The city of Berkeley says it has no records of sexual assault or dishonesty-related police misconduct from the past five years and does not have to release police use-of-force records that resulted in death or great bodily injury from incidents before 2019.
Berkeleyside sought those records this month under the California Public Records Act after Sen. Nancy Skinner’s new police transparency law, SB 1421, went into effect Jan. 1. The law said agencies must release records related to police use of force that resulted in death or great bodily injury, incidents involving an officer’s discharge of a firearm, sustained findings about any sexual assault of the public while on duty, and sustained findings of dishonesty-related misconduct.
Skinner wrote in September that her bill “breaks open a 40-year lock on public access to police records” and “lifts the veil of secrecy that has made California the only state that denies all public access to records on law enforcement misconduct. SB 1421 opens access to records on use of deadly force and on the job sexual assault or dishonesty, such as witness interference or evidence tampering.”
In a Jan. 18 letter to Berkeleyside, City Attorney Farimah Brown wrote that the city’s position is that any records created before Jan. 1 are personnel records and remain confidential. A number of law enforcement agencies and police unions throughout the state have taken that position, but attorneys in Southern California have already mounted a legal challenge to that stance.
Those familiar with SB 1421 have said legislators absolutely intended the law to apply to historical records of misconduct and use of force — not just records going forward. Skinner — who was a Berkeley City Council member and represented Assembly District 15 before becoming Berkeley’s senator — told the Los Angeles Times recently that “her intent was for the new law to apply to any records in a department’s possession.”
David Snyder, executive director of the First Amendment Coalition, said some law enforcement agencies are “acting in good faith, taking the bill at its word and following the law.” But a “large number,” he added, are “misreading the law and forcing a delay of access.”
Snyder said the city’s interpretation of SB 1421 is wrong.
“The bill’s plain language and the legislative history of the bill make very clear that the legislature intended this law to apply to all records, not just records created this year and later,” he said Friday. “Their legal argument is just incorrect.”
In its letter to Berkeleyside, the city said it did not have to release any records created prior to Jan. 1, 2019. But the Berkeley Police Department “was able to perform a good faith and diligent search for records going back 5 years” and “determined that there are no responsive records” to the request for sexual assault and dishonesty-related misconduct during that period or this year.
“There were no sustained investigations during that time,” said city spokesman Matthai Chakko shortly after publication.
As to the use-of-force question, the city provided a slightly different response. Again, the city said, the new law does not “apply retroactively, and therefore records predating January 1, 2019, are confidential personnel records and exempt from disclosure.” For the use-of-force records, the city made no mention of records from the past five years. It said only that there are no releasable use-of-force records from 2019.
Even if the law is deemed by the courts one day to apply to historical records, Berkeley may not have extensive documents to share. But there certainly would be some applicable cases. There has been one known in-custody death in recent years — that of Kayla Moore in 2013 — as well as the police use of force that took place during the December 2014 Black Lives Matter demonstrations, among other incidents that could be considered. BPD has not had an officer-involved shooting since 2012.
“It’s really disappointing for the city of Berkeley not to side with transparency”
Berkeley Police Review Commission (PRC) member Ari Yampolsky, a whistleblower attorney, said he was surprised at the city’s position.
“The author of the legislation, who is from Berkeley, has made clear — in no uncertain terms — that the legislature intended for the law to apply retroactively,” Yampolsky said, speaking for himself, not the PRC.
He described a recent court hearing in Orange County where the sheriff’s union fought to keep county staff from releasing misconduct records. In Berkeley, the city attorney’s office seemed to be siding instead with the position of many police unions in the state: that pre-2019 records cannot be released. That’s disappointing, Yampolsky said.
“As a kind of basic accountability measure, it’s very surprising that Berkeley would try to kind of wipe the slate clean or to suggest that’s what the legislature wanted the city to do in providing this information to the public,” he said. “I don’t think there’s really any evidence of that. And it’s certainly not responsive to the larger social and political context of increased demands for police transparency. In fact, it pushes in the opposition direction.”
George Perezvelez, PRC vice chair, had a similar take.
“It’s always disappointing when the city evaluates a transparency law — that was made by a former City Council member, AD 15 representative and now our senator — at a baseline level,” he said, also speaking for himself rather than the PRC. “If the city of Berkeley wants to continue to look at transparency as something that’s a hindrance to its operations then it will continue to do a disservice to the community.”
Perezvelez, who also chairs the police oversight board of BART, said the city’s letter was particularly concerning coming from a community that prides itself on its progressive and forward-thinking values. He said the City Council might need to get involved and have discussions with the city manager and city attorney.
“It’s something I would expect in a place like Texas or Florida, not Berkeley,” he said. “It’s really disappointing for the city of Berkeley not to side with transparency but to wait until someone tells them, ‘No, you’re wrong, your interpretation is incorrect and you have to comply.'”
Attorney Snyder, who is part of a lawsuit in Los Angeles County where the police union has argued against the release of pre-2019 misconduct records, noted that SB 1421 clearly references “any” and “all” records. It does not include a time limitation. Attorneys in the suit have argued that the legislature intended to pass a law that applied to all records, and that’s what it did. Further, calling the law “retroactive” is a red herring because the new legislation regulates the release of records, not the records themselves.
The next hearing for that case comes in early February, and there will likely be other legal challenges as municipalities around the state grapple with how to handle the new law.
Snyder said he believes the California Supreme Court will ultimately rule in favor of the release of pre-2019 misconduct records. But that process will take time.
“This is really, unfortunately, a game of delay,” he said. “It’s really too bad because I think the bill is very clear about how it’s supposed to apply.”
Note: This story was updated shortly after publication with a statement from the city.