California Attorney General Doubles Down On Threatening Journalists For Possessing Convicted Cops List

from the I-guess-the-Constitution-only-protects-bad-cops dept

California Attorney General Xavier Becerra has decided there's too much First Amendment in his state. First, he ignored clarification provided directly to him by the author of the state's new public records law to declare past police misconduct records off limits. Claiming the question of retroactivity was still open, Becerra denied public records requests seeking documents created prior to January 1, 2019.

His next potshot at the First Amendment occurred shortly thereafter. Journalists from UC Berkeley received a list of convicted California police officers in response to a records request. The list covered 10 years of convictions and contained 12,000 names. At this point, the journalists have not published the full list. But they have been vetting the list to prep for publication.

That's where AG Becerra stepped in. He told the journalists it was illegal for them to possess "confidential information" they obtained lawfully through a public records request. He's wrong, of course. It is not illegal to possess documents received via public records requests even if the government entity has mistakenly sent you the wrong documents.

As for the "confidential" claim, any convictions would already be public records, seeing as prosecutions are handled by the state's court system. What the list does is provide one-stop shopping for bad cops, which is what law enforcement agencies are doing when they run applicants against this list.

So far, only three officers' names have been published. AG Becerra is trying to ensure those three names are the only ones the public will ever see. If the First Amendment needs to be damaged to protect bad cops, that's a sacrifice he's willing to make.

In a statement provided to Freedom of the Press Foundation on Wednesday, a spokesman for the California Department of Justice doubled down on the contention that the journalists are breaking the law:

“The UC Berkeley Investigative Reporting Program is not an entity permitted to possess or use this confidential data. The UC Berkeley Investigative Reporting Program chose to publish the confidential information of Californians despite being alerted by the Department of Justice that doing so was prohibited by law.”

The AG's office is still threatening the reporters with criminal charges simply for possessing the list. But even if the journalists publish the list in full, it's unlikely any court will support Becerra's decision to pretend the First Amendment doesn't exist. Both the act of requesting public records and the publication of obtained records are protected speech. AG Becerra has nothing to work with here, but he's publicly demonstrating his willingness to do whatever it takes to protect the state's bad cops.

Worse, he's doubled down. When AG Becerra was asked for clarification by the Freedom of the Press Foundation, he had this to say:

“We always strive to balance the public’s right to know, the need to be transparent and an individual’s right to privacy. In this case, information from a database that’s required by law to be confidential was released erroneously, jeopardizing personal data of individuals across our state. No one wants to shield criminal behavior; we’re subject to the rule of law.”

If Becerra has a problem with "jeopardizing personal data," the only action he should be taking is against the government entity that (supposedly) breached the law by releasing it to reporters. Becerra's nod to "rule of law" is especially rich. The Constitution is part of the "law" Becerra professes allegiance to. But it's clear he'd rather cover up for his cop buddies than respect the parts of the law that restrain his ability to punish people for protected speech.

Filed Under: 1st amendment, california, foia, journalism, police misconduct, public records, reporting, transparency, xavier becerra


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 8 Mar 2019 @ 9:26am

    "Don't snitch."

    Troublemakers need to be rooted out. Those journalists don't know their place.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 8 Mar 2019 @ 9:27am

    LawDirt.

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

  • identicon
    boomslang, 8 Mar 2019 @ 9:29am

    They hate us for our freedom.

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

  • identicon
    Anonymous Coward, 8 Mar 2019 @ 9:38am

    "It is not illegal"

    It is not illegal to possess documents received via public records requests even if the government entity has mistakenly sent you the wrong documents.

    That link would have been better if it went to a story proving your point, rather than one simply saying the same thing (actually, it says it's "likely" inconsistent with court precedent). In other words, a legal citation where a court supported this view. I believe you, but I'd like to see how strongly courts agreed in the past, and how similar the situations are.

