Today, Wilkinson and Sager debate several cities' decisions to close police conduct hearings. Later in the week, Wilkinson and Sager will discuss reopening disciplinary hearings, allowing public access to use-of-force records, and Los Angeles police officers' privacy under the federal consent decree.
Closed hearings protect cops and communitiesBy Alison Berry Wilkinson
When the California Legislature enacted Penal Code Section 832.7, it mandated that police disciplinary hearings be confidential. In doing so, the Legislature balanced the public's right to know against an individual police officer's right to privacy. That statutory scheme begins with a presumption of confidentiality that can only be breached in the limited circumstances in which the need for disclosure outweighs an individual officer's right to privacy.
Neither a newspaper's desire to publish misconduct allegations nor a city's desire to have open public hearings is among the permitted exceptions to the confidentiality mandate. Nonetheless, the cities of Los Angeles, San Francisco, Oakland and Berkeley routinely acted in defiance of the law by holding public hearings on allegations of police misconduct.
That practice ended with the California Supreme Court's decision in Copley Press vs. Superior Court. Almost immediately, the cities of Los Angeles, San Francisco and Oakland complied with the law by closing public misconduct hearings. It was the right thing to do -- they had no choice.
In contrast, Berkeley refused to close public hearings, claiming that its Police Review Commission -- a review body that investigates and makes findings on police misconduct allegations -- was an independent agency without disciplinary authority not subject to Penal Code Section 832.7. The Alameda County Superior Court disagreed and ordered the hearings closed (PDF).
The "public's right to know" if police officers are abusing their authority is routinely cited as the reason for opening misconduct hearings. But other policy considerations favor confidentiality. In defending police against misconduct complaints, I have met many reluctant witnesses deterred by the concept of testifying against the police. Not everyone wants his or her personal business splashed on the front page. Often, both complaining parties and witnesses have their own troubles to consider. A public process chills their willingness to participate, which negatively impacts the ultimate goal of determining whether the use of police authority was proper.
Further, closed hearings prevent the premature disclosure of groundless misconduct complaints. As I often tell my police clients when a newspaper publishes the allegations but not the ultimate exoneration, "What you were accused of doing is a much more interesting story than what you actually did." But the ramifications from the publication of unwarranted charges are significant. Few professions require the spotless reputation for honesty and fair dealing that law enforcement does. Police officers are rightly held to a higher standard. Yet the slightest taint can render an officer ineffective. When that happens, the victim is the community because the ability to protect the community from violence and crime is irreparably undermined by the false perception that an officer is corrupt.
Police misconduct hearings should not be reopened. Accountability can occur just as effectively in a closed hearing; all it takes is for the community to appoint dedicated, diligent, smart and credible citizens to the oversight panels. With that, the careful balancing of competing interests conducted by the Legislature can work to the benefit of all.
Alison Berry Wilkinson is a partner at the law firm of Rains, Lucia & Wilkinson in Pleasant Hill, which represents more than 100 public safety labor organizations in California.
Disciplinary hearings should be openBy Kelli L. Sager
Your assertion that Penal Code Section 832.7 mandates that police disciplinary hearings be confidential is not supported by either the language of the statute or the legislative history that surrounded its adoption.
As you know, Section 832.7 specifically refers to "personnel records" and "records maintained" pursuant to a related statute on investigations of citizen complaints. Nothing in the statute mentions disciplinary hearings, let alone requires cities to change long-standing practices of allowing public access to the evidentiary portion of those hearings.
Given the historical practice of having disciplinary appeals take place in public, one must assume that the Legislature would have included such hearings within the limited protections given to police officers' personnel records if it had wanted to do so. Instead, the legislative history of Section 832.7 makes clear that the Legislature was acting for two purposes: to prevent an unfortunate practice by some law enforcement agencies of "shredding" records of citizen complaints against police officers, by requiring that the records be kept in the officer's personnel file; and simultaneously providing some protection against a defendant's broad "fishing expedition" into an officer's personnel records in instances where it was unjustified. Neither rationale justifies the closure of disciplinary appeals, which take place after there has been an initial showing of misconduct that the officer seeks to challenge.
Your claim that the California Supreme Court's decision in Copley Press vs. Superior Court requires the closure of disciplinary hearings also is in error. Public access to disciplinary appeal hearings was not at issue in the Copley case; consequently, the court expressly noted that it "express[ed] no opinion" about whether the public and press has a constitutional or other right to attend appeal hearings, pointing out that "the facts of [that] case [did] not present that question."
Nonetheless, it certainly is true that many cities, including Los Angeles, have acted precipitously since Copley to restrict the public's ability to hold police officers accountable by closing entire disciplinary appeal hearings. That is truly unfortunate.
It is difficult to imagine an area of greater public interest than the right of citizens to ensure that police officers maintain the highest standards of behavior, by allowing scrutiny of a proceeding that takes place only after there has been an initial determination that the officer acted improperly. For municipalities to rush into closing the factual presentation portion of hearings that traditionally have been open to the public and press, without being compelled to do so, was contrary to the public's interest in oversight and accountability of this state's police officers.