The legal secrecy surrounding police misconduct and discipline is all but absolute, but not quite as strong as the free speech tradition championed in Berkeley.
The California Court of Appeal decided earlier this month that because of the mandatory secrecy of peace officer’s personnel files and their contents (including but not limited to complaints) under state law, the Berkeley Police Review Commission may not hold open meetings when it reviews complaints against particular officers. No local sunshine ordinance such as the one proposed by a group of Berkeley residents could change this legal limitation. Only the legislature or the state Supreme Court could do that, and neither would soon, if at all.
But there’s still the First Amendment and the free speech guarantee of the California Constitution, and the state’s Civil Code protection for publishing statements made in the course of official proceedings. Under that privilege (in Civil Code Section 47), the persons filing the complaints against peace officers are immunized from tort or other liability in publishing the text of their complaints—sharing their grievances with the world. And thanks to their constitutional rights, they cannot be judicially restrained from doing so.
Moreover, the same law that forbids employers of peace officers from disclosing citizen complaints against the officers requires that complainants be given a copy for their own use. Subdivision (b) of Penal Code Section 832.7 states, “a department or agency shall release to the complaining party a copy of his or her own statements at the time the complaint is filed.”
Accordingly, nothing—including either court action or legislation—could prevent a locally adopted ordinance from providing the following:
“The Police Review Commission and any other office of the city receiving complaints against employee peace officers pursuant to Penal Code Section 832.5 shall, at the time of receiving the complaint, provide the complainant immediately with a photocopy or other exact copy of his or her complaint, time and date stamped to acknowledge receipt, together with the following written advisory statement:
Your Right to Publicize Your Complaint
You have just been provided with a copy of your complaint, with a time and date stamp to verify that you filed it. If you were not given a copy, please call 000-0000 between the hours of ___ and ___. The City of Berkeley and its agencies, including the Police Department and the Police Review Commission, are forbidden by law from disclosing to the public either the fact that you have made this complaint or what it says. But you have the constitutional right to publicize your complaint as you choose, and also absolute immunity from lawsuits if you make public the contents of your filed complaint form. For example, you are free to send a copy of your complaint to:
• any public official at the local, state or federal level;
• any newspaper, magazine, broadcast station or Internet news or comment website;
• any political, social, labor or civil liberties organization; and/or
• any person or organization listed with contact information on the Berkeley Police Review Commission Internet home page as a “Complaint Copy Requester,” having expressly requested to receive copies of such complaints.
A copy of this advisory statement shall also be posted conspicuously at the location or locations at which complaints are received from physical visitors, and also posted conspicuously on the Internet home page of the Berkeley Police Review Commission, next to the list or link for Complaint Copy Requesters.
Supplementing this requirement could be another provision, requiring the commission to advise complainants due to appear in a board of inquiry hearing (where complaints are actually examined through witness testimony) that they are free under the law:
• publicly to repeat (for example in a press interview) or otherwise report what they or anyone else said in the hearing;
• to publicize or otherwise share the copies, provided by the commission, of their interview transcript and redacted police report; and
• to publicize or otherwise share the copy, provided by the commission, of its findings concerning the complaint.
In short, the government may gag itself from revealing police complaints and discipline and close board of inquiry hearings to the public, but it cannot gag complainants from revealing to the community whatever they say and discover as participants in the process. Nor could officers prevail or even get a toehold in a lawsuit for defamation or privacy invasion, in my view, given the Civil Code Section 47 privileges and the anti-SLAPP law, if all the complainant does is report what he or she says, hears or learns in the commission process.
Thanks to its chronic invertebracy in the face of police lobbyists, the legislature has compelled those who employ peace officers to keep silent about the misbehavior of the worst in the ranks—what the complaints are, whether they are substantiated after due inquiry, and what if anything has been done by way of discipline or correction. But those in Berkeley or elsewhere who believe themselves or others to have been mistreated by this tiny minority of misfits for the badge have the right to file a formal complaint about them, the right to have their complaint evaluated and answered, and the right not to remain silent. Responsible city leaders will see to it that complainants are advised of these rights in a candid and timely manner.
Terry Francke is a member of Californians Aware.