Restoring Public Access To Lapd Disciplinary Information

Memorandum To:

Los Angeles Board of Police Commissioners

Cc:

Michael Dukakis, Professor, UCLA Department of Public Policy

From:

Kevin Barry

Date:

May 17, 2009

Re:

Restoring Public Access to LAPD Disciplinary Information

1. Summary Although the Los Angeles Police Department (LAPD) has had a controversial and troubled history, for many years the Department was highly transparent to the public about officer discipline. While the LAPD still discloses more disciplinary information than most other law enforcement agencies, in recent years a considerable degree of that transparency has disappeared, in large part the result of a 2006 California Supreme Court decision which cast serious doubt on the legality of such practices under state law and brought about a major change in Department policy. Currently, the public has no way of knowing which LAPD officers have engaged in official misconduct, and it is very difficult—oftentimes impossible—to connect specific officer-involved incidents with their disciplinary outcomes. Because of the LAPD’s history of excessive force and poor community relations, especially with minority communities, this change of policy is particularly problematic. By shielding important information from scrutiny, the Department has diminished the capacity of the media and the general public to hold it accountable for its actions, and this forced secrecy may be helping to perpetuate feelings of mistrust and cynicism in the community.

The purpose of this memo is to develop a strategy for the Los Angeles Board of Police Commissioners (BOPC), in conjunction with LAPD and city leadership, to restore or improve public access to the Department’s disciplinary information. I consider four avenues: (1) legal action, (2) changes to LAPD policies and procedures, (3) media outreach, and (4) legislative action. Due to legal and political barriers, fully restoring the level of informational access and public accountability that once existed with respect to officer discipline does not appear to be a realistic goal. Based on judicial precedent, it is unlikely that the courts would offer any remedy. However, the LAPD could nonetheless make significant policy improvements within the constraints of state law, and a concerted effort to inform the media about disciplinary matters on an ongoing basis may increase the effectiveness of the Department’s disclosure practices and assist in community outreach efforts. The potential for meaningful legislative action in this regard is limited, but there may be some viable policy ideas that members of the Commission could propose to state lawmakers. While there are a number of steps that the Police Commission could take on its own in an attempt to address the lack of public access to LAPD disciplinary information, the serious consideration of any major initiatives warrants a collaborative process. I recommend that the Commission convene a working group of key stakeholders tasked with developing possible solutions to the problem, and also solicit comments from the public to better inform the working group’s analysis. Further, to the extent that any new policies are implemented as a result of this process, I suggest a broad framework for their evaluation.

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2. Background The history of this issue dates back to the 1974 Pitchess v. Superior Court California Supreme Court decision, in which the court ruled that information on complaints of misconduct against any involved officers was, under certain circumstances, discoverable by defendants in criminal proceedings. Subsequent to this ruling, some law enforcement agencies, including the LAPD, shredded their complaint files, resulting in the dismissal of many criminal cases. To address this problem, the state legislature passed a compromise measure that required law enforcement agencies to preserve complaint records for five years, but which made these records confidential.1 The confidentiality requirement was codified in California Penal Code § 832.7, which states: (a) Peace officer or custodial officer personnel records…are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.2 (c) Notwithstanding subdivision (a), a department or agency that employs peace or custodial officers may disseminate data regarding the number, type, or disposition of complaints (sustained, not sustained, exonerated, or unfounded) made against its officers if that information is in a form which does not identify the individuals involved. Additionally, Penal Code § 832.8 defines “personnel records” as “any file maintained under that individual’s name by his or her employing agency,” including “complaints, or investigations of complaints, concerning an event

http://www.fogcityjournal.com/news_in_brief/ms_copley_070624.shtml As a result of this law, the defense must submit a request to the judge (known as a “Pitchess motion”) to obtain information about complaints against any involved officer. The judge will then review each officer’s personnel records and provide the defense only with whatever information he or she deems potentially relevant to the case. 1

