California Court Says New Records Law Covers Past Police Misconduct Records

from the your-tax-dollars-hard-at-work-hiding-stuff-from-taxpayers dept

Tue, Feb 12th 2019 3:43am — Tim Cushing

The battle over public records in California continues. A new law made records of police misconduct releasable to the public, kicking off predictable legal challenges from law enforcement agencies not accustomed to accountability.

These agencies believe the law isn't retroactive. In essence, they think the passage of the law allows them to whitewash their pasts by only providing records going forward from the law's enactment. None other than the law's author, Senator Nancy Skinner, has gone on record -- with a letter to the Senate Rules Committee and the state Attorney General's office -- stating the law applies retroactively.

This has been ignored by the state AG, who has stated in records request denials that he believes the law can't touch pre-2019 misconduct files. This is exactly what agencies challenging the law want to hear. Unfortunately for them, they've just been handed a loss by a California court.

A Contra Costa County judge on Friday refused to block public access to records of police misconduct that occurred before California’s new transparency law took effect, the first ruling in a string of police-backed lawsuits filed across the state.

Judge Charles Treat said it seemed unlikely the suing law enforcement unions would prevail on the merits while dumping the unions' requested injunction. He pointed out the new law has no impact on past misconduct. All it does is make those records available to the public.

“If it was illegal in 2018, it’s illegal in 2019,” Treat said. “It doesn’t change the legal principles applicable to anyone’s conduct.”

This was said in response to the unions' argument that the release of old records would introduce new liabilities for officers. The availability of records may make it easier to sue officers, but it doesn't change the fact they were always potentially liable for misconduct. It just used to be a lot easier to hide this misbehavior from the public.

The impact of this bench ruling is muted by Treat blocking his own unblocking for another ten days to allow the union to appeal his decision.

There's a chance this ruling will be overturned, despite Sen. Skinner's clarification. And it's not the only legal battle being waged over the new transparency. Multiple agencies are suing in multiple counties and it's probably going to take a trip to the state Supreme Court to resolve the issue.

These agencies may state publicly they believe the law isn't retroactive, but their actions say something different. The Inglewood PD went so far as to get permission from the city council to shred all pre-2019 misconduct records prior to the law's enactment date. As a local attorney points out, why would they have bothered if they felt the law would only affect records generated after January 1, 2019?

First Amendment and police misconduct attorney Matthew Strugar predicted the unions’ challenge will ultimately fail.

[...]

Cities, too, had expected SB 1421 to disclose existing records, Strugar said. “Why was Inglewood running its shredding machines 24/7 before the New Year?” he asked.

It's a question no cop or city legislator in Inglewood wants to answer. Thanks to their cooperative effort, the likelihood of the PD being sued over unreleased misconduct is almost nil… easy to do when there's nothing left to sue over.

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Filed Under: california, foia, nancy skinner, police discipline, public records, retroactive, transparency

43 Comments

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David, 12 Feb 2019 @ 4:47am

Isn't that unfair?

“If it was illegal in 2018, it’s illegal in 2019,” Treat said. “It doesn’t change the legal principles applicable to anyone’s conduct.”

You'd think that the same holds for drug possession but repeatedly people are let off the hook based on a Fourth Amendment issue precluding the police to perform warrantless searches.

So now the public is allowed to perform warrantless searches on the police retroactively. What about their Fourth Amendment? Why are they not allowed to perform actually criminal activities unscritinized under the guise of their day-to-day activity like ordinary citizens?

That makes it way harder for police officers to run an organized crime syndicate than it is for people working in a civil profession.
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Kitsune106, 12 Feb 2019 @ 5:22am

Not according to Republicans
As those on Medicare and government assistance need extra scrutiny. And people should have right to check background and history. After all, police are the publics servants. They really should make it a right to work state for police too. Only fair, no?

Also, what do they have to hide?

As they say, if you have nothing to hide, the can give constent to voluntarily show the records. I mean, if it's good enough to be used on the public, the it should be good enough for the publics servants, the police.
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Anonymous Coward, 12 Feb 2019 @ 5:26am

Re: Isn't that unfair?
That's one hell of a tangent you've got there.
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PaulT (profile), 12 Feb 2019 @ 5:36am

Re: Isn't that unfair?
"repeatedly people are let off the hook based on a Fourth Amendment issue precluding the police to perform warrantless searches"

Then... perhaps the cops should learn to do their jobs properly and obtain those warrants?

"What about their Fourth Amendment?"

What about it? Unless I'm mistaken, those amendments only protect you from actions taken by the government, not that of other citizens. As agents of the government, police should certainly be held to a higher standard than others.

"That makes it way harder for police officers to run an organized crime syndicate than it is for people working in a civil profession."

