Should Misbehaving Cops Be Shielded From Public Scrutiny?
Illustration by Chris Thornock
Mark Arner didn't know what he was getting into. A veteran reporter for the San Diego Union-Tribune, he was working the police beat when an editor told him to check out a case at the county Civil Service Commission.
"It wasn't something I covered normally," he says. "We stumbled across it."
The case involved a rape allegation against Antonio Lee Smith, a Sheriff's deputy. Smith had been called out on an assault case. The suspect, a 37-year-old woman, was drunk. She later told authorities Smith forced her to have sex and that she was too drunk to stop him.
The Sheriff's Department agreed not to pursue rape charges against Smith. In exchange, he admitted to having sex with the woman. He was fired, but he appealed to the commission to get his job back, which made the case a public record.
"I wrote about what happened, and people came unglued," Arner says. "Here's a police officer doing such a thing under the color of the law."
The Deputy Sheriff's Association also was enraged, though for different reasons.
"People were apoplectic in the union," he says. "Here's their dirty laundry. I'm writing about it, and nobody's ever covered it before."
Arner's editors assigned him to dig up more cases. But they weren't counting on Everett Bobbitt. A former Marine Corps drill instructor, Bobbitt had worked for years as a cop before getting his degree in law. He was known in San Diego as the "cop's lawyer," and he was intent on stopping the Union-Tribune in its tracks.
Arner soon heard about another deputy who had been fired. But when he tried to attend the hearing, the commission refused to let him in. He later learned that the deputy had failed to make an arrest and take a report in a domestic violence case. But the commission wouldn't release the deputy's name or other details of the hearing, so the newspaper sued.
Bobbitt, who died in 2007, had been spoiling for this fight. State law made police discipline records secret. Access would be granted only to parties in litigation, and only with an order that the information would not be shared publicly. The commission was the lone exception to this blanket of secrecy, and Bobbitt wanted to close it off to outsiders.
Arner remembers Bobbitt "excoriating" the newspaper's lawyer in court. The paper lost at the trial court but won on appeal. Then Bobbitt appealed to the California Supreme Court.
"We thought, naively of course, that you can find out what happens with public employees who carry guns and badges," says Greg Moran, a Union-Tribune reporter who covered the case when it moved to the courts.
Watching the arguments in San Francisco, Moran got a sinking feeling. He says the justices' attitude toward the newspaper seemed to be, "What do you think you're doing?"
In Copley Press v. Superior Court, issued in 2006, the court ruled 6-1 to make the commission's proceedings secret. The ruling also closed off access to similar bodies across the state, including the Board of Rights, which handles disciplinary appeals at the Los Angeles Police Department, and the L.A. County Civil Service Commission, which performs the same function for the L.A. County Sheriff's Department.
"These are serious things, and so it was quite upsetting to just have that shut down," Arner says. "It's as if the courthouse door shut in our faces — as if it were somehow a private matter."
In the year and a half since Michael Brown was killed in Ferguson, Missouri, a national movement has spread to demand greater police accountability. A spate of incidents — most of them shootings, many captured on video — has drawn attention to police abuses across the country.
Los Angeles is used to thinking of itself as a model of police reform. But L.A. hasn't exactly dodged controversial police shootings. Black Lives Matter activists have called for the resignation of Chief Charlie Beck over the shooting of Ezell Ford, an unarmed and mentally ill man who was killed in South L.A.
Still, L.A. has not had a recent incident of police misconduct that captured national headlines. That may be a sign that the LAPD has reformed itself. Or it could be that it is very difficult to get police records in California.
Protesters gathered, and literally took to the street, at an Ezell Ford in Hollywood. Black Lives Matter activists have called for the resignation of Chief Charlie Beck over the shooting of Ford, an unarmed and mentally ill man who was killed in South L.A.
Denise Lett / Shutterstock.com
Last May, LAPD officer Clifford Proctor shot and killed Brendon Glenn, a homeless man who was panhandling outside a bar in Venice. Glenn was shot in the back. A surveillance camera captured the shooting, and it was disturbing enough for Beck to recommend that charges be filed against the officer. But the department has refused to release the video, which has kept the Glenn shooting a local story.
In the Ford case, Beck found that the two officers acted according to department policy. The Police Commission overruled him, but the consequence of that decision is unknown. The department may have disciplined them — or not.
"We don't know what actually happened," says Melina Abdullah, one of the leaders of the L.A. chapter of Black Lives Matter. "That has been a huge issue for us."
"This obsession with secrecy does not make for a healthy relationship between law enforcement and the communities they police," says Celeste Fremon, editor of the Witness L.A. blog and a former L.A. Weekly contributor, who is writing a book about brutality in the Sheriff's Department. "If we saw the department's rationale, then maybe we'd agree with it and maybe we wouldn't, but we'd at least know what they were thinking. But the attitude is, 'That's for us to know and you to find out. Trust us.' It infantilizes the public."
