Failure To Disclose – The Appeal

12 ain’t worth a dime… never was…..

 

Despite a 2019 California law mandating the release of certain records related to police misconduct, law enforcement agencies in the state are still fighting records requests.

 

This story was produced in partnership with Oaklandside, a nonprofit newsroom reporting on Oakland, California. 

More than two years after the passage of a California law that rolled back secrecy on decades of law enforcement misconduct and use-of-force records, agencies throughout the state are failing to comply. Among the agencies that have not disclosed records are the California Highway Patrol, the Oakland Police Department, and the Fresno County Sheriff’s Office, who are being sued over noncompliance with Senate Bill 1421, the 2018 law authored by state Senator Nancy Skinner. The legislation made public several categories of records—including investigations of police shootings, uses of force resulting in great bodily injury, and cases in which officers were disciplined for sexual misconduct and dishonesty—all previously deemed off-limits by the Peace Officers’ Bill of Rights.

 

Two and a half years ago, we filed over 30 public records requests for our forthcoming book on the Oakland Police Department related to dozens of police shootings, incidents of perjury, and evidence falsification. We sought records for the Riders scandal of the early 2000s, involving officers who beat suspects and planted drugs on them, and the sprawling 2016 scandal involving several officers sexually abusing a teenage girl that ousted three chiefs in nine days and led to a nearly $1 million settlement to the victim. The Oakland Police Department extended the response dates to our records requests 15 times until August 2020, when we filed a lawsuit under the provisions of the California Public Records Act (CPRA) to force Oakland to comply with state law. Separately, a coalition of journalists and privacy activists have filed a class action suit against Oakland over similar CPRA violations.

The records can reveal for the first time long-secret truths about old controversies as well as more recent police scandals. As we recently found in one case, the 2010 shooting of East Oakland resident Derrick Jones by two Oakland officers, the records can uncover inconsistencies in officers’ statements about an incident. And the documents show, for the first time, the final discipline for cops responsible for the killing of an unarmed man. 

Law enforcement groups resisted the new transparency law

Police departments and sheriff’s offices aren’t the only ones that have tried to keep these misconduct files secret. Since SB 1421 went into effect on Jan. 1, 2019, California’s police unions filed at least 20 separate lawsuits in county courts to prevent public access to the files. “We believe retroactive application violates our members’ rights and we hope the California Supreme Court will consider the serious issues raised by our legal challenge,” Grant Ward, the head of the union representing San Bernardino sheriff’s deputies, said in a statement when his union challenged SB 1421 in December 2018. 

While all but one lower court judge dismissed the unions’ challenges, it took a California Court of Appeals ruling this year to solidify the public’s right to obtain sustained misconduct files, including those created before SB 1421’s passage. “The unions were able to pour tremendous manpower and therefore money into fighting those legal battles and that takes a toll,” said David Snyder, director of the First Amendment Coalition, a transparency group that took a leading role in fighting the recent court battles. “It was like Whac-a-Mole—we’re a small organization, and newspapers don’t have litigation budgets anywhere close to what they used to.”

Despite the Court of Appeals ruling this year, Oakland is not the only department failing to promptly release records. The Northern California public radio station KQED is suing the California Highway Patrol and the American Civil Liberties Union of Northern California is suing the Fresno County Sheriff’s Office for failing to promptly turn over misconduct histories. 

“Public disclosure is an essential part of democracy and it’s imperative that the public be able to understand what their police departments are doing,” said Tenaya Rodewald, a Palo Alto-based attorney who represented the San Jose Mercury News in a recently settled lawsuit against the San Jose Police Department over a CPRA request for 82 misconduct files. Rodewald said she is settling a similar suit that the East Bay Times filed against the Richmond Police Department. 

“It’s clear that the public needs and wants this access—they’ve made this clear through their elected representatives, they made it clear on the streets in protests all summer long,” Rodewald said. “That police departments are still resisting is incredibly disappointing, incredibly dismaying. It shows they’re not willing to accommodate that basic democratic accountability.” 

