bill would create a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law makes it unlawful to engage in hazing, which is defined as a method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by an educational institution, that is likely to cause serious bodily injury to a former, current, or prospective student of a school, community college, college, university, or other educational institution in this state.

This bill would make technical, nonsubstantive changes to these provisions.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NOYES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1045 of the Evidence Code is amended to read:

1045.
 (a) Nothing in this article shall be construed to affect the right of access to records of complaints, or investigations of complaints, or discipline imposed as a result of those investigations, concerning an event or transaction in which the peace officer or custodial officer, as defined in Section 831.5 of the Penal Code, participated, or which he or she the officer perceived, and pertaining to the manner in which he or she the officer performed his or her their duties, provided that information is relevant to the subject matter involved in the pending litigation.
(b) In determining relevance, the court shall examine the information in chambers in conformity with Section 915, and shall exclude from disclosure:
(1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought. sought, unless the information is required to be disclosed pursuant to Brady v. Maryland (1963) 373 U.S. 83.
(2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code.
(3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.
(c) In determining relevance where the issue in litigation concerns the policies or pattern of conduct of the employing agency, the court shall consider whether the information sought may be obtained from other records maintained by the employing agency in the regular course of agency business which would not necessitate the disclosure of individual personnel records.
(d) Upon motion seasonably made by the governmental agency which has custody or control of the records to be examined or by the officer whose records are sought, and upon good cause showing the necessity thereof, the court may make any order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression.
(e) The court shall, in any case or proceeding permitting the disclosure or discovery of any peace or custodial officer records requested pursuant to Section 1043, order that the records disclosed or discovered may not be used for any purpose other than a court proceeding pursuant to applicable law. However, if the records are released to a prosecuting agency, the prosecuting agency may, with leave of a superior court judge, release the records in a subsequent criminal case when the officer to whom the records pertain will be testifying in order to comply with the requirements of Brady v. Maryland (1963) 373 U.S. 83.

SEC. 2.

 Section 3305.5 of the Government Code is amended to read:

3305.5.
 (a) A punitive action, or denial of promotion on grounds other than merit, shall not be undertaken by any public agency against any public safety officer solely because that officer’s name has been placed on a Brady list, or that the officer’s name may otherwise be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83.
(b) This section shall not prohibit a public agency from taking punitive action, denying promotion on grounds other than merit, or taking other personnel action against a public safety officer based on the underlying acts or omissions for which that officer’s name was placed on a Brady list, or may otherwise be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83, if the actions taken by the public agency otherwise conform to this chapter and to the rules and procedures adopted by the local agency.
(c) Evidence that a public safety officer’s name has been placed on a Brady list, or may otherwise be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83, shall not be introduced for any purpose in any administrative appeal of a punitive action, except as provided in subdivision (d).
(d) Evidence that a public safety officer’s name was placed on a Brady list may only be introduced if, during the administrative appeal of a punitive action against an officer, the underlying act or omission for which that officer’s name was placed on a Brady list is proven and the officer is found to be subject to some form of punitive action. If the hearing officer or other administrative appeal tribunal finds or determines that a public safety officer has committed the underlying acts or omissions that will result in a punitive action, denial of a promotion on grounds other than merit, or any other adverse personnel action, and evidence exists that a public safety officer’s name has been placed on a Brady list, or may otherwise be subject to disclosure pursuant to Brady v. Maryland (1963) 373 U.S. 83, then the evidence shall be introduced for the sole purpose of determining the type or level of punitive action to be imposed.
(e) (1) At least 10 days prior to considering placing an officer’s name on a Brady list, a prosecuting agency shall send a written notice by mail or email to the officer’s current or last known employment address. On receipt, the officer’s current or last known employer shall provide the notice to the officer if the officer’s contact information is available.
(2) The notice provided pursuant to paragraph (1) shall contain all of the following:
(A) A notice of possible placement on the Brady list.
(B) The officer’s right to request relevant materials from the prosecuting agency.
(C) The officer’s right to provide input to the prosecuting agency before the prosecuting agency makes a determination of whether the officer should be added to the list.
(D) The prosecuting agency’s procedural requirements for a law enforcement officer to provide input.
(3) The prosecuting agency shall additionally send a written notice by mail or email to the officer’s current or last known employment address when the agency makes a determination regarding placement of the officer’s name on the Brady list. On receipt, the officer’s current or last known employer shall provide that notice to the officer if the officer’s contact information is available.
(4) If the prosecuting agency makes a determination to place the officer’s name on the Brady list, the notice sent pursuant to paragraph (3) shall include all of the following:
(A) The officer’s right to request for reconsideration of the placement on the Brady list.
(B) The prosecuting agency’s procedural requirements for submitting a written request for reconsideration, including the method and timeframe for submitting the request for reconsideration and any supporting and corroborating documents and evidence from any pertinent sources.
(C) A statement that, if the officer intends to request a reconsideration of the placement, the officer shall submit the written request for reconsideration to the prosecuting agency within 10 business days after receiving the notice.
(5) If an officer submits a request for reconsideration pursuant to this section, and the officer’s request for reconsideration is approved by the prosecuting agency, the officer’s name shall be removed from the Brady list. If the officer’s request is denied, the officer’s name shall remain on the Brady list. If an officer does not submit a request for reconsideration or fails to comply with the requirements for submitting a request for reconsideration, the officer’s name shall remain on the Brady list.
(6) A prosecuting agency that maintains a Brady list shall adopt a policy that includes, but is not limited to, all of the following:
(A) The criteria used by the agency to place an officer’s name on the Brady list.
(B) The officer’s right to receive written notice at least 10 days prior to the agency’s consideration of the placement of the officer’s name on the list, and the officer’s right to provide input to the prosecuting agency before the prosecuting agency makes a determination regarding the placement of the officer’s name on the Brady list.
(C) The duty of the prosecuting agency to provide the notices to the officer required by this subdivision.
(D) The officer’s right to request a reconsideration of the placement of the officer’s name on the Brady list and submit supporting and corroborating documents and evidence in support of the request for reconsideration.
(7) This subdivision does not limit the duty of a prosecuting agency to provide information as required by Brady v. Maryland (1963) 373 U.S. 83.
(8) This subdivision does not prohibit a prosecuting agency’s ability to remove an officer’s name from a Brady list if, on receipt of additional supporting and corroborating information or a change in factual circumstances, the prosecuting agency determines that the officer’s name no longer requires placement on the Brady list.

