California laws enacted more than 30 years ago to protect honest peace officers from over-zealous internal investigations have become a safety net for bad cops.
The mandates – the most stringent in the nation — have given troubled officers special privileges that make it harder to get rid of them and nearly impossible for the public to learn whether they’ve been adequately disciplined.
Laws that began as an effort to protect police and the integrity of their work expanded over time, giving more and more cover to officer misconduct. Attempts to scale back those laws have met with opposition from California’s highly organized police unions, who argue it could affect officer safety.
“California is the most restrictive state in the nation, when it comes to police secrecy,” said Jim Chanin, a former ACLU attorney in San Francisco. “It’s California’s dirty little secret.”
Consider the effects:
•Former Orange County Assistant Sheriff George Jaramillo went to jail on state corruption charges and is serving another 27 months in federal prison for tax evasion. But Jaramillo sued the county in 2005 for firing him without going through the extensive process mandated by California’s Peace Officers’ Bill of Rights. A Superior Court judge agreed and Jaramillo stood to collect $362,707 before a federal judge ordered that the money be turned over as restitution.
•In 2006 Berkeley police officers refused – citing state protections – to cooperate with a civilian probe into the theft of heroin, methamphetamines and other drugs from 286 envelopes in the evidence locker. Without police participation, the probe was unable to determine the extent of the security breach. The missing evidence was ultimately blamed on a drug-addicted, 20-year narcotics sergeant, Cary Kent, who was convicted and given home detention for a year.
•A prison guard in Central California was kept on the job after being accused in 2005 of sexual relations with inmates and using his/her position as a union steward to blackmail an administrator. The guard was dismissed by the Department of Corrections, but rehired during a closed-door hearing before the state personnel board. State law prevents the corrections department from releasing the guard’s name, exact place of employment or details of the alleged misdeeds.
•A suspected drunken driver alleged that a Los Angeles deputy checked her into a motel rather than arrest her. The deputy later returned when he was off duty and made “inappropriate advances.” The department attempted to fire the deputy, but was overturned by the county personnel board, in a confidential hearing without public input. State law prevents the sheriff’s department or its auditors from releasing the deputy’s name, when the incident occurred or any other details.
“Now it’s really hard to get rid of undesirables,” said Jim Keysor, the former San Fernando Valley assemblyman who introduced the “Peace Officers’ Bill of Rights” legislation in 1976. “They use the ‘bill of rights’ to protect themselves, and the bosses are really stuck.”
Keysor added that the law “escalated into a far bigger thing than I imagined.”
EFFORT TO REDUCE FRIVOLOUS LAWSUITS
Keysor and his colleagues say they initially wanted to protect street officers from being used as scapegoats by unscrupulous supervisors. They also wanted to prevent criminal defendants from using the arresting officers’ personnel records to make frivolous counter-complaints.
Instead they created a series of statutes that over time, with the help of powerful law enforcement unions and sympathetic courts, planted a steel wall between officers and the public’s right to know.
The first law, the “Peace Officers’ Bill of Rights,” was the brainchild of the Assembly’s Criminal Justice Committee in the mid-seventies. At the time, stories circulated about police brass leaning on officers, their wives and their families, to get confessions.
“At the time, you could be forced to take a polygraph examination, forced to do anything (or lose your job),” said Ron Cottingham, president of the Peace Officers Research Association of California.
In essence, the law prevents police supervisors from firing officers without an extensive rebuttal process. The law also dictates how the officer can be treated during interrogations. For instance, the officer cannot be subjected to foul language, or lied to, and must be paid overtime if the interrogation is not conducted during regular work hours.
(In contrast, civilians suspected of crimes can be verbally berated and even lied to by police questioners—all legal under the law.)
The bill was backed at the time by the American Civil Liberties Union and signed into law by then-governor Jerry Brown, a Democrat whose support helped him to gain political favor among rank and file officers.
Used in tandem with the bill is a 1967 U.S. Supreme Court decision – Garrity vs. the State of New Jersey. This case, involving patrolmen accused of fixing traffic tickets, holds that officers can be forced to answer questions from their employers, under threat of firing. But those answers cannot subsequently be used against them in criminal court.
Another protection is California Penal Code sections 832.7 and 832.8, which prohibit police disciplinary files from being publicly released without court approval. Passed in 1978, these sections were written by the office of then Attorney General Evelle Younger and carried by Assemblyman Dennis Carpenter, a former FBI agent from Newport Beach. Younger and Carpenter are now deceased. Both had publicly expressed concern that criminal defendants were using the disciplinary records of arresting officers to fight criminal convictions. The new law would prevent defendants from “fishing” through the records, authorities said at the time.
For decades, California police departments and media agencies have wrestled in court over police disciplinary files and other law enforcement records. For the most part, the wall surrounding the officers just got thicker and taller with every court decision.