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

    • icon
      btr1701 (profile), 8 Mar 2019 @ 10:18am

      Re: "It is not illegal"

      That link would have been better if it went to a story proving your point

      Here you go:

      https://en.wikipedia.org/wiki/New_York_Times_Co._v._United_States

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

      • icon
        That One Guy (profile), 8 Mar 2019 @ 10:52am

        Re: Re: "It is not illegal"

        Someone should really ask him, on the record, if he's at all familiar with that case, and if so why he think his claims are going to withstand legal scrutiny when the gorram government couldn't keep much more sensitive information from being published.

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

    • identicon
      Anonymous Coward, 8 Mar 2019 @ 10:28am

      Re: "It is not illegal"

      That link would have been better if it went to a story proving your point, rather than one simply saying the same thing (actually, it says it's "likely" inconsistent with court precedent).

      Literally the same sentence that says "likely inconsistent" includes the most relevant court precedent "the famed pentagon papers case" (AKA New York Times Co. vs United States). This has a fairly good overview of the legal landscape if you want more detail.

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

      • identicon
        Anonymous Coward, 8 Mar 2019 @ 10:48am

        Re: Re: "It is not illegal"

        Thanks! I thought the sentence refered to the Espionage Act prosecution of Ellsberg, but it really meant the NYT publication case which is indeed a strong precedent. Publishing information provided by the government (though inadvertently) has got to be on better legal ground than publishing information someone released without permission. I see no subsequent jurisprudence weakening that.

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

    • icon
      Tanner Andrews (profile), 9 Mar 2019 @ 11:59am

      Re: "It is not illegal"

      > It is not illegal to possess documents received via public records requests even if the government entity has mistakenly sent you the wrong documents.
      That link would have been better if it went to a story proving your point

      Here is one, with the same facts. Not so much a ``story'' proving the point, just some important case law of which you may not be aware. [link] https://supreme.justia.com/cases/federal/us/491/524/#tab-opinion-1958043 (Florida Star v. BJF, 491 U.S. 524)

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

  • icon
    bobmorning (profile), 8 Mar 2019 @ 10:00am

    Anonymous post to PasteBin

    Get it done.

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

  • icon
    btr1701 (profile), 8 Mar 2019 @ 10:09am

    AG Becerra is trying to ensure those three names are the only ones the public will ever see. If the First Amendment needs to be damaged to protect bad cops, that's a sacrifice he's willing to make.

    The only people Becerra is more interested in protecting than bad cops are illegal aliens.

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

    • identicon
      Anonymous Coward, 8 Mar 2019 @ 10:40am

      Re:

      "The only people Becerra is more interested in protecting than bad cops are illegal aliens."

      Oh, got your back does he? BTW -which planet are you from?

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

  • identicon
    Paul Brinker, 8 Mar 2019 @ 10:16am

    He Knows

    This Judge knows the damage that takes place when you prove state witnesses unreliable. A single bad drug lab agent was able to invalidate years worth of convictions. Just wait till you prove a traffic cop lies, or people in jail find proof that the cops that put them away are all liars.

    The number of cases about to be re-opened would be a triple whammy to the state. An impossible number of criminal cases and civil fines would be forced back to court, followed by lawsuits from all the jails as populations drop below 95%. Finally, all the reparations for jailing innocent people who now get their life back and can claim money from wrongful conviction suits.

    California might become an actully nice state to live in for once.

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

  • icon
    Bamboo Harvester (profile), 8 Mar 2019 @ 10:18am

    Just noise...

    "...chose to publish the confidential information of Californians despite being alerted by the Department of Justice that doing so was prohibited by law.”

    What law? He doesn't bother to cite it, even though he MUST "know" which law(s) prohibit such release.

    Also, I suspect the list is only "semi" public record - when they release more names, look up the case number in the court records. Most of them are probably "sealed" to protect the guilty.

