California Cops Continue To Pretend New Public Records Law Allows Them To Erase Years Of Past Misconduct From The Record

from the and-yet,-people-continue-to-distrust-cops.-it's-a-mystery. dept

On January 1st, a California law went into effect turning long-shielded police misconduct records into public records. Prior to its enactment, at least one law enforcement agency executed a mass purge of older records, preemptively stunting the law's effectiveness.

The law has also faced legal challenges from California police unions and law enforcement agencies seeking a declaration that the law is not retroactive and PDs should only have to release misconduct records created past the date of the law's effectiveness. The state Supreme Court declined an invitation to review the law, but three police unions in Contra Costa County have managed to secure a temporary restraining order while this aspect of the law is sorted out.

The law doesn't contain any language suggesting it does not apply retroactively. But it also doesn't contain any language specifically stating it applies retroactively and that's the wedge law enforcement agencies are trying to drive between themselves and their new obligations to the public. But the lawsuits aren't just coming from the law enforcement side. Agencies are now being sued for failing to turn over documents the new law says the public can obtain.

In a legal test of a new state law requiring the release of police records in shootings and other cases, The Sacramento Bee and the Los Angeles Times jointly sued the Sacramento Sheriff’s Department Friday, charging that the department is refusing to follow the statute that requires the release of records on deputies who fired their weapons or engaged in misconduct on duty.

The papers sought records of officer-involved shootings dating back to 2014. The Sheriff's Departments responded by saying it had no obligation to turn over records created prior to January 1, 2019 and would not do so until it had "clear legal authority" to release them. This lawsuit [PDF] forces the issue, putting it on the court's timetable, rather than the Sheriff's.

As the plaintiffs point out, it's not just transparency activists reading the law as retroactive. It's also one of California's largest police unions.

Respondent has taken the position that Senate Bill 1421 does not apply to the records requested “so only records of covered events occurring on or after January 1, 2019 will be disclosed.” (See Exhibit B; Exhibit D.) Respondent is mistaken. Indeed, even an opponent of Senate Bill 1421, the Los Angeles County Professional Peace Officers Association (“LACPPOA”), admitted, “Moreover, our reading of Senate Bill 1421 is that making the records of an officer’s lawful and in policy conduct is retroactive in its impact. In other words, notwithstanding that the officer’s conduct was entirely in policy, his or her records are available for public inspection irrespective of whether or not they occurred prior to the effective date of SB 1421.”

The state's courts are going to be filling up with similar filings from both sides over the coming weeks. This should hopefully expedite erasing the supposed ambiguity from the law. Hopefully, the courts will consider the intent of the law's crafters, which was to give the public access to police misconduct records to better the police/public relations. This is clearly stated in the legislation itself:

SECTION 1.

The Legislature finds and declares all of the following:

(a) Peace officers help to provide one of our state’s most fundamental government services. To empower peace officers to fulfill their mission, the people of California vest them with extraordinary authority — the powers to detain, search, arrest, and use deadly force. Our society depends on peace officers’ faithful exercise of that authority. Misuse of that authority can lead to grave constitutional violations, harms to liberty and the inherent sanctity of human life, as well as significant public unrest.

(b) The public has a right to know all about serious police misconduct, as well as about officer-involved shootings and other serious uses of force. Concealing crucial public safety matters such as officer violations of civilians’ rights, or inquiries into deadly use of force incidents, undercuts the public’s faith in the legitimacy of law enforcement, makes it harder for tens of thousands of hardworking peace officers to do their jobs, and endangers public safety.

Nothing in that language suggests legislators wanted to reset the clock on January 1st, giving all law enforcement officers a clean slate going forward. The intent of the law is not to erase past misconduct. That doesn't serve its ultimate purpose, which is to restore the "public's faith in the legitimacy of law enforcement." Reading the law the way police unions want it read will only further deteriorate this ailing relationship.

Filed Under: california, discipline, foia, police, records, transparency


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  • icon
    Mason Wheeler (profile), 29 Jan 2019 @ 11:10am

    As the plaintiffs point out, it's not just transparency activists reading the law as retroactive. It's also one of California's largest police unions.

    This whole thing makes me uncomfortable, because the Constitution says, plain as day, that you can't have retroactive laws. Period.

    There have been some very bad interpretations of this over the years that tack on a restrictive addendum like "regarding the definition of criminal offenses or the punishment thereof," but that's not what it originally said, and allowing retroactive laws gives rise to messes like retroactive copyright term extension.

