Editor’s note: The ruling from Administrative Law Judge Perry O. Johnson refers to Kayla Moore by masculine pronouns, but The Daily Californian refers to Moore by feminine pronouns, which was how she identified.
Content warning: Violence and offensive language
In 2014, Berkeley’s Police Review Commission found that one officer involved in the 2013 in-custody death of Kayla Moore exercised improper police procedure. But documents recently obtained by The Daily Californian through a Public Records Act request show that a judge disagreed with the commission’s findings months later, calling its logic “fallacious.”
Moore, a 41-year-old Black transgender woman with a history of mental illness, died while in police custody after officers responded to a disturbance call in Downtown Berkeley on Feb. 12, 2013. A coroner’s report later clarified that drug intoxication, morbid obesity and an enlarged heart were contributing factors to her death.
Although the Berkeley Police Department’s internal investigation concluded that none of the officers present that night were at fault for Moore’s death, the incident generated controversy from many community members, leading to citywide protests and allegations of transphobia and racism. Moore’s father, Arthur Moore, also filed a wrongful death lawsuit against the city, alleging that officers “unlawfully seized, restrained, arrested and battered” his daughter. A U.S. District Court judge threw out the suit last year.
Despite the department’s internal investigation, the PRC concluded that the lead officer, Gwendolyn Brown, violated procedure during the arrest by not monitoring Moore’s vital signs, according to confidential documents that were leaked to the Daily Cal in 2014.
Brown appealed the commission’s findings, and the case was heard before Administrative Law Judge Perry O. Johnson on Dec. 4, 2014 to “determine the appropriate disposition for any allegation of misconduct.”
Johnson ultimately concluded that the commission’s allegation was “unfounded,” siding with Brown.
“The PRC’s decision … springs from fallacious inferences that are grounded in ill-defined nuance and unconvincing subtlety in the interpretation of various police officers’ accounts of the effects of a violent altercation with a mentally-ill, drug-impaired very large and angry man where the fight spanned a very brief period of time,” Johnson said in his legal conclusion.
Johnson said in his conclusion that the commission’s decisions “include adverse notions” regarding Brown’s reliability as a credible witness. He added that the commission fails to acknowledge the “frailties of ‘memory,’ ” considering the fact that Brown’s account of the incident at the proceeding occurred several months after Moore’s death.
BPD could not be reached for comment as of press time.
Maria Moore, Kayla Moore’s sister, has repeatedly expressed frustration with similar decisions regarding her sister’s death. She previously told the Daily Cal that she was upset when the judge threw out her father’s lawsuit last year.
“You cannot criminalize someone for being mentally ill. She couldn’t control being schizophrenic — that’s just who she was,” Maria Moore said. “She couldn’t control being transgender. … That’s just who she was.”
Katherine Lee, the current commission secretary and a former commissioner who represented the PRC in the administrative hearing, said that even if the judge had upheld the commission’s findings, disciplinary action against Brown would have been unlikely. A memorandum in the city’s agreement with the Berkeley Police Association prevents an officer from experiencing disciplinary action or loss of pay once 120 days has elapsed after an incident, according to Lee.
“It’s kind of like a statute of limitations, in effect,” Lee said. “This whole process would never happen in 120 days. … There would be no way that any case would be investigated, go to the hearing, be appealed and then actually heard in that appeal process before 120 days.”
In response to a request by Berkeley’s assistant attorney, who was seeking a legal opinion after the commission’s confidential documents were leaked to the Daily Cal in 2014, Alameda County District Attorney Nancy O’Malley clarified that PRC commissioners could not be charged with a crime for leaking information, as they are not city employees.
“In the end, the PRC function appears to be purely advisory. The citizen-appointees that make up the PRC are not part of the City government, nor delegates any of its powers,” O’Malley said in her letter. “They are not so much ‘public officers’ as the actual public.”