By Jeff Adachi
Published in The Recorder, Friday, April 18, 2008
Following the California Supreme Court decision that barred the public from police disciplinary proceedings, Copley Press v. Superior Court, 39 Cal.4th 1272 (2006), lobbyists for police and sheriffs organizations have worked to convince state legislators to introduce new laws that would further shield law enforcement from public accountability and create a cloak of secrecy surrounding complaints of police misconduct.One example is AB 2377, introduced by Assemblywoman Mary Hayashi, D-Hayward, which would make it more difficult for criminal defendants – and plaintiffs in civil cases involving police misconduct – to obtain access to complaints made by the public against police officers.
Police and sheriff’s departments are required to keep and maintain records of officers and deputies who are accused of police misconduct. Since 1974, a party seeking records pertaining to a particular officer need only make a “plausible showing” that the officer engaged in misconduct towards them.
AB 2377 overturns this 35-year-old precedent and instead requires a party seeking such records to show an “internally consistent plausible scenario” of misconduct that is “substantially credible.”
As one might imagine, in cases where police abuse is alleged, it is common that the police version differs substantially from that of the accused. Thus, a person charged with resisting arrest, who claims that the officer used excessive force, might seek complaints of prior incidents where the officer used excessive force. Presently, these records are produced so long as the litigant swears, under penalty of perjury, that the officer used excessive force against him or her. AB 2377 would prohibit the disclosure of such records unless the citizen proves that his or her version of the events is more credible than the version offered by the police.
By setting forth a standard that requires the judge to find the civilian’s version of events more credible than the officer’s version, AB 2377 unduly limits the disclosure of police misconduct records.
Supporters of AB 2377 claim that changes in the law are needed to protect officers’ privacy rights. However, current law requires a judge to review police misconduct records outside the presence of the parties to ensure that only those records that are relevant to the proceeding are ordered produced. Litigants must agree not to disclose the records to anyone, and to only use the records in connection with the case. This well-worn procedure amply addresses any police privacy concerns.
Furthermore, the proponents of AB 2377 do not point to a single instance where an officer’s right to privacy was violated by the current procedure. Instead, they merely argue that police misconduct records should not be produced where a judge views the officer’s version of events as more believable than that of the citizen’s.
Unfortunately, California has no shortage of examples of what happens when police misconduct goes unchecked. Los Angeles’ Rampart scandal, which involved allegations of misconduct against 70 officers, including unjustified killings and framings of suspects, resulted in the release of more than 100 people from prison. Four Oakland officers, known as the Riders, systematically committed acts of police brutality and then falsified police reports to justify their acts. In San Francisco, officer Jessie Serna was allowed to remain on the job even though he used force 57 times, injuring 37 people, and cost the city nearly $200,000 in payouts for using excessive force. Currently, deputies from the Orange County Sheriff’s Department are under investigation for allegedly watching television, playing video games and taking naps while inmates were allowed to regularly beat and intimidate each other, resulting in the death of at least one inmate.
Under AB 2377’s procedural hurdle, these types of incidents would not be subject to disclosure, even to a victim of police brutality who was seeking redress for his or her injuries.
Another example of a law that shields law enforcement officers from public scrutiny is AB 1855, sponsored by Assemblyman Anthony Portantino, D-La Canada Flintridge. This bill would prohibit the names, salaries and badge numbers of police officers from being published in the media. If passed, AB 1855 would create a specific exemption for law enforcement officers, since, under current law, the public is entitled to know the identity of public servants as well as the salary they earn.
As the British historian Lord Acton observed more than a century ago, “Everything secret degenerates, even the administration of justice; nothing is safe that does not show it can bear discussion and publicity.” To allow officers who have breached the public trust to hide behind a cloak of secrecy is to hasten the demise of the checks and balances that protect our system of justice against corruption and misuse of power.
We must therefore insist on the highest standards for law enforcement and demand assurances that allegations of misconduct are dealt with fairly, effectively and, above all, publicly.