How California's Local Police Departments and Unions Hinder Access to Use-of-Force Cases

Despite laws intended to “pierce the secrecy” protecting California police officers, law enforcement agencies have thwarted those who seek information on cases of alleged misconduct — in some instances battling requesters in court.

And some basic personnel records — including complaints and disciplinary action against officers — are still hidden from the public, accessible only when a California judge grants access to them.

California had at least 198 non-shooting deaths from 2012 through 2021 after police used force that isn’t supposed to be deadly — the most documented in any state in the nation, an investigation by the Howard Center for Investigative Journalism, in conjunction with The Associated Press, found. The investigation identified 1,036 deaths across the country during that time frame, though suppression of information means the numbers are likely an undercount.

While California is widely considered one of the most progressive states in the nation, local law enforcement officers for decades have had their on-duty actions veiled by some of the strongest privacy protections in the country.

“Police officers are given enormous power,” said David Loy, legal director of the First Amendment Coalition, a nonprofit that advocates for greater government transparency. “The public has an overwhelming interest in understanding and knowing why, how and when police officers exercised that extreme power.”

California passed a series of bills in recent years designed to give the public the right to records related to certain actions by law enforcement officers. And law enforcement agencies across the state have since released previously confidential documents under an avalanche of records requests. However, attempts at greater transparency surrounding claims of police misconduct continue to be stymied by police departments and their unions.

“It has been a challenge to enforce the law as written,” Loy said in an interview.

“I’m not saying all officers abuse their power,” he added. “But that is precisely what the public has a right to know and verify.”

A ‘landmark bill’

In 2018, the California Legislature passed Senate Bill 1421, opening for the first time certain records related to police misconduct, including investigations of officers involved in sexual assault, dishonesty and use-of-force incidents, such as shootings. Assembly Bill 748, also passed in 2018, made public video and audio recordings, including body-worn camera footage.

With the passage of these bills, government-created documents related to alleged or real misbehavior by police were supposed to be made available to anyone on request. The laws made public reports, investigations and records produced by police agencies or external investigating agencies, such as district attorneys, including interview transcripts, autopsy reports and disciplinary actions against officers.

California state Sen. Nancy Skinner, who authored Senate Bill 1421, said it was intended to “help identify and prevent unjustified use of force, make officer misconduct an even rarer occurrence, and build trust in law enforcement.”

At the time, media organizations hailed it as a “landmark bill,” and the American Civil Liberties Union said it would “pierce the secrecy that shrouds” law enforcement agencies.

However, when the new law took effect on Jan. 1, 2019, law enforcement agencies across California began receiving public records requests and responded with what Loy called “a campaign of massive resistance.”

The Carlsbad Police Officers Association, for example, was one of several police unions and agencies that sued to block the release of records created before the new law took effect, arguing it did not retroactively apply to existing cases. The ACLU of San Diego and Imperial Counties, where Loy was the legal director then, argued that the bill applied to records regardless of when they were created.

A San Diego County Superior Court Judge ruled against the police unions, joining several other similar court decisions that established records were releasable regardless of when they were created.

In March 2019, a collaboration of California news outlets, computer scientists and lawyers joined together to request, litigate for, and report on the newly available police records. The California Reporting Project began with six newsrooms, including San Francisco-based KQED and the Los Angeles Times. The collaborative has since grown to include dozens of member newsrooms, including The Associated Press and the Howard Centers for Investigative Journalism in Arizona and Maryland.

Fighting denials

When an agency denies a request, options are limited in appealing the denial. Some municipalities have special administrative processes, but in many cases, the only way forward is to file a lawsuit.

“Freedom of information laws are supposed to be self-executing in that you shouldn’t need to get a lawyer,” Loy said. “Not everyone can get access to legal counsel.”

Skinner, in a 2021 report to the state Senate Committee on Public Safety, said some cities went as far as destroying records prior to the Jan. 1 effective date “to avoid producing responsive documents.”