(e)

(f) For purposes of this section, “Brady list” means any system, index, list, or other record containing the names of peace officers whose personnel files are likely to contain evidence of dishonesty or bias, which is maintained by a prosecutorial agency or office in accordance with the holding in Brady v. Maryland (1963) 373 U.S. 83.

SEC. 3.

 Section 832.7 of the Penal Code is amended to read:

832.7.
 (a) Except as provided in subdivision (b), the personnel records of peace officers and custodial officers and records maintained by any a state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. This section shall does not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, or an agency or department that employs those officers, conducted by a grand jury, a district attorney’s office, or the Attorney General’s office.
(b) (1) Notwithstanding subdivision (a), subdivision (f) of Section 6254 of the Government Code, or any other law, the following peace officer or custodial officer personnel records and records maintained by any a state or local agency shall not be are not confidential and shall be made available for public inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code):
(A) A record relating to the report, investigation, or findings of any of the following:
(i) An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
(ii) An incident in which the use of force by a peace officer or custodial officer against a person resulted in death, or in great bodily injury.
(B) (i) Any A record relating to an incident in which a sustained finding was made by any a law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public.
(ii) As used in this subparagraph, “sexual assault” means the commission or attempted initiation of a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of leniency or other official favor, or under the color of authority. For purposes of this definition, the propositioning for or commission of any sexual act while on duty is considered a sexual assault.
(iii) As used in this subparagraph, “member of the public” means any person not employed by the officer’s employing agency and includes any a participant in a cadet, explorer, or other youth program affiliated with the agency.
(C)  Any A record relating to an incident in which a sustained finding was made by any a law enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any a sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence.
(2) Records that shall be released pursuant to this subdivision include all investigative reports; photographic, audio, and video evidence; transcripts or recordings of interviews; autopsy reports; all materials compiled and presented for review to the district attorney or to any person or body charged with determining whether to file criminal charges against an officer in connection with an incident, or whether the officer’s action was consistent with law and agency policy for purposes of discipline or administrative action, or what the form of discipline to impose or corrective action to take; documents setting forth findings or recommended findings; and copies of disciplinary records relating to the incident, including any letters of intent to impose discipline, any documents reflecting modifications of discipline due to the Skelly or grievance process, and letters indicating final imposition of discipline or other documentation reflecting implementation of corrective action.
(3) A record from a separate and prior investigation or assessment of a separate incident shall not be released unless it is independently subject to disclosure pursuant to this subdivision.
(4) If an investigation or incident involves multiple officers, information about allegations of misconduct by, or the analysis or disposition of an investigation of, an officer shall not be released pursuant to subparagraph (B) or (C) of paragraph (1), unless it relates to a sustained finding against that officer. However, factual information about that action of an officer during an incident, or the statements of an officer about an incident, shall be released if they are relevant to a sustained finding against another officer that is subject to release pursuant to subparagraph (B) or (C) of paragraph (1).
(5) An agency shall redact a record disclosed pursuant to this section only for any of the following purposes:
(A) To remove personal data or information, such as a home address, telephone number, or identities of family members, other than the names and work-related information of peace and custodial officers.
(B) To preserve the anonymity of complainants and witnesses.
(C) To protect confidential medical, financial, or other information of which disclosure is specifically prohibited by federal law or would cause an unwarranted invasion of personal privacy that clearly outweighs the strong public interest in records about misconduct and serious use of force by peace officers and custodial officers.
(D) Where If there is a specific, articulable, and particularized reason to believe that disclosure of the record would pose a significant danger to the physical safety of the peace officer, custodial officer, or another person.
(6) Notwithstanding paragraph (5), an agency may redact a record disclosed pursuant to this section, including personal identifying information, where, if, on the facts of the particular case, the public interest served by not disclosing the information clearly outweighs the public interest served by disclosure of the information.
(7) An agency may withhold a record of an incident described in subparagraph (A) of paragraph (1) that is the subject of an active criminal or administrative investigation, in accordance with any of the following:
(A) (i) During an active criminal investigation, disclosure may be delayed for up to 60 days from the date the use of force occurred or until the district attorney determines whether to file criminal charges related to the use of force, whichever occurs sooner. If an agency delays disclosure pursuant to this clause, the agency shall provide, in writing, the specific basis for the agency’s determination that the interest in delaying disclosure clearly outweighs the public interest in disclosure. This writing shall include the estimated date for disclosure of the withheld information.
(ii) After 60 days from the use of force, the agency may continue to delay the disclosure of records or information if the disclosure could reasonably be expected to interfere with a criminal enforcement proceeding against an officer who used the force. If an agency delays disclosure pursuant to this clause, the agency shall, at 180-day intervals as necessary, provide, in writing, the specific basis for the agency’s determination that disclosure could reasonably be expected to interfere with a criminal enforcement proceeding. The writing shall include the estimated date for the disclosure of the withheld information. Information withheld by the agency shall be disclosed when the specific basis for withholding is resolved, when the investigation or proceeding is no longer active, or by no later than 18 months after the date of the incident, whichever occurs sooner.
