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Policing the police

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JULY 24, 2016

The Police Review Commission in Berkeley was designed to oversee the Berkeley Police Department, to hold its officers accountable for their actions and to act as a liaison between the department and the community. But at a time when police violence and oversight has become the subject of ever-increasing controversy across the nation, many in Berkeley — and in the commission itself — feel that the PRC is unable to adequately address today’s foremost police issues.

“I demand accountability from the police department,” said Police Review Commissioner Ayelet Waldman during a PRC meeting, adding that such accountability is unachievable given the powerlessness of the commission. “To participate in a system that appeases rather than being effective, that gives the illusion of justice when no justice is being attained, then that is worse than not participating.”

According to Berkeley City Councilmember Kriss Worthington, one consequence of this lack of justice is the fact that some civil rights lawyers in Berkeley explicitly tell their clients not to take their complaints against the police to the PRC. Civil rights lawyer James Chanin, who is also a founding member of the PRC, said the commission’s actions are evidence of its ineffectiveness.

Forty-four years ago, Chanin joined a coalition made up of Berkeley residents who all joined together in an attempt to place an initiative creating a police oversight commission on the ballot.

In 1973, the citizens of Berkeley passed this initiative and established the Police Review Commission. According to Chanin, the commission was promptly the subject of a lawsuit by the Berkeley Police Association, which took issue with the commission’s proposal to abolish Berkeley Police Department’s Internal Affairs Bureau.

Members of the association currently attend every PRC meeting and, despite having launched several subsequent lawsuits against the PRC, Berkeley Police Association president, Sgt. Christian Stines, said in an email that the association now has an “excellent working relationship with the PRC.”

“We respect (the PRC’s) mission of providing civilian oversight, advice and input to the police department,” Stines said in the email. “We look forward to continuing that relationship and dialogue, both on issues upon which we agree and disagree.”

One such issue the PRC and the Berkeley Police Association disagree on is the power of the commission to hold BPD officers accountable. As it stands, that power is very little.

Limitations of the law

The PRC is currently facing issues operating within state law and city law, which are both restrictive regarding disclosing police records. PRC Commissioner George Lippman credits this lack of access to the enormous lobbying power of the police association.

The PRC gives policy recommendations relating to BPD and addresses the public’s complaints about the department. Complaints made by Berkeley residents — as well any incidents of in-custody deaths — are investigated by three commissioners appointed to a board of inquiry.

According to Chanin, boards of inquiry were originally public hearings, but they were closed to the public by a Supreme Court case in 2006 that banned the public discussion of police records.

During the board’s hearings, both the police officer who is the subject of a complaint and the citizen who filed that complaint have a chance to give their testimony, though the complainant is not allowed to hear the police officer’s testimony. Additionally, the police officer is allowed to cross-examine the citizen and has legal representation, usually in the form of an attorney from the police association, while the citizen is expected to represent themselves.

“The boards of inquiry are not fair to the complainant, they don’t get the police officer’s story and they can’t challenge the police officer’s story,” Chanin said. “The whole process is stacked; it’s not a level playing field.”

Boards of inquiry must be completed within 120 days of the complaint being filed, which, according to PRC Chair George Perezvelez, is not enough time. Investigations are often pushed back by mitigating circumstances and lack of access to police department records, with many not being completed in time to be considered by the chief of police.

The PRC’s investigation runs parallel to an Internal Affairs Bureau investigation conducted within the police department. According to Perezvelez, the bureau is not required to inform the PRC about what it is investigating, nor does the police department need to follow the PRC’s recommendation.

“I want a robust and important (Board of Inquiry),” Waldman said. “If we can achieve that within this system or within this time frame — making sure that the chief considers the (board’s) reports in his decision — then (I support conducting such inquiries). But if we can’t do that, I think that continuing this process is a disservice to the community.”

Once the PRC is finished conducting its investigation, it then submits its recommendation to the chief of police, provided the investigation was concluded within 120 days. Even if the recommendation is submitted within this time limit, the police chief can choose to make a disciplinary decision beforehand or can entirely disregard the recommendation.

