The headline reads: “Anaheim Mayor Wants Citizen Oversight of Police.” This is the Orange County Register writing, “Mayor Tom Tait has asked the city’s top administrator to move forward with plans to establish a citizens’ committee to review police actions and misconduct allegations. Community leaders called for such a committee over the summer after police shootings killed two Latino men and sparked weeks of unrest.”
“The time has come,” Mayor Tait said. “It would be good for the city to have a trusted group of citizens look into any allegations of misconduct.”
Earlier this week, I saw in a public meeting where a former UC Davis student, Jerome Wren, recounted the details that led to him being Tasered back in May by Davis Police. Davis Police Lt. Paul Doroshov sat by, patiently and politely listening, but unable to comment due to an ongoing investigation, among other factors.
This week, UC Davis students settled their lawsuit with the university over a pepper-spraying incident.
During his public accounting of what happened on November 18, 2011, Cruz Reynoso both publicly and privately expressed frustration about the constraints of the so-called Police Officers’ Bill of Rights.
He put it in his recommendation, “The Task Force recommends the Office of the President should review provisions of the Police Officers’ Bill of Rights that appear to limit independent public review of police conduct and make appropriate recommendations to the Legislature.”
“I very much regret… the delay in getting this report to you. I think that the best interest of the community would have been to have the report to you as quickly as possible,” Cruz Reynoso said on the day his report was finally released.
The Justice pulled no punches in his assessment: “Some of the delays were caused by the negotiations with the policemen’s union to see whether the Kroll Investigators could meet with some of the police officers – that got resolved.” He continued, “The greatest delay happened because of the lawsuit.”
Mr. Reynoso did not blame the lawyers who brought the lawsuit, but rather the law. “They brought it based on some legislation that has come from Sacramento. So my blame is on the legislators who have passed legislation that sometimes is referred to as the policeman’s bill of rights.”
Juxtapose this with what we have seen this week in federal court. For the last day and a half of the trial, Lt. Dale Johnson of the Yolo County Sheriff’s Department has been asked to testify and explain in minute pieces of detail why it is that they pursued Luis Gutierréz on April 30, 2009, how they identified him, whether during a consensual stop his decision to run away from police was sufficient reason to pursue him, and then, of course, the minute details that ultimately led him to shoot Mr. Gutierréz.
This is the material that Penal Codes 832.7 and 832.8 seek to prevent, “the unlawful release of confidential peace officer personnel information” by the University of California through the Kroll report.
Under Penal Code section 832.7(a), “Peace officer or custodial officer personnel records and records maintained by any state or local agency pursuant to Section S32.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.”
As Michael Risher explained back in April, “Police officers in other states don’t get these types of incredible veil of secrecy for everything related to disciplinary proceedings.”
Mr. Risher told the Vanguard, “Police officers have enormous authority as they walk the streets – they carry guns, they can arrest us, they can toss us in jail. We the people of this state should have the right to know which police officers are abusing their authority, and which officers quite frankly are carrying out their duties without generating any complaints.”
And yet here we are listening to a police officer having to explain his actions that led to the death of a young man. Is that not how it should be? Is that not accountability? Is that not transparency?
The problem is that it takes a tremendous amount to get the point where an officer is forced to get on the stand and, under oath, defend his actions.
The lawsuit filed by the Gutierréz family began this week, nearly three and a half years after their son was shot and killed.
Ask the Buzayan family, as seven years after then 16-year-old Halema Buzayan was taken out of her home and arrested at ten o’clock at night on a school night in her night clothes for a misdemeanor that occurred outside of the presence of police, her family is still awaiting their day in court.
Anaheim is wrestling with the question that six years ago nearly tore the city of Davis apart. Unlike in Davis, the police chief in Anaheim is supporting the effort. Questions remain over how to structure the board and whether to have it report directly to the police chief or to make it more autonomous from the chief and the department’s internal affairs unit.
However, state laws makes it difficult to structure such independent review boards. In a 2006 Supreme Court decision, Copley Press v. Superior Court, the California Supreme court “held that records of an administrative appeal of sustained misconduct charges are confidential and may not be disclosed to the public. The decision prevents the public from learning the extent to which police officers have been disciplined as a result of misconduct.”