    Think about it. If we had a proper zero-tolerance policy on retroactive laws, would Disney have ever had the incentive to try and get terms extended far past any bounds of rationality in order to keep Mickey Mouse from entering into the public domain?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Hero, 29 Jan 2019 @ 11:24am

      Re:

      I agree that laws should not be retroactive, and I have the same discomfort.

      The legislation (I ain't no lawyer) seems to just change the classification of the records from confidential to not confidential. It's not retroactive in the sense that the Police will not be penalized for not releasing records in the past.

      I don't know. It's a tough one and I don't think the above argument holds water.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 29 Jan 2019 @ 12:13pm

      'Since you refuse to be transparent without a law forcing it...'

      I'm not really seeing it. If the law told them that they must keep records relating to certain actions, failure to do so would be punished, and since they didn't do so before the law they're going to be punished, then yeah, that I could see a problem with. As it stands though all they seem to be saying is that the records they already have need to be made available to the public, and they can't just stonewall any and all requests for them and effectively wipe past actions and the records related to them away.

      If FOIA laws only applied to records created after they were passed then that would drastically reduce their effectiveness in providing (at least the possibility of) transparency, as any historical document, even something as 'distant' as the previous year, would remain out of reach, no matter how relevant and/or important it might be.

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 29 Jan 2019 @ 5:10pm

      Re:

      You're mistaken about what retroactive means in this context, Mason.

      The Constitution prohibits laws that punish people for things they have done in the past, yes. But this is not that sort of law.

      The retroactivity of this law means that it applies to all records ever created that are the types of records the law covers. Police have records created before 1/1/2019, so those records are now public records. But denying people access to those records during the time they weren't public isn't going to get anyone fired or prosecuted, because that would be unconstitutional.

      However, after 1/1/2019, denying access those records to someone with a right to access them has become illegal, and punishing someone for breaking the law after it went into effect is not an unconstitutional retroactive law.

      For example, suppose the anti-gun movement succeeds, amends the Constitution to eliminate the 2nd amendment and passes a law banning possession of guns for people who aren't government officials. It would be unconstitutional to throw people in prison for owning guns while it was legal to own guns, but it wouldn't be unconstitutional to throw people in prison because they owned guns after the law went into effect. Like the California records law, the gun ban in this example would apply to guns manufactured and bought before the ban went into effect -- that's the sort of retroactive we're talking about here.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 Jan 2019 @ 6:09pm

        Re: Re:

        Yes, that looks like exactly the

        restrictive addendum like "regarding the definition of criminal offenses or the punishment thereof,"

        that the OP was specifically talking about being a bad interpretation of the law.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 29 Jan 2019 @ 7:03pm

          Re: Re: Re:

          … that the OP was specifically talking about being a bad interpretation…

          Yes, our well-known commentators, Mason and Bergman, shall proceed to re-argue the 1798 case of Calder v Bull.

          Mason, of course, shall take the position described by Justice Story in 1833, in his third volume of Commentaries on the Constitution of the United States § 1339 (p.212)

          … there have not been wanting learned minds, that have contended with no small force of authority and reasoning, that such ought to be the interpretation of the terms in the constitution of the United States. As an original question, the argument would be entitled to grave consideration; but the current of opinion and authority has been so generally one way, as to the meaning of this phrase in the state constitutions, as well as in that of the United States, ever since their adoption, that it is difficult to feel, that it is now an open question.

          (Footnotes omitted.)

          Well, at least Mason shall argue that position up to the point where Justice Story writes, “but the current of opinion and authority has been so generally one way…”

          Bergman shall then proceed to argue the proposition, “it is difficult to feel, that it is now an open question.”

          We're looking forward to great argument here, folks.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Hero, 29 Jan 2019 @ 11:16am

    the kicker

    The quotations at the end of the article doesn't really mean anything. All it says is that the people have the right to know about stuff. It doesn't impose any sort of law or procedure. It's like the Abstract at the top of a technical paper.

    However, in the text of the legislation, there is this fun line: "Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency of dishonesty by a peace officer..."

    ANY RECORD. That's pretty clear.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Jan 2019 @ 11:59am

    "California police unions and law enforcement agencies seeking a declaration that the law is not retroactive"

    Ok guys, the pheasants are getting upset and want us to stop abusing our authority so from now on - cut it out!

    reply to this | link to this | view in chronology ]

  • identicon
    Whoever, 29 Jan 2019 @ 1:14pm

    Not just Sacramento withholding records

    Fremont PD is withholding records of a killing by police:

    https://www.eastbayexpress.com/SevenDays/archives/2019/01/11/fremont-withholds-records-of-fat al-police-shooting-of-pregnant-teenager-despite-new-transparency-laws

    IMHO, it's very likely that the police actions were outside of departmental policy. Certainly outside of good police practices.

    reply to this | link to this | view in chronology ]

  • identicon
    CyberKender, 29 Jan 2019 @ 2:23pm

    It's funny...

