I wrote a pretty scathing op-ed that was published Friday in our premium newsletter, on the Democratic legislature and their failure to pass AB 931. But as important as AB 931 was, I would say if I could only get one bill passed this year, it would have to be SB 1421. (Shameless plug: if you become a Subscriber, you can receive our premium newsletter)
I have been working on police issues for the Vanguard since 2006 and prior to that as an activist. A key barrier has been a ridiculous one put up by court cases like Copley (the 2006 California Supreme Court ruling in Copley Press, Inc., v. Superior Court) and misguided legislation like the police officers bill of rights.
A lot of people do not realize that if a police officer commits misconduct, the public has had no way of getting ahold of records of sustained complaints.
In fact, it is worse than that – under existing law, “not even prosecutors are allowed access to records of officers found guilty of committing egregious misconduct under the cover of authority, even those with a history of planting evidence or lying in police reports.”
Furthermore, “California police departments are also barred from sharing with the public the factual findings of their investigations following police shootings. Nearly half of states in the country make some or all police misconduct records available to the public.”
Some have suggested that defense attorneys can gain access to these records through a Pitchess motion (named after the 1974 decision in Pitchess v. Superior Court). I don’t think anyone involved in the system likes the Pitchess motion process.
It is a fairly low level threshold, but it also doesn’t deliver much either. In order for a defendant to get access to an officer’s confidential personnel records, the defense makes an allegation that the officer committed misconduct or lied or prepared a false police report.
If the motion is granted, the court then searches through the personnel files for prior complaints against the officer, on a variety of topics ranging from unlawful arrest, false testimony, fabrication of evidence, planting evidence, false police reports and the popular catchall provision, “moral turpitude.”
The defense does not get to view those files if the motion is granted and the search finds something disclosable. All it gets is information by which the defense investigator might be able to track something down.
The current law is a huge barrier to transparency, even when officers committed demonstrable and proven wrongdoing. We are talking about the release and availability not just of allegations of wrongdoing but actual sustained complaints.
As the Sacramento Bee pointed out in their May 21 op-ed, “Yet because of a 40-year-long build-up of bad law, unanticipated court rulings and political deference to police unions, we, the taxpayers, know next to nothing about most of the 162 cases last year in which California law enforcement officers on our payroll killed people in our name.”
They go on to point out: “If an officer has been accused repeatedly of abuse, or disciplined for lying, or denied a promotion because of unprofessional behavior, that information can’t be disclosed. The public can’t know unless a judge orders it as part of a criminal case or lawsuit. In some cases, in fact, it’s even blocked from the view of other law enforcement agencies.”
Like everything else, this is not a perfect remedy. Far from it.
SB 1421 will make public three categories of information that are specific to the powers of police officers or their potential for abuse:
* use of deadly force;
* sexual assault tied to the abuse of power to coerce a victim into sexual acts; and
* perjury or the fabrication of evidence tied to police officers’ unique powers in investigating and prosecuting crimes.
So we get findings on the use of deadly force. That means when a police officer shoots and kills someone, the report on that gets released. That is a big deal. There were a lot of people in Sacramento angry that the police never explained why officers who shot and killed Joseph Mann or Dazion Flenaugh were exonerated. Likely this means that the shooting of Stephon Clark will have its report released.
The veil will be lifted, but, as the Bee pointed out, for only “the most egregious misconduct and most grave outcomes.”
The Bee writes: “Only if an officer shoots, kills, seriously injures or sexually assaults a member of the public, or is proven to have planted evidence, committed perjury or otherwise been dishonest in an investigation would the state be able to release personnel records.”
But it’s worse than that, “even then, information could be withheld or redacted to protect the safety of officers and witnesses, or avoid invasion of privacy.”
SB 1421 clearly is not enough. But, as the Bee points out, “at this dysfunctional point, almost anything would be progress.”
That was my view on bail reform and my view on this. Let us get our foot in the door and then we can revise and improve at the next round. It is far easier to amend and revise than it is to start from scratch. A big reason is that many in law enforcement will recognize that this isn’t the end of the world, and if a little information gets out about the worst offenders, it might actually help improve trust that the majority of police are doing their jobs properly.
—David M. Greenwald reporting
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Having had the distinction of putting my signature of approval on several hundred of completed police personnel complaints in a given year I signed those documents only after this personal comfort standard was met:
“This entire report with my signature is going to be published on the front page of the New York Times tomorrow”
Records ordered sealed by a court somehow the contents made its way to being published. The contents were distorted or selectively edited to convey a sentiment that opposite the actual finding. A tort attorney will give an open court argument on his/her futility in attempting to gain the “truth” to vindicate the client when a completed summary in my file cabinet undisputably showed that client was culpable beyond all doubt.
There’s always something a little sinister about any secret. People keep secrets to protect themselves, or someone close to them. People learning about the existence of a secret assume that it’s something bad, and we want to know about it.
So here’s a view from another perspective, a view that ironically never seems to emerge in the millions of rhetorical words spoken on this controversial topic. I’ll blame the law enforcement leadership for not saying this, and I don’t know why. Take a look at it and say what you feel.
The public officials charged with investigating these personnel complaints are legally constrained from making any public comment or inference on the contents of an internal investigation. If the investigation shows the employee is a scoundrel and should be tossed out a 5th-story office window, we can’t say that. A labor attorney will successfully sue and jeopardize our career. We’d love to do the tossing, the employee generates too much work and professional embarrassment for us, but we can’t do that either. All a law enforcement administrator can say is “appropriate disciplinary action was taken.” Make way for the cynical replies from all the police bigots. And the police take it silently, as they have no other legal alternative.