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or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties.”3 Despite the enactment of this law—which is one of the most restrictive in the nation—a small number of law enforcement agencies in California continued to allow public access to officer disciplinary records. While most agencies still kept their records confidential, no serious opposition to these more open practices was raised for many years. In San Diego County, Civil Service Commission administrative hearings were open to the public. In the Bay Area, the San Francisco Police Commission made its disciplinary records publicly available and also held open misconduct hearings, while the cities of Oakland and Berkeley both used civilian review boards to investigate police misconduct and hold public hearings as well. In Los Angeles, open hearings for serious cases of misconduct were held for both the Los Angeles Sheriff’s Department (LASD) and LAPD. State Personnel Board hearings, which cover state employees, including peace officers from the California Highway Patrol and California Department of Corrections, were also open to the public. In accordance with LAPD policy, any sustained officer misconduct complaint that results in a suspension of at least 22 days is automatically referred to a “Board of Rights” (BOR) hearing. Officers can also elect to challenge their discipline through an administrative appeal to the BOR, which can sustain, reduce,

The sections of the California Penal Code related to peace officer personnel records are available at http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=830-832.17. 3

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or increase the original level of discipline imposed by the Department.4 The BOR is a three-person panel, made up of two LAPD commanding officers and one civilian.5 For many years, these hearings were open, and transcripts with the rationale for the BOR’s findings were a matter of public record. Traditionally, the LAPD also made public the disposition of all sustained misconduct complaints against its officers by issuing a “charge sheet” (officially known as a “Complaint and Relief from Duty” form) that noted the officer’s name, the nature of his or her misconduct, and the discipline imposed.6 Media outlets such as the Los Angeles Times used this information to keep track of officers with histories of misconduct and hold the LAPD accountable for its personnel practices. Much of this changed, however, in 2006. After the LAPD’s police union, the Los Angeles Police Protective League (LAPPL), threatened to sue the LAPD over its practice of releasing officer charge sheets, the Department solicited a legal opinion from the City Attorney’s Office, which concluded that the practice violated section 832.7 of the Penal Code. As a result, the LAPD stopped making the charge sheets public. Then, in August of that year, the California Supreme Court issued its decision in Copley Press v. Superior Court, ruling that disciplinary records from 4 The BOR’s determination is then referred back to the Chief of Police, who can either sustain or reduce— but not increase—the Board’s recommendation. 5 The BOR’s composition is different for every case. LAPD officers with the rank of captain or higher are placed in the officer selection pool, while civilians must apply with the Police Commission to be placed in the civilian selection pool. For each case, the panel members are selected at random from the pools. 6 The practice of releasing charge sheets occurred pursuant to Los Angeles City Charter § 1070(d), which states, “any order of relief from duty, cancellation of relief from duty pending a Board of Rights hearing, suspension, demotion in rank, or suspension and demotion in rank shall contain a statement of the charges assigned as causes. The Chief of Police shall, within five days after the order is served…file with the Board of Police Commissioners a copy of a verified written complaint upon which the order is based, with a statement that a copy of the order and verified complaint was served upon the accused. The complaint shall be verified by the Oath of the Chief of Police and shall contain a statement in clear and concise language of all the facts constituting the charge or charges.” Upon receiving these forms, the Police Commission would make them available to the public. This practice was followed for all instances of police misconduct that resulted in at least an “Official Reprimand”—such information for minor cases of misconduct resulting only in a disposition of “Admonishment” or “No Penalty” was not made public.

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administrative appeal hearings were subject to the Penal Code’s confidentiality requirements.7 The Copley Press case had arisen in 2003 when Copley Press (Copley), publisher of the San Diego Union-Tribune, sued the County of San Diego after being denied access to a Civil Service Commission (CSC) disciplinary appeal hearing for a deputy sheriff, along with certain records (including the deputy’s name) that Copley had subsequently requested under the California Public Records Act. The trial court ruled against Copley, but the ruling was overturned on appeal. However, the Supreme Court then overruled the Court of Appeal on the grounds that the CSC’s records constituted personnel records under section 832.8 of the Penal Code, and were thus subject to the confidentiality requirements of section 832.7. The ruling thereby upheld the CSC’s decision to close its hearings and restrict the release of records related to those hearings. The impact of the Copley decision was significant. In the ensuing months, the San Francisco Police Commission closed off its misconduct hearings to the public and stopped releasing disciplinary records. In Oakland, the Citizens Police Review Board shut down, and in Los Angeles, the county’s Civil Service Commission hearings for LASD officers became closed to the public, as did all LAPD Board of Rights hearings. State Personnel Board hearings were also closed.8 Only the city of Berkeley continued its practice of holding public hearings, arguing that its civilian Police Review Commission (PRC) did not constitute an “employing

The Copley Press decision is available at http://bulk.resource.org/courts.gov/states/Cal/S128603.PDF. The State Personnel Board nonetheless posts “precedential decisions” (with officers’ names redacted) to its website, available at http://www.spb.ca.gov/legal/decisions/precedential_decisions.htm.