As it damn well should be.
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JoeCool (profile), 12 Feb 2019 @ 5:40am

Re: Isn't that unfair?
You're deliberately conflating apples and oranges. This isn't a "fishing trip" by the public to find hidden evidence, this is more like the employee personnel records companies keep. And while employee personnel records are in general private, many people have a right to access those records to see what you're up to. This new law simply extended that right to the public when it comes to police personnel records.
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That One Guy (profile), 12 Feb 2019 @ 6:16am

Re: Isn't that unfair?
You all done got wooshed. Read the last line again.
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That One Guy (profile), 12 Feb 2019 @ 6:30am

'What's that, I can't hear you over the shredder.'
I suspect that they know full well that it applies to records before and after the law was passed, and they're playing dumb based upon what they want the law to say(Ideally they'd prefer a law that said they don't have to provide any records I'm sure, but since they didn't get that this time...), in the hopes that they can outlast people asking(easy to do when they aren't the ones paying the legal fees), and/or buy enough time for 'routine maintenance' to take care of the problem.

If the judge included a stay in their order for the union to appeal and didn't include an order that no records are allowed to be destroyed in that time, and is willing to hand out hefty penalties when that happens, then for all intents and purposes I'd say the union won that round.
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Anonymous Anonymous Coward (profile), 12 Feb 2019 @ 6:38am

But for the evidence, we are clean, clean, clean

"It's a question no cop or city legislator in Inglewood wants to answer. Thanks to their cooperative effort, the likelihood of the PD being sued over unreleased misconduct is almost nil… easy to do when there's nothing left to sue over."

Seems to me that there is plenty to sue over. What law, other than their own internal fidgeting, gave them permission to destroy public records? The records don't belong to them, they belong to the public.

Now it may be correct that the destroyed records might never be recovered (though there may be a backup of at least some of them somewhere (court cases, etc.) the fact that they were destroyed might allow someone in need of misconduct records to be allowed to presume the worst, and they should use that presumption to discredit everything any public employee from Inglewood has to say because the evidence was destroyed illegally.
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Anonymous Coward, 12 Feb 2019 @ 6:45am

Ask a stupid question...

Strugar said. “Why was Inglewood running its shredding machines 24/7 before the New Year?” he asked.

They were running the shredders 24/7 non-stop in order to strictly comply with the Sarbanes-Oxley “shredding” provision.
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Anonymous Coward, 12 Feb 2019 @ 7:19am

Re: But for the evidence, we are clean, clean, clean

Seems to me that there is plenty to sue over.

“ ‘We talked about it and he said nobody did anything wrong, he didn't do anything wrong and nobody on the team did anything wrong,’ Ms. Adlong said tearfully, adding that Mr. Duncan said ‘he doesn't understand and for me not to worry about it.’ ”

——Andersen Witnesses Defend Intent of Shredding, New York Times, June 1, 2002
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Anonymous Coward, 12 Feb 2019 @ 7:21am

Re: Isn't that unfair?
It's not retroactive, despite what people keep saying. Starting now, the police have to release old records. They can't be fined/jailed for not having done so last year, or for actions we learn about and that were legal at the time.
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Anonymous Coward, 12 Feb 2019 @ 7:48am

Re: Re: Isn't that unfair?

It's not retroactive, despite what people keep saying.

Even the person who wrote the law says the law is retroactive. However, your interpretation of what "retroactive" means in this case is a little off.

Starting now, the police have to release old records.

The police are saying that no, they don't have to release old records (that's what they mean by saying it's not retroactive). They are claiming that they only have to release records created after Jan 1.

They can't be fined/jailed for not having done so last year, or for actions we learn about and that were legal at the time.

That's not the issue. The issue is that police don't want to release records from last year (or older) that might show actions that weren't legal.
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Pixelation, 12 Feb 2019 @ 8:00am

Shine a light
And watch some cockroaches scurry.
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Anonymous Coward, 12 Feb 2019 @ 8:09am

Re: Re: Re: Isn't that unfair?

The issue is that police don't want to release records from last year (or older) that might show actions that weren't legal.

They may be worried that those records could potentially influence an investigation by the U.S. Justice Department's Civil Rights Division.
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TFG, 12 Feb 2019 @ 8:10am

Re: Ask a stupid question...
Okay, let's follow that link:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

So that shredding provision makes it illegal to destroy (among other things) documents with the intent to impede investigation or proper administration of matters.

This provision actually says don't shred documents. Not "shred them super hard."
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TFG, 12 Feb 2019 @ 8:10am

Re: Re: But for the evidence, we are clean, clean, clean
...And this is relevant how?
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That One Guy (profile), 12 Feb 2019 @ 8:18am

Re: Shine a light
I can't help but wonder, how many of those impacted also hold to, or have used in the past, the idea of 'if you've done nothing wrong you've got nothing to hide' when it came to the public.
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Anonymous Coward, 12 Feb 2019 @ 8:39am

Re: Re: Re: But for the evidence, we are clean, clean, clean

..And this is relevant how?