Reporters with the Mercury News asked the San Jose police to produce all relevant records for use of force, sexual misconduct, and untruthfulness that occurred from 2014 through 2018. They identified 82 such cases, but by the end of 2019, the newspaper received records from only two of those incidents—and the police department said it would need another four years to fully disclose all the relevant documents. “The time frame was met with disbelief by elected officials in San Jose. The mayor called the estimate ‘ridiculous,’” Bert Robinson, senior editor of the Mercury News, wrote in a March 10 declaration

The Mercury News is part of the California Reporting Project, a statewide coalition of 40 newsrooms committed to working together to obtain and report on police records newly available to the public under SB 1421. The newspaper made requests throughout the state for hundreds of similar files. According to Robinson’s declaration, the San Jose Police Department’s projected timeline for the release of SB 1421 records was far behind that of similarly staffed agencies like the San Diego Police Department, or smaller, less resourced agencies like Bakersfield and Antioch police, which both turned over records to the California Reporting Project and the Mercury News faster. After the Mercury News sued in August 2020, the San Jose police’s response time increased rapidly, and they produced nearly 50 Internal Affairs investigative reports in less than a month last fall. 

“Cities needed only to muster the will to release records promptly in order to do so. In the end, under the pressure of litigation, the City released records at a pace that it had repeatedly insisted was impossible, producing virtually all of its records within a span of just four and a half months,” wrote Robinson in his declaration.

Oakland’s response has been far slower—as of March, the city had 5,376 pending public records requests, with a backlog of 4,171 overdue cases. Most of these requests are for crime reports and don’t involve materials subject to disclosure under SB 1421. However, the city’s pace of responding to our records requests was so slow that before we filed our lawsuit it would have taken over a decade to fulfill.

“I haven’t seen anything like what I’ve seen with Oakland,” said Snyder of the First Amendment Coalition. His organization filed amicus briefs throughout California since SB 1421’s inception in order to push back against law enforcement unions’ efforts to undermine the law in the courts. “What it looks like from the outside is that there is a systematic, bureaucratic failure to process requests and at some point along the line, they stopped recognizing and following their obligation under the law” to respond to CPRA requests. “It’s really shocking,” Snyder said. 

The California Reporting Project’s open records campaign casts Oakland’s intransigence in hard relief: “95 percent of agencies that received our January 1, 2019 PRA request for S.B. 1421 records replied with records in a more timely manner than the city of Oakland Police,” wrote Thomas Peele, a Pulitzer Prize-winning investigative reporter in a declaration filed as part of our CPRA lawsuit against the city of Oakland. Under the auspices of the California Reporting Project, Peele filed a request with the Oakland Police Department for all personnel records containing SB 1421-related material dating back to 2014. The city turned very few records and hasn’t replied to Peele’s repeated questions about the status of his requests. In contrast, more than 150 other California law enforcement agencies released documents in response to similar requests from the California Reporting Project. 

Although Oakland said during our litigation this winter that it didn’t know how long it would take to comply with all our requests and release the responsive records, we have obtained a handful of records through our litigation. The documents shed new light on some of the most controversial incidents in the recent history of the Oakland Police Department, which has been under a court-ordered reform program since 2003. 

The fatal shooting of Derrick Jones by officers Omar Daza-Quiroz and Eriberto Perez-Angeles in 2010 led to weeks of protest and cost taxpayers $225,000 in legal settlements. However, previously unseen records reveal inconsistencies in the statements that both officers gave to the district attorney’s investigators, whose job it was to determine if the officers should face criminal charges, and Oakland police Internal Affairs investigators, whose job it was to determine if the officers violated police department policies.

Furthermore, the records reveal that an arbitrator overturned then-Police Chief Anthony Batts’s decision to discipline both officers for using “poor tactics” when they chased down and shot Jones. Daza-Quiroz is now a lieutenant, and Perez-Angeles is a sergeant.

