A state Supreme Court ruling keeps the public from accessing records of police misconduct
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In late June, two San Francisco police officers were accused of giving beer and vodka to three teenage girls and making sexual advances toward them. One of the young women was just 16 years old, and the two others were 17. The alleged conduct of the officers occurred both in and out of uniform, and they even reportedly offered the girls confiscated fireworks from the trunk of their patrol car.
In February, an off-duty San Francisco Police Department officer was arrested for threatening to kill his ex-girlfriend and their 5-year-old daughter during a domestic quarrel. The officer was awaiting disciplinary hearings before the San Francisco Police Commission, according to the most recent public records of the matter.
In March 2005, an SFPD domestic violence inspector was arrested for driving drunk through Marin County and smashing into another car. Fairfax cops found the inspector had a blood alcohol level of 0.27 percent, more than three times the legal limit. She was eventually suspended by the SFPD for 45 days.
These are just a few cases of alleged misconduct that have recently appeared before the Police Commission. And they're among the last cases, which until now were available through state open-record laws, that most people will ever know details about. Due to a state Supreme Court ruling issued at the end of August, citizens and the press will be unable to access most public information about why individual officers are charged with vioutf8g department rules or even possibly breaking the law.
"It's devastating," said Rick McKee, a longtime open-government activist and president of the Sacramento-based group Californians Aware. "It creates a two-tiered system of public access: one for general government employees and another for police officers.... There was no considerable thought given to what this does to the public's right to know."
Records of misconduct charges have largely been open in San Francisco until now. The public could access summaries of misconduct charges, filed either by the San Francisco Office of Citizen Complaints (OCC) or the police chief's office, and attend hearings at the Hall of Justice that included testimony from the officers. No longer.
An attempt by the Guardian last week to obtain misconduct records from the Police Commission was blocked by administrative staff, and two disciplinary hearings scheduled for Sept. 6 and 7, ordinarily open to the public, were cancelled due to uncertainty surrounding the decision in Copley Press v. San Diego County.
Historically, the names of officers investigated by the OCC and charged with misconduct by the chief were not revealed publicly until their cases had made it to the commission, which is where the Guardian has obtained them in the past. In other words, frivolous charges of police brutality, for instance, weren't immediately disclosed to the public. Personnel files maintained by the department could remain secret, but cities and counties individually decided what independent review commissions could make available.
The Aug. 31 Supreme Court ruling greatly broadens the scope of privacy laws that exclusively protect cops from the disclosure of disciplinary records maintained by police departments. The decision now shields disciplinary records previously available either through records requests or citizen review panels, such as the OCC.
Guylin Cummins, an attorney who represented a Southern California newspaper in the public records challenge that led to last week's ruling, said Sacramento legislators never intended to completely curtail access to disciplinary files.
"Nowhere in the legislative history does it say, 'We're going to trump the [California Public Records Act],’” Cummins said.
But an attorney for the Deputy Sheriffs' Association of San Diego County, Everett Bobbitt, told the Guardian that public defenders and litigants were compiling the records in databases to use arbitrarily against cops in court.
"You'd go to one county and they'd restrict [the records], and you'd go to another county and they wouldn't," he said. "I thought that wasn't fair. There was a lot of personal material in those files."
Steve Johnson, a spokesperson for the San Francisco Police Officers Association, said the group has always believed that the California Penal Code extended such privacy rights to officers, but that the Police Commission had regularly declined to honor them. When we contacted him, he had yet to read the Copley decision.
"We have always been of the opinion that the city should comply with the penal code.... Our attorneys have made motions in the past, but they were denied," Johnson said.
The case that led to last week's decision began in 2003 when a San Diego deputy sheriff was fired for failing to arrest a suspect in a 2002 domestic violence dispute involving a clearly injured female victim. The deputy then didn't report the incident and manipulated his patrol log to depict the call as less serious than what was actually probable cause for an arrest. He appealed the termination but requested that the hearing be kept confidential.