Prior to Copley, “Internal affairs records were confidential, while records of administrative appeals to outside bodies such as a civil service commission were open to the public.”
As the ACLU notes, “Copley Press has effectively shut off all avenues for the public to learn about misconduct involving individual police officers, such as excessive force and dishonesty; officer-involved shootings; patterns of misconduct and leniency; previous discipline for misconduct by another agency; and even the identity of officers in misconduct cases.”
And yet, here we are, in federal court with Lt. Dale Johnson having his record scrutinized and being questioned. The sky is not falling. The Gutierréz family and the three deputies who were involved in the shooting now get their day in court.
But why does it take such extreme measures to get to the truth? Should the Buzayan family have had to sacrifice their personal assets to press the case that seemed to have been hidden from scrutiny? Should the Gutierréz family have had to wait three and a half years before they can maybe get the answers to put their minds to rest?
As we learned this week, civil rights lawsuits are rarely satisfactory. Most cases, like the pepper-spray case, simply settle and we never really know the truth. Others will linger on for years – if we learn the truth about the Buzayan case now, will anybody care? Will it change anything?
Police are understandably guarded about the records. Who can blame them? They have a dangerous and difficult job to do and, for the most part, most of them do their job professionally, with decency and effectiveness.
However, within that decency and professionalism is a black mark. It is often called the “Blue line of silence.”
Simply put, it is an unofficial code where police officers will look the other way or even actively cover up the wrongdoing of other officers.
A few years ago, Steven Greenhut of the Orange County Register wrote about an excessive force case filed against an Orange County Sheriff’s Deputy.
Mr. Greenhut wrote: “When asked why the office was not going to retry the excessive force case against a deputy who used a Taser on a handcuffed suspect, she gave an honest answer: ‘We argued in closing arguments that we felt there was a code of silence – what is it? A thin blue line. We’re very disappointed. … It’s very important for the District Attorney’s Office to have ethical and law-abiding law enforcement officers.’ “
He added: “The D.A. believes OC deputies had ‘blue amnesia’ – they lied, or conveniently ‘forgot’ critical facts – when testifying in a case involving one of their own. It’s the latest incident in a string of cases involving sheriff’s deputies who allegedly covered up for their misbehaving colleagues, ranging from the D.A.’s allegations of departmental perjury and witness tampering following the John Chamberlain jail murder in October 2006 to the possible cover-up by sheriff’s officials of a deputy, Gerald Stenger, accused last year of child molestation.”
In this case, the jury voted 11-1 to acquit and according to the Orange County DA’s Office, “it did so because the key witnesses changed their stories.”
After detailing the department reactions, Mr. Greenhut concludes his 2009 column writing: “Yet they decided to protest so much that anyone would suggest there’s a code of silence in the department and so little about the alleged bad behavior by their deputies. Methinks this problem might be bigger than anyone wants to let on.”
The professional code to me is baffling. I have spoken to quite a few police officers, both retired and active, about the pepper-spray incident in particular. It may be surprising to learn that most of them are quite critical of the decision to both clear the Quad and utilize the use of force, even as they may minimize pepper spray as a use of force.
But, of course, not one of them is willing to say any of this on the record.
That is the part that baffles me. They all know that the actions of Lt. John Pike that day make their jobs as good and honest police officers that much more difficult. They know in the back of their minds that when they approach the next young student, they will be seen as though they were John Pike.
The worst thing that can happen to good police officers, who make up the overwhelming majority of officers, is to have the transgressions of John Pike hidden or not come to full responsibility.
And yet, just as people complain about bad teachers hiding behind the laws meant to protect good teachers from unfair practices, the same thing happens here.
Transparency protects the public and it protects good officers. It should not take years and personal fortunes for the families of those potentially wronged by police to have their day of justice and to learn the truth. It’s to all of our benefit to find a better way to punish wrongdoers while clearing the names of good police officers.
—David M. Greenwald reporting