148 Cong. Rec. S7357-8

Mr. LEAHY. . . . . Third, we include new anti-shredding crimes . . . Prosecutors cannot prove their cases without evidence. As the Andersen case showed . . . we need tough new provisions that will make sure key documents do not get shredded in the first place.

“[T]he Andersen case…”

[
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TFG, 12 Feb 2019 @ 8:48am

Re: Re: Re: Re: But for the evidence, we are clean, clean, clean
So ... if I understand, you're saying that the shredding of documents is illegal?
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Nathan F (profile), 12 Feb 2019 @ 9:06am

Re: Re: Re: Re: Re: But for the evidence, we are clean, clean, c
When they are part and parcel to a federal investigation, yes it is illegal. Every state and city has a public records law and included in those laws is text about the type of records and how long they have to be kept for.

Inglewood might be able to get away with destroying the records that exceed the retention period, but anything destroyed before its expiration date that might be needed for a court case will cause issues for the agency in question.
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Anonymous Coward, 12 Feb 2019 @ 9:20am

When they are part and parcel to a federal investigation, yes it is illegal.

148 Cong. Rec. S7419

This statute is specifically meant not to include any technical requirement . . . to tie the obstructive conduct to a pending or imminent proceeding or matter by intent or otherwise. It is also sufficient that the act is done “in contemplation” of or in relation to a matter or investigation.

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David, 12 Feb 2019 @ 9:23am

Re: Re: Isn't that unfair?
I feel like a hamster: nobody notices any more if I am speaking tongue-in-cheek. Though the way politics go, in 10 years everybody will need sarcasm markers to recognize the difference.
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Anonymous Coward, 12 Feb 2019 @ 9:26am

Re: Re: Re: Re: Re: Re: But for the evidence, we are clean, clea

&helllip; might be needed for a court case…

148 Cong. Rec. S7419

This statute . . . . is also meant to do away with the distinctions . . . between court proceedings, investigations, regulatory or administrative proceedings (whether formal or not), and less formal government inquiries, regardless of their title.

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Jeremy Lyman (profile), 12 Feb 2019 @ 9:41am

Re: 'What's that, I can't hear you over the shredder.'
Doesn't seem that long ago that Police were demanding we outlaw entire technologies that would destroy evidence or make it more difficult to obtain, and result in "good guys" unable to take "bad guys" off the streets.

What changed?
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Ben (profile), 12 Feb 2019 @ 11:08am

Re: Re: Re: Isn't that unfair?

The police are saying that no, they don't have to release old records (that's what they mean by saying it's not retroactive).

Speaking for myself, as opposed to this "they" you refer to, the law is not retroactive. The law clearly requires the release of records, old or new doesn't matter, for a proper request with potential penalties for not fulfilling the request. It is not retroactive in the sense it does not assign penalties for unfulfilled requests from before the enactment of the law. A quibble of terminology, I suppose, but it is actually a significant difference.

The law applies to any records they have, and I hope the courts continue to hold that to be the case. I also hope that there is some way to punish Inglewood for blatant destruction of potential evidence.
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Ben (profile), 12 Feb 2019 @ 11:11am

Re: Ask a stupid question...
No, No, No, as thousand times No! They needed confetti for New Years!
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Anonymous Coward, 12 Feb 2019 @ 11:31am

Re: Re: Re: Re: Isn't that unfair?
You and I are in agreement. It's the police (the "they" I was referring to) who claim that the law doesn't apply to older records.
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TFG, 12 Feb 2019 @ 11:58am

Re: Re: Re: Re: Re: Re: Re: But for the evidence, we are clean,
Instead of just providing quotes, how about you clarify them with explanations of exactly how they are relevant, rather than force us to guess at what your meaning in quoting things?
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That One Guy (profile), 12 Feb 2019 @ 12:31pm

Re: Re: 'What's that, I can't hear you over the shredder.'
What changed?

Someone had the utter gall to try to hold them to the same standards they were applying to everyone else, as though the rules were supposed to be applied equally, rather than one set for them and a different set for everyone else.
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That One Guy (profile), 12 Feb 2019 @ 12:39pm

Re: Re: Re: Isn't that unfair?
It's the poe problem, where it's harder to be sarcastic and not be taken seriously because there's people out there who will say what you intend as sarcasm totally straight faced.

It would be like if 'A Modest Proposal' was written in a society where there actually were people advocating for cannibalizing homeless people.
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Anonymous Coward, 12 Feb 2019 @ 12:49pm

Re: Re: Re: Re: Re: Re: Re: Re: But for the evidence, we are cle

… rather than force us to guess…

United States v Hunt (11th Cir. 2008)

Hunt argues application of § 1519 in this context deprived him of due process because his conduct is not the type contemplated by Congress when it passed the statute and, therefore, he was not placed on fair notice that his conduct was criminal.

