Existing law requires each law enforcement agency to monthly furnish specified information to the Department of Justice regarding the use of force by a peace officer.

This bill would require municipalities, as defined, to annually post on their internet websites specified information relating to settlements and judgments of $50,000 or more resulting from allegations of improper police conduct, including, among other information, amounts paid, broken down by individual settlement and judgment, information on bonds used to finance use of force settlement and judgment payments, and premiums paid for insurance against settlements or judgments resulting from allegations of improper police conduct. settlements or judgments paid by insurance. The bill would also require municipalities to annually post additional information pertaining to settlements and judgments, as specified, irrespective of the amount paid. By increasing requirements for local governments, this bill would impose a state-mandated local program.

The bill would make legislative findings and declarations.

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 entitles the executive officer and members of the State Personnel Board to receive the actual and necessary travel expenses incurred in the course of their duties in addition to their annual salary.

Existing law entitles the executive officer and members of the State Personnel Board to receive the actual and necessary travel expenses incurred in the course of their duties in addition to their annual salary.

This bill would make nonsubstantive changes to that provision.

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

AB 1725 (McCarty) - Law enforcement settlements and judgments: reporting

Bill Summary:

AB 1725 would require municipalities, as defined, to annually post on their internet websites specified information relating to settlements and judgments of $50,000 or more resulting from allegations of improper police conduct.

Fiscal Impact:

Potentially significant non-reimbursable costs (General Fund) to cities and counties to annually publish information about police misconduct settlements and judgments on their websites. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.

Background:

Recent years have seen an increase in legislation requiring law enforcement agencies to collect and report specific data and disclose various records and policies to the public. In 2015, AB 953 (Weber, Ch. 466, Stats. of 2015) and AB 71 (Rodriguez, Ch. 462, Stats. of 2015) generally required law enforcement to report data on police stops and use of force incidents, respectively. In 2018, the Legislature adopted SB 1421 (Skinner, Ch. 988, Stats. of 2018), required that certain records relating to police misconduct and serious uses of force be made publicly available under the CPRA. In 2021, the Legislature passed SB 16 (Skinner, Ch. 402, Stats. of 2021), which expanded the applicability of SB 1421 by exempting four additional categories of peace officer records from existing confidentiality requirements. This bill seeks to build upon these recent efforts by ensuring the public’s access to information relating to settlements with and judgements against local law enforcement agencies arising out of allegations of improper police conduct.

Proposed Law:

• Requires each municipality, on or before February 1 of each year, to post on its internet website law enforcement settlements and judgments of $50,000 or more during the previous year, resulting from allegations of improper police conduct, including, but not limited to, claims involving the use of force, assault and battery, malicious prosecution, or false arrest or imprisonment, broken down by individual settlement or judgment.
• Requires the municipality to include all of the following information for each action posted:
  • The court in which the action was filed;
  • The name of the law firm representing the plaintiff;
  • The name of the law firm or agency representing each defendant;
  • The date the action was filed, as specified;
  • Whether the plaintiff alleged improper police conduct, including, but not limited to, claims involving use of force, assault and battery, malicious prosecution, or false arrest or imprisonment; and,
  • If the action has been resolved, the date on which it was resolved, the manner in which it was resolved, and whether the resolution included a payment to the plaintiff by the city, and, if so, the amount of the payment.
• Requires each municipality, on or before February 1 of each year, to post on its internet website all of the following:
  • The total number of settlements and judgments related to improper police conduct during the previous year irrespective of the settlement or judgment amount;
  • The total amount of money paid for settlements or judgments related to improper police conduct;
  • The estimated costs budgeted in the current budget for law enforcement misconduct settlements and judgments, if these costs are included in the municipality’s budget; and,
  • The extent to which any payments were paid by insurance, self-insurance or a joint powers agreement, as specified.
• Requires the municipality, if any such settlements or judgments are paid for using municipal bonds, to post on its internet website the amount of the bond, the time it will take the bond to mature, interest and fees paid on the bond, and the total future cost of the bond.
• Requires the municipality to post on its internet website any such settlements or judgments that were paid by insurance, broken down by individual settlement or judgment.
• Defines “municipality” as a city, county, or city and county with a police department or a sheriff’s department, including a city, county, or city and county that contracts with a police department or sheriff’s department for its public safety services.

Related Legislation:

AB 1291 (McCarty), of the 2023-2024 Legislative Session, was substantially similar to this bill. It was gut-and-amended into a bill on a different subject matter in the Senate.

AB 603 (McCarty), of the 2021-2022 Legislative Session, would have required municipalities to post information about police settlements online. AB 603 was vetoed.

Staff Comments:

As discussed above, AB 603 (McCarty), of the 2021-2022 Legislative Session, which was similar to this bill, was vetoed by Governor Newsom, who wrote:

The vast majority of the information that this legislation would require to be posted on department websites is already available through a Public Records Act request or in court records. Given this, I am concerned that this legislation is not only unnecessary, but that it will also have potentially significant General Fund costs associated with the imposition of a state-reimbursable mandate on local law enforcement agencies.

