California AG Steps Up To Help Cops Pretend New Public Records Law Doesn't Apply To Past Misconduct Docs

from the bros-before-accountability,-as-they-say dept

The bullshit debate over California police misconduct records continues. A new law granting the public access to police misconduct records for the first time in decades has resulted in a slew of public records requests. It's also resulted in a slew of refusals and legal challenges.

Some law enforcement agencies (and their unions) have chosen to believe the law erases their past misdeeds. Although the law says nothing limiting access to records created prior to January 1, 2019, some agencies have decided the lack of specific language allows them to draw this inference from the missing words. Multiple lawsuits have hit the California court system, which may soon force the state's Supreme Court to deal with this miss, even if it took a hard pass on one law enforcement union's attempt to get a preemptive declaration that past misconduct records are off-limits.

If these law enforcement agencies were truly seeking clarity, they were given a crystal clear explanation of the legislative intent from none other than the law's author, Senator Nancy Skinner.

[I]t is my understanding in enacting SB 1421 that the change in the law applies to all disclosable records whether or not they existed prior to the date the statute went into effect…

This isn't the answer cops wanted. They wanted someone to tell them they could whitewash the past and stonewall the future. Instead, the law's author told them the law applies retroactively. If they missed their opportunity to destroy these records prior to the law's enactment, that's on them.

But they're getting a little help from the state's top cop. State attorney general Xavier Becerra has decided retroactivity is still an open question, despite Sen. Skinner's statement on the issue.

The attorney general's response to a public records request seeking that information references some superior court challenges to the law's application to past records brought by police unions.

"We will not disclose any records that pre-date January 1, 2019 at this time," Mark Beckington, supervising deputy attorney general, said in a response last Friday to a request from freelance reporter Darwin BondGraham.

This sentence follows a very dubious assumption by the attorney general's office.

[U]ntil the legal question of retroactive application of the statute is resolved by the courts, the public interest in accessing these records is clearly outweighed by the public's interest in protecting privacy rights.

Oh, really? But whose privacy rights? The public may want to protect their own privacy rights, but I doubt they're more concerned about protecting the "privacy" of public servants who committed misconduct on the public's dime.

AG Becerra is deliberately confused by the retroactivity non-question. Sen. Skinner, the law's author, is honestly confused.

"I find the AG's interpretation puzzling considering that we have law enforcement agencies up and down the state, including our California Highway Patrol, releasing records..."

Also confusing: the AG was sent a copy of the same letter Skinner sent to the Senate Rules Committee clarifying the law's retroactive powers.

Cops have a friend in high places. With this action, he's the best friend a bad cop could have. But he's only delaying the inevitable. These records will be in the public's hands. If the courts somehow find in favor of law enforcement agencies, this only keeps the past a secret. Unless police misconduct is somehow also only a thing of the past, California cop shops will still be generating a whole lot of publicly-accessible documents.

Filed Under: california, foia, nancy skinner, police, police discipline, retroactive, transparency, xavier becerra


Reader Comments

Subscribe: RSS

View by: Time | Thread


  1. icon
    Anonymous Anonymous Coward (profile), 8 Feb 2019 @ 6:22pm

    A fish stinks from the head first. What's at the other end?

    Given the destruction of some records of misconduct, and the reticence of others to release records of misconduct, those others being at the highest levels of of the law enforcement community, how are we going to begin to rectify the issue of police misconduct?

    To them, there is no misconduct. To us, their employers and the recipients of that misconduct, there is much misconduct. In between there are the courts offering qualified immunity and a presumption of 'truth telling', even when there is significant reason to disbelieve the 'truth being told'.

    We need to get to a position of (I think the lawyers call it strict scrutiny, but I could be wrong) whereby everything is questioned, even police officers and drug dogs and remote drug tests, and the burden to prove still lies on the prosecution.

    Then when it comes to police brought to court, since the DoJ has abrogated their responsibilities in these matters, the very least they could do is take it to a different jurisdiction, and by that I mean take is to someplace where the 'locals' are part and parcel of the orchestrated cover-up that will exonerate the cops involved (or have any propensity to be other than strictly aligned with the rule of law), who should be treated fairly, but without any other consideration.