On issues such as climate change and the minimum wage, California is on the cutting edge of progressive politics. But the state ranks near the bottom when it comes to providing access to police records. Conservative, law-and-order states like Florida and Texas allow almost unfettered access to records relating to police discipline, while liberal states like California and New York, where law enforcement unions are most powerful, have made them off-limits.
"All of this has been done to protect the job security and reputation of rank-and-file police officers," says Peter Scheer, executive director of the First Amendment Coalition.
In Sacramento, Sen. Mark Leno is attempting to pry open the door a little. He has offered a bill to undo the Copley Press decision and restore access to police oversight panels, which, he argues, would build trust between departments and their communities.
"That trust is in a very challenged state right now," Leno says. "By withholding information, I believe it only gets worse."
The bill has provoked stiff opposition from the state's police unions, which argue that opening up personnel files will erode the public's confidence in law enforcement.
"I don't know that transparency does anything," says Kristi Eckard, a board member of the Los Angeles Police Protective League. "Transparency equates to more sensationalism and higher sales for the L.A. Weekly and the L.A. Times. It does not equate to developing public trust."
But with national debate over police accountability, supporters of Leno's bill see an opportunity for change.
"This would have been viewed as a total waste of time two or three years ago," Scheer says. "If ever there was an opportune moment, politically speaking, to have some of these secrecy rules relaxed, now is it."
In the aftermath of a police shooting, the police hold a monopoly on information. In the case of the LAPD, the department's media relations section will generally issue a press release, in which cause and effect are not always clear.
"At this location the suspect's vehicle and the patrol vehicle collided and an officer-involved shooting occurred."
"One officer deployed a TASER device at the suspect and an officer-involved shooting occurred."
"The officers attempted to detain the suspect and an altercation occurred between the two officers and the suspect. During that physical altercation an Officer-Involved Shooting (OIS) occurred."
A week or two later, the department will release the name of any officers who fired shots, in accordance with a 2014 ruling from the California Supreme Court. Any further detail must wait nearly a year for a report from the Police Commission. That report omits the names of the officers — even the ones who have already been identified by the department — and substitutes Officer A, Officer B, etc.
The underlying investigation remains secret, as does the commission's deliberation about it.
Brendon Glenn was shot by police last year in Venice, in what was recently determined to be an unjustified killing.
Courtesy of Brendon Glenn Facebook
"The public is left with a summary of what happened," says Peter Bibring, staff attorney for the American Civil Liberties Union. "It's the agency's own justification for their decision."
The commission sometimes finds that a shooting has violated department policy, as in the Ford and Glenn cases. But that does not mean that an officer will be punished. That hearing — the real hearing — is held at the Board of Rights, on the fifth floor of the Bradbury Building. And that is entirely secret.
Jim DeSimone sued the department on behalf of the Glenn family. He has not yet received the video of the shooting. When he does receive it, it likely will come with a protective order, meaning he cannot share it with anyone.
He also has not been told anything about Officer Proctor's disciplinary status. In a similar case, DeSimone was told the result of the department's internal review — but that information came with a protective order.
"I know what it is, but I can't tell you," he says.
Defense lawyers and plaintiffs can access disciplinary records through what is called a Pitchess motion, named for a 1974 California Supreme Court decision.
"You can get records if you've got a righteous reason that a judge agrees with," Eckard says. "If the point is to hold officers accountable, there's a process that weighs the right and the need to that information to the protection of their rights. You don't need to carte blanche release them."
But judges have varying standards for what they will release. And whatever they agree to release usually comes with a protective order, which means that, unlike most other court documents, they'll be shielded from the public and the press.
Nana Gyamfi, a criminal defense lawyer, says that if her case turns on a cop's dishonesty, she might not hear about other types of infractions the cop committed.
"If they never got a complaint about dishonesty, but there was a complaint about they-beat-their-ass, you're not gonna get the beat-their-ass," she says. "They could have 20 beat-their-ass [complaints] and you wouldn't get it."
Even clearly relevant information is tightly guarded, she says.
"You don't get the complaint," she says. "You get the name of the person [who made the complaint] and the contact information if they left it."
Gyamfi says it sometimes would be more effective to put up fliers and hold town hall meetings in South L.A., simply to ask if anyone has had problems with particular officers.
"You cannot do it through the system," she says.
For reporters, the way to go around the system is to get leaks. When he was an L.A. Times reporter, Robert Faturechi exposed a vast array of abuses inside the L.A. County Sheriff's Department, drawing heavily on information from confidential sources.
In 2013, he reported on a trove of 280 confidential personnel files, which showed that about 80 deputies had been hired despite serious problems in their backgrounds.
"One guy had been fired from another agency after being accused of abusing inmates," Faturechi says. "The department hired him and assigned him to the jails."