Although this bill is similar to AB 603, there are some differences. This bill requires municipalities to post only settlements and judgments above $50,000, while AB 603 required all settlements and judgments to be posted. This bill requires municipalities to post more types of information than AB 603 would have required. And, unlike AB 603, this bill does not require publication of settlement and judgments against the California Highway Patrol. It should be noted that the differences between this bill and its predecessor do not address the concerns raised by the Governor in his AB 603 veto message.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: AB 1725 Hearing Date: June 4, 2024

Subject: Law enforcement settlements and judgments: reporting

HISTORY

Source: Author

Prior Legislation: AB 1291 (McCarty), gutted and amended (09/08/2023)

AB 603 (McCarty), vetoed by Governor Newsom, 2021

AB 48 (Lorena Gonzalez, Ch. 404, Stats. of 2021)

AB 1314 (McCarty), held in Sen. Public Safety Committee, 2020

SB 1421 (Skinner), Chapter 988, Statutes of 2018

SB 978 (Bradford), Chapter 978, Statutes of 2018

Support: ACLU California Action; California Faculty Association; California Public Defenders Association; Catalyst California; Oakland Privacy; Policing Project at NYU Law School; San Francisco Public Defender

Opposition: California Association of Joint Powers Authorities; City of Whittier; League of California Cities

Assembly Floor Vote: 69 - 0

PURPOSE

The purpose of this bill is to require municipalities to annually post specified information on their websites regarding settlements and judgments resulting from allegations of improper police conduct.

Existing law provides that the people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny. (Cal. Const., Art. I, § 3, subd. (b)(1).)

Existing law defines “public records” to include any writing containing information relating to the conduct of the public’s business, prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. (Gov. Code, § 7920.530.)

Existing law states that the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. (Gov. Code, § 7921.000.)

Existing law provides general categories of documents or information that are exempt from disclosure, essentially due to the character of the information, and unless it is shown that the public’s interest in disclosure outweighs the public’s interest in non-disclosure of the information, the exempt information may be withheld by the public agency with custody of the information. (Gov. Code, § 7930.100 et seq.)

Existing law does not require, under the CPRA, disclosure of investigations conducted by the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes. (Gov. Code, § 7923.600, subd. (a).)

Existing law requires an agency to justify withholding any record by demonstrating that the record in question is exempt under express provisions of the CPRA, or that on the facts of a particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. (Gov. Code, § 7922.000.)

Existing law requires the public agency, when a member of the public requests to inspect a public record or obtain a copy of a public record, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, to do all of the following, to the extent reasonable under the circumstances:

• • Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.
    
  • Describe the information technology and physical location in which the records exist.
  • Provide suggestions for overcoming any practical basis for denying access to the records or information sought. (Gov. Code, § 7922.600, subd. (a)(1)-(3).)

Existing law provides that, unless otherwise specified, the personnel records of peace officers and custodial officers and records maintained by a state, or local agency or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding, except as specified. (Pen. Code, § 832.7, subd. (a).)

Existing law provides that specified peace officer or custodial officer personnel records and records maintained by a state or local agency are not confidential and must be made available for public inspection under the CPRA. (Pen. Code, § 832.7, subd. (b)(1).)

Existing law authorizes an agency to redact a record of police misconduct, including personal identifying information, where on the facts of the particular case the public interest served by not disclosing the information clearly outweighs the public interest serve by disclosure of the information. (Pen. Code, § 832.7, subd. (b)(7).)

Existing law provides that an agency may withhold a record of an incident otherwise subject to disclosure if there is an active criminal or administrative investigation, as specified. (Pen. Code § 832.7(b)(8).)

Existing law requires the Commission on Peace Officer Standards and Training and each local law enforcement agency to conspicuously post on their internet websites all current standards, policies, practices, operating procedures and education training materials that would otherwise be available if a public request was made pursuant to the CPRA. (Pen. Code § 13650.)

Existing law requires each law enforcement agency, within 60 days of each incident, to publish a summary on its internet website of all instances in which a peace officer employed by that agency uses a kinetic energy projectile or chemical agent. (Pen. Code § 13652.1)

This bill establishes various legislative findings and declarations as follows:

