California Attorney General an unexpected obstacle to police transparency law

Appointed to replace newly elected U.S. Sen. Kamala Harris in 2016, California Attorney General Xavier Becerra ran for his own four-year term in 2018 as a supporter of then-Gov. Jerry Brown’s law enforcement and judicial reforms. “California’s Department of Justice has modernized its police force, sponsored state legislation to require an assessment of 2015 and 2016 data related to officer-involved shootings and has explored options for bail reform,” his campaign web page declared. After winning, Becerra made similar claims in a speech at Stanford University.

But to the surprise of many Democrats, the former 12-term congressman has also emerged this year as a persistent, unexpected obstacle to a reform measure that Brown signed before he left office.

Senate Bill 1421, by Sen. Nancy Skinner, D-Berkeley, requires law enforcement agencies to release discipline records related to officers’ excessive use of force, sexual misconduct and dishonest actions. It replaced a previous collection of state laws and court rulings that made it close to impossible for the public to learn about sustained allegations against peace officers.

But even before it took effect on Jan. 1, dozens of police agencies attempted to undercut the law by saying it didn’t apply to misconduct before Jan. 1. Skinner and the legislative record showed that it was her clear intent to make all discipline records that departments had to legally retain available through public record requests.

CHP has produced no records on 7,000-plus officers

Becerra never supported this interpretation of SB 1421. But he initially declined to issue discipline records of state Department of Justice employees on the grounds that the question of the law’s effective date was being reviewed by state courts. Other law enforcement agencies began releasing their own records months before Becerra’s agency starting doing so following a May court ruling by San Francisco Superior Court Judge Richard Ulmer.

Meanwhile, by far the largest state police agency – the California Highway Patrol, which has more than 7,300 sworn officers – had released no records as of June 30, according to the Los Angeles Times. This prompted a complaint from Skinner. “If the state agencies themselves are acting like they’re above the law, that’s absolutely the wrong model and the wrong example to set for the rest of the local government agencies up and down the state,” she told the Times.

Becerra is also appealing part of Ulmer’s May ruling requiring his agency to hand over discipline records it has involving local officers. He wants to limit the parameters of SB 1421 so it only covers the discipline records of officers possessed by their employers. Becerra’s position is that this could lead to the undermining of agencies investigating their officers and potentially lead to the release of incorrect information. 

His department also says the language in Skinner’s bill “focused on an employer’s records about its employees” – not such records in the possession of another agency. But Ulmer didn’t go along with this interpretation. 

Last Friday, an appellate court sided with the judge’s decision and rejected Becerra’s challenge on a preliminary basis. But it set a hearing on July 18 to hear further testimony in the case.