As a result, the San Diego Union-Tribune was barred from attending the hearing, and a public records request for details of the disciplinary proceedings was denied. The paper's parent company, Copley Press, sued to retrieve the deputy's name, among other things, but a trial court in San Diego denied relief. Further records requests by the paper following the decision prompted the San Diego Civil Service Commission to reveal some additional details, but only in redacted form. The deputy's name was still withheld.
Following a closed-door commission meeting, the deputy's firing was changed to a resignation and the charge that he falsified his patrol log was removed from the record. The Union-Tribune went to an appeals court judge asking for the deputy's name and any additional evidence of the agreement, including documents and audiotapes, from the case. The lower-court decision was overturned there. But along with the Supreme Court, where the case eventually arrived, the appeals court never technically ruled on public access to disciplinary hearings. It only addressed disciplinary records.
"[The decision] is not saying that civil service commission hearings are closed," said Susan Seager, a First Amendment lawyer in Los Angeles who submitted an amicus brief to the Supreme Court on behalf of the Union-Tribune. "I think that's the debate here." But because so much material presented at the hearings comes from personnel files, Bobbitt responded, they'll likely have to be closed in order to comply with the decision.
Journalists at the Union-Tribune, for their part, obviously dislike the ruling.
"Certainly officers have an understandable motive for being fiercely protective of their privacy," the paper wrote in a Sept. 2 editorial. "Yet decades of scandals across the nation show that police cover-ups of internal misconduct are disturbingly common. The idea that police often operate under a 'code of silence' isn't just a figment of a pulp novelist's imagination."
It's not easy being a cop in this city. San Francisco for the most part ideologically opposes rigid, law-and-order conservatism. Pressure on the SFPD to do something about the city's alarming rate of gun violence continues to swell. And few people even want to be a cop anymore, leaving the department chronically understaffed and forcing the city to pay out millions of dollars for overtime expenses.
But bad cops are a fact of life.
More than 70 cases of alleged police misconduct were sustained by the OCC and sent to Police Chief Heather Fong for action last year. Literally hundreds of misconduct cases involving still-incomplete investigations were pending by the end of 2005. The department's own internal affairs arm, which handles additional misconduct probes, sustained 63 cases of misconduct in the second quarter of 2006.
In exchange for receiving a considerable amount of power, cops have always been responsible for maintaining a higher standard of conduct, a fact enshrined in the Police Department's own General Orders.
"Police officers are empowered to deprive other citizens of their freedom when they violate the law," the orders state. "Because they have this power, the public expects, and rightly so, that police officers live up to the highest standards of conduct they enforce among the public generally."
In the 6–1 Copley ruling, Justice Kathryn Werdegar stood alone in her dissent, arguing that "the majority overvalues the deputy's interest in privacy, undervalues the public's interest in disclosure, and ultimately fails to implement the legislature's careful balance of the competing concerns in this area."
The majority opinion, written by Justice Ming Chin, stuck mostly to technical details and argued that the appeals court erred in not defining the San Diego Civil Service Commission as an "employing agency" of the deputy, a key legal distinction.
Ultimately, the convoluted decision seems to beg for clarity from the legislature, but taking on privacy rights for cops could be tantamount to political suicide in Sacramento. One of the state's most powerful lobbying groups, the California Correctional Peace Officers Association, would be affected by changes in the law. Bobbitt warned that any attempt by the legislature to toy with the decision would be met with fierce resistance.
"Law enforcement associations will lobby very hard against any changes that would impact this decision," he said.
The view is a little different in San Francisco. Police Commission president Louise Renne — who is hardly known as a bleeding heart liberal — told the Guardian, "I don't think the state Supreme Court made the right decision from a public policy point of view."
For now, at least, six state Supreme Court justices have moved one of local government's most powerful entities deeper into the shadows. SFBG