    I know quite a few LEOs. They've frequently said "If you're innocent, you shouldn't have anything to hide." Funny how it only applies to others...

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Jan 2019 @ 3:13pm

      Re: It's funny...

      I know quite a few LEOs. They've frequently said "If you're innocent, you shouldn't have anything to hide."

      Ask your acquaintances if it's a well-accepted and legitimate police tactic for them to always, always be lying to you.

      reply to this | link to this | view in chronology ]

  • icon
    afn29129 David (profile), 29 Jan 2019 @ 4:10pm

    CA legislature failed.

    I see this as an example of where the California legislature failed to make the language quite clear about what they meant. So they meant retroactive...A sentence so stating would of ended all dispute. Didn't we just see an article here about a half-baked price of legislation from California about privacy?

    This here openrecords law sounds like it was half-baked as well.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Jan 2019 @ 4:00am

      Re: CA legislature failed.

      California

      half-baked

      I see what you did there...

      reply to this | link to this | view in chronology ]

    • identicon
      Daftbugger, 30 Jan 2019 @ 12:10pm

      Re: CA legislature failed.

      While that's technically true, let's not pretend that if there WERE a sentence explicitly saying that the law was retroactive, that those opposing the law wouldn't just focus on some other minute detail that they can nitpick on. This scenario is just their first, best crack and chipping away at it.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Jan 2019 @ 7:33am

    Just goes to show there on no good cops. They are all Tyrant, disgusting PIGS. Look at them covering up and protecting the bad pigs. In effect just making them just as guilty. What are they trying to hide?

    reply to this | link to this | view in chronology ]

  • identicon
    Sherlock, 30 Jan 2019 @ 7:59am

    Under construction/development. Feel free to run with it, share, develop:
    It is Time for a National Memorial to Citizen Victims .
    Mandatory Law needed: The Abused Citizen Victim Apology Law:
    Any time the police botch a raid on the wrong house, murder a Citizen for no cause, recklessly injure, kill, a Citizen, and other false arrests where their TAXPAYER FUNDED body-cameras "just happen" to not work, and every other screw-up situation ....... EVERY cop anywhere in the area shall assemble, "Take a Knee" and cover their hearts with their covers in apology. with their cars flashing lights .................... The same actions will take place for Citizen funerals.
    A prominent memorial to be erected in every large city dedicated to the innocent victims of abusive and corrupt police. Perjury, murder, false imprisonment, theft, rape, sexual and physical assault, real ethical police. Annually, a mandatory day of reflection and regret for all police. on date (May 26th?) to be determined, there will be a Citizen Victim Day whereupon EVERY cop will assemble at said monument to meditate and reflect on Murdered Citizens and again kneel, doff covers, and pray to God for forgiveness.
    There will be mandatory monthly ethics classes on such subjects as "Negative Effect on Society of Perjury by police" and "Sociatal impact of Murder by police".
    These acts shall be in addition to punitive damages and restitution paid.
    ==============================================
    Excellent summation of police misconduct: http://patriotrising.com/break-the-cycle-in-2019-say-no-to-the-governments-cruelty-brutality-and-abu se/#comment-1449
    ================================================
    Have you noticed there are no massive funerals with TAXPAYER FUNDED police cars/equipment and TAXPAYER PAID police saluting for the VICTIMS of police MURDERS?
    Where is the recognition and apologies to the VICTIMS of their BLUNDERING???
    Always remember ---- these are the "HIGHLY TRAINED PROFESSIONALS" that the government says will protect you if you just be nice and give the government your guns. Police murder more Citizens every year than do terrorists.
    The cowardice of hiding MURDER behind lies of "resisting arrest" and "I was in fear for my life" should immediately disqualify for life anyone from ever engaging in "law enforcement" . If you are that cowardly you should be a greeter at Walmart.
    Yeah sure, the POLICE - --- Currently, in the U.S., law enforcement kills around 1,200 citizens per year. Ironically, that number is actually four times higher than those who die from rifles. As has been recorded, cops have killed 450 percent more people than have died in the past forty years of mass shootings.
    P.S. Have you noticed police & fire are always "exempt" from those glorious "Right to Slave/Work" laws that destroy Citizen's collective bargaining? Why do the Police not DEMAND their "R to W? BECAUSE "right to work" IS A FRAUD and they want to protect THEIR GUARDS.

    reply to this | link to this | view in chronology ]


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