RECENT CASES IMPOSE NEW BURDENS ON LAW ENFORCEMENT
By: Martin J. Mayer, General Counsel
California State Sheriffs’ Association
Two recent court decisions, one from the federal District Court and one from the California Court of Appeal have imposed new burdens and/or responsibilities on law enforcement management.
The federal court has mandated that the California Department of Corrections and Rehabilitation (CDCR), as well as attorneys for the plaintiff inmates, will have the responsibility and/or authority to monitor local jails which house state inmates to insure compliance with the American with Disabilities Act (ADA).
In addition, the California court of appeal has declared, as have prior courts, that names of officers involved in critical incidents are not exempt from disclosure under the California Public Records Act (CPRA) and, absent individualized exceptions, shall be made public upon demand.
ADA and Local Jails
On January 13, 2012, the federal District Court of Northern California issued an order, in the case of Armstrong v. Brown, requiring the State of California to monitor county jails to insure that state inmates housed in those jails are provided all their rights under the ADA. This case originated seventeen (17) years ago and subsequently, the federal court “ordered CDC and related Defendants to develop plans to ensure that their facilities and programs were compliant with the Americans With Disabilities Act (ADA), and readily accessible to, and usable by, prisoners and parolees with disabilities.”
Over the years, there were numerous hearings and orders issued by the court resulting in the federal court finding that, “parolees with disabilities were not being provided with required accommodations, including mobility assistance for paraplegics and sign language interpreters for deaf parolees. At that time, Defendants did not contest the extensive evidence that Plaintiffs submitted to demonstrate ongoing violations of the same type alleged in the instant motion, such as evidence that a paraplegic parolee had to drag himself up stairs.”
In 2009, the District Court held that the State was responsible for ensuring that Armstrongclass members receive reasonable accommodations when Defendants elect to house them in county jails. The District Court noted that on September 7, 2010, the Ninth Circuit U.S. Court of Appeal affirmed in part and vacated in part a prior order, “and remanded the case to this Court for further proceedings. The Ninth Circuit affirmed this Court’s holdings that ‘defendants are responsible for providing reasonable accommodations to the disabled prisoners and parolees that they house in county jails.’”
As a result of the Ninth Circuit’s original decision, and the finding by the District Court, “Defendants are obliged to ensure ADA compliant conditions for the prisoners and parolees that they house under their own authority in county jails. It is, therefore, incumbent upon the state to monitor county jails to ensure they are in compliance with ADA regulations and the federal court orders.” (Emphasis added.)
The court has concluded that “Defendants [the State] have abdicated their responsibility for accommodating Armstrong class members to the county jails. Defendants possess little to no knowledge regarding whether the county jail facilities in which they house Armstrongclass members are physically accessible to wheelchair users.”
The District Court has, as a result of its findings, issued an Order requiring, in part:
“1. Within thirty days of this Order, Defendants shall develop a revised plan for ensuring timely and appropriate accommodations for Armstrong class members in county jails that includes, at a minimum, the following elements:
a. On a daily basis, Defendants shall send to each county a list of all Armstrong class members being housed in the county jail facilities of that county.
b. Within three business days of the arrival of a prisoner at a county jail facility pursuant to a parole hold, Defendants’ agent (whether Parole Agent, Notice Agent, Board Revocation Representative, or other agent) shall . . . interview the parolee, and review any . . . source documents to determine what, if any, reasonable accommodations in housing, programming, or parole proceedings the parolee requires under the Armstrong Remedial Plan, the ADA, and/or the Rehabilitation Act and whether these accommodations have been provided to the parolee by the county jail.
c. Class members housed in county jails must have ready access to disability grievance forms. . .
Defendants shall collect the grievance forms from class members no less than twice a week, and shall provide copies to a designated person at the county jail. Defendants shall respond to all grievances within fifteen calendar days of receipt and make their best efforts to ensure that necessary and reasonable accommodations are provided.”
Right of Access by Plaintiffs’ Attorneys
The list of obligations on the state and on counties, go on for pages. One of the most significant obligations, which will likely impose the greatest burden on sheriffs, involves access by plaintiffs’ counsel to the county jails:
“Defendants shall permit Plaintiffs’ counsel to monitor the plan and the accommodationsprovided to Armstrong class members while housed in county jails. Reasonable monitoring shall include, at a minimum: (Emphasis added.)
a. The ability to conduct a sufficient number of tours per year of county jail facilities in which Armstrong class members are held to determine compliance with this order;
b. The right during the aforementioned monitoring tours to conduct interviews with county jail staff members and with Armstrong class members housed in county jails, and to review all files and documents pertaining to Armstrong class members, including class members’ jail custody and medical files and jail policies and procedures affecting prisoners with disabilities;
c. The opportunity to review and comment on materials used to train Defendants’ staff who work in or with county jails about the ADA, the Rehabilitation Act, and the Armstrongcase sufficiently in advance of training sessions and to observe those sessions.”