(iii) After 60 days from the use of force, the agency may continue to delay the disclosure of records or information if the disclosure could reasonably be expected to interfere with a criminal enforcement proceeding against someone other than the officer who used the force. If an agency delays disclosure under this clause, the agency shall, at 180-day intervals, provide, in writing, the specific basis why disclosure could reasonably be expected to interfere with a criminal enforcement proceeding, and shall provide an estimated date for the disclosure of the withheld information. Information withheld by the agency shall be disclosed when the specific basis for withholding is resolved, when the investigation or proceeding is no longer active, or by no later than 18 months after the date of the incident, whichever occurs sooner, unless extraordinary circumstances warrant continued delay due to the ongoing criminal investigation or proceeding. In that case, the agency must show by clear and convincing evidence that the interest in preventing prejudice to the active and ongoing criminal investigation or proceeding outweighs the public interest in prompt disclosure of records about use of serious force by peace officers and custodial officers. The agency shall release all information subject to disclosure that does not cause substantial prejudice, including any documents that have otherwise become available.
(iv) In an action to compel disclosure brought pursuant to Section 6258 of the Government Code, an agency may justify delay by filing an application to seal the basis for withholding, in accordance with Rule 2.550 of the California Rules of Court, or any successor rule thereto, if disclosure of the written basis itself would impact a privilege or compromise a pending investigation.
(B) If criminal charges are filed related to the incident in which force was used, the agency may delay the disclosure of records or information until a verdict on those charges is returned at trial or, if a plea of guilty or no contest is entered, the time to withdraw the plea pursuant to Section 1018.
(C) During an administrative investigation into an incident described in subparagraph (A) of paragraph (1), the agency may delay the disclosure of records or information until the investigating agency determines whether the use of force violated a law or agency policy, but no longer than 180 days after the date of the employing agency’s discovery of the use of force, or allegation of use of force, by a person authorized to initiate an investigation, or 30 days after the close of any criminal investigation related to the peace officer or custodial officer’s use of force, whichever is later.
(8) A record of a civilian complaint, or the investigations, findings, or dispositions of that complaint, shall not be released pursuant to this section if the complaint is frivolous, as defined in Section 128.5 of the Code of Civil Procedure, or if the complaint is unfounded.
(c) Notwithstanding subdivisions (a) and (b), a department or agency shall release to the complaining party a copy of his or her the complaining party’s own statements at the time the complaint is filed.
(d) Notwithstanding subdivisions (a) and (b), a department or agency that employs peace or custodial officers may disseminate data regarding the number, type, or disposition of complaints (sustained, not sustained, exonerated, or unfounded) made against its officers if that information is in a form which does not identify the individuals involved.
(e) Notwithstanding subdivisions (a) and (b), a department or agency that employs peace or custodial officers may release factual information concerning a disciplinary investigation if the officer who is the subject of the disciplinary investigation, or the officer’s agent or representative, publicly makes a statement he or she the officer or the officer’s agent or representative knows to be false concerning the investigation or the imposition of disciplinary action. Information may shall not be disclosed by the peace or custodial officer’s employer unless the false statement was published by an established medium of communication, such as television, radio, or a newspaper. Disclosure of factual information by the employing agency pursuant to this subdivision is limited to facts contained in the officer’s personnel file concerning the disciplinary investigation or imposition of disciplinary action that specifically refute the false statements made public by the peace or custodial officer or his or her the officer’s agent or representative.
(f) (1) The department or agency shall provide written notification to the complaining party of the disposition of the complaint within 30 days of the disposition.
(2) The A notification described in this subdivision shall not be is not conclusive or binding or admissible as evidence in any separate or subsequent action or proceeding brought before an arbitrator, court, or judge of this state or the United States.
(g) (1) Notwithstanding subdivision (a), subdivision (f) of Section 6254 of the Government Code, or any other law, any state or local law enforcement agency maintaining personnel records of peace officers and custodial officers shall, on and after January 1, 2022, upon request, provide a city, county, or state prosecuting agency a list of the names and badge numbers of officers employed by the agency in the five years preceding the request who have had sustained findings for conduct described in subparagraphs (B) and (C) of paragraph (1) of subdivision (b), who have had sustained findings for conduct of moral turpitude, who have been convicted of a crime of moral turpitude, who are facing criminal charges, or who are on probation for a criminal offense.
(2) A prosecuting agency given a list pursuant to paragraph (1) shall keep that list confidential. However, the prosecuting agency may provide the name and badge number of an officer, along with notification that the officer is an officer on the list provided pursuant to paragraph (1), to a criminal defense attorney in order to comply with the requirements of Brady v. Maryland (1963) 373 U.S. 83.
(3) The information described in paragraphs (1) and (2) may be used by either a prosecuting attorney or a criminal defense attorney to establish good cause for the discovery or disclosure of the relevant personnel records of a peace officer or custodial officer as described in paragraph (3) of subdivision (b) of Section 1043 of the Evidence Code.