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

  2. icon
    Bergman (profile), 8 Feb 2019 @ 9:52pm

    I wonder...

    How would AG Becerra react to someone responding to a subpoena by only providing records created after the date of the subpoena?

    After all, the law that authorizes subpoenas in California is just as 'vague' and 'lacking in specific language' about it applying to older records as the new public records law is.

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

  3. icon
    That One Guy (profile), 9 Feb 2019 @ 4:44am

    Back to the legislation session boys and girls

    Sounds like they need to add an amendment/addition to the new law making it even more crystal clear that it does indeed apply to older records too.

    Might I suggest they call it the 'Clarification for the thick-headed' clause?

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

  4. identicon
    Capt Obvious, 9 Feb 2019 @ 5:54am

    They must be hiding something

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

  5. identicon
    Anonymous Coward, 9 Feb 2019 @ 6:13am

    Deliberate Confusion

    "AG Becerra is deliberately confused by the retroactivity non-question."

    Colbertian "willfull ignorance" is MUCH less amusing in real life.

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

  6. identicon
    Anonymous Coward, 9 Feb 2019 @ 6:37am

    Re: Back to the Legislature

    yeah, this California SB1421 law contains pretty dense & confusing legalese.

    The dopey California legislators should have known it would easily spark court challenges ... although the law's intent to cover 'all' existing 'records' seems clear enough to non-lawyers.

    The California AG should send a formal query to the Legislature seeking clarification on this specific issue of records existing prior to 1 Jan 2019. A simple, formal response letter from the Legislature is sufficient ... although a brief amendment to SB1421 would be nice.

    It is not within the constitutional authority of Attorneys General and prosecutors (Executive Branch officials) to "interpret" laws.

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

  7. icon
    Bamboo Harvester (profile), 9 Feb 2019 @ 7:14am

    Re: Back to the legislation session boys and girls

    The unions would love that.

    C'mon, this is a delaying action - they're stalling until they finish destroying records prior to that date, at which point they can "honestly" claim "No Records Found".

    I may have missed it in the several articles here, but I haven't seen anything about any Judges/Courts freezing destruction of records until there's clarification.

    Going the "political route" in amending existing law will take months. And the Amendment will be amended by every critter voting on it to include their own pet peeves or projects.

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

  8. icon
    Bluehills (profile), 9 Feb 2019 @ 7:20am

    Re: Re: Back to the legislation session boys and girls

    generally the agencies aren’t filing, the unions are.

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

  9. icon
    That One Guy (profile), 9 Feb 2019 @ 7:30am

    Re: Re: Back to the Legislature

    The California AG should send a formal query to the Legislature seeking clarification on this specific issue of records existing prior to 1 Jan 2019. A simple, formal response letter from the Legislature is sufficient ... although a brief amendment to SB1421 would be nice.

    From the article:

    [I]t is my understanding in enacting SB 1421 that the change in the law applies to all disclosable records whether or not they existed prior to the date the statute went into effect

    When the bill's author makes clear that the intent was that it would apply to all records, before and after the bill was passed, unless they somehow completely missed that bit the AG acting like he's 'confused' at this point is just being willfully obtuse.

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

  10. icon
    That One Guy (profile), 9 Feb 2019 @ 7:39am

    'You think the laws you write apply to us? How quaint.'

    I strongly suspect that that is the case, yes.

    'Terribly sorry, but while we were waiting for 'clarification' routine maintenance seems to have resulted in the destruction of everything you're looking for.'

    Hell, at least one PD already did just that.

    However, if a statement by the bill's author making clear that the intent was for the law to apply to all records isn't going to cut it, they're going to have to force the issue by making it crystal clear, in writing, that that is indeed the case, and if they want a little motivation perhaps pointing out that the state police and now AG are making fools out of the lot of them would get them to get on it quickly.

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

  11. identicon
    Anonymous Coward, 9 Feb 2019 @ 8:52am

    Re: Re: Re: Back to the Legislature

    "It is my understanding in enacting SB 1421 that the change in the law applies to all disc losable records..." (Senator Nancy Skinner)

    Geeez, what a timid and imprecise statement from the very author of SB 1421.

    The weasel phrase "It is my understanding" clearly conveys some possible doubt about her law's actual meaning ... and just adds to the controversy.

