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.
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Filed Under: 1st amendment, california, foia, journalism, police misconduct, public records, reporting, transparency, xavier becerra
Reader Comments
The First Word
“They absolutely do know their place. Their place is in reporting information the public needs to know. The press has always been the watchdog keeping an eye on government and others in power. This is enshrined in the constitution.
And yes, we all need to know about the bad cops. Keeping this information in the dark will only perpetuate the problem.
made the First Word by Gary
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"Don't snitch."
Troublemakers need to be rooted out. Those journalists don't know their place.
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LawDirt.
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Re:
Every Nation eats the Paint chips t Deserves!
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They hate us for our freedom.
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"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). 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.
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Re:
We back to you attacking the press, and general smack talk?
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Re:
Yes, troublemakers like bad cops and, apparently, AG Becerra, do need to be rooted out.
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Anonymous post to PasteBin
Get it done.
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Re:
They absolutely do know their place. Their place is in reporting information the public needs to know. The press has always been the watchdog keeping an eye on government and others in power. This is enshrined in the constitution.
And yes, we all need to know about the bad cops. Keeping this information in the dark will only perpetuate the problem.
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The only people Becerra is more interested in protecting than bad cops are illegal aliens.
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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.
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Re:
They do. That's why they're publishing the list.
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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.
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Re: "It is not illegal"
Here you go:
https://en.wikipedia.org/wiki/New_York_Times_Co._v._United_States
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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.
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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?
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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.
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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.
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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.
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There IS a law on the books
California Code, Penal Code - PEN § 11143:
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.
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Re: Just noise...
I found the section of California code most relevant to this case.
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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.
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Wouldn't a nice headline talking about how the AG cares more about hiding bad acts by police than public safety solve this?
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Almost everyone is corrupt, and our government is just a reflection of this.
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Re: There IS a law on the books
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.
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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.
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Re:
You're right, troublemakers need to be rooted out. Hence the list of convicted cops.
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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).
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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:
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Re: "It is not illegal"
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)
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The Last Word
“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: