“Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”
– U.S. Supreme Court Justice Louis Brandeis (1856-1941)
By now, we can recite some of their names from memory: Samuel DuBose, 43; Michael Brown, 18; Tamir Rice, 12.
The fatal shootings by police of these unarmed African-American males and others prompted an avalanche of media coverage.
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“We know we are in a crisis,” Assemblywoman Shirley Weber, D-San Diego, told a legislative hearing in April. “It is an old crisis. But we have access to video now that makes it a major crisis that we see every day on television.”
None of these highly publicized killings occurred in California, and it could seem as if there were nothing this state’s Legislature could do to reduce the number of deaths. But there is: Increase transparency. If lawmakers were to approve legislation opening police disciplinary records, the public could learn about officers’ misconduct and advocate for discipline of problem officers.
Without public access to disciplinary records, there is only silence.
Under current law, the public can’t know who are the rogue officers, and it can’t assess whether law enforcement is disciplining them or firing them when serious misconduct persists.
Although opening records of police discipline might seem like an easy fix, the legislation would face enormous hurdles, thanks to the law enforcement lobby. That lobby wields great power over lawmakers who crave its endorsements and dread its opposition. Along with its clout based on its endorsement powers, police unions spend millions on lobbying and campaign contributions.
Laws protecting officers’ rights in internal investigations and court proceedings date back decades. However, a few law enforcement jurisdictions, including San Francisco and Los Angeles, though not Sacramento, held open disciplinary hearings for decades.
As a reporter in San Francisco, I could thumb through big, bound books at the Police Department, and learn how the San Francisco Police Commission, which handles serious misconduct cases, dealt with officers violating the rules.
My colleagues and I could attend disciplinary hearings chaired by one Police Commission member. After the hearing, the full commission – made up of seven civilians appointed by the mayor and the Board of Supervisors – held closed-door deliberations and voted on each officer’s case.
The commission made the vote public, and we were able to identify rogue officers, know how the commission dealt with them and write about it. I helped report a series of stories in 2006 that found the department “failed to control officers who repeatedly resort to force, hitting, choking, clubbing and pepper-spraying citizens at rates far higher than fellow officers who patrol the same streets.”
The California Supreme Court slammed shut public access to police disciplinary records in its 2006 case, Copley Press v. Superior Court. Legislators are trying to pry the records open, but it won’t be easy.
The California Supreme Court slammed shut the door to public access of officers’ disciplinary record in its 2006 decision, Copley Press v. Superior Court.
The Copley decision granted law enforcement broad confidentiality protections. They go far beyond state laws covering doctors and lawyers, whose disciplinary records are open to the public. Not surprisingly, law enforcement strongly supports the Copley decision.
“The more disclosures of information about officers, the greater the risk to their safety,” said attorney Ed Fishman, who administers the legal defense fund for the Peace Officers Research Association of California, the largest public safety organization in the state. With information from the Internet, Fishman told me, “the opportunity to take retribution against officers is probably higher than it has ever been.”
In Sacramento, attempts to undo the Copley decision in 2007 – by then-Sen. Gloria Romero, D-Los Angeles, and by then-Assemblyman Mark Leno, D-San Francisco – succumbed under heavy law enforcement lobbying.
“The Legislature buckled,” Romero told me. “It was really a profile in lack of courage all the way around. ... Now we have a secret police.”
Foes of Copley say any initiative to undo the decision would prompt huge law enforcement opposition. Jim Ewert of the California Newspaper Publishers Association told me that in hearings on the Romero and Leno measures, “law enforcement lobbyists said if these bills became law, officers would die. But when the public had access to this information before Copley, there was not one single incident where an officer’s safety was threatened or an officer was harmed.”
Law enforcement experts shake their heads at this state of affairs. Generally, they see public access to disciplinary records as a best-practice approach. It would hold officers accountable, ensure counseling and training to help them improve their conduct, and disciplining them when they stray. That discipline, the experts argue, sends a powerful message to officers on the streets: If you commit misconduct, you are certain to face punishment, and the public will learn about it.
“I wish I could tell you there is overwhelming sentiment for overturning Copley,” said Merrick Bobb, executive director of Los Angeles-based Police Assessment Resource Center and former independent monitor of the Los Angeles County Sheriff’s Department.
Bobb, the court-appointed monitor overseeing the Seattle Police Department under a consent decree with the U.S. Justice Department, added, “I despair that the California Legislature will be able to do it, given the historical influence that the police unions have been able to exercise in that forum.”
The public gives law enforcement the benefit of the doubt. That is, in part, because officers’ jobs are difficult and dangerous – 13 officers died in California in the line of duty last year – and in part because most officers conduct themselves in a manner deserving of respect.
Most people are unaware of the taxpayer payouts that have occurred in connection with serious police misconduct cases. The Wall Street Journal recently reported that the 10 largest police departments in the country – New York, Chicago, Los Angeles, Philadelphia, Houston, Dallas, Phoenix, Baltimore, Miami-Dade and Washington, D.C. – paid out more than $1 billion in police misconduct cases in the last five years.
In California, some bills dealing with law enforcement are advancing. Senate Bill 227 by Sen. Holly Mitchell, D-Los Angeles, would bar prosecutors from using closed-door criminal grand juries in cases where a police shooting or use of excessive force contributed to the death of a suspect.
Assembly Bill 953 by Weber seeks to strengthen laws governing racial profiling. AB 71 by Assemblyman Freddie Rodriguez, D-Pomona, would require law enforcement to report to the state incidents in which officers or civilians are shot or severely injured and to provide the race, gender and age of individuals injured or killed.
Samuel Walker, an emeritus professor in the School of Criminology and Criminal Justice at the University of Nebraska at Omaha who has advised the U.S. Justice Department, thinks this is a good time for reform.
“People throw up their hands and say, ‘It’s the police culture – we can’t do anything about it,’” Walker said. “But we actually can. It really requires concerted, organized efforts by people in the local community – making demands on police chiefs, mayors and city councils – for improvements.”
The community involvement Walker calls for is vital precisely because law enforcement agencies have tended to hide their misconduct. Police should focus on rooting out officers guilty of egregious conduct. Opening disciplinary records would help make this happen.
Susan Sward is a San Francisco writer. Her most recent piece for The Sacramento Bee, “The pressing need for security in retirement,” appeared on June 14.