• On May 25, 2020, George Floyd was murdered by Minneapolis police when an officer held his knee on his neck for 8 minutes and 46 seconds, resulting in his death.
• The outcry over this murder has resulted in demands for police reform across the state and the nation.
• For decades, Californians have experienced horrific civil rights violations, injuries, and death at the hands of peace officers.
• These incidents often result in civil lawsuits and payouts made by cities, counties, and the state to the civilians harmed by the actions of police officers, sheriffs’ deputies, and other peace officers. These settlements and judgments are often agreed to in closed sessions at city council and board of supervisors meetings, and settlements can range from thousands to millions of dollars.
• Despite the burden these payouts have on local jurisdictions, there is little publicly available information about the costs to taxpayers of law enforcement liability, the manner in which governments budget for and pay lawsuits involving law enforcement, and the financial impact of these arrangements on law enforcement agency budgets.
• Throughout the country, municipalities with the 20 largest police departments have paid over $2 billion since 2015 in misconduct claims. Of those 20 municipalities, four are located in California. The County of Los Angeles paid $238,300,000, the City of Los Angeles paid $172,200,000, the City and County of San Francisco paid $22,000,000, and the City of San Diego paid $12,500,000.
• State law stipulates that individual officers do not pay towards these settlements. Instead, these settlements typically come from the general fund of the municipality involved, or if the law enforcement agency itself pays, then it is part of a specific budget line item set aside for settling officer misconduct litigation. Municipal budgets allocate funds to their law enforcement agencies with the expectation that they will be financially liable for their wrongdoing, year over year.
• Cities and counties typically use liability insurance or general obligation bonds procured by the municipality or state to pay for police settlements. Cities and counties pay annually for liability insurance, which is also used to cover trip-and-fall injuries and workers’ compensation claims, to cover the costs of settlements involving police misconduct, brutality, or death of a civilian by a peace officer.
• In 2019, the City of Sacramento paid an insurance company $2,000,000 in taxpayer dollars to secure up to $35,000,000 for settlements and judgments. Among the payouts made in 2019 was the city’s largest ever settlement, involving $5,200,000 for a man who was so brutally beaten by a police officer that he requires intensive, lifelong medical care.
• In 2017, the Los Angeles Police Department cost taxpayers $80,000,000 settling lawsuits involving officer misconduct. Similarly, the County of Los Angeles paid out over $50,000,000 in misconduct claims from 2015 to 2016, inclusive, the majority of which were excessive force claims. Shootings alone cost the County of Los Angeles $60,000,000 between 2011 to 2016, inclusive.
• During the 2021–22 fiscal year, the County of Los Angeles paid $26,500,000 in judgments, with the two most costly judgments, $53,000,000 and $14,000,000, incurred against the Sheriff’s Department for law enforcement conduct against a civilian. Additionally, the county paid $56,000,000 in settlement costs, for a total of $82,500,000 in settlements and judgments paid. The Sheriff’s Department paid significantly higher than other County of Los Angeles departments in litigation expenses for the 2021–22 fiscal year, costing taxpayers $73,200,000.
• In addition to liability insurance, the board of supervisors or city council can authorize a general obligation bond to pay for these incidents of police misconduct and brutality. These types of general obligation bonds are so common that they are called Police Brutality Bonds by the Wall Street firms who profit from them. These bonds are paid for by taxpayers and take years to pay off due to additional fees and high interest rates.
• In 2009 and 2010, the City of Los Angeles issued $71,400,000 in Police Brutality Bonds. Banks and other private firms collected more than $1,000,000 in issuance fees on these two bonds. By the time these bonds are paid off, taxpayers will have handed over more than $18,000,000 to investors, allowing Wall Street to profit from the death or serious injury of a civilian at the hands of a police officer.
• It is the intent of the Legislature to enact legislation to establish transparency requirements surrounding police use of force settlements and judgments against police and sheriff’s departments.

This bill requires each municipality, on or before February 1 of each year, to post on its internet website law enforcement settlements and judgments of fifty thousand dollars ($50,000) or more during the previous year, resulting from allegations of improper police conduct, including, but not limited to, claims involving the use of force, assault and battery, malicious prosecution, or false arrest or imprisonment, broken down by individual settlement or judgment.

This bill requires the municipality to include all of the following information for each action posted:

• The court in which the action was filed;
  
• The name of the law firm representing the plaintiff;
  
• The name of the law firm or agency representing each defendant;
  
• The date the action was filed;
  
• Whether the plaintiff alleged improper police conduct, including, but not limited to, claims involving use of force, assault and battery, malicious prosecution, or false arrest or imprisonment; and,
• If the action has been resolved, the date on which it was resolved, the manner in which it was resolved, and whether the resolution included a payment to the plaintiff by the city, and, if so, the amount of the payment.

This bill requires each municipality, on or before February 1 of each year, to post on its internet website all of the following:

• The total number of settlements and judgments related to improper police conduct during the previous year irrespective of the settlement or judgment amount;
• The total amount of money paid for cases of improper police conduct;
• The estimated costs budgeted in the current budget for law enforcement misconduct settlements and judgments, if these costs are included in the municipality’s budget; and,
• The actual amount of money paid for law enforcement misconduct settlements and judgements in the fiscal year immediately prior to the budget year.

This bill requires the municipality, if any such settlements or judgments are paid for using municipal bonds, to post on its internet website the amount of the bond, the time it will take the bond to mature, interest and fees paid on the bond, and the total future cost of the bond.

This bill requires the municipality to post on its internet website any such settlements or judgments that were paid by insurance, broken down by individual settlement or judgment, and the amount of any premiums paid by the municipality for insurance against settlements or judgments resulting from allegations of improper police conduct, as specified.

This bill provides that its provisions shall not be construed to prohibit or interfere with a person from obtaining documents under the CPRA.

This bill defines “municipality” as a city, county, or city and county with a police department or a sheriff’s department.

COMMENTS

1. Need for This Bill

According to the Author:

For far too long, cities and counties have spent taxpayer dollars on settlements in police misconduct and excessive use of force cases without proper public disclosure. Many of these settlements are paid through “police brutality bonds” by Wall Street firms that profit from the harmful and tragic experiences of civilians. Shining a light on all government spending is not only the right thing to do, it is critical to increasing public understanding about law enforcement practices and improving police accountability.