(g)

(h) This section does not affect the discovery or disclosure of information contained in a peace or custodial officer’s personnel file pursuant to Section 1043 of the Evidence Code.

(h)

(i) This section does not supersede or affect the criminal discovery process outlined in Chapter 10 (commencing with Section 1054) of Title 6 of Part 2, or the admissibility of personnel records pursuant to subdivision (a), which codifies the court decision in Pitchess v. Superior Court (1974) 11 Cal.3d 531.

(i)

(j) Nothing in this chapter is intended to This chapter does not limit the public’s right of access as provided for in Long Beach Police Officers Association v. City of Long Beach (2014) 59 Cal.4th 59.

SEC. 4.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
SECTION 1.Section 245.6 of the Penal Code is amended to read:
245.6.

(a)It shall be unlawful to engage in hazing, as defined in this section.

(b)“Hazing” means a method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by an educational institution, that is likely to cause serious bodily injury to a former, current, or prospective student of a school, community college, college, university, or other educational institution in this state. The term “hazing” does not include customary athletic events or school-sanctioned events.

(c)A violation of this section that does not result in serious bodily injury is a misdemeanor, punishable by a fine of not less than one hundred dollars ($100), nor more than five thousand dollars ($5,000), or imprisonment in the county jail for not more than one year, or both.

(d)A person who personally engages in hazing that results in death or serious bodily injury as defined in paragraph (4) of subdivision (f) of Section 243 of the Penal Code, is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.

(e)The person against whom the hazing is directed may commence a civil action for injury or damages. The action may be brought against any participant in the hazing, or an organization to which the student is seeking membership whose agents, directors, trustees, managers, or officers authorized, requested, commanded, participated in, or ratified the hazing.

(f)Prosecution under this section shall not prohibit prosecution under any other law.