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The Appeal Podcast: How Police Unions Are Fighting California’s New Transparency Law

With Appeal contributor Darwin BondGraham

California Highway Patrol officers block an entrance to Interstate 5 as Black Lives Matter protesters march nearby on March 30, 2018. Justin Sullivan/Getty Images

A primary demand of the Black Lives Matter movement is more transparency into police misconduct. When an officer improperly arrests, unduly harms, sexually assaults, or kills someoneor is suspected of doing soany previous record of misconduct ought to be a matter of public record. To that end, the state of California recently passed Senate Bill 1421, legislation designed to make police records more readily available to media, civil rights groups, defense attorneys, and the public. But as our guest Appeal contributor Darwin BondGraham explains, police unions and local governments aren’t enacting the law without a fight.

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Adam Johnson: Hi, welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us on Twitter @TheAppealPod, on Facebook at The Appeal’s main Facebook page and as always you can like and subscribe to us on iTunes.

A primary current of the Black Lives Matter movement is that of transparency into police misconduct. When an officer harms, unduly arrests, sexually assaults or kills someone or is suspected of doing so, their previous record of misconduct ought to be a matter of public record just as it is with those that police arrest. Towards this end, the state of California recently passed SB 1421 a bill designed to make police record disclosures easier for the media, civil rights groups, defense attorneys and the public writ large. But as this week’s guest, Appeal contributor Darwin BondGraham explains, police unions and local governments aren’t enacting the law without a robust, drawn out, legal and political fight.

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Darwin BondGraham: Police unions have already filed multiple lawsuits in superior courts up and down the state and they’ve obtained temporary restraining orders, blocking cities from complying with SB 1421 and so actually reporters like myself or the groups like the ACLU, we just haven’t even been able to get the records we’re seeking yet under this new law.

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Adam: Darwin, thank you so much for joining us.

Darwin BondGraham: Thank you for having me.

Adam: So we have not covered police unions on this show. I’m excited to do so. Anyone who’s ever dealt with investigative reporting or activism of any kind knows that the sort of prime mover of a lot of laws that make it, that obscure or make it difficult for people to actually know what’s going on is driven by police unions and their political confederates. You wrote specifically about the California police unions that in your article titled, “California Police Unions are scrambling to block the release of misconduct records.” Specifically as it pertains to a recent Bill 1421 in California, can you tell us about this bill, what it did and the mechanisms with which police unions and pro police union forces are trying to push back against it?

Darwin BondGraham: Yeah. So since about the 1970s, police records in California have been strictly confidential. This is the result of police unions and the labor movement in general being quite strong in California. So lawmakers amended a couple of sections of the penal code and a few other state laws to make it so that essentially anytime an officer breaks the law or carries out misconduct and is then investigated by their department, those records never see the light of day. So we’ve had several decades of complete secrecy of police misconduct in California. The wave of activism in recent years around police accountability and particular the use of deadly force, this led to last year, Senate Bill, SB 1421, being passed through the California State Legislature. Police unions were unable to defeat it. What this bill does is it basically makes the public records act applicable to police misconduct records in which an officer was sustained, that is the misconduct was found who have actually occurred in cases where an officer committed sexual assault or was dishonest, and then it also applies to misconduct or other investigations of use of force resulting in great bodily harm and officer involved shootings. And this is seen as a game changer in California, both for defense attorneys, civil rights attorneys and the media.

Adam: What is the standard? I know every state’s different. What’s California’s quote unquote “privacy protections” of police was it more restrictive than par for course, was it more extreme? Was it normal? Like give us some sense of the comparative value of SB 1421 in terms of changing the precedent?

Darwin BondGraham: Yeah. California has arguably the most secretive laws regarding police personnel records, disciplinary records, misconduct records. I’ve been reporting on police officers in California for years now, and the frustrating thing is that even when a department investigates an officer who has done something egregious, all of the internal files are never unsealed and presented to the public. There’s only one mechanism really in California that allows for the disclosure of misconduct records and that is in relation to the Brady obligation of a prosecutor to-

Adam: Right.

Darwin BondGraham: Yeah, to disclose potentially exculpatory information and evidence.

