Second California Court Tells State AG To Stop Screwing Around And Release Police Misconduct Records

from the wasting-taxpayer-dollars-for-fun-and-opacity dept

A California appeals court has just handed Attorney General Xavier Becerra a second defeat in his quest to keep police misconduct records out of the public's hands.

Becerra first stepped up to defend bad cops from transparency and accountability shortly after a new law went live, giving Californians access to police misconduct and use of force records for the first time ever. Becerra claimed (without legal support) the law was not retroactive, an assertion contradicted by the crafter of the bill.

No courts agreed with this contention, even when it was made by police unions and department public records reps. The law applies to all misconduct records, not just those created after the law's enactment. Some departments saw this coming and purged older records prior to enactment. Others complied quietly. A few sued to block enforcement of the law.

Xavier Becerra made the dubious legal assertion the state's Department of Justice didn't need to turn over records because it wasn't the original source. He made this assertion despite the DOJ being the agency that routinely investigates misconduct and use of force complaints, which means the DOJ should have plenty of responsive records on hand.

The First Amendment Coalition and public media outlet KQED sued after Becerra refused to turn over records. Becerra asked the appeals court to tell him he was right to refuse to comply with the law. The appeals court says that's not the way the law works. The state DOJ holds records on police misconduct and the public can directly approach the DOJ for these records, rather than filing requests with numerous different agencies. (via Courthouse News)

The ruling confirms the lower court's determination: if the DOJ has these records, the DOJ needs to turn them over. From the decision [PDF]:

In this case, California Attorney General Xavier Becerra and the California Department of Justice (collectively, the Department) have filed a petition for a writ of mandate seeking to overturn the trial court’s order in favor of First Amendment Coalition and KQED, Inc. (KQED) over two aspects of the Department’s disclosure obligations under section 832.7. We conclude, as a matter of statutory interpretation, that section 832.7 generally requires disclosure of all responsive records in the possession of the Department, regardless whether the records pertain to officers employed by the Department or by another public agency and regardless whether the Department or another public agency created the records.

The court says the law's wording makes it clear any agency holding records is obligated to release them -- not just the agency where the records may have originated.

[T]he Department’s construction is at odds with the CPRA, which provides in no uncertain terms that, barring an applicable exemption, a member of the public has the right to inspect any nonexempt “public records,” defined as “any writing” containing information relating to the public’s business that is “retained by” a state or local agency.

Clear, unambiguous language in the law. Clear, unambiguous language from the court. And yet…

The Attorney General’s press office said in an email that the Justice Department is reviewing the decision.

Come on, man. Being willfully ignorant of the law is no excuse. Appealing this decision further just wastes time and the public's tax dollars. Turn over the records, you coward.

Filed Under: california, foia, police misconduct, transparency, xavier becerra

Journalists Publish List Of Convicted Cops The State's Attorney General Said Was Illegal For Them To Have

from the bluff-called dept

The list of convicted cops the California Attorney General tried to keep secret has just been made searchable by the Sacramento Bee. It contains hundreds of current and former police officers who've been convicted of criminal acts over the last ten years.

This collaboration of multiple newsrooms and journalism advocates began with an unforced error by a state agency. Taking advantage of a new state law allowing the public to access police misconduct records, journalists asked the California Commission on Peace Officer Standards and Training for relevant documents. The agency handed over a list of 12,000 former and current officers -- a list that apparently was never supposed to be made public.

The state's Attorney General claimed the journalists had broken the law simply by possessing a document the Commission never should have given them. This couldn't be further from the truth, but AG Xavier Becerra continued to make this claim, as though it were possible to codify something just by saying it out loud often enough.

I can see why AG Becerra wants this list buried. There's nothing on it that makes cops or their oversight (which includes Becerra) look good. While the 12,000 officers in the database are a small percentage of the total number of California law enforcement officers employed over the past ten years, this small portion includes a number of cops who were never fired from their agencies despite committing criminal acts that would have put regular people out of a job.

Reporters found at least a dozen deputies with prior convictions are still on the roster at the Los Angeles County Sheriff’s Department. And the five officers with convictions working for the Riverside police include the acting chief — Larry Gonzalez was a lieutenant in 2013 when he pleaded guilty to DUI after reportedly crashing a city-owned SUV with a blood-alcohol level nearly twice the legal limit.

There’s a Kern County Sheriff’s deputy still working despite a conviction for manslaughter after running over two people while recklessly speeding to a call. And a Santa Clara County Sheriff’s deputy is back on the force after dozing off at the wheel and killing a pair of elite cyclists on a training ride.

Sheriff's departments are especially fond of hiring and retaining the worst people. They're the agencies most willing to overlook long histories of misconduct and the most hesitant to hand down significant punishments when laws are broken by law enforcers on their payroll. The L.A. Sheriff's Department is filled with suspicious individuals who hang out in a high crime area every time they show up at the office.