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agency” under the Penal Code, and that the Copley precedent therefore did not affect the PRC’s activities.9 In response to the California Supreme Court’s ruling, State Senator Gloria Romero (D-Los Angeles) introduced Senate Bill (SB) 1019 in 2007. SB 1019 sought to amend section 832.7 of the Penal Code with a provision allowing any jurisdiction employing peace officers to resume the practices regarding complaints, investigations, and disciplinary actions that existed prior to the Copley decision, with certain exceptions.10 The bill passed in the State Senate by a 2-1 majority, but when introduced in the State Assembly, the Committee on Public Safety refused to vote on it, and the legislation died. In 2008, Senator Romero reintroduced SB 1019, though the new version of bill was more restricted, seeking to restore only the LAPD’s pre-Copley practices by limiting its scope to jurisdictions “operating under a federal consent decree on the basis of police misconduct as of January 1, 2008.”11 However, the bill fared no better the second time around, receiving only one “yes” vote in the Assembly Committee on Public Safety, versus three “no” votes and three abstentions. No further legislative action has since been taken on the matter. Proponents of public access to disciplinary information also suffered a defeat in Berkeley. As the result of a lawsuit filed by the local police union, the Berkeley Police Association, the Alameda County Superior Court ruled in 2007 9 The PRC is a nine-member, City Council-appointed civilian board that evaluates Berkeley Police Department policies, reviews all complaints of officer misconduct, and holds “Board of Inquiry” hearings. http://www.jacksonlewis.com/legalupdates/article.cfm?aid=1590 10 The text of the version of SB 1019 introduced in June 2007 is available at http://info.sen.ca.gov/pub/07-08/bill/sen/sb_10011050/sb_1019_bill_20070620_amended_asm_v96.html. 11 The text of the version of SB 1019 introduced in June 2008 is available at http://www.leginfo.ca.gov/pub/07-08/bill/sen/sb_10011050/sb_1019_bill_20080612_amended_asm_v95.pdf.

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that the city’s public PRC hearings violated section 832.7 of the Penal Code, and were also subject to the Public Safety Officers Procedural Bill of Rights.12 As a result, Berkeley suspended its PRC hearings, but appealed the decision. However, the Court of Appeal affirmed the trial court decision in October 2008, and the matter is effectively closed.13 The city has since resumed its practice of holding hearings, but they are no longer public.

The Public Safety Officers Procedural Bill of Rights (Government Code § 3300, et seq.) specifies a number of rules pertaining to the investigation and interrogation of public safety officers that could result in disciplinary action. The PSOPBR is available at www.slopoa.com/pdfiles/Police%20Officers%20Bill%20of%20Rights.pdf. 13 For more information, see http://www.ci.berkeley.ca.us/news/print.asp?id=26790 and http://www.ci.berkeley.ca.us/uploadedFiles/Police_Review_Commission/Level_3__General/Court%20of%20Appeal%20Decision.10-07-08.pdf. 12

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3. Current Level of Disclosure of LAPD Disciplinary Records The LAPD’s federal consent decree specifies a minimum level of reporting for disciplinary actions taken against the Department’s officers.14 Paragraph 88 of the consent decree requires the Chief of Police to prepare a “Quarterly Discipline Report” (QDR) for the Police Commission that includes a number of mandatory disclosures, such as “a summary of all discipline imposed during the quarter reported by type of misconduct, broken down by type of discipline, bureau, and rank” and “a description of all discipline and non-disciplinary actions for each Categorical Use of Force the Commission has determined was out of policy.” 15,16 The QDR must also include “a summary comparison between discipline imposed and determinations made by the Boards of Rights during the quarter” and “a written explanation of each reduction in penalty from that prescribed by the Board of Rights.” In addition, the report must disclose the reasons why discipline was not imposed in certain instances, and include each of the quarter’s three monthly reports from the LAPD’s Internal Affairs Group, which list the disciplinary actions