1. Public Access to Police Records Generally

In 1968, the Legislature passed the California Public Records Act (CPRA), declaring that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in the state.”^[1] The purpose of the CPRA is to prevent secrecy in government and to contribute significantly to the public understanding of government activities.^[2] Under the law, virtually all public records are open to public inspection unless express exempted in statute. However, even if a record is not expressly exempted, an agency may refuse to disclose records if on balance, the interest of nondisclosure outweighs disclosure. Generally, “records should be withheld from disclosure only where the public interest served by not making a record public outweighs the public interest served by the general policy of disclosure.”^[3]

In the context of peace officer records, the CPRA contains several relevant exemptions to the general policy requiring disclosure, namely 1) records of complaints to, or investigations conducted by any state or local police agency, 2) personnel records, if disclosure would constitute an unwarranted invasion of personal privacy, and 3) records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including records deemed confidential under state law.^[4] The California Supreme Court has reinforced that the fundamental right to public records access is especially important in the context of law enforcement officers and agencies:

The public's interest in the qualifications and conduct of peace officers is substantial […] Peace officers hold one of the most powerful positions in our society; our dependence on them is high and the potential for abuse of power is far from insignificant. A police officer possesses both the authority and the ability to exercise force. Misuse of his authority can result in significant deprivation of constitutional rights and personal freedoms, not to mention bodily injury and financial loss. The public has a legitimate interest not only in the conduct of individual officers, but also in how […] local law enforcement agencies conduct the public's business.^[5]

Recent years have seen an increase in legislation requiring law enforcement agencies to collect and report specific data and disclose various records and policies to the public. In 2015, AB 953 (Weber, Ch. 466, Stats. of 2015) and AB 71 (Rodriguez, Ch. 462, Stats. of 2015) generally required law enforcement to report data on police stops and use of force incidents, respectively. In 2018, the Legislature adopted SB 1421 (Skinner, Ch. 988, Stats. of 2018), required that certain records relating to police misconduct and serious uses of force be made publicly available under the CPRA. In 2021, the Legislature passed SB 16 (Skinner, Ch. 402, Stats. of 2021), which expanded the applicability of SB 1421 by exempting four additional categories of peace officer records from existing confidentiality requirements.^[6] This bill seeks to build upon these recent efforts by ensuring the public’s access to information relating to settlements with and judgements against local law enforcement agencies arising out of allegations of improper police conduct.

1. Recent Veto and Attempts of Similar Legislation

This is not the Author’s first attempt at advancing this legislation. A substantially similar bill was introduced by the Author in 2020 (AB 1314, McCarty, 2020), although it never received a hearing in this committee. In 2021, however, the Legislature passed AB 603 (McCarty), which was similar to this bill. AB 603 passed this committee by a vote of 5-0. Despite near unanimous support in the Legislature, the Governor vetoed the measure, writing:

I am returning Assembly Bill 603 without my signature.

This bill would require municipalities to annually post on their internet websites specified information relating to settlements and judgments resulting from allegations of improper police conduct. The information will include amounts paid, broken down by individual settlement and judgment, and information on bonds used to finance use of force settlement and judgment payments.

The vast majority of the information that this legislation would require to be posted on department websites is already available through a Public Records Act request or in court records. Given this, I am concerned that this legislation is not only unnecessary, but that it will also have potentially significant General Fund costs associated with the imposition of a state-reimbursable mandate on local law enforcement agencies.

While similar, there are several important differences between AB 603 and this bill. First, while AB 603 required municipalities to post on their websites information about settlements or judgments for police misconduct in any amount, this bill would require disclosure of only those settlements or judgments that exceed $50,000. Second, this bill would require municipalities to post information on the previous year’s settlements and judgements, the total amount paid for those actions, the estimated costs of police misconduct budgeted for in the municipality’s current budget, and the actual amount of money spent from the previous budget on misconduct settlements and judgments. AB 603 did not require municipalities to post this information. Finally, this bill would eliminate the provision in AB 603 requiring the California State Transportation Agency to post information on settlements and judgments against the California Highway Patrol. It should be noted that the differences between this measure and its predecessor do not really address the substance of the concerns raised by the Governor in his AB 603 veto message.

A later bill, AB 1291, introduced by this author in February 2023, contained language similar to this bill and was referred to this committee after passing out of the Assembly. This committee voted to pass the bill on consent (Ayes 5, Noes 0). AB 1291 then was substantially amended in September of 2023, such that it no longer resembled the previous bill or fell within the original jurisdiction, and was re-referred by Senate Rules Committee to the Senate Committee on Education.

1. Amendments

The author intends to amend AB 1725 to remove the requirements for municipalities to post information regarding premiums paid for insurance plans that cover settlements or judgments resulting from allegations of improper police conduct, including, but not limited to, claims involving the use of force, assault and battery, malicious prosecution, or false arrest or imprisonment. Some cities, usually cities with smaller populations, purchase broad umbrella insurance plans that cover various types of liabilities that may include coverage for improper police conduct along with various other types of liabilities. By requiring these smaller cities to post the premiums paid for their umbrella policies, the original version of the bill would require municipalities to post information that falls outside the scope of improper policing.

The second part of the amendments fixes the omission of cities that contract with sheriff departments from the website posting requirement. Some cities do not have their own police departments, and instead, contract with outside sheriff departments to provide law enforcement services. The amendments clarify that these types of cities would be included in the bill’s definition of municipalities that are required to post the specified information on their websites.

1. Argument in Support

According to the California Public Defender’s Association:

[…] Under current law, an officer who illegally beats, shoots, kills, or sexually assaults another person and is sued does not generally pay for their own misdeed. Instead, the municipality that employs them (and hence taxpayers) pays any resulting court costs or judgments. Settlements related to officer misconduct represent a large expenditure of public funds. In Los Angeles County alone, the cost of officer misconduct settlements exceeded $238 million over the past five years.

The problem is that although civil suits over officer misconduct are not secret, involve the use of public monies, and frequently relate to serious misconduct by a still-employed officer, current law does not mandate the collection or publication of information regarding these cases. As a result, taxpayers often are left ignorant of how their government is spending public funds, and the community—including those who are dealing with similar misconduct by the same officer—is left in the dark.

AB 1725 addresses this issue by requiring municipalities to publish information regarding these civil suits on a public facing website, including the amount of any settlement. AB 1725 ensures that Californians have access to non-private information about who is policing our shared community and provides citizens with more information about how their government is spending taxpayer money. […]

1. Argument in Opposition

According to the League of California Cities:

[…] According to the American Judges Association and the Judicial Council, as many as 96 percent of civil cases that are filed are resolved other than by a trial. Many of these resolutions are settlements which are not based on culpability but rather on weighing the costs of settling outside of court versus potentially having to cover costly lawyers’ fees. Simply put, in most civil lawsuits, the defendant settles with the plaintiff because it is more economical to do so. Therefore, posting this information publicly would not portray an accurate picture of law enforcement interactions and conduct. While Cal Cities supports accountability on the part of law enforcement agencies and transparency, this bill is a new unfunded mandate on cities to do significant research and post this information on their website when this information is available through the California Public Records Act.

For these reasons, Cal Cities opposes AB 1725. […]

-- END –

1. California Government Code §7921.000 ↑

2. City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008, 1016-1017. ↑

3. Gov. Code, § 7922.000 ↑

4. Gov. Code, §§ 7923.600; 7927.700, 7927.705 ↑

5. Commission on Peace Officer Standards & Training v. Superior Court, 42 Cal. 4^th 278 (2007), at 299-300. ↑

6. See Penal Code §832.7 ↑

Date of Hearing: January 18, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 1725

Author:(McCarty) – As Amended Ver:January 3, 2024

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill requires each municipality to post on its website specified details about settlements and judgments of $50,000 or more resulting from allegations of police misconduct, including, but not limited to, claims involving use of force, assault and battery, malicious prosecution, false arrest, or false imprisonment.

FISCAL EFFECT:

Likely non-reimbursable costs to cities and counties to annually publish information about police misconduct settlements and judgments on their websites. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.

COMMENTS:

1. Purpose. According to the author:

For far too long, cities and counties have spent taxpayer dollars on settlements in police misconduct and excessive use of force cases without public disclosure. In order for the public to obtain information about these law enforcement cases, they must file public records act requests. The onus should not be on citizens to get this information. Shining a light on all government spending is not only the right thing to do, it is critical to increase public understanding about law enforcement practices, will improve police accountability for misconduct, and outcomes.

1. Background. The California Public Records Act (PRA) requires government agencies to make public records available to the public upon request, unless the public records are exempt from disclosure due to state or federal law, or the agency can show that the public interest in nondisclosure clearly outweighs the public interest in disclosure. In 2018, the Legislature passed SB 1421 (Skinner), Chapter 988, Statutes of 2018, which eliminated an exemption from disclosure for certain records of police use of force and misconduct. Previously, most records relating to use-of-force incidents and officer misconduct were considered confidential officer personnel files and were not subject to disclosure to the public under the PRA. Under SB 1421, agencies are required to release records related to officer-involved shootings, use-of-force incidents resulting in death or great bodily injury, and any incident in which a sustained finding was made regarding an officer’s dishonesty or sexual assault against a member of the public. In 2021, the Legislature passed SB 16 (Skinner), Chapter 402, Statutes of 2021, which required disclosure of records related to additional types of officer misconduct.

This bill would require a municipality to post on its website specified information about settlements and judgments above $50,000 that arose out of allegations of “improper police conduct.” Some of the settlement information included in this bill must already be disclosed by an agency in response to a PRA request. By requiring municipalities to preemptively post settlement information online, this bill places the onus for disclosure of officer misconduct settlements on the municipality, rather than requiring a member of the public to submit a PRA request for the information.

1. Prior Legislation. AB 1291 (McCarty), of the 2023-2024 Legislative Session, was identical to this bill. It was gut-and-amended into a bill on a different subject matter in the Senate.

AB 603 (McCarty), of the 2021-2022 Legislative Session, would have required municipalities to post information about police settlements online. AB 603 was vetoed by Governor Newsom, who wrote:

The vast majority of the information that this legislation would require to be posted on department websites is already available through a Public Records Act request or in court records. Given this, I am concerned that this legislation is not only unnecessary, but that it will also have potentially significant General Fund costs associated with the imposition of a state-reimbursable mandate on local law enforcement agencies.