The list has been trimmed considerably since its surprising release to journalists. Due to the lack of cooperation from law enforcement agencies and the general sloppiness of large-scale bureaucracies, the names in the database are only those that have been verified by journalists. The original list had 12,000 names but the database only contains 630 current and former officers.

Even so, there's plenty to be concerned about. Some officers have multiple convictions but were never fired. Officers have driven drunk, left their children in cars with their loaded guns, and engaged in fraud. There's also lots of domestic abuse -- most of which has gone unaddressed by officers' employers.

Richard Sotelo was an Imperial County Sheriff’s Department correctional officer in February 2013 when he was charged with domestic violence for assaulting his estranged wife. He was allowed to keep working despite the pending charges. But months later he was accused of a crime again, this time sexual battery against a male co-worker. He was charged for that as well. Sotelo ultimately took plea deals and was convicted in both cases and left the force.

[...]

In one incident investigated by the Bell Police Department months before his reckless driving, [LAPD Officer David] Guerrero allegedly “threatened, assaulted and battered” a woman who was in a dispute with his girlfriend, according to court records.

“That’s how you do it, LAPD style,” Guerrero allegedly said as he drove away.

The DA’s office didn’t file charges. It also didn’t prosecute Guerrero in 2013 when he allegedly threatened to kill the mother of his child, court records show.

The recycling of California cops isn't going to stop unless the state legislature steps up and makes it possible for officers to lose their certification following a conviction. California is one of only five states with no decertification process, so officers can avoid accountability simply by drifting from agency to agency in the (apparently unlikely) event they've been fired. A few more firings will probably occur as a result of increased access to misconduct records, but that's hardly going to budge the needle when some agencies in the state have shown they don't feel staffing their departments with known criminals is a problem.

Filed Under: california, database, journalism, police, xavier becerra

California Police Department Wants Five Days Notice And The Personal Info Of Requesters Before Turning Over Misconduct Records

from the another-set-of-extra-rights dept

The thing California cops never thought would happen happened. On January 1, 2019, a new law took effect that opened up police misconduct and use of force records to the public for the first time in ever. Needless to say, cops were not pleased.

Multiple lawsuits were filed in an attempt to block the law from taking effect -- or at least prevent the public from accessing records created prior to January 2019. Multiple lawsuits and legal challenges were rejected by California courts, which read the law as being retroactive.

As those efforts failed, the state's district attorney, Xavier Becerra, decided to go against the courts and the law's author to claim it was not retroactive. Of course, he was no more correct about this than the law enforcement unions being handed losses by the state's courts.

The "smart" law enforcement agencies read the writing on the wall, took the wall down, and ran it through the shredder before the law took effect. There were a few cooperative standouts following the law's enactment, but most law enforcement agencies decided to comply with the new law as antagonistically and slowly as possible.

The Long Beach Police Department is the latest to flip the bird to the public over public records. As Tony Saavedra of the Orange County Register reports, the PD is preemptively buying time. Or, more accurately, it's hoping to steal it. What the PD wants is nearly a week's-worth of heads up if the city plans to release officers' misconduct and use of force records.

Long Beach police officers want five days advance notice before the city releases their individual misconduct and use-of-force records to the public under a new state transparency law.

The city, being the subservient ass it is, has acquiesced. And it's made this five-day advance notice policy even worse.

City contract negotiators have recommended the notification provision, along with the requirement that officers receive the names of individuals and organizations requesting their files.

How's that for a chilling effect? Officers whose files have been requested will know who has been requesting their files. That's going to make things uncomfortable for requesters, who may suddenly find themselves interacting with law enforcement officers far more often than they'd like to.

The boss of the local police union has of course showed up to say something stupid in defense of this heinous bullshit.

James Foster, president of the Long Beach Police Officers Association, said the provision is merely an effort to even the field for police officers.

Foster said officers often don’t know the contents of the administrative investigations done on them.

“It would be grossly unfair for the officer to see this for the first time on the front page of the newspaper,” he said.

"Even the playing field?" Your guys have badges, guns, and a whole lot of power. The playing field is nowhere close to even. Accessing public records doesn't suddenly put citizens on equal footing with people with the force of the law behind them. Let's see how well a cop responds to a citizen stopping him for no reason, insisting the officer explain where he's going, what he's doing, and why he's in such a shady neighborhood, all while checking the contents of his pockets and groin area. Let's see a peace officer sit through a pretextual traffic stop while the citizen kills time with probing questions in hopes of getting a free pass on a vehicle search, with or without Officer Paws and his magical nose.

And, if officers are concerned about appearing on the front page of the newspaper, maybe they shouldn't engage in the sort of misconduct that creates paper trails. Just a suggestion.