The consent decree, which has been in effect since 2001, is available at http://www.lapdonline.org/assets/pdf/final_consent_decree.pdf. 15 Paragraph 156 of the consent decree further requires the LAPD to publish discipline statistics (sustained allegations by bureau, sustained allegations by rank, and closed complaint dispositions) on its website on a semiannual basis, as part of a larger report which also includes aggregate statistics on arrests and uses of force. These “Arrest, Discipline, Use of Force, Field Data Capture, and Audit Statistics Reports” are posted to the consent decree page of the LAPD website, available at http://www.lapdonline.org/consent_decree. For example, the July-December 2008 report is available at http://www.lapdonline.org/assets/pdf/FinalConsentDecreeRptJulyDecember2008.pdf. 16 Paragraph 13 of the consent decree defines Categorical Uses of Force as “(i) all incidents involving the use of deadly force by an LAPD officer (“OIS”); (ii) all uses of an upper body control hold by an LAPD officer and can include the use of a modified carotid, full carotid or locked carotid; (iii) all uses of force by an LAPD officer resulting in an injury requiring hospitalization, commonly referred to as a law enforcement related injury or LERI incident; (iv) all head strikes with an impact weapon; (v) all other uses of force by an LAPD officer resulting in a death, commonly known as a law enforcement activity related death or LEARD incident; and (vi) all deaths while the arrestee or detainee is in the custodial care of the LAPD, commonly referred to as an in-custody death or ICD.” 14

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taken for all sustained complaints during the month. The QDRs are posted to the LAPD’s website.17 Under the requirements of paragraph 89 of the consent decree, the LAPD’s Office of Inspector General (OIG) reviews and reports to the Police Commission on each of the Department’s QDRs.18 The only specific requirement for these reports is that the OIG assess the appropriateness of discipline for each officer found by the Police Commission to have acted out of policy in a “Categorical Use of Force” incident.19 However, the OIG reports also routinely include various statistical analyses of QDR data, such as the relative proportions of misconduct allegations by classification (e.g., discourtesy, neglect of duty, preventable traffic collision, etc.) and the rates at which misconduct allegations are sustained, segregated by classification and officer rank. The reports also discuss each case that was closed during the quarter because it fell out of statute, and describe actions taken by the Department to prevent future lapses. Additionally, the Commission may direct the OIG to report on any particular issue of interest from one report to the next. For See http://www.lapdonline.org/consent_decree for these reports. The QDRs are also available through the Police Commission’s website. For example, the QDR for the fourth quarter of 2008 is available at http://www.lacity.org/lapd/policecom/022409/BPC09-0105.pdf. 18 The Police Commission’s website describes the role of OIG as follows: “The Office of the Inspector General (OIG) has oversight over the Department’s internal disciplinary process. The staff receives copies of every personnel complaint filed, and tracks selected cases along with any resultant litigation. In addition, the OIG audits selected investigations and conducts systemic reviews of the disciplinary system to ensure fairness and equity. Although the Commission, by Charter, does not have the authority to impose discipline, it receives regular reports and can investigate particular cases. In addition to overseeing the Department’s disciplinary process, the Inspector General may undertake special projects as directed by the Board.” http://www.lapdonline.org/police_commission/content_basic_view/1076 19 The LAPD’s Force Investigation Division (FID) investigates all Categorical Use of Force (CUOF) incidents and presents a report to the Use of Force Review Board (UOFRB), which then prepares a report on the incident for the Chief of Police. If the Chief concurs with the UOFRB’s findings, he sends the report to the Police Commission, which reviews all CUOF incidents in closed session. If the Commission determines that an officer’s actions with respect to the use of force or “Drawing/Exhibiting/Holstering” of the officer’s weapon violated LAPD policy, it adopts an “Out of Policy” finding. In addition, the Commission evaluates the officer’s tactics, and if it finds them to have been deficient, it adopts a finding of “Administrative Disapproval.” If the Commission adopts either or both of these findings, it refers the matter back to the Department for the administration of discipline. While the consent decree does not distinguish between “Out of Policy” and “Administrative Disapproval” findings, the OIG evaluates the discipline imposed pursuant to all incidents that warranted either one. 17

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example, in the QDR review for the third quarter of 2008, the OIG reported on the Department’s investigation and response to a number of racial profiling allegations, a topic that has been the subject of significant media attention.20 The QDR reviews are made available to the public through the OIG’s website.21

The OIG’s QDR review for the third quarter of 2008 is available at http://www.lacity.org/oig/Reports/3rdQ-08QDR_1-22-09.pdf. 21 The complete list of OIG reports is available at http://www.lacity.org/oig/isgrp1.htm. 20