Although AB 1725 is similar to AB 603, some provisions of the bill have been updated. AB 1725 requires municipalities to post only settlements and judgments above $50,000, while AB 603 required all settlements and judgments to be posted. AB 1725 requires municipalities to post more types of information than AB 603 would have required. And, unlike AB 603, AB 1725 does not require publication of settlement and judgments against the California Highway Patrol.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: January 9, 2024

Counsel: Andrew Ironside

ASSEMBLY COMMITTEE ON

Kevin McCarty, Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Requires cities and counties to post financial details about law enforcement use-of-force settlements and judgments on their internet websites, including how much each settlement cost and how the state and municipalities will pay for each settlement. Specifically, this bill:

1. Requires each municipality, on or before February 1 of each year, to post on its internet website law enforcement settlements and judgments of $50,000 or more during the previous year resulting from allegations of improper police conduct, including, but not limited to, claims involving the use of force, assault and battery, malicious prosecution, or false arrest or imprisonment, broken down by individual settlement or judgment.
   
2. Requires the municipality to post all of the following information:
   
   1. The court in which the action was filed;
      
   2. The name of the law firm representing the plaintiff;
      
   3. The name of the law firm or agency representing each defendant;
      
   4. The date the action was filed;
      
   5. Whether the plaintiff alleged improper police conduct, including, but not limited to, claims involving use of force, assault and battery, malicious prosecution, or false arrest or imprisonment; and,
      
   6. If the action has been resolved, the date on which it was resolved, the manner in which it was resolved, and whether the resolution included a payment to the plaintiff by the city, and, if so, the amount of the payment.
      
3. Requires each municipality, on or before February 1, of each year, to post on its internet website all of the following:
   
   1. The total number of settlements and judgments related to improper police conduct during the previous year irrespective of the settlement or judgment amount;
      
   2. The total amount of money paid for cases of improper police conduct;
      
   3. The estimated costs budgeted in the current budget for law enforcement misconduct settlements and judgments, if these costs are included in the municipality’s budget; and,
      
   4. The actual amount of money paid for law enforcement misconduct settlements and judgements in the fiscal year immediately prior to the budget year.
      
4. Requires the municipality, if any such settlements or judgments are paid for using municipal bonds, to post on its internet website the amount of the bond, the time it will take the bond to mature, interest and fees paid on the bond, and the total future cost of the bond.
   
5. Requires the municipality to post on its internet website any such settlements or judgments that were paid by insurance, broken down by individual settlement or judgment, and the amount of any premiums paid by the municipality for insurance against settlements or judgments resulting from allegations of improper police conduct, as specified.
   
6. Provides that posting requirements shall not be construed to prohibit or interfere with a person from obtaining documents under the California Public Records Act (CPRA).
   
7. Defines “municipality” as a city, county, or city and county with a police department or a sheriff’s department.
   
8. Includes legislative findings and declarations.

EXISTING LAW:

1. Provides that the people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny. (Cal. Const., Art. I, § 3, subd. (b)(1).)
   
2. Defines “public records” to include any writing containing information relating to the conduct of the public’s business, prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. (Gov. Code, § 7920.530.)
   
3. States that the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. (Gov. Code, § 7921.000.)
   
4. Provides general categories of documents or information that are exempt from disclosure, essentially due to the character of the information, and unless it is shown that the public’s interest in disclosure outweighs the public’s interest in non-disclosure of the information, the exempt information may be withheld by the public agency with custody of the information. (Gov. Code, § 7930.100 et seq.)
   
5. Exempts from disclosure, under the CPRA, disclosure of investigations conducted by the office of the Attorney General and the Department of Justice, the Office of Emergency Services, and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes. (Gov. Code, § 7923.600, subd. (a).)
   
6. Requires an agency to justify withholding any record by demonstrating that the record in question is exempt under express provisions of the CPRA, or that on the facts of a particular case the public interest served by not disclosing the record clearly outweighs the public interest served by its disclosure. (Gov. Code, § 7922.000.)
   
7. Requires the public agency, when a member of the public requests to inspect a public record or obtain a copy of a public record, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, to do all of the following, to the extent reasonable under the circumstances:
   
   1. Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated;
      
   2. Describe the information technology and physical location in which the records exist; and,
      
   3. Provide suggestions for overcoming any practical basis for denying access to the records or information sought. (Gov. Code, § 7922.600, subd. (a)(1)-(3).)
      
8. Provides that, unless otherwise specified, the personnel records of peace officers and custodial officers and records maintained by a state or local agency, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding, except as specified. (Pen. Code, § 832.7, subd. (a).)
   
9. Provides that a record relating to the report, investigation, or findings of any of the following are discoverable under the CPRA:
   
   1. An incident involving the discharge of a firearm at a person by a peace officer or custodial officer;
      
   2. An incident involving the use of force against a person by a peace officer or custodial officer that resulted in death or in great bodily injury;
      
   3. A sustained finding involving a complaint that alleges unreasonable or excessive force; and,
      
   4. A sustained finding that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive. (Pen. Code, § 832.7, subd. (b)(1)(A).)
      
