Police Review Commission Finds Officers’ Acts Improper By Judith Scherr

Friday February 24, 2006

It was one of those beautiful sunny days in Berkeley that makes you want to take the longest route to the Saturday morning farmers’ market. 

This is what Elliot Cohen decided to do one day last April. He was walking along Shattuck Avenue and thinking about a news article he’d just read about a drive-by shooting in the area. And so, he said, his curiosity was piqued when he saw four squad cars parked in random fashion near the corner of Shattuck and Durant avenues. His trajectory took him near the police officers, who seemed to be questioning an African-American woman with a shopping cart.  

Wondering what was going on, Cohen stopped and watched at a distance of about 20 feet from the officers and the woman.  

That’s when the police began to harass him, according to complaints Cohen filed with the Police Review Commission (PRC). On Jan. 30, a PRC hearing board sustained three of the four allegations: one complaint of discourtesy, one of abuse of discretion and one of an implied threat; one complaint of improper physical contact was not sustained. 

Berkeley attorney Osha Neumann said complaints such as discourtesy should be taken seriously and should not be ignored as a kind of police misconduct, he said. 

“It can be an early warning sign of other forms of police abuse.” he said. “It’s connected to attitude.” 

“The attitude of police who feel they can use their power in a negative manner starts with discourtesy,” said Annie Chung, PRC chair and member of the three-person panel that heard Cohen’s case.  

As he tells it, after Cohen had been observing the scene for several minutes, the woman being questioned by police called over to him, claiming that he had caused police to arrest her. 

Cohen was about to yell back that she was mistaken when Police Officer Mary Ann Jamison approached and asked Cohen if she could help him. 

Cohen said he told the officer he was “just watching.”  

According to the complaint Cohen lodged with the PRC, Officer Jamison responded to Cohen saying something like, “Didn’t your mom teach you any respect, dude?” Cohen called this response discourteous and the three hearing board members agreed. 

A charge of abuse of discretion stemmed from a verbal exchange between Cohen and Jamison. Jamison asked Cohen if he was OK and whether he needed a paramedic. While Jamison claimed the question stemmed from the fact that Cohen seemed agitated, the hearing board found the question inappropriate. 

A charge of discourtesy because of an implied threat was also sustained against a second officer, Malissa Kelly. Cohen had told Jamison that he didn’t need a paramedic but may need a lawyer (because of the alleged physical contact.) Jamison then told Cohen her sister was a lawyer and suggested he hire her. 

But when Cohen told Jamison he didn’t want to hire her sister, Officer Kelly responded, asking Cohen if that was because Jamison was African American. The board found it inappropriate to insinuate race into the discussion. 

“Unless Mr. Cohen made a racial remark or showed some bias against Officer Jamison, it was improper for Officer Kelly to ask if his actions were motivated by race,” the hearing board findings stated. 

The complaint was categorized as a threat because Cohen felt that the officer was setting up a scenario in which he could be called a racist if he brought a complaint against the department.  

A claim of improper physical contact was related to a charge that Jamison physically impeded Cohen from approaching the person being questioned. Jamison denied touching Cohen at all. The board found, however, that even if there had been physical contact, it had only been enough to stop Elliot from physically interfering in the situation, so improper physical contact against Officer Jamison was not sustained.  

Now that these allegations have been sustained, the officers have the right to contest the findings before an administrative law judge from the California Office of Administrative Hearings. The hearing and the findings are public and will be shared with the PRC, the police department and the city manager, according to Deputy City Attorney Sarah Reynoso. 

“In theory they could impose discipline,” Reynoso said. 

However, for the administrative law judge to impose discipline, complaints would have to have come to the judge within 120 days of the original complaint. In the case of Elliot Cohen, for example, the complaint was filed in April, the PRC hearing was not held until Jan. 30; the findings were released Feb. 17. If the officers appeal the findings, they will appear before the judge significantly beyond the 120 day limit. 

The process, however, is important, even if discipline is not imposed, Reynoso said. 

“The fact of having to appear and answer to the PRC is a deterrent,” she said, adding that if the PRC sees that there is a pattern with certain problems, they can recommend policy changes. 

Simply creating a public record of police officers’ records of complaints against them may cause them to change their behavior, said PRC Chair Chung. “If you can hold (the officer) accountable, you can prevent more severe problems.” 

For example, Jamison’s record shows there have been six complaints brought to the PRC against her. Three of those were not sustained and three were. In addition to Cohen’s two complaints against her, the PRC hearing board sustained a complaint of abuse of discretion in 2000 against the officer. 

In Kelly’s case, three complaints have been brought against her—one was dismissed, she was exonerated in another case and found to have been discourteous with an implied threat in Cohen’s case. 

Chung added that, even though he is not required to do so, the police chief will look at an officer’s complaint record when considering promotions. And if an officer with a number of complaints is promoted, the community, armed with the record, can protest the promotion. “The community can use the record as a measure,” she said. 

The PRC work is important in advocating both for the community and the Police Department, said Sharon Kidd, a PRC commissioner, who served on the panel that heard Cohen’s complaints. 

“There is no law enforcement agency that is perfect,” Kidd said. “If you make mistakes, you should accept the mistakes, so the problems won’t mushroom. If problems occur affecting one police officer, it should not tarnish the whole force.””