Changing statements and a written reprimand for killing an unarmed man

On Nov. 8, 2010, Daza-Quiroz and Perez-Angeles responded to a dispute between Jones, 37, and his girlfriend outside Jones’s Bancroft Avenue barber shop. According to the police, Jones ran from the officers, tried to conceal himself in a “dark, poorly lit, narrow” alleyway, and then then attempted to scale a fence. Daza-Quiroz and Perez-Angeles said they thought Jones was armed and reaching for his waistband when they shot him six times. A digital pocket scale and glass vial with marijuana were found at the scene, but Jones was unarmed.

The shooting occurred just days after mass protests over the sentencing of ex-Bay Area Rapid Transit police officer Johannes Mehserle for the 2009 killing of Oscar Grant. Although the Jones case didn’t garner the national attention of Grant, whose story was made into a 2013 movie, it nonetheless sparked days of marches by Jones’s relatives through East Oakland and an angry takeover of a December 2010 Oakland City Council meeting. In an attempt to mollify public outrage over the incident, Chief Batts asked the FBI to conduct an independent review of Jones’s killing. Whether the FBI actually investigated remains unknown.

In 2011, the Alameda County district attorney’s office declined to charge Perez-Angeles and Daza-Quiroz for killing Jones, concluding that the officers “actually and reasonably believed they were in imminent danger of great bodily injury or death.” The DA’s findings were based on statements both officers gave to the prosecutor’s office that they “could not see or hear Mr. Jones” when they followed him into the narrow street, and they were “concerned that they might be ambushed.” According to the report’s summary of the officers’ statements, Daza-Quiroz told investigators he “believed [Jones] was hiding nearby with a gun and that he was in a position to take them by surprise.”

Almost a decade later, the newly disclosed disciplinary records we obtained under SB 1421 reveal inconsistencies in the statements that both officers gave to the district attorney’s investigators and Oakland police’s Internal Affairs unit. 

The story Perez-Angeles and Daza-Quiroz initially told the police department’s Internal Affairs team was similar to what they told the district attorney: They believed they were walking into an ambush when they pursued Jones into the alley. However, this was a violation of department training and policy: Officers are trained to maintain a safe distance from suspects during foot pursuits, and to seek cover rather than advance into unsafe situations. Internal Affairs investigators recommended that both officers be disciplined for poor tactics. The investigators also noted that the officers had displayed the same poor tactics in another fatal shooting in 2008.

Six months after the shooting, a panel of Oakland police commanders reviewed the Internal Affairs report in preparation to deliver to Chief Batts their recommendation about whether to discipline Perez-Angeles and Daza-Quiroz. Initially, the members of this Executive Force Review Board focused on the apparent policy violations of the officers who “continued to chase Jones on foot after losing sight of him, as opposed to stopping and setting up a perimeter.” The board’s members were concerned that the officers had willingly walked into an ambush situation, thereby ensuring a shooting would happen. But a senior training supervisor told Internal Affairs to re-interview both officers. In their second statements, both officers walked back the statements they gave to the DA’s office. 

“Did you believe you were going into an actual ambush and if so, why?” an Internal Affairs investigator asked.

“No, I did not,” answered Daza-Quiroz.

“No,” said Perez-Angeles.

Based on these new statements, the Executive Force Review Board’s members decided the officers acted appropriately and should not be punished for the tactics they used to chase down and shoot an unarmed man.

However, when this report was submitted to Batts, who was responsible for making the final disciplinary decisions, he held a meeting with the members of the Executive Force Review Board. They again discussed the case and Batts decided both officers needed to be disciplined. “Not only did they foolishly risk their own lives, but their poor tactics created an exigency that resulted in the loss of life of an unarmed man,” deputy chiefs Jeffrey Israel and Eric Breshears wrote in a memo that Batts signed.

But Batts’s effort to have the officers suspended for one day was unsuccessful. Perez-Angeles and Daza-Quiroz both contested the department’s findings through a Skelly hearing, a meeting at which they and their police union lawyers were allowed to argue against the department’s decisions. According to Oakland police, upon conclusion of the Skelly hearings, both officers’ suspensions were reversed and they were given written reprimands instead.

Despite their extensive misconduct histories and involvement in another fatal shooting of an unarmed man in 2008, Perez-Angeles and Daza-Quiroz kept their jobs and were promoted in the following years. Neither Perez-Angeles or Daza-Quiroz responded to a request to be interviewed for this story.

