Can progressives trust Xavier Becerra to police the police?

In his two years on the job, California Attorney General Xavier Becerra has crafted an image as a progressive warrior, suing the Trump Administration dozens of times and delivering the Democrats’ Spanish-language rebuttal to the President’s State of the Union speech.

But there’s one major area where the Democrat isn’t allied with progressives: accountability for law enforcement. There, Becerra is at odds with the push by many in his own party to better police the police.

The attorney general is refusing to provide records on police misconduct that media outlets requested under a new law signed last year by Democratic former Gov. Jerry Brown. The legislator who wrote the law, also a Democrat, says the documents must be disclosed. But Becerra has sided with police who want the courts to weigh in before releasing records about officers who were involved in shootings, sexual assault or lying on the job.

“It’s classic California politics,” said Laurie Levenson, a professor of criminal law at Loyola Law School.

“Law enforcement has an incredibly strong political position and lobbying force in California. It’s nearly impossible to be a statewide official and not feel a close tie to law enforcement.”

The union representing statewide law enforcement officers spent $226,000 to help Becerra win election last year. The prison guards union put $320,000 into a campaign that supported a bipartisan mix of politicians, including Becerra. And Becerra’s own campaign received more than $75,000 from law enforcement unions up and down the state.

Numerous police unions have filed lawsuits in recent weeks to try to block their departments from releasing misconduct records under the new law, Senate Bill 1421, which took effect on Jan. 1. The officers argue that the law only applies to records created on or after Jan. 1, while the legislator who wrote the law says it applies to any records in the police departments’ possession, including those from past years.

Courts have offered differing opinions, with judges in Contra Costa and Los Angeles saying the prior records must be disclosed and a Ventura County judge blocking their release.

The Sacramento police shooting of Stephon Clark and other such high-profile cases have fueled demands for greater police accountability. Photo by Byrhonda Lyons for CALmatters

A broad coalition of media outlets have been requesting misconduct records from law enforcement agencies big and small since the new law took effect at the start of the year. Some agencies have complied—including police departments in Fairfield, Rio Vista and Burlingame.

The records they released, all of abuses that were confirmed by internal investigations, showed one officer was fired after he offered to help a woman deal with drunk-driving charges if she had sex with him. In another case, an on-duty police officer had sex with a member of the public. Numerous other officers were dishonest or used force that resulted in severe injuries. It was the first time in many decades that such information has been made public in California, which has had one of the nation’s most restrictive police records laws.

Becerra refused to disclose any misconduct records regarding officers employed by the state Department of Justice. Then the free-speech nonprofit, the First Amendment Coalition, sued him, arguing that his refusal has had a ripple effect, giving “a green light to other departments to disregard the new law.”

Becerra said he’s waiting until courts clarify what now stand as conflicting opinions.

“I’m not saying the new law, 1421, does not require the disclosure of documents before January 1, 2019. I’m saying there is uncertainty whether it does, and we need to make sure there is clarity. My decision is not the final word on that clarity. Neither is any legislator’s word. The final word comes from our courts,” Becerra said on Feb. 15 in response to questions from a reporter.

“I’d rather make sure I do this right because there are lots of people whose privacy is at stake.”

Five days later, he submitted a legal brief in an unrelated lawsuit saying he thinks the disclosure law does apply to records created before January 1, but that he’s withholding them until courts resolve the question.

Ronald Lawrence, vice president of the California Police Chiefs Association, said police chiefs are pleased with Becerra’s caution.

“If this is challenged and overturned, but you’ve already released the records, that’s the genie that’s out of the bottle and you can’t put it back,” he said. “That would open us up to lawsuits from the rank and file for releasing information that should not have been released.”

State Sen. Nancy Skinner, the Berkeley Democrat who wrote the law to disclose misconduct records, said Becerra’s take “doesn’t fit what I understand the law to be.”

The law applies “regardless of when those documents were created or when the underlying conduct occurred,” she wrote in a letter to the Legislature clarifying the law’s intentions. Skinner said Becerra should release the records because there is no court order prohibiting it.

Becerra is not the first California Attorney General to side with police on accountability issues—or to take heat for it from the left. Democratic presidential candidate and U.S. Sen. Kamala Harris, for instance, refused as attorney general to support statewide standards for police body cameras, endorsing instead the law enforcement argument that such rules should be determined at the local level, even if the result was a patchwork.  She also opposed a bill to put the state Department of Justice in charge of investigating police shootings.

Becerra has held a similar position on more recent versions of the bill, marking another instance in which he sided with law enforcement against efforts toward greater transparency. Progressive advocates for criminal justice reform argue that the state Department of Justice could be more objective than local prosecutors in determining if shootings are justified, because local prosecutors work so closely with police. Even Becerra’s Republican opponent said the state should be in charge of investigating police shootings.

But police groups lobbied against Democratic proposals to create a state unit to investigate police shootings. Becerra didn’t support the effort, and it stalled in the Legislature.

Becerra’s office agreed to review the Sacramento Police Department after officers killed an unarmed man in his grandmother’s backyard, but that was only because local officials requested it. And even though his review has made some strong recommendations—including that the Sacramento police should overhaul their use-of-force policies—Becerra stopped short of endorsing a tougher statewide standard to justify police shootings, something progressive Democrats are fighting for this year.

Editors note: This story was updated on Feb. 22 to include information from a legal brief Becerra filed on Feb. 20.

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