Even with new disclosure law, fight continues to unseal California’s secret police files

Mar 19, 2019

One had sex in the front seat of his squad car, another stole thousands of bullets. Others used force illegally, cavorted with sex workers, lied in reports and trumped up charges.

None of those police officers were prosecuted.

These are just some of the revelations made public in the first months of a new state of police transparency in California. A new state law, Senate Bill 1421, broke down a wall of secrecy built up since the 1970s that blocked public access to the most serious police misconduct and deadly use-of-force information.

In the weeks before the law took effect on Jan. 1, journalists throughout California formed a coalition called the California Reporting Project to request and report on the newly unsealed records. The initial group — including KCBX, KQED, the Bay Area News Group, UC Berkeley’s Investigative Reporting Program, KPCC, Capital Public Radio and the Los Angeles Times — has grown significantly since the start of this year.

As of Monday, the coalition of over 30 news organizations had made requests to 675 police agencies in all 58 counties since Jan. 1. KQED, the Bay Area News Group and UC Berkeley students filed more than 460 of those requests, including ones to all state agencies that employ police and all police departments in Northern California.

Overall, participating news organizations have combined to blanket the state with more than 1,100 public records requests. Some requests are duplicative, while others pertain to specific cases or individual officers.

“The newsrooms have agreed to set aside competition and work collaboratively given the public service this reporting will provide,” the California Reporting Project said in a written statement.

It’s not just journalists who are seeking out these records, however.

‘Every One Of Us Has The Same Story’

Richard Perez is part of a club he said no one wants to belong to: loved ones of people killed by police. Perez is one of a number of families seeking these records with the help of the ACLU.

“Every one of us has the same story,” he said. “It's the police will not release information. And then what little information they do release, it's basically the same story. It's like, ‘I feared for my life.’” So that gets them off every time.”

Perez’s 24-year-old son Richard “Pedie” Perez was unarmed when he was shot and killed outside a liquor store in 2014 by then-Richmond Police Officer Wallace Jensen. Jensen no longer works for the department.

The Richmond Peace Officers Association sued the city in January to block the release of any pre-2019 records, including Perez’s access to information related to his son’s death and Jensen’s discipline record.

“It’s not some dark secrets to be covered up,” Richmond Police Officers Association President Benjamin Therriault said. “It's just that the process is important to folks.”

Officers have long relied on the expectation that information from internal affairs investigations would be kept confidential. Therriault, the Richmond POA president, said the new law changes the rules of the game halfway through.

Records in Peril

More than a hundred cities have already started turning over records. Others have taken a variety of positions to stall or prevent release.

Some cities rushed to destroy the documents they could, under state law, before Jan. 1.

Morgan Hill burned eight banker’s boxes of records on Dec. 27, according to City Attorney Donald Larkin. The city destroyed background reports for people applying to be police officers and internal investigation reports dating back to 1990, Larkin wrote in an emailed response. Fremont also shredded documentation related to citizen complaints and administrative investigations going back to 2010.

In Southern California, the city of Inglewood destroyed more than 100 shooting records in the final weeks of 2018, according to the Los Angeles Times.

Some agencies are choosing to delay, rather than destroy.

The reasons given for delayed production of records have ranged from an IT crisis in Lodi, to a strike in the Imperial County District Attorney’s Office, to a dangerous storage container in the town of Lindsay.

“The boxes are stacked in such a manner causing it to be dangerous for an employee to enter the container to retrieve the records,” wrote Lindsay Police Chief Chris Hughes. “We are in the process of placing a new (container) for storage and organizing the old container so it is not dangerous to enter.”

But most agencies who have refused access to records are doing so because of the threat of legal action or lawsuits filed by police unions.

Unions Fight To Keep Records Secret

In at least nine counties across the state, police officer unions have sued to keep their records secret, arguing that the new police transparency law should only apply to incidents after Jan. 1.

So far few courts agree with the unions’ arguments.

The California Supreme Court has twice declined to take up cases on SB 1421’s "retroactivity." Other courts have overwhelmingly ruled in favor of transparency.

  • The Los Angeles Police Department, tied up in litigation since the beginning of the year, started providing records last week after courts rejected the unions’ arguments. Superior court judges in Contra Costa, Orange, Santa Barbara, San Diego and San Bernardino counties have all ruled for releasing the records, and those decisions have survived subsequent appeals.
  • Cases are pending in Merced and Fresno counties.
  • A Ventura County judge is so far the only one in the state to preliminarily rule in favor of keeping records from before this year secret. A lawsuit brought by the San Francisco police officers’ union is at a similar stage, after the city attorney agreed to delay providing records until the case is heard, which is scheduled for early April.

“It's become quite clear through numerous court rulings now that the unions' arguments are totally groundless,” said David Snyder, head of the San Rafael-based First Amendment Coalition, which is defending the law’s application to past records in several cases in Northern and Southern California.

David Mastagni, a labor lawyer who represents police officers, said records created before 2019 were never intended for a public audience, and that releasing those documents could expose sensitive information about both crime victims and officers.

“What's concerning to me is the demonization of police,” Mastagni said. “It's important to remember that both third party victims and law enforcement have important privacy rights that need to be balanced with these disclosures.”

Attorney General Stalls Release

Attorney General Xavier Becerra last month declined to provide pre-2019 misconduct and shooting information held by the California Department of Justice. Becerra cited these court challenges brought by police and sheriff deputies’ unions and said peace officers have historically had a significant right to privacy.

“Therefore, until the legal question of retroactive application of the statute is resolved by the courts,” the denial says. “The public interest in accessing these records is clearly outweighed by the public’s interest in protecting privacy rights.”

On March 5, KQED joined a lawsuit filed in San Francisco against Becerra and the state Department of Justice, arguing that the attorney general can’t indefinitely delay his response while waiting on court rulings.

The attorney general’s position has stopped the flow of misconduct records from dozens of agencies. The California Police Chiefs Association and a prominent police union law firm seized on the attorney general’s denial, sending it out in early February as an official “notification” to police departments across the state.

Michael Rains, whose firm represents the police unions in this litigation, did not respond to requests for comment for this story.

Menlo Park reversed course after receiving a letter from union representatives that argued the release of records could do “irreparable harm to the safety and reputation of our members.”

‘Once They Release It’

Police union attorney Mastagni said he has clients who had no choice but to use deadly force after being shot at by suspects, “yet their families are subject to ridicule and threats.”

But Richard Perez, whose son was shot and killed in 2014, said police officers too often say they had to fire, that they feared for their lives. But he wonders about his son’s life — if the former Richmond police officer who shot him didn’t do anything wrong, why won’t they release the records?

“You hear these cops talking about releasing this information, and once you release it you can't get it back,” Perez said. “They should think about releasing that bullet out of that gun. Once they release it, and it strikes somebody, you can't get it back. So their priorities really hurt.”