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Anonymous Coward, 12 Feb 2019 @ 1:33pm

Re: Re: Ask a stupid question...
However the interpretation is that as long as you shred them before you are notified that they are needed as part of an investigation and follow your policy about destruction of documents then it is all cool. It's only a problem if you have been notified you need to keep them or if you violate your records retention policy.
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Anonymous Coward, 12 Feb 2019 @ 2:37pm

Re: Re: Re: Ask a stupid question...

… before you are notified that they are needed as part of an investigation…

United States v Kernell (6th Cir. 2012)

Kernell could not have had actual knowledge of an investigation that did not yet exist . . .

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Thad (profile), 12 Feb 2019 @ 3:20pm

Re: Re: Re: Re: Ask a stupid question...
Do you think quoting opinions out of context makes you look smart?
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Anonymous Coward, 12 Feb 2019 @ 3:30pm

Re: Re: Re: Re: Re: Ask a stupid question...

… opinions out of context…

US v Gonzalez (9th Cir. 2018)

The court also properly instructed the jury that the government did not need to prove that the defendants knew about a pending federal investigation or that they intended to obstruct a specific federal investigation. Luviano and Ayala do not contest these instructions.

Ninth Circuit.
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David, 12 Feb 2019 @ 3:51pm

Re: Re: Re: Re: Isn't that unfair?
'A Modest Proposal' is not about cannibalizing homeless people but of letting the poor sell their children as meat for rich people's tables since the rich do not really have a problem with effectively filling their coffers and bellies by starving the poor. Having some of those otherwise bound to starve slaughtered may be preferable for those who thus manage to survive.

Swift presents this as the relief option most likely to work given the current behaviors of English and Irish class systems and their complete lack of interest of securing perspective or even life of the poorer parts of the populace.

The difference to "homeless" is that the poor are not an exceptionally underprivileged class but the class with the highest population so that Swift's proposal would have made significant economic impact.
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Thad (profile), 12 Feb 2019 @ 3:51pm

Re: Re: Re: Re: Re: Re: Ask a stupid question...
I'll take that to mean "nope, I'm just trolling." Thanks for clearing that up.
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Anonymous Anonymous Coward (profile), 12 Feb 2019 @ 3:53pm

Re: Re: Re: Re: Re: Re: Ask a stupid question...

"...government did not need to prove that the defendants knew about a pending federal investigation..."

Which tells us what? The defendants were not government employees that had a responsibility to records retention laws. Law enforcement do have a responsibility to records retention laws. So do their bosses and the administrations they work for.

Those laws might differ a bit from jurisdiction to jurisdiction, but the law is still the law. Oh, and local laws do not overcome state laws, and state laws do not overcome federal laws, since that is likely the next red herring you would submit, given your predilection to post irrelevant court cases.
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Anonymous Monkey (profile), 12 Feb 2019 @ 4:32pm

Re: sarcasm markers
either that or an "AmIdoingItRight?" tag
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Jeremy Lyman (profile), 13 Feb 2019 @ 4:46am

Re: Re: Re: 'What's that, I can't hear you over the shredder.'

"Who watches the watchmen?"

No one. No wait, we'll watch ourselves. Or each other; or whatever. Just close your eyes because you're not allowed to see it.
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JoeCool (profile), 17 Feb 2019 @ 5:57am

Re: Re: Re: Isn't that unfair?
We don't recognize the username just yet. When AAC or TOG make a post like yours, everyone knows who they are and how they like to post. We're now learning to add your posts in to the group.

In addition to Poe's Law, we've seen trolls who sometimes made grammatical errors in their post that made single lines seem a little off, but who otherwise meant everything they said. You're getting mistaken for one of those. I think I'll remember you after this. :)
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JoeCool (profile), 17 Feb 2019 @ 6:06am

Re: Re: Re: Re: Re: Re: Re: Re: Re: But for the evidence, we are
Ah! The old "no one directly told ME that the EXACT actions I took were in fact illegal, hence I get a free ride." Yes, that will likely get them off the hook as we've seen quite a few times. However, it may still give them trouble in courts later were the shredding shows the willful covering of illegality, tainting any testimony from those involved.
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JoeCool (profile), 17 Feb 2019 @ 6:11am

Re: Re: Re: Re: Re: Re: Re: Ask a stupid question...

“The devil can cite Scripture for his purpose. An evil soul producing holy witness Is like a villain with a smiling cheek, A goodly apple rotten at the heart. O, what a goodly outside falsehood hath!”

― William Shakespeare, The Merchant of Venice

This quote seems to be relevant here.
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