    Senator Skinner should have simply declared that her SB 1421 applies to all records regardless of date created.

    California citizens need legislators who can at least communicate clearly. (... thinking clearly is likely too much to ask)

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

  12. icon
    Bamboo Harvester (profile), 9 Feb 2019 @ 9:16am

    Re: Re: Re: Re: Back to the Legislature

    Don't let disclosable records go past either.

    That will be the next argument - the definition of "disclosable".

    By the time this is "settled", all misconduct records, regardless of disclosability, will be a pile of ash.

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

  13. identicon
    Anonymous Coward, 9 Feb 2019 @ 9:48am

    Re:

    Nothing to hide, nothing to fear.*

    *said to piss off liberals

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

  14. icon
    ECA (profile), 9 Feb 2019 @ 11:09am

    Then

    Why did they create them in the first place, and NOT USE THEM??

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

  15. identicon
    Anonymous Coward, 9 Feb 2019 @ 8:27pm

    Re: Back to the legislation session boys and girls

    I think better yet - add in teeth whenever they do this bullshit so that they are discouraged from such 'oopsie-daisies' in the future. Throw in an obstruction charge with nothing to wiggle out of and no immunity every time they try to do this shit and it will go away.

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

  16. icon
    Bluehills (profile), 9 Feb 2019 @ 9:27pm

    Re: 'You think the laws you write apply to us? How quaint.'

    They destroyed records over 5 years old. Existing law requires they be maintained for that long.

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

  17. icon
    That One Guy (profile), 10 Feb 2019 @ 4:29am

    Re: Re: 'You think the laws you write apply to us? How quaint.'

    And if you seriously think that it was just a pure coincidence that they got around to destroying them literally days before a law change that would have allowed the public to see the records, I've got some amazing bridges and/or lunar real-estate I'd love to sell you.

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

  18. identicon
    Anonymous Coward, 10 Feb 2019 @ 6:26am

    Re: Re: Back to the legislation session boys and girls

    So are we back to the Aereo standard now? "The fact that you strictly followed the law is proof that you're trying to break the law and get away with it"? That was bad jurisprudence in the Aereo case, and it's bad jurisprudence here.

    Sometimes having principles means accepting an outcome we don't like, because the alternative is even worse when viewed in perspective.

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

  19. identicon
    David, 10 Feb 2019 @ 9:16am

    "retroactive" does not mean what you think it does

    Retroactive application of laws means to judge past deeds by new laws. But this is not about reevaluating any action but about changing access to existing records. If that leads to any reevaluation of past deeds, it means that appropriate action had been suppressed so far.

    This is like claiming that it would be a "retroactive application of law" if a change of law affected people born before the law went in effect.

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

  20. icon
    Bamboo Harvester (profile), 10 Feb 2019 @ 9:35am

    Re: "retroactive" does not mean what you think it does

    All laws effect people born before they went into effect. If nobody else, the people who wrote and passed them.

    You can't be prosecuted for actions made illegal after you "committed" said actions, it's a violation of Article 1 of the Constitution.

    This article is primarily about destruction of records that may show evidence of criminal activity.

    The police unions want as many of those records destroyed as possible before they're forced to release them on FOIA requests.

    There's a five year retention requirement on them - meaning they can destroy any inactive records over five years old. I don't think many people have a problem with that, it was fairly reasonable in the days of paper record storage. Now that you can fit forty million novels on a drive the size of a deck of cards, perhaps there shouldn't be a destruction of records at all. But that's another argument altogether.

    But required records retention can be obnoxious. I don't recall offhand the exact time limitations, but it's along the lines of you have to keep IRS tax returns and all satellite paperwork for a minimum of seven years. But the IRS can audit you going back ten years, and correctly claiming you only had to keep the records for a shorter period is no defense.

    Which is a fairly apt comparison to "retroactive" application.

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

  21. identicon
    Anonymous Coward, 10 Feb 2019 @ 11:10am

    Re: Re: Re: Back to the legislation session boys and girls

    That wouldn't be the Aereo standard because what the law was a pretext anyway for 'felony interference with a business model' and everyone knew it. I was referring to closing loopholes in the legislation anyway. The way things should have been done. When I said an obstruction charge I meant "And doing this shit will explicitly result in an obstruction of justice charge or similar under an evidentary standard that basically means auto-guilty." As long as we have fucking bullshit standards on the books like the Espionage Act not allowing a defense we might as well make it apply to /them/ as well in our interests.