“The police department makes a decision based on their findings, then it’s a black box,” Lippman said. “We don’t know what happens, we don’t make a decision about discipline (and) we never hear back.”

When a person dies while in police custody, the PRC has the power to open an investigation regardless of whether a complaint was filed. The PRC called for such an investigation after Kayla Moore, a transgender woman with a history of mental illness, was arrested and died in police custody in 2013.

During that investigation, the PRC was not immediately given access to the police report or other information, and according to Moore’s sister Maria, it took five months to gain access to the report.

Though the PRC was unable to complete the investigation within the 120-day time frame, it did find that one officer exercised improper police procedure. The internal affairs investigation did not find any officer responsible, however, and no officer faced discipline for the situation.

Currently, any decision made by the PRC is subject to approval by the city manager’s office. According to Worthington, there was at least one year when every PRC decision was overturned by the city manager.

“There is no accountability,” Maria Moore said. “They are giving the police the power to discipline themselves.”

Limiting itself

In addition to blaming California and local law, Lippman cited issues within the PRC itself as another reason for its ineffectiveness. He said the commissioners are too friendly with the police, and he argued that they do not stand by their policy positions when confronted with resistance.

“It’s so bad (that) a lot of people in the community have given up on the PRC,” Lippman said. “Very rarely does any real relief come out of filing a complaint with the PRC.”

Boomer Vicente, a UC Berkeley student and former PRC member, expressed dissatisfaction not only with the rules regulating the PRC, but also with the commission’s members. He said police accountability and violence are issues with strong racial components, especially in light of recent events across the United States, and criticized the fact that nearly all of the commissioners are white.

“A lot of people on the commission aren’t representing (their) communities,” Vicente said, adding that a lack of communication contributed to the problem.

In addition to poor communication, Vicente also accused the PRC of inadequate transparency. Like Lippman, he took issue with the commissioners’ close relations with the police and said the distant location of PRC meetings is an impediment to public access.

According to Chanin, the PRC takes too long to investigate. Its investigation into Moore’s death lasted for a year, and though it was delayed because of lack of access to information about the case, Chanin says the decision could have been reached earlier.

“For the PRC to screw around for a year is simply evidence of the PRC not doing (its) job,” Chanin said.

A missed opportunity

The PRC recently sent a list of recommendations to City Council regarding a ballot measure to enhance the commission’s powers. In light of these recommendations, Worthington — with Vicente’s help — submitted an amendment to the ordinance that established the PRC in an attempt to get the issue of police accountability on the November ballot.

In order for the amendment to be included on the ballot, City Council had to approve it by its July 19 meeting, Worthington said. Because of time constraints at the meeting, however, City Council did not have time to address it.

The next time amendments to the PRC’s powers could be submitted through this process is two years in the future during the next election cycle, though prior to the deadline, Worthington mentioned the possibility of getting it on the ballot by collecting signatures.

“Our police review commissioners have a blindfold on and their hands are handcuffed,” Worthington said. “They’re prohibited from seeing reports, they’re not given the history of the officer before them, and they can’t get access to tapes and video recordings. It’s bizarre that the rules in Berkeley are so restrictive.”

The PRC’s list of recommendations outline the various issues confronting the PRC and suggest possible solutions, such as extending the 120-day deadline to a year and allowing the commission to access BPD files and records.

Worthington’s amendment pulls from Oakland’s recent proposal that will be put on its November ballot to establish an independent and powerful police oversight commission. Worthington’s proposed commission would have the power to discipline, hire and fire staff at the police department, as well as to propose changes to police department policy.

As it stands, the commission has no power over police staff and can only make policy recommendations.

“We are not immune to racial profiling or police brutality in Berkeley,” Worthington said. “We’re just trying to get Berkeley to catch up, at least, to what other cities are doing for police accountability.”

Contact Anderson Lanham at [email protected].

JULY 27, 2016

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