Who's After Berkeley Police Chief's Scalp, and Why?

By Becky O'Malley
Friday March 16, 2012 - 10:40:00 AM

The subject lines on friends’ email forwards of the original Bay Area News Group article about PoliceChiefGate told the story. “OMG!” “Unbelievable!” and more. And who could argue with their reaction? Everyone in Berkeley and beyond, it seemed, even people who have never agreed on anything else before, agreed on this one:. “How could he? What could he have been thinking?”

And so did I. I’ve been a First Amendment absolutist for all of my adult life. I joined the ACLU before I was old enough to vote. I’ve many times quoted Supreme Court Justice Hugo Black on the constitutional ban on abridging freedom of speech: “When it says ‘no law’ it means NO LAW!”

After working for a number of years as a political agitator for civil rights and in the anti-war movement, I took up journalism. These experiences fueled my outrage at the report of the Berkeley Police Chief’s midnight messenger sent to press a reporter to correct an online story. I imagined myself hearing that ominous knock, reliving that fearsome confrontation with an armed officer on my doorstep.

There’s no question in my mind that what used to be called The Standard Liberal Position is that this should never have happened. We all have the right to be safe and secure in our homes, don’t we? And we shouldn’t have to be afraid when someone comes knocking after midnight, especially the police. I absolutely agree—or at least I do when I’m wearing my journalist’s hat.

But when the Berkeley Police Officers’ Association issued their first statement criticizing Meehan, I started to wonder. The BPOA is technically not a union, since they can’t strike under the law—but it’s a professional association which does collective bargaining on behalf of its members . And as luck would have it, collective bargaining is underway right now—and Chief Meehan is the boss with whom they’re negotiating. It occurred to me that there might be more than one reason the Association is looking askance at him.

When Berkeley attorney Jim Chanin, a veteran ACLU officer, a former chair of Berkeley’s Police Review Commission and a litigator who has brought and won many police misconduct lawsuits in many jurisdictions in his 40 year career, was quoted in the Chronicle as thinking that Meehan showed “a serious lapse in judgment”, but should not have to resign, I wondered more. So I called Jim to get his take at first hand. 

He pointed out that in Berkeley alone he’d won at least 25 lawsuits against the police for wrongful death, not just scaring someone, and not once had his clients received an apology. Not once had the BPOA called for an apology in any case he’d handled, no matter how bad. Meehan, by contrast, has apologized, profusely. Chanin suggested that there might be “ulterior motives” at work here. 

And today the BPOA has put out another even stronger denunciation of Meehan—this one co-signed by Rocky Lucia, an attorney with the Walnut Creek labor law firm that represents the union. The plot thickens. 

Opinions differ on whether Berkeley’s elected officials can or should express an opinion on what the consequences to Meehan should be in this situation. During public comment at Monday’s special city council meeting, former mayoral candidate (and Planet contributor) Zelda Bronstein asked why Mayor Bates hadn’t made a statement about the incident. 

Councilmember Kriss Worthington came to Bates’ defense, explaining in elaborate detail legal advice the council had received, that only Interim City Manager Chris Daniel could fire a department head like the police chief, and that if councilmembers expressed an opinion it might be used against the city in a wrongful termination lawsuit later on. 

But Councilmember Jesse Arreguin, normally a Worthington ally and someone I respect, wasn’t present when Worthington spoke during the public comment period. On Wednesday he issued a statement saying that “it is a hard lesson learned for Chief Meehan, but in light of his sincere apology and self-recognition of his error, it is time to move on and move forward as a community. Acknowledging that press intimidation –intended or not- is unacceptable and anathema to Berkeley’s values, I offer my continued support of Chief Meehan to serve and protect our City.” 

This seems to violate the legal opinion that Worthington cited, but Arreguin could conceivably argue that if Meehan’s not fired there’s no risk of a wrongful termination suit. The reporter in question, Doug Oakley of the Oakland Tribune et al, has said he accepts Meehan’s apology and doesn’t plan to sue either. 

Arreguin’s not the only person who thinks that, overall, Meehan has been doing a good job. He’s been shaking up a department long criticized for excessive overtime and bloated pensions, with occasional serious lapses like the officer who was taking confiscated drugs from the evidence room. 

Meehan has been trying to change that culture. Some suggest that the union was so quick to denounce him because he was hanging tough in the negotiations now in progress. 

It’s been very hard, verging on impossible, for reporters to pry information out of the BPD in the 10 years I’ve been watching them regularly. Former Planet ace reporter Richard Brenneman, who has covered police in many cities including Las Vegas, has always said that Berkeley is the hardest place to find out what the police are up to that he’s ever worked. We tried many different kinds of people on the police beat in the 8 years the Planet was in print with paid staff—young, old, experienced, naïve, stern, charming—the whole gamut. Nothing ever really worked, and no other publication has done much better. 

Public information officers have come and gone, but they’ve all seemed to view their job as withholding information, not providing it. The current incumbent, Sgt. Mary Kusmiss, is courteous and responsible, better than most, but she’s only on duty for four (ten hour) days a week and often seems to be the last to find out what’s going on. 

She’s not intimidating in any way. People like her. 

And that brings us to the crux of the Oakley story. Reports differ as to whether Sgt. Kusmiss was carrying a gun when she rang his doorbell, but it’s generally conceded that she was in plain clothes. Her persona is mild, almost retiring, often apologetic when she can’t provide you with the news you’re looking for. She’s been quoted as telling Oakley she was “mortified” to be carrying out the chief’s orders for her late night call. 

I can’t speak to Doug Oakley’s state of mind, so I don’t know why he said he was afraid of her, why he reported a panic attack after she rang his bell at 12:45. I can’t imagine myself being scared of Mary Kusmiss at any time of the day or night. 

Angry, hell yes. Like most of us, I don’t like to be disturbed by anyone ringing my doorbell after about ten at night. With modern communication technology available, many think it’s no longer okay to drop by someone’s home without calling first, at any time of the day. Especially, of course, if you’re a police person. 

(Ironic sidebar: when word leaked out that Christine Daniel would be the new city manager, and that she was probably the first openly gay person to hold that job, I called her on her cell phone about nine at night to confirm the rumors for a little feel-good feature. I was told emphatically that I had no business calling her at home—to call back at the office the next day.) 

But the point, of course, is that Kusmiss was and is a police officer. As a matter of principle, police officers shouldn’t make unannounced late night house calls unless it’s a dire emergency, especially on reporters, whose obvious assumption is that the intent is to shape the news. They really shouldn’t make house calls on reporters at all, because it’s bound to look bad no matter what the intent. 

In fact, in this instance Chief Meehan was not trying to warp the reporting of the news, by all accounts. He wasn’t threatening to abridge anyone’s rights under the First Amendment. He sincerely wanted a justifiable correction of a factual error, and BANG later agreed he deserved it. It’s just that his timing stank. 

It’s not unreasonable to conclude that Oakley and BANG decided not to sue is because they couldn’t make a credible allegation that the reporter been injured enough for damages to be awarded. The kind of clients Jim Chanin represents have the kind of injuries which are more easily proven in court, mostly physical ones. 

Did Meehan do something stupid? You bet. But as Jim Chanin pointed out to me, Meehan’s shown no “pattern and practice” of dumb mistakes, and he’s apologized for this one. In Jim’s opinion he should be given a second chance. Just one, of course. 

Can you even fire someone for just for acting stupid? As a former employer, I’m here to tell you it’s hard, verging on impossible. 

Did the BPD set Meehan up for a fall? That doesn’t seem possible, but their eagerness to kick him when he is down sure looks a lot like crocodile tears. 

Putting on my GooGoo (Good Government) hat, I tend to agree with Chanin, Arreguin and the other attorneys, city officials and even experienced journalists I sounded out on the question of whether Meehan should be asked to leave at this point. As a Berkeley citizen and taxpayer, I’d like to see if anyone can really get the BPD under control for once, and Meehan was well on his way to succeeding before this incident. I’d like to see him keep trying for a while longer, if he doesn’t make any more mistakes like this one.