The Sheriff's Department responded by launching a leak investigation. The investigation pointed to a background investigator who had allegedly sent 43 emails containing confidential information from a department account to a personal account. Using a friend's computer, the background investigator also contacted Faturechi.
"We have some information we think may need to be put out there," the investigator wrote, according to a document released by the L.A. County District Attorney's office. "We are adamant about getting this reviewed and decide as to whether you are interested in a story. We are tired of the politics that go on in this department and a change is needed somehow someway."
Faturechi never identified his source and did not cooperate with the Sheriff's investigation. The D.A.'s office declined to prosecute the investigator, citing the statute of limitations.
"There were people within the department who were willing to violate policy and potentially do something criminal to get stuff to me. That was very brave of them and lucky of me," says Faturechi, who is now with ProPublica. "In order to do good reporting on local law enforcement in California, you have to depend on people being willing to violate policy or the law, which is nuts."
When Jim Newton covered the LAPD for the Times in the mid-1990s, Board of Rights hearings were open to the public.
"It was useful to have the access and for everyone to know the access was there," Newton says. "Exposure and light helped the department improve."
LAPD's Rampart scandal, one of the most widespread police corruption cases in U.S. history, began with a criminal case against Officer Rafael Pérez in 1999 and was helped along by massive leaks to Times reporters Matt Lait and Scott Glover. As the scandal went on, the reporters were able to see how the department dealt with the controversy and how it sifted and weighed evidence against officers, by attending Board of Rights hearings. After the Copley decision, that door has been closed.
"You have to rely on your ability to get people to give you information that is not being handed out publicly," Lait says.
Newton, now at UCLA, notes that the increased secrecy coincides with a decline in the power of the press.
"You probably have fewer experienced reporters doing that work than you used to, and they are limited in their sourcing capacity," he says. Developing sources takes more time than many reporters have these days, he says. Back then, "If I went a week without a story, nobody gave a shit."
Over and over, police union officials circle back to the same concern about the release of disciplinary records: sensationalism. Cops have a tough job, which requires them to get into fights and win them, and that makes them cheap targets for reporters.
"It's less about transparency and more about trying to get something out there for shock and awe," says Marshall McClain, president of the L.A. Airport Peace Officers Association. "Y'know — salacious things."
Police unions are especially nervous about the proliferation of video. As other agencies have released footage of high-profile incidents, it has spurred calls for the LAPD to release bodycam video. City officials have debated doing so but have run into obstacles, including opposition from the police union. Some worry that if videos were released, officers would refuse to wear the cameras.
"Since you can share more, should you share more?" asks Mitchell Englander, chair of the L.A. City Council Public Safety Committee. "What happens if you start releasing video that looks bad but perhaps was very much in line and in policy? The police videos are investigative material. ... We don't release any other investigative material. It's not done. There's no other part of an investigative record that's ever released. So it's a very slippery slope."
Eckard, of the Los Angeles Police Protective League, agrees.
"There's gotta be a line between what's necessary and reasonable to see and protection of peace officers' rights," she says.
The unions are wary of any invasion of officers' privacy. When Faturechi got the leak of personnel records, he and a colleague spent several months visiting deputies at their homes seeking their comments. Almost all of them refused.
"I wouldn't like having people show up at my house with photos out of my personnel file," says George Hofstetter, president of the Association of Los Angeles Deputy Sheriffs, which sued to try to block Faturechi's report.
Hofstetter says he was not unsympathetic to the leaker's concerns.
"There might have been a better way of putting that out there, as opposed to sending it to the news media," he says. "You can't steal people's personnel files."
Many argue that the system already affords numerous layers of accountability — internal affairs, inspectors general, civil service commissions and the district attorney. Because they operate largely in secret, those bodies are able to do their jobs without being subject to political pressure. If disciplinary hearings were public, many worry that they would become a spectacle, with Black Lives Matter activists trying to shut them down.
"Holding these hearings in public will open the door to creating a media and public circus, and will not further the cause of justice," wrote Rusty Hicks, the head of the L.A. County Federation of Labor, in a letter opposing Leno's bill.
Mark Arner doesn't buy that. After working a few more years at the Union-Tribune, he was laid off in 2009, along with 110 others. He struggled to find work for a while, before landing a job as a records clerk at the County of San Diego. But he still has his journalist's zeal.
"The question I have for the Legislature is, 'Do you want bad cops patrolling our streets?'?" he says. "It's the standard journalistic view that we want to shed light on everything. We've been trained this way, and we rankle when we hear somebody is going to shut the door on us. But I don't think it's a matter of us just trying to provide stories. We're trying to provide stories that are important.
"When police departments are considering terminating officers, that's not a private matter. That's a public employee who's broken the law. They've breached their trust with the public, and they shouldn't have this cloak of confidentiality."
Correction: A previous version of this story included a photo of a man who was described as Peter Bibring, staff attorney for the American Civil Liberties Union. The man in the photo actually was Peter Eliasberg, legal director at the ACLU. We regret the error.
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