Adam: Okay. Because I was curious about that. I think in most people’s mind they assume that defense attorneys or even if it’s plaintiff’s attorneys in a civil case, the assumption is that there is some sort of discovery that they have a right to these records and you’re saying that’s not really the case.

Darwin BondGraham: Well, there’s, you know, so say in a case where an officer uses deadly force, you know, perhaps hits someone with a baton or chokes them or shoots them and they die and civil litigation is brought. There is discovery and often like the police reports themselves and body camera video can end up getting disclosed. But again, the personnel records, that is the internal administrative investigation of whether the officer violated department policy, those records can still be hidden.

Adam: Oh okay.

Darwin BondGraham: But yeah, under, in a say a criminal prosecution, if the defendant believes that a, a dirty cop basically is framing them or that they’re, you know, testi-lying on the stand to frame them up that defendant can seek access to the officer’s personnel file. But the mechanism has been very burdensome. So basically the defense attorney or the prosecutor has to file a Pitchess motion. The Pitchess motion seeks relevant records in an officer’s personnel file that could be related to misconduct that would potentially point to the officer, maybe not being a trustworthy witness or a trustworthy investigator in that case.

Adam: Right.

Darwin BondGraham: But then what happens is the judge takes the personnel file and reviews it alone in their chambers and then the judge decides if there’s anything in the file that should be disclosed. And even then, even if the judge says, yeah, there was the, you know, for example, there was this case and this police officer was found to have lied. You know, that’s definitely Brady material. Even if the judge hands that to the defense attorney and the prosecutor in that case, it will often be sealed. So the broader public will still never have a right to view it and the attorneys will be ordered not to disclose it publicly, so they may be able to use it if the case goes to trial, but it’s still usually confidential.

Adam: And now the cities are responding. Cities that are hostile to this bill, you report there’s a lot of differentiation between cities in terms of how it’s being applied, whether it’s being applied retroactively or not. Was this ambiguity sort of baked into the cake of the bill like on purpose? Is it about interpretation? Like what is going on with how it’s actually being implemented?

Darwin BondGraham: Yeah. You know, I think the author of the bill, Nancy Skinner, who represents the city of Berkeley in the State Senate, she does not seem to think that there was any ambiguity. There was a recent report in a new site called Berkeleyside quoting Skinner as saying that she did not at all intend for this legislation, for example, to not be applied retroactively, which is a position a lot of police unions are taking. The legislation itself, if you read it, it seems pretty straightforward. There are these specific categories of records, they were previously confidential, now they are subject to disclosure under the State Public Records Act.

Adam: You note that some cities are taking rather drastic steps to not have to abide by this law. Inglewood, California, which has a long history of racialized violence or I should say racist violence, stop using that stupid term, racist violence leveled upon the black population. The city council voted to destroy over 100 personnel records dating back to 1991? Is this sort of like, um, the last two days of Enron where people are shredding papers. I mean, what’s, what’s the sort of like semi-liberal pretext here?

Darwin BondGraham: Inglewood would say that what they did was simply administerial obligation of their government to purge old and unnecessary records. And so a lot of the records that they’re destroying go back to the 1990s and actually in, I believe it’s in the state penal code regarding police personnel files, departments are only required, I think under state law, to retain personnel records for five years. And so after five years, if there’s an investigative file of an allegation against an officer, I think in a lot of cases a department has the discretion to destroy that file. And so Inglewood did that with some older records and of course civil rights attorneys and activists and others who, you know, see this new law as a game changer, they thought, you know, well this is just an example of Inglewood, you know, trying to get out in front of the law and destroy, get rid of a lot of the skeletons that are hiding in their closet.

Adam: I’ve worked in this space before and it’s very difficult to tell sometimes to differentiate substantive and non substantive complaints. What the sort of percent of that is, is there an assumption that they’re sort of non substantive complaints, which I think we all agree are probably a meaningful portion of these complaints that those can get sensationalized? Like officer accused of X sort of being the headline? Is that one of their arguments or is it and I’m also curious, can you comment on what, like what is the sort of general clearance rate or how many complaints ultimately end up being sustained or settled? Do you, do you have any idea what that is? I know that’s a epistemological question, but-

Darwin BondGraham:  No, no, no, that’s a good question. In Oakland, so I’m very familiar with Oakland because I’m based here and I pay very close attention to the Oakland Police Department and the investigations by its internal affairs division and also the investigations by the independent civilian police commission, and according to the reports that they’ve put out over many years, the vast majority of complaints made against police officers are dismissed as unfounded or exonerated and often the body camera video of the officer actually proves that the officer did not engage in the conduct that the complainant is alleging. So it’s usually a very small number of cases that actually end up getting sustained as yes, this conduct occurred and yes, it was a violation of policy.