The report was not disclosed during a 2013 civil trial in a lawsuit filed by Derrick Jones’s widow, said her attorney, Ayanna Jenkins-Toney. “I definitely did ask for it—I did receive quite a bit of discovery, but never saw that report.” During the trial, U.S. District Court Judge Yvonne Gonzalez-Rogers excluded all evidence pertaining to Perez-Angeles and Daza-Quiroz’s misconduct histories, including 74 use-of-force allegations against Daza-Quiroz alone. 

Similar to the Jones case, records disclosed through our lawsuit about the 2012 fatal shooting of Alan Blueford by ex-Oakland officer Miguel Masso indicate that Masso and his partner, Joseph Fesmire, were disciplined for tactical mistakes during the pursuit that led to the killing of Blueford,  who was a high school senior. 

According to information we obtained under SB 1421, Chief Batts did contact the FBI’s San Francisco office to investigate the Jones shooting. However, no report was ever made public, and the bureau declined to answer questions recently about the case. 

Jabari Shaw, a longtime East Oakland activist who helped organize the 2010 protests over Jones’s killing, said the contradictions between the previously undisclosed Internal Affairs records and the DA’s report are grounds to revisit the case. “I definitely think it should be reopened,” Shaw said. “He was fleeing. How could you think a scale is a gun?”

Civil rights attorney John Burris, who represented Jones’s parents in a separate civil suit and won a $225,000 settlement from the city of Oakland, also said he never saw the department’s internal discipline records. Burris’s firm received joint discovery along with Jenkins-Toney, although Jones’s parents settled earlier. “There was no respect for Derrick—we were trying to get some acknowledgement for the value of his life,” Burris said, adding that unlike the Grant shooting, Jones’s case did not have any video evidence and received only passing interest from local media. “It was a different time.”

A new public right to know about police use of force and misconduct

Though police departments, city attorneys, and police unions in California have proved reluctant—if not outright hostile—to the new, post SB 1421 landscape around law enforcement personnel records in the state, judges have uniformly upheld the public’s right to access.

On April 2, Alameda County Superior Court Judge Frank Roesch ordered the city of Oakland to “promptly” release thousands of documents biweekly in response to our 31 CPRA requests for Oakland police misconduct investigations. “It’s clear the production has not been prompt enough to satisfy the law. Not by a long shot,” Judge Roesch said at the hearing. 

“Your honor, we don’t believe that it would be possible to produce every single responsive page and every single video and audio responsive to every single request that’s at issue in this writ within six months,” said Deputy City Attorney Erin Bernstein.

“You have had two years. How could you not say that you can do it in six months?” replied Roesch. Our case has broader legal significance as precedent for the city of Oakland’s duty to respond to the thousands of unanswered CPRA requests, ranging from crime victims asking for copies of their incident report to a coalition of journalists and watchdogs who have filed a class action lawsuit over the police department’s systemic failure to hand over public records.

The California legislature is also now weighing SB 16, an effort to shore up the new transparency provisions. Senator Skinner, the SB 1421 author, also authored this bill, which would establish civil penalties for agencies that delay or fail to release police records promptly, and expands the category of disclosable records to include cases where an officer was found to engage in biased conduct or speech, and unlawful arrests or searches. It would also close a loophole that allows officers under investigation to keep their wrongdoing secret by quitting during an internal affairs investigation. 

On April 13, the California Senate Judiciary Committee approved SB 16 and advanced the bill to the Senate Committee on Appropriations. 

“This is critical information for the public to know if police departments are taking complaints serious and if police officers have a pattern of misconduct,” said Natasha Minsker, a former death penalty director at the American Civil Liberties Union of Northern California who is now a lobbyist for Smart Justice California. Minsker said problems like exorbitant records reproduction fees and long negotiations with police unions have hampered the public’s right to view law enforcement records, an experience that warranted legislative redress. “SB 16 will remove those roadblocks and make meaningful the public’s right to know about serious misconduct by the police, as was intended by the legislature.”

Failure To Disclose – The Appeal

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