Judge Hears Arguments on Open Police Complaints

By Judith Scherr
Friday November 17, 2006

Berkeley’s 30-year-old public police complaint process hung in the balance Tuesday as the city squared off against its police union in an Oakland courtroom.  

Judge Winifred Smith presided over a hearing in which Alison Berry Wilkinson of Pleasant Hill-based Rains, Lucia & Wilkinson argued for the Berkeley Police Association that a police officer’s right to privacy is violated when the officer is “forced” to respond publicly to a civilian complaint. 

The judge has taken the matter under submission and must respond within three months, although she is expected to rule sooner. 

Berkeley’s Police Review Commission Boards of Inquiry—where an individual’s complaint against a police officer is reviewed publicly in the presence of the officer and the complainant—were suspended mid-September in response to a California Supreme Court decision, Copley Press vs. San Diego County, that said a police officer’s discipline records cannot be made public.  

All police review boards in California—about a dozen—suspended public complaint hearings after the court decision. If Smith rules in Berkeley’s favor, open hearings will resume, even if the BPA appeals the ruling, according to City Attorney Manuela Albuquerque. 

The Berkeley Police Association took aim at the public complaint hearings four years ago, with a lawsuit claiming that the process violated a police officer’s right to privacy in regards to discipline records, as established by state law in the Police Officers’ Bill of Rights.  

But the suit was put on hold in 2004 as Copley made its way through the courts. The BPA complaint now incorporates the Copley decision. 

Albuquerque argued in court Tuesday that Berkeley’s process does not violate an officer’s right to privacy in disciplinary matters, because the city’s Police Review Commission hearings air an individual’s complaint against the police, but the PRC is not charged with discipline. 

“The city manager hires, fires and disciplines police officers,” Albuquerque said. “Only the city manager has a right to see personnel records.” 

Wilkinson did not dispute that, but noted that when a complaint is lodged with the PRC the Berkeley Police Bureau of Internal Affairs begins a parallel investigation.  

“The [PRC] investigation finds facts, comes to conclusions,” either sustaining or not sustaining the complaint, Wilkinson said. Both processes end with the city manager and the police chief. 

“The police chief and the city manager can consider anything in the public record. That includes the PRC findings, whether they have chosen to do it [in the past] or not,” Wilkinson said. 

Judge Smith interjected that the “personnel file of the officer is not given to the Commission.” 

And Albuquerque argued that “anyone can use anything in the public domain,” that the PRC hearings would not lead to discipline any more than a newspaper article or police report. 

Allison argued further that the complaint process includes criticism of the officer, which is in itself a form of discipline.  

“Is it the act of criticism that is discipline?” Judge Smith asked. 

“Yes it is,” Allison answered. 

Observers at the court hearing included members of the Police Review Commission, Berkeley Copwatch, Oakland-based Bay Area Police Watch, Oakland’s Citizens’ Police Review Board, and the American Civil Liberties Union, which filed a friend of the court brief on behalf of the city. 

“Without public hearings, we risk becoming a police state,” Jake Gelender, UC Berkeley student and Copwatch member said outside the courtroom. “The Berkeley Police Association attacks our right to know what’s going on. Falling on the heels of the [Sergeant Cary] Kent scandal, they should be trying to rebuild public trust.” 

Kent is the former Berkeley officer convicted of stealing drugs from the evidence vault of which he was in charge. 

Also speaking outside the hearing room, Wilkinson told the Daily Planet that as things currently stand, the law regards an officer’s privacy as more important than the public’s right to know and to change that “will be an issue for the legislature to resolve.”