Adam: With an understanding that that’s probably low since they’re sort of investigating themselves in some way.

Darwin BondGraham: Yeah, I mean, well yeah, there are definitely documented cases of departments, you know, burying complaints, misinvestigating, you know, mishandled-

Adam:  I don’t want to oversell the false positives too much, but it’s definitely a thing.

Darwin BondGraham: Yeah, it certainly happens. I mean, you know, Oakland for example, has a couple of very notorious cases of this. One of them was a lieutenant named Edward Poulson in the year 2000 he was actually overseeing a narcotics sting operation where a young man named Jerry Amaro was killed by several police officers who beat him. Amaro died I believe like a week or two later after he was beaten and arrested by these officers. Poulson and the other officers were then accused of lying about the incident, but the internal affairs investigation of it cleared them and then Poulson ten years later became the Captain of Internal Affairs in the Oakland Police Department. I mean this is just one very good example of the police covering for themselves and this absolutely does happen, but the larger statistics you’re asking about, yeah. Most of the time officers are found not to have engaged in misconduct and that there is a very high rate of clearance, which they use a preponderance of evidence standard, which is lower than the standard in a criminal trial, but even under that standard, they often can clear officers of wrongdoing most of the time.

Adam: Yeah, because I assume that they would argue that there’s a privacy issue. Is there a lot of merit to this privacy issue? I know that a lot of the quote unquote “blue lives matter” panic, which is more or less just sort of a white supremacist ideology or a movement at this point, I think it’s fair to say, spending ten minutes on their Facebook pages. In your opinion is there any legitimate privacy concerns?

Darwin BondGraham: I think there are legitimate privacy concerns, you know, because there are a large number of complaints that ultimately aren’t sustained and the officers are exonerated in many cases and so they do have an argument that, you know, an allegation is just an allegation and if it’s unproven, this shouldn’t be something that’s hanging over an officer’s head for the rest of their life because it got leaked to the media or something.

Adam: By the way, not true for anyone they arrest who has their mugshots plastered in the media.

Darwin BondGraham: Yeah. Yeah. That’s a big problem with, with-

Adam: There’s a massive asymmetry here.

Darwin BondGraham: Right. And you see some police agencies now actually recognizing that and trying to, you know, not spread people’s mugshots. But to the privacy issue-

Adam: Well the best part is, is when they shoot someone then their criminal history is mysteriously leaked, but yes.

Darwin BondGraham: Yeah. Well, and that’s often the fault of reporters who, you know, in trying to examine every angle of every shooting or incident, you know, often one of the easiest things to do is go down to a courthouse and run somebody’s name through the criminal, you know, dockets. But the the privacy issue does not, that’s actually not applicable to this new state, this new law in California because SB 1421, it only applies to investigations of deadly use of force and it’s clear that the public interest served in showing the full investigative record of when a police officer kills someone, the public interest is better served by disclosing those records then by keeping those records secret. With respect to the two other types of complaints that are now subject to disclosure— sexual assault and dishonesty— they’re only subject to disclosure if the officer was found to have actually committed that violation. So these are not allegations. These are completed investigations.

Adam: Yeah that’s what I assumed was happening. I was just curious if there was a belief that from the police union’s perspective that that was not the case or that was that it was a slippery slope or-

Darwin BondGraham: I think there is. The police unions though are a bit tight-lipped about their position on this right now. But you know, one interesting feature of this new law and, and the political battle surrounding it is that the police chiefs who have their own association and lobbying group, they want to be able to root out corrupt cops. They want to be able to discipline officers who violate policy.

Adam: Ostensibly.

Darwin BondGraham: Yeah, well a lot of them do and some of their internal records indicate that they do and so they’ve actually clashed a little bit with the police unions regarding this new law and the police union’s efforts to water it down and block it or put poison pills in it. But yeah, at the end of the day, even the police chiefs and the Sheriff’s Association, these law enforcement executives or management, if you will, they definitely don’t like this trend of disclosing more information. That’s definitely for sure.