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

  • identicon
    Anonymous Coward, 8 Mar 2019 @ 11:39am

    The real reason why he is trying to hide records

    The AG knows exactly how horrible the police have been to the people of CA and knows that if these accurate records got out, numerous lawsuits would quickly bankrupt the state. They have violated so many rights and covered it up over and over that everyone is culpable. There needs to be light brought to bear on the bad cop problem in this country and if CA has to be first, so be it.

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

  • icon
    Matthew Cline (profile), 8 Mar 2019 @ 11:40am

    There IS a law on the books

    California Code, Penal Code - PEN § 11143:

    Any person, except those specifically referred to in Section 1070 of the Evidence Code , who, knowing he is not authorized by law to receive a record or information obtained from a record, knowingly buys, receives, or possesses the record or information is guilty of a misdemeanor.

    Since the reporters haven't been arrested yet I'm guessing that the Attorney General knows that the law would be overturned on appeal and would rather keep it on the books so it can be used to threaten other people at a later date. Either that or he wants to avoid the Streisand Effect of actually arresting them.

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

    • icon
      That One Guy (profile), 8 Mar 2019 @ 12:10pm

      Re: There IS a law on the books

      Yeah, if a law like that could survive legal challenge and be used to stop leaks of sensitive/damning information I have no doubt the USG would have put it on the books decades ago, so I strongly suspect that you're right, he's not trying to charge them under it because he wants to keep it as a threat to use on others and not get it struck down.

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

    • identicon
      Qwertygiy, 8 Mar 2019 @ 1:49pm

      Re: There IS a law on the books

      "knowing he is not authorized by law to receive"

      I would say that even if this law did stand up to a legal challenge, this clause would make it inapplicable here. The journalists weren't bribing doctors into giving away HIPPA-protected patient records, or publishing confidential NSA wiretaps, or buying a stolen Krabby Patty formula. They submitted an FOIA request for an official government document. That's as "authorized by law" as it gets.

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

    • icon
      Mike Masnick (profile), 9 Mar 2019 @ 12:09am

      Re: There IS a law on the books

      Right. But notice that first sentence says "except those specifically referred to in Section 1070 of the Evidence Code..."

      Section 1070: https://codes.findlaw.com/ca/evidence-code/evid-sect-1070.html

      VERY FIRST SECTION: " A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed"

      So, yeah, I'd say that the reporters here are "excepted" out of 11143 (which is still unconstitutional).

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

  • icon
    That Anonymous Coward (profile), 8 Mar 2019 @ 1:20pm

    Wouldn't a nice headline talking about how the AG cares more about hiding bad acts by police than public safety solve this?

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

    • identicon
      Anonymous Coward, 9 Mar 2019 @ 3:40am

      Re:

      I suspect it could damage their case in any potential court proceeding that could come out of this, but otherwise I fully agree with you.
      They need to start asking the hard questions:

      • Why do you try to hide this from the public? - Is it to keep up the facade that the police and the justice system is flawless? (I don't think anyone actually believes that).
      • Why not make a concentrated effort to root out these people, who have broken their wows and the enormous trust that has been given to them? - They betray not just the public, but their colleagues and the justice system as a whole. They are the primary reason for the loss of trust to law enforcement... lying and keeping secrets will just make that worse.
      • Which is more productive: Admitting your flaws and try to improve, or stubbornly refuse that you have any and keep adding new flaws until the whole thing falls apart?
      • Are law-enforcement officers, people? Are people flawless? Do you think the public will ever be gullible enough to think that people in law-enforcement are flawless?

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

  • identicon
    Anonymous Coward, 8 Mar 2019 @ 1:38pm

    Almost everyone is corrupt, and our government is just a reflection of this.

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

  • identicon
    michael, 8 Mar 2019 @ 2:58pm

    Meet the new boss ...

    ... same as the old boss.

    Former California AG Kamala Harris made a whole career out of protecting bad cops and bad prosecutors. Maybe this Becerra's bucking for her Senate seat.

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

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