Judge denies temporary restraining order to halt confidential police hearings

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A judge ruled against Berkeley’s police union and an officer Tuesday after they requested a temporary restraining order that would suspend the mandate that officers attend hearings conducted by the city’s police oversight agency.

Attorneys for Officer Gwendolyn Brown and Berkeley Police Association, the union that represents police in the city, filed the restraining order to carve out time to identify the source of a leak after The Daily Californian published confidential findings about police conduct on the night a black transgender woman died in police custody. The findings were made following a closed hearing conducted by the city’s Police Review Commission, a nine-member civilian board that reviews police actions, and shared with the city manager and chief of police.

According to an email sent from a BPA attorney to city manager Christine Daniel, two police officers were scheduled for PRC hearings Wednesday. The union sought to temporarily halt these confidential hearings until the source of the leak was identified to prevent further information from being disclosed. Judge Evelio Grillo struck down the temporary restraining order but would reconsider it if further information were leaked, according to Harry Stern, the attorney for Brown and the police union.

“We tried everything to get the city to make a good faith effort to find who the leaker is,” Stern said. “They haven’t done it so now the BPA has been forced to take up the gauntlet.”

The leaked information showed that commissioners at the hearing unanimously found Brown to be in violation of a training and information bulletin that deals with in-custody deaths.

“Placing restrained persons in a face-down prone position for long periods of time should be avoided,” the bulletin states. “Never leave a restrained person in a face-down prone position without constantly monitoring her vital signs.”

The father of Kayla Moore, the deceased, filed a wrongful-death lawsuit against the city earlier this year, alleging that officers could have saved Moore’s life with mouth-to-mouth resuscitation and that her status as a transgender woman of color was a factor in the officers’ decision not to perform the breathing without a mask.

The city cleared its employees after conducting an internal investigation to find the source of the leaked information. Commissioners were not investigated because they are not employed by the city.

For 45 days, which ended July 12, city officials halted hearings conducted by the PRC. Daniel requested commissioners take public action in the form of a motion or resolution affirming their commitment to the civilian oversight process, including maintaining confidentiality. In June, commissioners signed declarations affirming they did not leak information to the Daily Cal.

In response to the city’s inability to find the source of the leak, the police association and Brown sued the city Monday, alleging invasions of privacy, inflictions of emotional distress and negligence, among other counts.

“Once we identify the leaker, I think the leaker, the city and everyone else is going to have some decisions to make,” Stern said, adding that the “sky’s the limit” in terms of investigation tools.

City spokesperson Matthai Chakko said he and other city officials had no comment on the pending litigation.

Across the state, hearings like the one Brown participated in used to be open to the public prior to 2006, when the California Supreme Court ruled that they must be held in a private forum without disclosure of police personnel records.

The PRC does not have the power to discipline officers. Rather, findings are sent to the chief of police and city manager who can choose to dole out disciplinary action if the findings are received within 120 days of the misconduct.

Berkeley Police Department conducts its own internal reviews and can penalize officers without outside guidance. The commission cannot begin an investigation until the police department completes its own probe, which commonly results in the PRC’s inability to submit findings within 120 days.

Kimberly Veklerov is the executive news editor. Contact her at [email protected] and follow her on Twitter @KVeklerov.

Correction(s):
A previous version of this article stated that city manager Christine Daniel requested Police Review Commissioners sign an oath affirming their commitment to confidentiality. In fact, Daniel asked the commission to take public action, like a motion or resolution, affirming its commitment to the civilian oversight process, including maintaining confidentiality.