Adam: I mean, yeah. Most all groups in power don’t want people to know what they’re doing. Right? That’s why you have to have these laws. Because I mean, I, I, you know, I wouldn’t want people knowing what I’m doing. You wouldn’t want people knowing what you are doing. Of course, we’re not powerful and we’re not shooting people. But um, yeah, that’s uh, that’s, that seems like that’s always the case. Is this law, California, obviously the biggest state in the country, obviously a kind of bellwether, is this law being looked at as a guide post to your knowledge in other states if it hasn’t already?

Darwin BondGraham: You know, yeah, California usually is a bellwether, it’s usually, often it passes laws that end up getting copied or adapted by other states. But the ironic thing in this situation is that California actually has among the most secretive rules regarding police personnel records. So a lot of states they don’t have to implement a law like this because the public already can obtain these kinds of records there. But yeah, I mean this is part of a broader national movement around police accountability. That’s definitely what led to the passage of this law this year. And we do see similar things reflected in other states for sure.

Adam: What is the sort of next step for activists? You mentioned the ACLU, which is sort of been a core component of this, what is their next steps in trying to create even more transparency?

Darwin BondGraham: Yeah. Well, so police unions have already filed multiple lawsuits in superior courts up and down the state and they’ve obtained temporary restraining orders, blocking cities from complying with SB 1421, and so actually reporters like myself or the groups like the ACLU, we just haven’t even been able to get the records we’re seeking yet under this new law. So the next steps for the ACLU and some media organizations-

Adam: Would be to actually implement the law.

Darwin BondGraham: Yeah. We’re, you know, we find that some of the media organizations that have resources and they say, ‘Oh, you are now an intervening in a number of the lawsuits’ and arguing why the police union’s arguments, you know, to not retroactively apply the law before January 1st of this year, why they think that argument is bunk and why cities should immediately comply and start releasing records which few smaller cities have done.

Adam: I have a question about unions and police unions. You obviously have to be very sensitive when you’re sort of criticizing police unions because you don’t want to sound like John Stossel or Charles Koch because obviously police unions are unique and I know most left activists don’t really consider them to be unions because of their, you know, whatever traditional alliance with the capitalist class so forth. But how do you thread that needle? I mean, how does one sort of talk about the entrenched interest of the police unions without making sort of a carte blanche criticism of all unions per se, and to what extent do larger union organizations, whether they be AFL-CIO or any other confederacies, in what ways do they help protect police in the interest of helping to protect unions in general against this kind of transparency?

Darwin BondGraham: Yeah. Specific to, again, SB 1421, another interesting thing that we saw was some of the largest unions in the country like SEIU, they were for this bill and so they definitely did not take a position that was favored by the various police officers associations and the sheriff’s deputies unions and the correctional officers unions, which are pretty powerful in California. So there was definitely a split in labor, but I mean that split is kind of always there. The police unions tend to be more conservative in social and economic policy, whereas the mainstream of the labor movement particularly in California is very progressive. But yeah, it is interesting that police unions, you know, they are unions, their associations of workers, they have very clear differences from other types of unions, but these are groups of public employees who use the same exact types of laws to collectively bargain and fight for the rights of their membership. It’s just so obvious though that the interest of their membership is often diametrically opposed to the interest of poor people who live in urban areas with higher rates of crime where you see a lot of this police officer misconduct.

Adam: Right. It’s always a hard balance. There has been a movement to get ICE and border patrol unions out of AFL-CIO because they, I don’t know if you’ve read any of the head of the AFL-CIO’s comments on Trump’s border wall and immigration, they’re uh, they’re pretty right-wing. So it’s, it’s hard. It’s a hard balance. I really appreciate you coming on. Thank you so much.

Darwin BondGraham: Yeah, thanks for having me, man.

Adam: Thank you to our guest, Appeal contributor Darwin BondGraham. This has been The Appeal podcast. Remember, you can always like and subscribe to us on iTunes and follow us at the main Facebook page for The Appeal magazine. The show was produced by Florence Barrau-Adams. Production assistant Trendel Lightburn. Executive producer Sarah Leonard. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.