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KSBY Investigates: Loophole protects law enforcement officers under review

Posted at 6:55 PM, Mar 13, 2019
and last updated 2019-12-19 18:46:08-05

A new law designed to make some law enforcement personnel records public has a technicality that may inadvertently protect officers under investigation. After learning about a ‘loophole’ from KSBY News and the San Luis Obispo Tribune, Central Coast Assemblyman Jordan Cunningham is working to amend the new law.

The law went into effect in January and was in response to several officer-involved shootings over the last few years, in an effort to bring more transparency to police departments and their officers.

Senate Bill 1421 (Peace officers: release of records) would require an officer’s records be released if the officer discharges a firearm at a person or uses force that results in death or great bodily injury or if it is found the officer conducted dishonest behavior. They would also be released relating to an incident in which “a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public.”

Pursuant to this law, KSBY-TV and The San Luis Obispo Tribune independently requested from the Paso Robles Police Department the personnel records of former Police Sgt. Christopher McGuire who is accused of sexually assaulting a woman multiple times. We also requested records from the San Luis Obispo County Sheriff’s Office as it conducted the investigation for the Paso Robles Police Department.

In a claim against the City of Paso Robles filed by the woman’s attorney in February, the woman said the first assault happened in December 2017 after police responded to her Paso Robles home and arrested her then-boyfriend on suspicion of rape and false imprisonment.

The woman said after the other officers left, McGuire stayed behind, got her alone and forced her to touch him in a sexual way.

The woman said McGuire returned to her home a couple of days later and raped her.

Over the course of the next four months, she said McGuire assaulted and harassed her while on patrol.

After an investigation by the SLO County Sheriff’s Office, the San Luis Obispo County District Attorney’s Office began reviewing the sexual assault claims against McGuire in August of 2018 but ultimately decided not to file charges against him.

“A mockery of Senate Bill 1421”

Attorneys for the City of Paso Robles and the SLO County Sheriff’s Office denied our request for McGuire’s records under the new law citing the lack of a ‘sustained finding’ in this case. A ‘sustained finding’ within an internal investigation includes an officer response to any allegations. As McGuire resigned in October 2018, the internal investigation ended without an official ‘sustained finding.’

“Absent a sustained finding, the City must apply the general statutory protection regarding confidentiality of peace officer personnel records, which prohibits disclosure by the City,” Kimberley Hood, the Assistant City Attorney for the City of Paso Robles, wrote to Karl Olson, an attorney representing KSBY-TV and The San Luis Obispo Tribune in this matter.

In response, Olson wrote in part to SLO County, “Respectfully, this position makes a mockery of Senate Bill 1421 and exalts the interests of those who commit sexual assaults over the interests of the public and taxpayers… Essentially, the County’s position seems to be that an officer can escape any public accountability for the most egregious acts and abuse of power, simply by resigning.”

The County acknowledged the issue in their response but wrote they have to follow state law.

“We are not unsympathetic to the concerns you have raised in your letter regarding the ability of an individual who has committed some egregious wrongdoing to escape public accountability by simply resigning before any sustained finding has been made within the meaning of section 832.7. Nonetheless, this is an issue that must be left to the legislature to address. We are compelled to follow the letter of the law and, for this reason, we confirm our previous response to the requests made,” wrote Ann Duggan, Deputy County Counsel, San Luis Obispo County.

“We’ve got a loophole that needs to be closed”

Cunningham, who voted for SB 1421, is now working with the bill’s sponsor, State Senator Nancy Skinner, to close this “loophole.”

“I would like to see the facts be known and come out to the public as to what the investigation did find and I think to the extent that the law as we drafted it and as it was enacted last year and signed into law provides loopholes or doesn’t allow for the full disclosure of information. I think the legislature needs to look at maybe revising the law and closing those loopholes,” he said.

Cunningham, a former SLO County deputy district attorney and defense attorney, said the public has the right to know what goes on in their government.

“Where you have a few bad apples that aren’t doing their job right … I would argue that actually will increase trust in law enforcement over the long run because the public doesn’t get the sense that anything is being hidden,” he said.

“The devolution of a woman”

San Luis Obispo Attorney Ilan Funke-Bilu, representing the victim in this case, said making the investigative records available would help the community understand the case better and why charges should have been filed.

“I’ve reviewed about 100 pages of investigative reports and I’m at a loss to understand why the DA did not file. I just don’t understand it,” he said.

The San Luis Obispo County District Attorney’s Office declined to prosecute McGuire.

At a news conference on November 1, District Attorney Dan Dow said that an investigation by his office concluded that “no reasonable and objective jury could find Mr. McGuire guilty of the alleged crimes.”

As for the victim, Funke-Bilu said Dow not pressing charges translates that the community would not believe what she’s saying.

“I don’t know what’s worse, the act or the lack of support… I’ve seen the devolution of a woman with life to a woman who is now a shell of herself,” Funke-Bilu said.

Cunningham said the bill could be changed as early as this year, but it is not clear if it will be retroactive.

As for potential charges against McGuire, Funke-Bilu said the victim’s other attorney, Brian Claypool, has requested the state attorney general and the U.S. Attorney General look into the case.

“If the County of San Luis Obispo isn’t going to pursue it, then we will pursue all avenues available in the state and we will pursue all avenues available federally,” he said.

“It’s one of the worst abuses of power”

A high-priced civil lawsuit is expected to be filed in this case as an administrative claim has now been filed against the City of Paso Robles.

“This case is just profound,” Claypool told KSBY. “It’s one of the worst abuses of power. A police officer who is using his badge to manipulate, exploit, (get) sexual gratification from vulnerable women.”

The court-filed documents on February 22 state city employees knew or should have known of McGuire’s criminal conduct. According to the claim, “City did nothing to intervene to investigate or stop McGuire’s conduct, which directly led to the multiple sexual assaults and harassment he perpetrated against Claimant.”

The city has 45 days to file a response before a lawsuit could be filed.