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Panel Demands New Policy for Police Misconduct Probes

By Judith Scherr
Tuesday May 08, 2007

Charges of misconduct levied against two Berkeley police officers in the recent past spurred a five-member Police Review Commission subcommittee to look at creating more effective police policies. 

Thursday evening the Evidence Theft Subcommittee interviewed Berkeley Police Chief Douglas Hambleton on issues arising from two police misconduct cases: Cary Kent, a former police sergeant, pleaded guilty in May 2006 to felony charges of stealing drugs from the evidence room he was responsible for; and Officer Steven Fleming was charged by the department with stealing money and other items from citizens he arrested. Fleming resigned from the department in February without being charged by the Alameda County District Attorney’s office. 

At the Thursday meeting, subcommittee members—PRC Commissioners Bill White, Sharon Kidd and Sherry Smith, and community members Andrea Pritchett of Copwatch and James Chanin, an attorney and former PRC member—had hoped, in addition to the chief, to interview officers close to the two cases.  

The Berkeley Police Officers Association, however, in a letter to Hambleton threatened to “pursue court action” if officers were required to appear and testify before the subcommitee, linking its objection to a recent case won by the BPA that protects police officer confidentiality in personnel-related issues. 


Questioning the blue line 

One question Chanin asked went to the heart of the problem in the Kent case: why did various officers recognize a problem with their fellow officer but not report it? The 900-page Internal Affairs report, made public after Kent pleaded guilty to felony charges, documents through interviews with numerous officers that many realized there was something amiss with Kent more than two years before charges were brought against him. He was unkempt, performed duties late, was at the station at odd hours of the day, slept at his desk, isolated himself and more, according to the report.  

Some officers mentioned their concerns to colleagues, and a few mentioned the problems to commanding officers, the report said. 

“Are officers trained to tell their supervisors when they see an officer is unable to perform his or her duties?” Chanin asked the chief. 

“I don’t think there’s a specific training on that—no,” Hambleton responded. 

“Are there any policies to report any officers they believe are unable to perform their duties and responsibilities?” Chanin asked, and the chief said there are not, although, while the policy is not in writing, he expects supervisors to recognize problems and follow up. 

When it was her turn to question the chief, Commissioner Smith pursued the issue of inadequate supervision. “The lack of written policies has allowed for so much leeway in your written policies that the results seem to be a complete failure of supervision,” she said. 

Smith went on to query the chief about disciplining supervising officers. “I would be curious to know if anyone had been disciplined because of failure to adequately supervise,” she said. 

Hambleton declined to comment, citing the letter from the BPA attorneys that cautioned against discussing issues in public that touch on personnel issues. 

Along the same line of questioning, subcommittee members wanted to know whether there are policies targeting officers who are late. Interviews by the Internal Affairs Department showed that Kent was consistently late for meetings or did not come to them at all, and was late in distributing drug evidence to officers who needed it in court or was not there at all to distribute it. 

Hambleton said if officers are late to work, it is recorded on their time cards. If the officer is late to distribute drug evidence the supervising officer should know about it, but there is no policy that says a report must go up the chain of command, Hambleton said. 

Further he said there is no written policy mandating an officer report another officer if that officer doesn’t get drug evidence to him in a timely way. 

And there is no policy that an officer file a report when an arrestee says his money has been taken by police or when an officer uses profanity in speaking to a prisoner, the chief said. (Former Officer Fleming was accused of both stealing prisoners’ money and using profanity in addressing them.) 


Recognizing officers under the influence 

Other questions addressed concerns that fellow officers, especially those involved in drug crimes, should have recognized that one of their own was a drug abuser. (While there was no confirmation in arrest records that Kent was a drug abuser, his attorney Harry Stein, of Rains, Lucia & Wilkinson told the Planet last year that Kent had sought treatment for drug addiction.) 

“How are Berkeley police officers trained to recognize people under the influence?” Chanin asked the chief, who answered that there is a training that some officers go through, but most have not received the training.  

Smith said she was surprised at the response. “I would think that anybody who is in charge of who’s on a narcotics squad for drug investigations would have taken that training,” Smith said, wondering why, since the chief had been trained, he had not recognized a drug-addicted officer. 

Hambleton responded that symptoms can be subtle “when someone appears to be sick, for instance,” Hambleton said. (Kent had told several fellow officers that he had lupus.) 

The chief further explained that such training might not help in a situation such as the Kent case. In addition to outward signs, the officer would have to touch the skin to see how moist it is, examine the suspect’s pupils, and take the person’s pulse.  

“That’s not the kind of activity that would normally occur in the employment setting,” Hambleton said. 

The other avenue is ordering drug testing, something that is prohibited by the city, the chief added. 

Chanin pressed the chief to elaborate on what new policies could be put into place so that substance-abusing officers are identified, but the chief said he thinks no new policy is needed in this area. 

However, he would like to be permitted to send an officer suspected of abusing substances for a medical exam. “It is not something we can do under the current policies,” Hambleton said, noting that it would have to be part of the Memorandum of Understanding, the work agreement negotiated between the BPA and the city. 


Drug evidence audits 

Other questions addressed audits of drug evidence, checked into the evidence room and recorded on a computer. (The investigation into Kent’s theft of drugs from the evidence room included some 286 envelopes whose contents had been tampered with.)  

Hambleton said the audits were not as thorough as they could have been and that they did not weigh the drug evidence to see if it was the same or less than it had been when it was checked into the evidence room.  

“Clearly the inspections that we do in the future will need to be more thorough and we’ll have to examine those envelopes in much more detail,” Hambleton said, noting that he has already tightened the audit procedure, which would likely become written policy in the future. 

Before writing new policy, the committee will meet with the city attorney and city manager to discuss the BPA letter and then will meet to discuss policy recommendations. These meetings are yet to be scheduled, according to PRC officer Victoria Urbi.