This is a bad policy and it's bad news for Californians. No doubt other police unions are asking for the same special treatment, hoping to deter people from obtaining records they're now allowed to obtain.

Filed Under: california, long beach, long beach pd, misconduct, police, transparency, xavier becerra

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

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

Lawyer's Association Asks New California Attorney General To Drop Its Abusive Prosecution Of Backpage

from the Kamala-Harris'-legacy-isn't-worth-protecting,-much-less-continuing dept

The First Amendment Lawyer's Association (FALA) is hoping to end the California Attorney General's crusade against Backpage. The website has already ceded ground in the face of constant criticism, investigations, and legal threats. Earlier this year, it shuttered its adult ads rather than continue to bleed money and time defending itself against bogus prosecutions and investigations.

Former California Attorney General Kamala Harris -- who blew off court decisions against her office to continue to prosecute Backpage -- has now moved on to the US Senate. But just because Harris has moved on doesn't mean the local AG's office isn't going to continue with Harris' unfinished business.

The letter from FALA is covered (but not published[?]) by Elizabeth Nolan Brown at Reason.

On March 14, FALA—a nonprofit membership association launched in the late '60s that has boasted some of the country's top constitutional lawyers—sent a letter to Becerra condemning "the abusive prosecution of individuals associated with the online classified advertising website Backpage.com, and also the use of expansive search warrants seeking vast amounts of constitutionally-protected material, including personally identifiable information about all of the website's users." In the letter, FALA President Marc Randazza says he can identify "no theory under the First Amendment that would countenance such an abusive use of prosecutorial discretion or such a dragnet demand for information."

The letter points out the flaws of the AG's case against Backpage. Not only does it do damage to protected speech, but it ignores Section 230 protections in the ongoing quest to punish the site's owners for the actions of its users.

On top of that, there's the overbreadth of prosecutors' demands for info from the site. Not content to steamroll the First Amendment, the office also made a mockery of the term "investigation." From the letter:

We have learned that a subpoena was served on Backpage.com that calls for the production of massive amounts of information for a several-year period, including copies of all advertisements posted (in all content categories), all billing records, the identities of all of the website's users and their account histories, all internal communications, and even the source code for the operation of the website.

As FALA points out, this sounds a whole lot like the colonial-era "general warrants" -- the same ones our government sought to eliminate with the Fourth Amendment.

On the plus side, the new California Attorney General has pledged to protect civil liberties. FALA's hoping that pledge extends to Kamala Harris' unfinished business.

Filed Under: california, first amendment, free speech, kamala harris, section 230, xavier becerra
Companies: fala, first amendment lawyers association

Why Obama Should Change US Trade Policy On Intellectual Property

from the doing-more-harm-than-good dept

For years, we've had serious problems with the way the US government has viewed intellectual property when it comes to trade agreements. In many ways, it's been the exact opposite of its stated plan. We see, time and time, again where a supposed "free trade agreement" is actually about forcing other countries to add protectionist policies more draconian than the US. That's not free trade at all, and just as tariffs and other trade barriers harm the very industries they're supposed to protect, the US's trade policy concerning intellectual property has done great harm to US intellectual property industries. Unfortunately, you rarely see that discussed anywhere.

That's why it's good to see Ed Black, president and CEO of the Computer & Communications Industry Association, writing up an opinion piece for the San Jose Mercury News explaining to President-elect Obama why US trade policy concerning IP needs to change. First, he worries about the widespread reports that Obama has chosen Xavier Becerra to be the new US Trade Representative. In the past, the US Trade Rep has basically acted as a representative of Hollywood at times, and Becerra may be no different... as he's literally the Congressional rep for California's 31st district... which (you guessed it) covers Hollywood. Uh oh. That would be like making a Congressional rep from Detroit in charge of automotive policy in the US. They're less likely to have the nation's overall best interests in mind.

Black then outlines three reasons why the US's insistence on pushing draconian IP laws through trade agreements is a bad idea:

• It's alienating many of our allies who feel they're being forced to put in place excessively draconian IP laws they don't need or want.
• It takes away from America's ability to spread our culture internationally. Black notes how bootleg products in Eastern Europe helped contribute to the fall of communism there. By greatly restricting how American content can be used, we actually aid repressive regimes.
• Finally, and most importantly, these restrictions actually harm the US economy. Black specifically notes how excessive IP legislation that does not allow for fair use (which is what the US is pushing in most countries) actually harms American internet companies, allowing them to get sued for copyright infringement on things that should be fair use. He could actually go much further in how it harms our economy, but at least it's a start.

Unfortunately, given the current expected choice for USTR, the initial reaction is that this is going to be more of the same.

Filed Under: intellectual property, obama, trade policy, us trade representative, xavier becerra