Issue 118 - December 2021
Part 2 in Our Series on Senate Bill 2: Big Changes to Civil Code § 52.1 and Police RecordsBy Nathan A. Oyster of Burke, Williams & Sorensen, LLP
As we discussed in last month’s newsletter, Senate Bill 2 (SB 2) covers a broad range of topics, whose only common-thread is a relationship to law enforcement. In part 1 of our two-part series on SB 2, we discussed the decertification and disqualification of peace officer. In the second part of our two-part series, we will discuss the key amendments to Civil Code § 52.1 contained in SB 2, as well as the amendments to Penal Code § 832.7 that reform the “SB 1421” process.
Civil Code § 52.1 Amendments
The amendments to Civil Code § 52.1 complete a wholesale, decades-long transformation of Section 52.1 from what was initially intended to be a “hate crimes” statute into what is now used as a civil rights statute by plaintiffs suing public entities. The amendments contained in SB 2 do not repeal the immunities of Government Code §§ 821.6, 844.6, and 845.6 for all purposes, but the amendments preclude those immunities from being used to defend against a Civil Code § 52.1 claim, which will have nearly the same impact as if the Legislature had fully repealed those immunities.
- Under Government Code § 821.6, “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” Eliminating this immunity in the context of Civil Code § 52.1 claims will allow plaintiffs to sue for allegations that they were prosecuted without a lawful basis.
- Under Government Code § 844.6, “A public entity is not liable for: (1) An injury proximately caused by any prisoner [or] (2) An injury to any prisoner.” This immunity has the effect of precluding plaintiffs from suing a local government for incidents that occurred in a local jail (although the public employee is not immune under this statute). The implementation of SB 2 means that public entities can now be liable directly under Civil Code § 52.1 for incidents occurring in their local jails, such as a use of force or a jail suicide.
- Under Government Code § 845.6, “Neither a public entity nor a public employee is liable for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody [unless]… the employee knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care.” The amendment to SB 2 eliminates this immunity, which will allow arrestees held at a local jail to pursue Civil Code § 52.1 claims relating to their medical care, without the requirement to establish that their need for medical care was “immediate.”
- Finally, the amendment to SB 2 requires public entities to indemnify all current or former public employees for Civil Code § 52.1 claims “brought under this section against an employee or former employee of a public entity.” This amendment closes a seldom-used loophole, which is found in Government Code § 844.6 and reads in part, “The public entity may but is not required to pay any judgment, compromise or settlement, or may but is not required to indemnify any public employee, in any case where the public entity is immune from liability under this section.” The amendment to SB 2 requires the entity to defend and indemnify a current or former employee where, for example, a Civil Code § 52.1 claim is asserted for an injury to an arrestee at a local jail.
Overall, the amendments to Civil Code § 52.1 will make it easier for plaintiffs to pursue civil rights claims against public entities and their employees. In any of these potential fact patterns – a use of force in the jails, a jail suicide, or a failure to provide medical care to an arrestee – a plaintiff has always had the ability to pursue a federal Section 1983 claim for those events, but the Section 1983 claims required a plaintiff to clear significant hurdles to prevail against a public employee or a public entity. The defense of qualified immunity is available to public employees facing a Section 1983 claim, and a Section 1983 claim against a public entity requires proof that a Constitutional violation was caused by a custom, policy, or practice or a wholesale failure to train its employees; neither bar applies to a Civil Code § 52.1 claim.
“SB 1421” Reform
In 2019, SB 1421 made four categories of law enforcement records disclosable in response to a Public Records Act request. SB 2 revised Penal Code § 832.7 to make four additional categories of law enforcement records disclosable:
- Sustained findings of excessive or unreasonable force (Penal Code § 832.7(b)(1)(A)(iii);
- Sustained findings of failing to intervene against another officer using force that is clearly unreasonable or excessive (Penal Code § 832.7(b)(1)(A)(iv);
- Sustained findings of “prejudice or discrimination against a person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status” (Penal Code § 832.7(b)(1)(D)); and
- Sustained findings of an unlawful arrest or an unlawful search (Penal Code § 832.7(b)(1)(E)).
SB 2 makes numerous other revisions to the language of Penal Code § 832.7 that was first implemented by SB 1421, but the most significant change relates to the timetable for production of disclosable documents. While the ability to delay disclosure for certain time periods due to pending investigations remains in effect, under Penal Code § 832.7(b)(3), “records subject to disclosure under this subdivision shall be provided at the earliest possible time and no later than 45 days from the date of a request for their disclosure.”
The new 45-day window means that a public entity must complete its production within 45 days from the date of a request. For example, if a requester submits a Public Records Act request on January 1 for documents that are no longer exempt from disclosure, the public entity must respond to the request by January 11. Due to the complexity of redacting and producing responsive documents, many public entities have routinely provided written responses indicating that production would occur on a rolling basis. The amendment of SB 2 would require the public entity to complete the production of documents by February 14 under the timetable in this example.
The language of Penal Code § 832.7(b)(2) ensures that the 45-day production timetable will not start until January 1, 2023 for the four categories of newly-disclosable documents. Penal Code § 832.7(b)(2) reads, “Records that are subject to disclosure under clause (iii) or (iv) of subparagraph (A) of paragraph (1), or under subparagraph (D) or (E) of paragraph (1), relating to an incident that occurred before January 1, 2022, shall not be subject to the time limitations in paragraph (8) until January 1, 2023.” The 45-day production timetable, however, will begin on January 1, 2022 for the four categories of documents that were previously-disclosable under the initial language of SB 1421.
I encourage you to make a thorough review of the amendments to Penal Code § 832.7 to ensure that your agency is prepared for the changes that will take effect in 2022.< Back to Full Issue Print Article