City Goes to Court to Re-Open Police Complaint Hearings

By Judith Scherr
Tuesday November 07, 2006

Should the Berkeley Police Department be held accountable to the public when its actions are called into question? 

The city will answer in the affirmative in Alameda County Superior Court Department 31 at 9 a.m. on Nov. 14. 

At stake is the Police Review Commission’s more than 30-year public process, in which individuals who have complaints against Berkeley Police Officers have been able to air the complaint in a public setting.  

Berkeley attorney Jim Chanin, who helped write the initiative that created Berkeley’s Police Review Commission and was a member of the city’s first PRC, said the possibility of losing open complaint hearings is part of a “march toward a police state, where the police get to do what they want and nobody knows about it.” 

This is happening on a national, state and now local level, he warned.  

In an Oct. 31 brief to the court, Berkeley City Attorney Manuela Albuquerque underscored that the need for the public to have the ability to scrutinize its police force grows out of the nature of police work itself. 

“Within constitutional limits, [police] can detain and question members of the public, subject them to intrusive searches of their persons and property, jail them based on probable cause alone and apply force to effectuate any of these powers,” she wrote. “For the most part these activities occur outside public view.” 

In mid-September, the city’s Police Review Commission halted its public inquiries into complaints against the police, in response to a Superior Court decision, Copley Press vs. San Diego, and to a Berkeley Police Association lawsuit, first filed 2002.  

While the city argues that Copley does not apply to Berkeley because its Police Review Commission is not responsible for disciplining officers—that falls to the city manager and police chief—the BPA contends that the Copley decision and the Police Officers Bill of Rights make it unlawful for the city to compel police officers to testify publicly in response to complaints. 

“The PRC investigation, hearings, findings and decisions violate the statutory and contractual rights of the officers who are subject to these inquiries,” says a brief filed with the court Oct. 13 by Alison Berry Wilkinson of Pleasant Hill-based Rains, Lucia & Wilkinson LLP on behalf of the BPA, citing a legal requirement that “the records related to peace officer misconduct complaints, investigation, and hearings are confidential.”  

While the city manager’s records and the police Internal Affairs Bureau records are confidential, PRC records are not. 

A Nov. 14 judgment in Berkeley’s favor will mean the city can immediately re-open its complaint hearings, even if the BPA decides to appeal, City Attorney Albuquerque said in a phone interview Monday. 

If the judgment is in favor of the BPA, the City Council will decide whether to appeal, Albuquerque said. 

Chanin said a ruling in the BPA’s favor would be “a sad day in Berkeley.” He pointed out that the public can find discipline records against attorneys or doctors or contractors on the internet, and argued that the public should have the right to scrutinize its police officers. “The public is paying 100 percent of their salaries,” he said. 

If the hearings are closed, Chanin said, “it will be a march away from democracy, mirroring what is happening on the federal and state level.”