United States Project

In California, the fight over a secret list of criminal cops

March 4, 2019

On January 8, a list of 12,000 names arrived in the inboxes of Robert Lewis and Jason Paladino, reporters with the Investigative Reporting Program at the University of California, Berkeley’s Graduate School of Journalism. The reporters had filed public records requests with the state’s Commission on Peace Officer Standards and Training in 2018 for the names of California law enforcement officers and applicants for police jobs who have been convicted of a crime in the past 10 years.

There were many stories in it — the list included current and former officers with serious felonies on their records — but Lewis, Paladino, and their editors weren’t sure what the story was. Three weeks later, when the journalists received a letter from California Attorney General Xavier Becerra’s office, telling them to destroy the records and claiming that possessing them was a criminal offense, they knew what the story would be. The headline, as it ran February 26 in both the East Bay Times and the website for the public radio station KQED: “California keeps a secret list of criminal cops, but says you can’t have it.”

“In some ways, the story is that letter—the fact that the attorney general doesn’t want these records out there,” Paladino says.

Paladino and Lewis are still working with the data, checking names to make sure they’ve identified the right people and looking up individual cases in county courthouses. Thousands of the names on the list don’t belong to police officers, but Paladino and Lewis matched about 3,500 names on the list to officers in state personnel databases, and 2,250 of them have been active within the past five years.

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The letter from Becerra’s office isn’t slowing them down, though they say it is distressing. “I’m very hopeful that this is just sort of an idle threat,” says Lewis, who works for Investigative Studios, a nonprofit production company affiliated with the university program. “I’ve been a reporter for more than 15 years, and I’ve never had anything like this happen on a story.”

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The letter, from Deputy Attorney General Michelle Mitchell, makes two core claims. The first is that the Commission on Peace Officer Standards and Training released the records “inadvertently,” and their release should be effectively undone by the UC Berkeley team destroying the records. (The Golden State’s supreme court ruled in 2016 to protect reclamation of inadvertently released materials; such claims remain rare outside of California.) The records never should have been released, the letter claims, because they were drawn from a confidential law enforcement database of criminal records. Second, Mitchell’s letter warns Lewis and Paladino, “you are hereby on notice that the unauthorized receipt or possession” of the records is a misdemeanor (emphasis in the original letter).

I hold the attorney general’s office in high regard … but I do not know how this letter got out of the AG’s office.

Lewis and Paladino, and their editors and attorneys, dispute both claims. The commission’s release of the records was clearly intentional, they say, pointing to a month of back-and-forth between the reporters and the commission about what records to gather and how long they would take to produce. The reporters made their requests on December 6; at no point, they say, did anyone at the commission suggest the records should be exempt from disclosure. The spreadsheet itself is composed of information that is public, available in federal and state court filings.

The threat of criminal liability for possession of the records appears unfounded in California law. Mitchell’s letter cites a state law that says it is a misdemeanor for an unauthorized person to buy, receive, or possess records or information from the state criminal records database. However, that law has an exemption for anyone covered by the state’s media shield law, including reporters, editors, and anyone “connected with or employed by” a news organization.

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“Given the plain language of the statute, there is no way they can credibly threaten prosecution,” James Wheaton, the founder and senior counsel of the First Amendment Project, says.

“I hold the attorney general’s office in high regard … but I do not know how this letter got out of the AG’s office,” Wheaton, who since this story’s publication has been retained by Paladino, says. “I hate to say it, but it’s a bullying tactic: send a shot across the bow, throw around words like ‘misdemeanor,’ and see if you can scare somebody.”

The attorney general’s office did not make anyone available for an interview. Instead, it provided a statement repeating its position as outlined in the letter. The Commission on Peace Officer Standards and Training did not reply to an interview request.

This isn’t Becerra’s only tangle with the media over records of police misconduct. He’s being sued by the First Amendment Coalition for his refusal to turn over records from internal investigations of alleged law enforcement misconduct. Such records have historically been kept secret in California, even from prosecutors and defense attorneys, making it one of the worst states for public access to law enforcement records.

A new law that went into effect January 1 changes some of that, requiring the release of records in cases of officer shootings or other major uses of force, as well as proven sexual assaults and dishonesty on the job.

Police unions claim the law should only apply to records created after January 1. Trial courts in the state have come down on both sides, but most courts in the state’s large counties have ruled in favor of releasing the records. Becerra has said in court filings that the law should apply to older records, but his office still refuses to turn over its own pre-2019 files.

“The attorney general has been really disappointing,” John Temple, the director of the Investigative Reporting Program at UC Berkeley, says. “I don’t know the AG, and I’m not trying to cast any aspersions on his character, but I’d say as a leader, when it comes to the public’s right to know, he’s been disappointing at best and terrible at worst.”

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This story has been updated to state that James Wheaton has been retained as counsel for Jason Paladino.

Tony Biasotti is a freelance writer in Ventura, California. Find him on Twitter @tonybiasotti.