10. Authorizes an agency to redact a record of police misconduct, including personal identifying information, where on the facts of the particular case the public interest served by not disclosing the information clearly outweighs the public interest serve by disclosure of the information. (Pen. Code, § 832.7, subd. (b)(7).)
    
    

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “For far too long, cities and counties have spent taxpayer dollars on settlements in police misconduct and excessive use of force cases without public disclosure. In order for the public to obtain information about these law enforcement cases, they must file public records act requests. The onus should not be on citizens to get this information. Shining a light on all government spending is not only the right thing to do, it is critical to increase public understanding about law enforcement practices, will improve police accountability for misconduct, and outcomes.”
   
2. Background on the CPRA: Under the CPRA, the public is granted access to public records held by state and local agencies. (Gov. Code, § 7921.000.) “Modeled after the federal Freedom of Information Act (5 U.S.C. § 552 et seq.), the [CPRA] was enacted for the purpose of increasing freedom of information by giving members of the public access to records in the possession of state and local agencies. Such ‘access to information concerning the conduct of the people’s business,’ the Legislature declared, ‘is a fundamental and necessary right of every person in this state.’” (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 290 [internal citations omitted].) The purpose of the CPRA is to prevent secrecy in government and to contribute significantly to the public understanding of government activities. (City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008, 1016-1017.)
   
   In light of these dual concerns of privacy and disclosure, the CPRA includes a number of disclosure exemptions. (Gov. Code, § 7930.100 et seq.) Agencies may refuse to disclose records that are exempted or prohibited from public disclosure pursuant to federal or state law. But, even if a specific exception does not exist, an agency may refuse to disclose records if on balance, the interest of nondisclosure outweighs disclosure. (Govt. Code, § 7922.000.) “The specific exceptions of section [7930.100, et seq.] should be viewed with the general philosophy of section [7922.000] in mind; that is, that records should be withheld from disclosure only where the public interest served by not making a record public outweighs the public interest served by the general policy of disclosure.” (53 Ops.Cal.Atty.Gen. 136 (1970).)
   
   The California Supreme Court has found a policy favoring disclosure especially salient when the subject is law enforcement. (See Long Beach Officers Association v. City of Long Beach (2014) 59 Cal.4th 59, 74, see also Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 297.) In Commission on Peace Officer Standards, the Supreme Court observed:
   

The public’s legitimate interest in the identity and activities of peace officers is even greater than its interest in those of the average public servant. “Law enforcement officers carry upon their shoulders the cloak of authority to enforce the laws of the state. In order to maintain trust in its police department, the public must be kept fully informed of the activities of its peace officers.” [Citation.] “It is indisputable that law enforcement is a primary function of local government and that the public has a far greater interest in the qualifications and conduct of law enforcement officers, even at, and perhaps especially at, an ‘on the street’ level than in the qualifications and conduct of other comparably low-ranking government employees performing more proprietary functions. The abuse of a patrolman’s office can have great potentiality for social harm ….”

(Commission on Police Officer Standards, supra, 42 Cal.4th at pp. 297–298, fn. omitted; cf. Pen. Code, § 832.7, subd. (b)(1) [authorizing disclosure of reports, investigations, and findings that contain peace officer personnel records if they pertain to use of force incidents].)

The disclosures required under this bill are narrower than those that have found general support by the Supreme Court and the Legislature. This bill would require municipalities to post on their websites information about the where and when an action alleging law enforcement misconduct was filed, the type of misconduct alleged, and information relating to the resolution of the action. Municipalities would also have to post information about the number of settlements and judgments related to police misconduct in the previous year and the costs of those actions.

1. Governor’s Veto Message to AB 603 (McCarty): In 2021, the legislature passed AB 603 (McCarty), which was similar to this bill. Despite near unanimous legislative support, the Governor vetoed it. His veto message said:
   

I am returning Assembly Bill 603 without my signature.

This bill would require municipalities to annually post on their internet websites specified information relating to settlements and judgments resulting from allegations of improper police conduct. The information will include amounts paid, broken down by individual settlement and judgment, and information on bonds used to finance use of force settlement and judgment payments.

The vast majority of the information that this legislation would require to be posted on department websites is already available through a Public Records Act request or in court records. Given this, I am concerned that this legislation is not only unnecessary, but that it will also have potentially significant General Fund costs associated with the imposition of a state-reimbursable mandate on local law enforcement agencies.

There are several important differences between AB 603 and this bill. First, while AB 603 required municipalities to post on their websites information about settlements or judgments for police misconduct in any amount, this bill would require disclosure of only those settlements or judgments that exceed $50,000. Second, this bill would require municipalities to post information on the previous year’s settlements and judgements, the total amount paid for those actions, the estimated costs of police misconduct budgeted for in the municipality’s current budget, and the actual amount of money spent from the previous budget on misconduct settlements and judgments. AB 603 did not require municipalities to post this information. Third, this bill would eliminate the provision in AB 603 requiring the California State Transportation Agency to post information on settlements and judgments against the California Highway Patrol.

Finally, requiring cities and counties to post financial details about law enforcement use-of-force settlements and judgments on their internet websites arguably would reduce costs related to responding to CPRA requests.

