California’s new transparency law increases police visibility and amplifies reporting, but the state is still resisting it
Camille Fassett
May 14, 2019
Records of police misconduct have been shrouded in secrecy for decades in California, thanks to state laws that blocked disciplinary records from disclosure to the public. Now, a new law has opened up certain police misconduct records to journalists, families of victims of police violence, and the public.
Recent wins in the courts have already resulted in newly-released records that have shed light on the details of police shooting cases, such as the 2009 killing of Oscar Grant in Oakland. Yet police unions and departments across the state — and even the state’s attorney general — are still intensely resisting complying with the law.
Police misconduct information that has been available to the public in many states for years has long been hidden in California, where records such as the names of officers that have been disciplined for abuse have been considered confidential. With the passage of SB 1421, the public can now more easily access records relating to officers that shoot, kill, commit perjury, sexually assault, lie in an investigation, or seriously injure a citizen.
Before the law went into effect, some California cities destroyed police records last year that would have been subject to disclosure — including Fremont and Union City. Others, such as Livermore, routinely purge their records every year.
And police unions fought SB 1421 every step in the way — not only throughout the legislative process last year, but also challenging it in the courts after it went into effect in January.
Kathleen Guneratne, Senior Staff Attorney at the ACLU of Northern California, said that some police unions took the position that the law only applied to records created after Jan. 1, 2019, and brought lawsuits against police departments that were preparing to release historical records.
“They made a last ditch effort to thwart the will of the people and made an argument that the law couldn’t apply to records, or police misconduct, from prior to 2019,” she said. “It was a misreading of the statute. Every court that considered it reached the some conclusion — the argument lacked any merit.”
In a lawsuit in Contra Costa County, six law enforcement unions sought to bar their cities from releasing police personnel records from before 2019, but the judge in that case denied their request for preliminary injunctions. An appellate court upheld the first decision, and ordered that all relevant records should be released.
“The ACLU of Northern California sought leave to intervene on behalf of Rick Perez, whose son was killed by a Richmond police officer, who was seeking records about that shooting,” said Guneratne. “A lot of police officer associations subsequently dismissed their lawsuits, and some did right after the Contra Costa decision came down, likely because they knew they probably would not get a different decision.”
As records are released through public records requests by journalists and families of victims under the new law, new information is being uncovered on acts of police violence. A report released by Bay Area Rapid Transit added new context to the fatal shooting of Oscar Grant and showed the police lied about the events that preceded Grant’s death. The revelations made headlines across the country.
Grant's uncle, Cephus "Uncle Bobby" Johnson, said that much of what was released was not new to him, but the report did reveal Officer Johannes Mehserle’s extensive excessive-use-of force complaints, which were not public at the time he shot Grant, or even during his trial.
“During the trial, we wanted the cops’ history of use-of force,” Johnson told Freedom of the Press Foundation. “The court denied us that right, and said the jury did not have purview to see that information and that the trial should be based on the officer’s state of mind at that time. So although they could talk about victims’ histories, we couldn’t know about the cops’ histories.”
Incredibly, California Attorney General Xavier Becerra continues to refuse to enforce the law, claiming that he awaits clarity from the courts. Guneratne thinks that clarity has long since arrived.
“It’s baffling why Becerra is continuing his ‘wait-and-see’ approach,” she said. “He’s ignoring the sound legal reasoning of court decisions, and it shows that he is more interested in protecting rogue cops that the public’s right to know.”
As Freedom of the Press Foundation reported last year, the impact of this legislation for families, communities, and journalists reporting on police violence and abuse of power could be enormous.
“Getting the law passed was absolutely historic,” Guneratne said. “The first phase was making sure it was implemented, and then fighting the unions, which is winding down now. The next phase is getting the records and organizing them.”
For families like Johnson’s, SB 1421 records could mean a new era of transparency, one in which problem officers can not only be identified but actually be held accountable.
“We haven’t been able to prevent them from simply going to a different law enforcement agency and repeating the same behavior again and again,” Johnson said. “It’s a whole new ball game now.”
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