If the investigation acquits the employee or fails to meet the “preponderance of evidence” legal standard, that can be expressed publicly. But the police can’t give specific reasons for this determination as much as they really want to. Those are details in the report that, by law, must remain secret. Enter the comments, “The blue wall of secrecy,” or the police are unable to investigate their own. In fact, there is nobody better in investigating their own than highly trained and experienced investigators. There’s an apt phrase about a cop trying to con a cop, but it’s inappropriate for a general readership publishing.
In summation, existing law on personnel file access in a two-edged sword of frustration and cynicism. In the current social media climate of everybody’s secrets are fair-game, I’ve come to accept law enforcement investigate personnel complaints like any other investigation, discrete and confidential to further the completion of a successful investigation. The completed investigation then becomes the equivalent of a standard police report subject to subpoena or FOI request. The investigator can speak publicly on the contents, consistent with any pending civil or criminal court action.
I think your answer begs a very critical question: should an investigation into a police officer’s use of deadly force be the equivalent to a personnel file from someone in public works?
Indeed so, and very relevant. One of those “slippery slope,” “Camel’s nose under the tent,” “Be careful what you wish for?” arguments. If one category of public employee personnel file is laid open for any legitimately determined reason, why not read the personnel files of the Public Works employee who has been in Drug Rehab three times and operating a government vehicle? That’s a true summation, by the way, but not in Yolo County.
Then we can allow law enforcement officers to immediately and publicly disclose encounters with criminal defense attorneys who were observed with somebody, not their spouse, or exiting a massage parlor currently under surveillance by the Vice Unit. Include video footage taken at the time.
There are many unintended consequences with this legislative proposal and all beg to be raised and answered. They were never raised or answered and it’s on the Governor’s Desk for signature.
The legislature decided that police officers are different from public works employees. There is no slippery slope here. In terms of the rest of the unintended consequences, the courts will have to sort some of it out.
When a death results from an employees action, regardless of whether it’s the police or public works, the investigation MUST move from being a simple personnel issue to a fully public process. That’s because an apparent death has become a potential criminal act. That is a bright line that prevents a slippery slope, but because it addresses the MOST consequential outcome of an employee action, it is most important that it be entirely transparent.
How about a teacher with lots of public complaints?
I’ll address below
Phil, thanks for this great explanation from the inside of the process… something that the Vanguard with all its time spent assessing Davis law enforcement has miserably failed to investigate and report on.
From my perspective, and please feel free to school me if I am wrong, I believe that one of the reasons that David and others with his political views don’t spend much time addressing this area of the topic… and maybe it is also a sensitive area for you to comment on too… is the police union connection. From my perspective, and it includes a 40 year career with 35 as a manager of personnel plus family in law enforcement, the police union connection IS the root of the problem.
Here is the way I look at it. First, I believe that personnel issues should be kept confidential between the employee and employer. Otherwise we set a precedent that teacher personnel records should also become public records (as a bad teacher can do plenty to destroy lives… and ironically end up making the job of law enforcement more difficult and deadly). The reason that we are to this point where social justice activists are pushing to make police personnel records public information (other than their general cop-hating tendency) is that police management/leadership are profoundly prevented from adequately dealing with those that are not a good fit for the job.
In my professional role, if I was hamstrung the way police leadership are hamstrung I would no longer have the professional role because the company I lead would fail or my board of directors would have fired me by now for poor business results.
In the wide world of organizational leadership, one bad misfit employee does exponential damage to the performance culture of the entire organization. Others model the bad behavior and it becomes like a metastasizing cancer that ultimately can destroy the entire service delivery of the organization. Good employees become unmotivated and problematic as a response to their disappointment and frustration having to work with the crap that is allowed to stay.
Those lacking experience for leading teams to excel in performance don’t understand the severity of the problem when job security is locked-up by the union bosses that feed off higher membership and have zero natural incentives for assisting with the goal for service excellence.
What am I missing here?
“First, I believe that personnel issues should be kept confidential between the employee and employer. Otherwise we set a precedent that teacher personnel records should also become public records (as a bad teacher can do plenty to destroy lives… and ironically end up making the job of law enforcement more difficult and deadly). “
The key question is where do personnel issue end and other issues begin. You bring up a teacher issue. Well if a teacher molests a students, the teachers is arrested and charged with the crime. It is a public matter.
I don’t believe we should have access to an officer’s performance review. However, a violation of his duties – sustained complaints, use of force complaints, falsifying police reports – those are or at least should be criminal matters that result in harm to the public and/ or putting people in prison wrongly. That’s no longer a personnel matter, it is a criminal matter. We’ve decided that some of these things aren’t criminal and that may be part of the problem.
So, for us non-insiders, what would AB 931 and SB 1421 do so I can decide if want to read the entire column?
SB 1421 will make public three categories of information that are specific to the powers of police officers or their potential for abuse:
* use of deadly force;
* sexual assault tied to the abuse of power to coerce a victim into sexual acts; and
* perjury or the fabrication of evidence tied to police officers’ unique powers in investigating and prosecuting crimes.
Who, specifically, is allowed to review a police personnel folder and determine what is actually a criminal violation (forget the “should be”)? We have judges doing in camera hearings now, add to that list please who else gets to peek. Do we abolish Pitchess Motions as no longer necessary?
Any sustained IA complaint, I don’t think you mean that, Davis. Sustained IA’s includes such relatively innocuous violations as failure to take a report, sleeping on duty, or failure to keep a court date and missing a concealed weapon prior to booking.
Deliberately falsifying a report, planting evidence on an innocent subject, assaulting any helpless person in custody are organizationally intolerable violations. Termination with prejudice should be the discipline of first choice. No exceptions except by judicial relief for wrongful termination. Yes, the union will scream, but their ability to gain the public will in these times are, at best, problematic.
The bill specifically adds to the Public Records Act to allow the public to review such records.