Names of Officers Involved in an OIS are Subject to Disclosure Under the CPRA
On February 7, 2012, the California Court of Appeal, 2d Appellate District, ruled that names of peace officers “are not rendered confidential by any of the statutory exemptions contained in the CPRA (Gov. Code 6250 et seq.).” In a unanimous decision, the Court, in the case ofLong Beach Police Officers Association v. City of Long Beach et al. (Los Angeles Times), denied the application by the City and the POA for an injunction to prevent disclosure of such names.
The Court of Appeal addressed the purpose of the CPRA and stated that “[i]n 1968, the Legislature enacted the CPRA ‘for the purpose of increasing freedom of information by giving members of the public access to information in the possession of public agencies.” (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272). Consistent with this purpose, the Legislature declared that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”
Nonetheless, said the Court, “the right of access to public records under the CPRA has never been absolute. In section 6250, the Legislature declared it was “‘mindful of the right of individuals to privacy,’ and the dual concern for privacy and disclosure appears in numerous provisions throughout the CPRA.” The CPRA provides “that public records are open to inspection and must be made available to the public upon request, unless they are exempt from disclosure by an express provision of law.” (Emphasis added.)
The Court focused on prior case decisions including, “New York Times Co. v. Superior Court(1997) 52 Cal.App.4th 97, 99, which . . . held that the CPRA required disclosure of the names of officers who fired shots at a specific victim.” In that case, “the appellate court rejected the argument that the officers’ names were exempt from disclosure as part of [personnel] files, reasoning that what was sought ‘are simply the names of officers who fired their weapons while engaged in the performance of their duties’ and concluding that a public agency may not avoid disclosure ‘by placing into a personnel file what would otherwise be unrestricted information.’”
Subsequently, the California Supreme Court in Copley Press, reached a contrary conclusion regarding the disclosure of civil service commission records relating to a deputy sheriff’s administrative appeal of a disciplinary matter. The Copley court concluded that records of a disciplinary appeal qualified as personnel records and, furthermore, rejected that part of theNew York Times decision which had held “that ‘[u]nder [Penal Code] sections 832.7 and 832.8, an individual’s name is not exempt from disclosure.’”
The Court also referenced a published Opinion of the Attorney General (91 Ops.Cal.Atty.Gen. 11) which concluded “that, in response to a request made under the [CPRA] for the names of peace officers involved in a critical incident, such as one in which lethal force was used, a law enforcement agency must disclose those names unless, on the facts of the particular case, the public interest served by not disclosing the names clearly outweighs the public interest served by disclosing the names.” (Emphasis added.)
Finally, the Court in Long Beach stated that “[w]e share the view that relevant case law leads to the inexorable conclusion that the names of officers involved in officer-involved shootings over a five-year period must be disclosed under the CPRA, absent any particularized showing of the interests served by nondisclosure.” The Court then analyzed each of the claimed exemptions, set forth by the City and LBPOA, and concluded that, absent particularized facts applying to a specific officer which create potential harm, “officer names are not rendered confidential by any of the statutory exemptions contained in the CPRA.” (Emphasis added.)
The Court of Appeal also stated that although “an officer could demonstrate that privacy interests predominate—for example, by showing a particularized threat to his or her safety—the trial court further concluded that appellants’ evidence of speculative and generalized threats was inadequate to outweigh the public interest in disclosure.” The public interest in the 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.’”
Conclusion
The application of ADA obligations on county jails has existed for many years. However, in this time of realignment, where more inmates who were previously housed in state prison will now be housed in local jails, it will impose significantly increased duties and obligations on sheriffs in operating those jails. Also, the potential for increased litigation, alleging ADA violations, is of great concern to the sheriffs and to county government.
In addition, accommodating the increased level of scrutiny by state agents, as well as plaintiffs’ attorneys, will impose a significant burden on jail administrators. As noted, the monitoring will include reviewing documents, interviewing inmates, and interviewing correctional staff. All of which, obviously, will consume time and energy of all jail personnel.
Although releasing names of officers involved in critical incidents might not, in and of itself, result in any financial burden on cities or counties, the obligation to comply will pose significant burdens on law enforcement management. One of those burdens will include the obligation to review all critical incidents and determine whether, under those particular circumstances, any of the exemptions under the CPRA will allow for the withholding of a particular officer’s name.
As always, we urge that you seek the advice and guidance of your agency’s legal counsel when confronted with legal responsibilities, especially new responsibilities such as these.
Martin J. Mayer is a name partner in the public sector law firm of JONES & MAYER, and has served as the CSSA General Counsel for more than 25 years.