The California laws protecting police officers contrast strongly with laws in Georgia, Kentucky, South Carolina, Florida and other “right to work” states where unions have less sway over government.
Public employee and police unions in those states are mainly fraternal organizations with little weight in blocking the flow of public information, officials say.
“The police associations are pretty much neutered. They can scream or cry pretty much all they want, but it doesn’t help,” said Frank V. Rotondo, executive director of the Georgia Association of Chiefs of Police. “It’s very tough watching Peace Officers’ Bill of Rights or unions (in other states) protect ineffective law enforcement officers.”
California, one of the most unionized of all states, has some of the most powerful police associations in the country. Public safety unions and lobbying groups here doled out more than $33.5 million in political contributions during the last nine years, including $5.5 million to the Democratic Party and $1.95 million to the Republican Party.
PUBLIC’S RIGHT TO KNOW COMES SECOND
California’s protections were made virtually impenetrable in 2006 when the California Supreme Court ruled in Copley Press vs. Superior Court that civilian police commissions could not publicly disclose their findings on police misconduct. Some commissions could no longer gain access to personnel files. The unions and lobbyists for the police said these protections were necessary for officer safety.
An attempt by state Senator Gloria Romero (D-East Los Angeles) in June of 2007 to enact new legislation overriding the court ruling drew police from across the state to a packed Capitol hearing room, where they testified that vigilantes would attack their families if their misdeeds were made public.
Police officers and their lobbyists jammed the seats, lined the aisles and stood outside in the hallway, all with the same message: Cops will die if this bill is approved. No real-life examples were provided to back up their assertions.
“It was like a Who’s Who of police lobbyists, a full complement of firepower,” said Jim Ewert, an attorney for the California Newspaper Publishers’ Association, which backed Romero’s bill.
The Assembly committee let the bill die without a vote. Another attempt to revive the bill, in 2008, failed before the same committee.
Public records show the committee members received $227,990 from public safety lobbyists during the two-year session that included the two votes on the bill. Orange County public safety groups contributed $17,000 over that period, with $5,900 coming from the Santa Ana Police Officers PAC and $4,500 from the Orange County Professional Firefighters Association.
The argument that the lives of police officers depends on secrecy is not a new one. It has been used to quash public information requests across the United States. But seldom, if ever, can police offer any evidence to back up the argument.
Police groups in Florida and Georgia, where more police information is accessible, could not point to a single case where releasing disciplinary files led to the death or injury of the named officer or his family.
But police in those states also believe that releasing records endangers cops.
“Every year we are bombarded with calls from our officers who’ve discovered that folks have discovered their (personal) information,” said Matt Puckett, deputy executive director of the Florida Police Benevolent Association.
Police departments in California can withhold the names of officers involved in shootings if they believe that disclosure would put the officers in danger – which they almost always believe. But experts say retaliation against named officers is extremely rare.
“I know thousands of police officers involved in shootings who’ve been named and there never has been a problem,” said David Kling, a former LAPD officer and an expert in lethal force at the University of Missouri. “I don’t think the standard pattern of withholding names is a good thing to do.”
Cottingham, from PORAC, countered that naming officers may taint them in the public eye, which hurts law enforcement because victims can’t chose which officers will respond to 911 calls.
“You can pick your doctor or lawyer, but you can’t pick the officer who shows up on your doorstep,” Cottingham said. “You’ve tainted this individual because of your need to fill (news) pages. It’s hard to go through an entire career without making a mistake.”
But some law enforcement professionals say a change is needed.
“The pendulum has swung too far the other way. It has blocked the ability of the public to know when officers commit misconduct,” said Mike Gennaco, a former federal prosecutor who now heads the Los Angeles Office of Independent Review, which monitors complaints against the LA sheriff’s department.
“When (cops) commit a violation, why shouldn’t they be in the public light?”
MISCONDUCT BURIED
The death of an inmate at Orange County’s Theo Lacy jail in October 2006 illustrates how strongly the police protections contrast with the public’s right to know.
In a quick investigation, the sheriff’s department had arrested a handful of inmates for beating John Derek Chamberlain to death and cleared their deputies of wrongdoing. No other information was released on the names or involvement of jail deputies.
It wasn’t until The Orange County Register obtained confidential documents, in March 2007, that the public learned that deputies were accused by inmates of orchestrating the beating. One deputy admitted he was watching “COPS” on television while Chamberlain was stomped to death some 68 feet away. The Register also revealed that deputies changed the jail logs after the beating to show that Chamberlain did not want to move to a safer cell.
After the district attorney empaneled a grand jury, the public also learned that that guards routinely slept on duty and recruited jailhouse bullies as enforcers. Allegations that deputies helped set up the attack were never proven.
Nine sheriff’s employees, including two assistant sheriffs, left their jobs in the fallout.
Under state law, the department can’t say whether any were fired – and if so what the nature of their misconduct was.