1. Police Use of Force Statistics: The California Department of Justice collects information on use of force incidents that result in serious bodily injury or death or involved the discharge of a firearm. According to the 2021 use of force incident reporting, there were 660 civilians involved in police use of force incidents that involved the discharge of a firearm or use of force resulting in serious bodily injury or death. (DOJ, 2021 Use of Force Incident Reporting (2022), p. 2, see https://data-openjustice.doj.ca.gov/sites/default/files/2022-08/USE%20OF%20FORCE%202021.pdf [as of Dec. 29, 2023].) Of those, 349 resulted in serious bodily injury and 149 resulted in death. (Id. at p. 43.) Demographics of the civilians were 50.6 percent (334) Hispanic, 25.5 percent (168) white, and 16.7 percent (110) black. (Id. at p. 2.)
   
   The report showed that 1,462 officers were involved in the use of force incidents. (Id. at p. 3.) Of the 1,462 officers, 43.6 percent (638) did not receive force from a civilian, 18.9 percent (277) received force during physical contact with a civilian, and 17.5 percent (256) received force by the discharge of a firearm from a civilian. (Ibid.) Demographics of officers were 49.6 percent (725) white, 38.3 percent (560) Hispanic, 6.0 percent (88) Asian/Pacific Islander, and 4.0 percent (58) black. (Ibid.)
   
2. Argument in Support: According to the Policing Project at NYU School of Law, “Over the last decade, the 25 largest law enforcement agencies in the country have made more than 40,000 payouts on behalf of police who have been accused of misconduct, costing taxpayers upwards of $3.2 billion. New York City alone spends more than $170 million annually on police misconduct settlements and judgments. In 2020-21, LA County paid $79 million in settlements and judgments against the Sheriff’s department and another $59 million in litigation fees. Municipalities frequently finance these settlements and judgments through general obligation bonds, which carry fees and high interest rates. Indeed, LA taxpayers will spend $18 million in interest and fees to repay the $71.4 million in bonds taken out to finance settlements and judgments in 2010 alone.
   
   “Citizens have the right to know how their city and county are spending hard-earned tax dollars, especially when such massive amounts of money are at stake. By requiring municipalities to publicly post financial details of law enforcement use of force settlements, AB 1725 is a step towards transparency and accountability for government spending and law enforcement practices. This transparency will give legislators a clear picture of the costs of police misconduct, providing some crucial information needed to craft appropriate policing policy.”
   
3. Argument in Opposition: None submitted.
   
4. Prior Legislation:
   
   1. AB 807 (McCarty), of the 2023-2024 Legislative Session, would have required a state prosecutor to investigate incidents in which the use of force by a peace officer results in the death of a civilian. AB 807 was held in the Assembly Appropriations Committee.
      
   2. SB 400 (Wahab), of the 2023-2024 Legislative Session, would have provided that a law enforcement agency that formerly employed a peace officer or custodial officer is not prohibited from disclosing to the public the termination for cause of that officer. AB 400 was placed on the inactive file in the Assembly.
      
   3. SB 838 (Menjivar), of the 2023-2024 Legislative Session, would revise the definition of “crime” for purposes of the Victim Compensation Program to include an incident in which an individual sustains serious bodily injury or death as the result of a law enforcement officer’s use of force and make changes to eligibility factors as they would apply to these types of claims. SB 838 was held in the Senate Appropriations Committee.
      
   4. AB 603 (McCarty), of the 2021-2022 Legislative Session, was identical to this bill. The Governor vetoed AB 603.
      
   5. AB 1314 (McCarty), of the 2019-2020 Legislative Session, was substantially similar to this bill. AB 1314 did not receive a hearing in the Senate Public Safety Committee.
      
   6. SB 16 (Skinner), Chapter 402, Statutes of 2021, expands the categories of personnel records of peace officers and custodial officers that are subject to disclosure under the CPRA, imposes certain requirements regarding the time frames and costs associated with CPRA requests, and prohibits assertion of the attorney-client privilege to limit disclosure of factual information and billing records.
      
   7. SB 978 (Bradford), Chapter 978, Statutes of 2018, requires law enforcement agencies to post online all current standards, policies, practices, operating procedures, and education and training materials that would otherwise be available to the public if a request was made pursuant to the CPRA.
      
   8. SB 1421 (Skinner), Chapter 988, Statutes of 2018, subjects specified personnel records of peace officers and correctional officers to disclosure under the CPRA.
      
   9. SB 1286 (Leno), of the 2015-2016 Legislative Session, would have provided greater public access to peace officer and custodial officer personnel records and other records maintained by a state or local agency related to complaints against those officers. SB 1286 was held in the Senate Appropriations Committee.
      
   10. AB 1648 (Leno), 2007 of the 2007-2008 Legislative Session, as introduced, would have overturned the California Supreme Court decision in Copley-Press, Inv. v. Superior Court (2006) 39 Cal.4th 1272, and restored public access to peace officer records. AB 1648 failed passage in the Assembly Public Safety Committee.
       

REGISTERED SUPPORT / OPPOSITION:

Support

ACLU California Action
Oakland Privacy
Policing Project at NYU Law School
San Francisco Public Defender

Opposition

None

Analysis Prepared by: