Opinion: The Police Review Commission and police accountability

Internal investigations of alleged misconduct are a necessary burden that officers in police agencies across the country must bear.

Internal investigations of alleged misconduct are a necessary burden that officers in police agencies across the country must bear. In fact, the history of actual misconduct in policing in America is so well-documented in the present age, that police departments would be naively remiss to assume that it can’t happen to them. As a consequence of that awareness, all police agencies now have some procedure in place to handle internal investigations. California even compels it for all police agencies within the state. Some departments are so large they have entire divisions devoted just to internal affairs investigations. Others are so small, they merely task a sergeant or command officer to investigate complaints as they are received.

Although Berkeley’s Internal Affairs Bureau is somewhere in the lower middle of the scale — consisting of two full-time sergeants and a secretary who report directly to the chief — Berkeley police officers must also contend with a civilian review board that is charged with investigating allegations of police misconduct.

The Berkeley Police Review Commission was born from a series of early 1970s ballot initiatives that included one restricting the types of weapons used by police officers (failed), one requiring that Berkeley police officers reside in the city of Berkeley (failed), one requiring the City Council list and vote on police mutual aid agreements on a yearly basis (approved) and one for civilian oversight of the police (approved in the form of the PRC).

Although the original PRC, as imagined by 1970s activist groups, aspired to actual oversee the police department — subsequent court fights mounted by the Berkeley Police Association established that, absent a charter amendment, legal authority over the police correctly resided with the city manager. In spite of the dimming of the activists’ original vision, however, the PRC is a substantial city agency whose annual budget is over $500,000. The PRC currently employs a full-time investigator who is paid at roughly the same rate as a “top step” police officer, a PRC “officer” whose pay is about equal to a police lieutenant, and a secretary, all overseen by a team of city council-appointed board members (prior law enforcement experience, a law degree, or even a police ride-along is not required for any of the appointed or paid positions).

In the modern day, the procedure by which complaints are investigated by the PRC is as follows: A citizen who has had an experience with the Berkeley police that they’d like investigated has up to 90 days post-incident to file a complaint. Filings after 90 days and up to 180 days are considered “late,” and can be approved when six commissioners find there is “clear and convincing evidence” to accept the late filing Stress felt from the incident itself has been deemed sufficient for a “good cause” finding.

After interviewing the complainant about the incident, the PRC investigator will have a sit down recorded interview with the officer, his or her legal representative, and any other officers who may have been involved in the incident. The full nine-member PRC commission then schedules a hearing, called a Board of Inquiry, to more fully investigate the allegations.

The BOI can take place at any time for up to a year after an incident that may have last no more than a minute—and may have been as innocuous as an officer slowing his patrol car down to advise a bicyclist to remove the large couch they were towing from the roadway.

At the Board of Inquiry, the accused and witness officers, their legal representatives, the complainants, their lawyer, the PRC investigator, the PRC officer, three PRC board members, and a police commander (who answers policy questions for the board) will all sit down in a large conference room in the South Berkeley Senior Center for the hearing itself. The proceedings are refereed by the PRC “officer,” a career employee who is not always successful at keeping the proceedings on track: the last hearing I attended as an officer representative lasted five hours.

At the start of the Board of Inquiry, or the BOI, the accused officer and complainant are sworn in by the board. The oath administered by a board member prior to testimony should give comfort to any person who has ever felt the crippling power of a false accusation: “Do you promise to tell the truth to the best of your ability?” (italics added for gratuitous emphasis). The complainants are then given fifteen minutes to make an opening statement before giving testimony about the allegations. Since complainants are offered the opportunity of having a lawyer (or Cal law student, a trusted friend, or a relative) represent them for an accusation they have made against the police officer, much of the BOI can be spent on a “direct examination” of the complainant by the lawyer or law student. The board then questions the complainant for as long as the three-person panel sees fit. The officer’s representative (someone like me) then takes a turn at questioning the complainant, who may or may not feel the need to answer any question directly and may go on for as long as the board has patience. Finally, the board members request the officer take a seat at a table directly in front of the panel as they begin to closely question him or her and their witnesses.

According to a police department order on these proceedings, officers must treat the hearing just as they would real “court proceedings.” The rules of evidence at the BOI’s, however, are nothing like a real court and are often subject to the whims of the PRC officer and the commissioners.If some part of the proceeding seems unusual to the officer representative, and possibly prejudicial to the accused officer’s due process rights, an objection may be overruled by the board merely because the issue (although new to the proceedings) isn’t “specifically prohibited” under their regulations.

And unlike the officers the board is investigating, a stated bias against a class of persons is no bar from appointment. Consider the following quote by a commissioner in 2004 when asked his opinion about a proposal to provide the department with a K9 unit: According to an article in the San Francisco Chronicle, the commissioner worried about what police would do with the dogs when they were not actively engaged in searching for suspects. “I’m thinking they’re going to just use these dogs when there’s nothing else to do to harass people in the lower income parts of Berkeley,” he said.

What may not be widely known by the public is that every complaint that the PRC receives automatically triggers a parallel internal investigation by the police department’s own Internal Affairs Bureau. And each one of these investigation findings are then reviewed by the department’s own “Board of Review.” That means for every complaint received, the officer or officers must sit for at least three formal interviews for events that may have happened nearly a year previously.

Or, as the case may be, may never have occurred in the first place.

Sometimes the motivations for a false claim of police misconduct are so clear, it’s a point of frustration for the officers to see them routinely accepted for investigation: a drug addict who is down to his last cent and was just about to get high with the last of his drugs who claims the arresting officer stole money from his wallet or  a driver who feels he was unjustly stopped for speeding who claims the officer pointed his firearm at him during what was otherwise a routine car stop

Occasionally, however, false claims against the police are so sensational, they instantly attract the attention of the national press and must be publicly confronted by local and federal government officials. A couple of decades ago, a local parolee claimed that he’d been kidnapped from southwest Berkeley and then severely beaten by several Drug Task Force officers. He had the injuries to prove it. He quickly retained the services of a civil rights lawyer who in turn launched a full-scale press attack on the officers and the department. While still reeling from the aftershocks of this horrifying allegation, one of the accused officers was placed on administrative leave pending the outcome of the investigation while the department answered numerous national press inquiries and eventually had to respond to a crowd of 100 persons who marched on the police department demanding justice.  (Full disclosure: at the time of this incident, I was a local college student and after reading the press accounts, I too was shocked that this could happen in my community).

After a frenetic week of finger-pointing, where the four “involved” officers felt the heat of national press attention, a local politician threatening to prosecute them, and Internal Affairs, the FBI, and the District Attorney all launching investigations, the San Francisco Police Department suddenly spoke: the “victim” of this kidnapping and savage beating was actually the prime suspect in a wild crime spree that included a murder, in their city on the night — and at the time — in question. The whole story had merely been a sensational attempt by a local criminal at an alibi. Upon learning of this revelation, the complainant’s lawyer, a local attorney who needs no introduction, quickly dropped the case, but not before further angering the accused officers by announcing to the press that his client would be withdrawing his promised lawsuit—not because it was bogus, but because he feared “retaliation” from the Berkeley cops.

An instructor had once guaranteed to the members of my police academy class that even if we were the most ethical and professional cops we could possibly hope to be, we would eventually be the subject of false accusations—and each of us would one day get sued in federal court. At the time, I figured he was being dramatic to impress a class full of naive police recruits. But when I finally got hit with a lawsuit, I realized he’d been dead serious—and right. And the complaint stemmed not from some complex narcotics operation where someone was hospitalized after a violent confrontation with the police, as one might expect from watching numerous police related TV shows, but from a routine arrest of a bicyclist for a simple drug offense.

The arrest had been so insignificant in my mind that I couldn’t’t even recall it until I’d done a thorough records check. In his pleading, filed pro per at the federal courthouse in San Francisco, the bicyclist alleged that I was part of a “Berkeley Police Department bike-stealing conspiracy,” and that I was “actively colluding with the Attorney General of the United States” to deny him his civil rights. I had laughed out loud when I got to the $900 million in punitive damages and $100 million in compensatory damages he was demanding. Yet, when the Berkeley city attorney informed me that there was a strong possibility that the federal judge would make me face a trial for a civil rights violation, I stopped laughing.

From my first day on the job way back in 1995, it had been hammered into my head that a cop’s job is about accountability, especially in the age where public policy is frequently decided by the perception of liability. As a result, virtually every decision a cop makes on the street is subject to a court challenge, administrative investigation and punishment, lawsuits, and, potentially, criminal prosecution of the police officer. This is why cops are trained from early in the police academy to “articulate” the reasons they do things, even when giving minor traffic tickets.

Articulating the reasons you do something — from handcuffing a resistive suspect, to firing a fateful bullet into a person who is fighting you for your gun — is almost a cliché of the job. But as a cop, it is also your last line of defense when the probable cause for a stop, your personal life, and depending on the state and the protections it offers to its police, much of your personnel file may become open to review at every level of the justice system and, quite possibly, the national media. In the very unlikely event that you use deadly force at some point in your career, you will be stripped of your gun and duty belt at the scene of the shooting. This will promptly be delivered to a criminalist for forensic examination to ensure the bullets you said you fired were the same ones recovered from the body of the suspect. You will be photographed by an evidence technician to preserve the way you appeared just after the shooting. Why this is important has not been fully explained to me, but since it documents something heretofore overlooked, it is now a routine step in Officer Involved Shootings, or OISs.

You will quickly be surrounded by attorneys who, depending on their title, are anxious to either protect you or willing to prosecute you. You are continually told during these early hours after the incident not to discuss the single most stressful thing you have ever endured with anyone else — even with your spouse — so as not to contaminate the investigation or prejudice your own rights. You will then be read a Lybarger admonition — an administrative warning that informs you that you have no choice but to cooperate with the investigation or be disciplined for insubordination up to and including termination. You will then be interviewed and video-recorded by a panel of any of the following or some combination of all three: homicide detectives, a district attorney investigators, and internal affairs investigators. Before you have even caught your breath, you will be put on administrative leave, your name will likely be released to the press, and you may even be required to revisit the scene of the shooting with a crowd of investigators and attorneys while being videotaped as you physically replay the incident for them—again.

Next, as you sit home for a week on administrative leave, you will relentlessly deconstruct and reconstruct the moment you fired your weapon — agonizing over whether you did something to provoke the shooting that cost someone their life. Depending on the media attention given the incident, and not always the actual facts of the case, there is a very good chance that your life — as you and your family had quietly been leading it just one day prior — is over.

Eventually, and in combination with a separate investigation by the coroner, the district attorney will render an opinion about your perceptions under stress in the milliseconds before you took action. He or she will decide whether or not these perceptions sufficiently square with the conduct of the suspect and the evidence recovered from the scene and the suspect’s body to justify your use of deadly force—and not criminal charges. Although you may draw comfort knowing that the vast majority of officer-involved shootings don’t result in criminal charges against the officer, you may also be made aware by experts in the field that the majority of those same officers who have used deadly force in the line of duty (and were cleared) leave the department within a year or two of the incident—because of the trauma of the incident.

After the criminal investigation is completed, and presuming the shooting is ruled “justifiable homicide” (the intentional but lawful killing of a human being) you are compelled by your department to sit down with a psychiatrist whose interest in coldly probing the meaning of your every personal feeling might provoke a cop’s natural urge to be humorous when faced with the absurd: “When did you last cry?” he asks. Probably the moment I found out I was going back to work.

Finally, you will more than likely be sued by the family of the decedent. As a result, months or years after the event, you will be compelled to give a sworn deposition to the attorney representing the family in a wrongful death lawsuit filed in federal court. Everything you’ve carefully built for your family over decades of “doing the right thing” — your house, life savings, future earnings, and your children’s financial security — will be increasingly on your mind as legal concepts you may never have heard of like “qualified immunity” are presented to the judge because you had the audacity to kill a person who was angrily pointing what later turned out to be unloaded gun at someone, and who had “never hurt a fly in his life.”

In medicine and in law, in construction and in aerospace, there are all forms of malpractice and liability insurance. In law enforcement, mostly what police officers rely on, in an unmistakably Socratic sense, is The Truth. Most street cops have an intuitive understanding that truth and justice are — at the end of all discussions and legal proceedings — indistinguishable from one another. And cops who stick with the job — instead of simply walking away from all the controversy, all the false accusations of misconduct, all the personal, financial and criminal liability, only do so based on the following fragilely held belief: no matter what political ax falls befalls them, no matter what some citizen, media outlet, or plaintiff’s attorney, or prosecuting attorney alleges about their behavior or actions, the facts of the incident itself will eventually speak for themselves. And no jury will find that the race, sex, disability, or religion of a gunman is relevant when that person is threatening harm to others. Those juries seem to know, and most of our society intuitively knows, that police shootings are still a rare event and not out of proportion to the volume of calls handled and number of violent subjects confronted; that police officers are not gunslingers looking for targets of opportunity, but are armed professionals doing a job that is still critical to the well-being of others; and that in the vast majority of deadly force situations, the cop who kills another human being in the line of duty has only done so as a last resort, and when all other reasonable means have failed.

Tim Gardner is a long-time Berkeley police officer and Berkeley Police Association complaint investigation representative who has represented numerous officers and sergeants in PRC investigations and Board of Inquiries. The opinions expressed in this article are his own and are not meant to represent the Berkeley Police Department.