    Either they realize the whole standard is bullshit and set a precedent against it or we get to use their own tools to hold them accountable. A win-win.

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

  22. identicon
    Anonymous Coward, 10 Feb 2019 @ 3:23pm

    Re: Re: "retroactive" does not mean what you think it

    Ex post facto law is supposed to be not allowed and yet they continually try to do it.

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

  23. icon
    cattress (profile), 10 Feb 2019 @ 11:36pm

    Re: Back to the legislation session boys and girls

    Yup, time to go back and write legislation that makes all records ever produced past present and future public, to be made available on a free to access database, record keeping of all incidents legally required, illegal to destroy or tamper with records. Most private citizen information would be redacted, accessible for attorneys for legitimate things like civil suits. Legislators should pass some crystal clear laws that say public employees are accountable to the public and they are not entitled to the same constitutional protections, let alone more than private citizens. These laws should cover all government employees, from cops and teachers (and if you think public school teachers should be exempt, there's a nasty story about a teacher bringing in a third party to whip a little boy in the bathroom in Chicago and the district has no idea how many teachers have hurt children and ultimately been disciplined, or if any teachers have a pattern of accusations) prison guards, prosecuting attorneys, judges, magistrates, sherriffs, principals, everyone. I can see a fair exemption of medical records, including incidents relating to a mental health condition so long as direct supervisors are accountable for continued employment. . And while I'd bet the unions would drop their opposition to the current laws if full transparency gained steam, legislators should push on and air all the whiney grievances against accountability. It's utterly ridiculous that government employees get special privileges and immunities and yet constantly whine and cry how they are under attack, and how they selflessly devote themselves to thankless public service. (And I hold teachers in high regard, but they aren't as poorly paid as they claim because no one considers the mega health insurance they have to contribute almost nothing to both now and after retirement along with the salary they collect in the form of a pension. They also continue to support the unions that are responsible for the working conditions good and bad).

    Yeah, back to the drawing board and do it right this time.

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

  24. identicon
    Anonymous Coward, 11 Feb 2019 @ 7:11am

    This just goes to show how corrupt and disgusting the Police and worse the UNION is!!! What are they trying to hide and cover up? Oh, that's right, all the dirty pigs!!! Which is most all of them. Because those that help cover up are just as dirty.

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

  25. identicon
    Personanongrata, 11 Feb 2019 @ 2:51pm

    *Quis Custodiet Ipsos Custodes?

    California AG Steps Up To Help Cops Pretend New Public Records Law Doesn't Apply To Past Misconduct Docs

    When persons/entities (eg California AG) responsible for enforcing the law act in such manner while hiding their nonfeasance behind a tissue paper thin veneer of law and order that directly contravenes the best interests of a majority of Californians in order to protect an ultra-slim minority of civil servants (ie police) from public disclosure of official misdeeds a reasonably minded person may begin to wonder who the criminals are?

    * "Who will guard the guards themselves?"

    https://en.wikipedia.org/wiki/Quis_custodiet_ipsos_custodes%3F

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

  26. identicon
    Anonymous Coward, 12 Feb 2019 @ 12:12am

    Xavier Becerra is a corrupt dirt bag.

    Personal story submitted anonymously, since he also seems to be a vindictive dirt bag:

    I applied for a finger printing license with the state. I had a misdemeanor conviction from over thirty years ago and his office cited this as the reason they denied my application.

    When I was arrested, my friend with me was, too. He had the same charge on his record, same year, same courtroom and same day, too! He received his license. This is the only arrest and conviction either of us has.

    We thought long and hard of the difference between the two of us, and our records, but the only real difference was that I am registered as a Republican, and he's registered as a Democrat.

    That's why I know Xavier Becerra is a corrupt dirt bag.

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


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown for basic formatting. (HTML is not supported.)
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown for basic formatting. (HTML is not supported.)
  • Remember name/email/url (set a cookie)

Follow Techdirt
Techdirt Gear
Shop Now: Copying Is Not Theft
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.