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4. Strategies for Increasing Access to Disciplinary Information Legal Action There appears to be little that the Police Commission could do to seek a solution to the confidentiality problem through the California court system. Although the Commission could resume former practices with respect to releasing charge sheets, reopening Board of Rights hearings to the public, or making transcripts of BOR findings publicly available, doing so would surely result in a lawsuit from the LAPPL.22 Furthermore, because the City Attorney’s Office has already stated that such practices would be in likely violation of state law, there is no compelling reason to believe that the Commission would have strong legal standing in reverting to pre-Copley policies, and so this is not an advisable course of action. Still, a certain degree of ambiguity in the Copley decision has led some people to believe that disciplinary hearings could remain open to the public.23 For instance, legal scholar Erwin Chemerinsky wrote in a Los Angeles Times op-ed that City Attorney Rocky Delgadillo’s opinion that the Copley decision requires closed BOR hearings was wrong.24 However, almost all jurisdictions with open processes—the city of Berkeley being the only exception—believed that the decision was expansive enough to cover their own practices, so there seems to be a general consensus on the matter. The Deputy City Attorney in San Francisco, for example,

22 In fact, the LAPPL has even threatened a lawsuit over the LAPD’s recent accidental release of racial profiling complaint files with officers’ names included. http://www.lapd.com/news/confidential_lapd_misconduct_file_mistakenly_posted_on_the_internet/ 23 Specifically, the California Supreme Court stated, “We express no opinion regarding whether Copley has a constitutional right to attend [Civil Service] Commission appeal hearings.” See page 40, footnote 27 of the decision, available at http://bulk.resource.org/courts.gov/states/Cal/S128603.PDF. 24 Chemerinsky’s op-ed is available at http://articles.latimes.com/2007/jan/12/opinion/oe-chem12.

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stated in her legal opinion that “a court is almost certain to hold that disciplinary trials—like records of those proceedings and evidence submitted in them—are subject to section 832.7’s mandate of confidentiality.”25 The recent appeals court ruling in Berkeley Police Association v. City of Berkeley has confirmed the suspicions of those who believe that the Copley decision precludes open disciplinary hearings. Relying to significant extent on Copley’s precedent, the Court of Appeal ruled that there is essentially no distinction between a civilian review board such as Berkeley’s Police Review Commission and an officer’s “employing agency,” the personnel records for which are confidential under the Penal Code. The court’s interpretation of the LAPD’s BOR would likely be no different, so the legal prospects for reopening BOR hearings are dim. The LAPD’s former practice of releasing charge sheets is an even clearer violation of state law—as noted, the Department ended this practice even before Copley, based on the advice of the City Attorney’s Office. Regardless, the Police Commission could at least consider soliciting an updated legal opinion after City Attorney Delgadillo’s successor takes office.

Changes to LAPD Policies and Procedures While simply resuming former LAPD practices is not, for the reasons noted above, a feasible approach to the confidentiality problem, the Police Commission could still pursue a number of policy and procedural changes that might increase the openness of the Department’s disciplinary actions without violating the Penal

The Deputy City Attorney’s opinion is available at http://www.sfgov.org/site/uploadedfiles/city_attorney/LegalOpinions/OP-2006-09-19-COPLEY.PDF. 25

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Code. Such changes would only provide a limited measure of additional transparency, but they would nonetheless be an improvement over current practices. A preliminary analysis suggests two broad categories of policies and procedures worthy of further consideration. The first category of policies relates to enhanced disclosure of individual LAPD officer patterns of misconduct and the Department’s administrative response. Penal Code § 832.7(c) allows for the release of disciplinary information “if that information is in a form which does not identify the individuals involved.” This is the primary reason why the release of charge sheets and reopening of BOR hearings to the public would probably not be legal—there is no real way to do so while protecting officers’ identities. One benefit of releasing the names of officers with sustained misconduct charges is that it would hold them more accountable for their actions than do current policies, under which their identities are restricted to certain members of the Department as well as the Police Commission and OIG. Another benefit of releasing names is that it allows the public to better understand the extent to which the Department employs officers with a history of misconduct, and to thereby hold it more accountable for its disciplinary practices. Unfortunately, there does not appear to be anything that the LAPD or Commission can do to increase accountability by publicly identifying officers when they engage in misconduct. However, the Department could still allow for more transparency and accountability without attaching any names to the information. Currently, the LAPD’s Quarterly Discipline Reports list every sustained complaint closed during the quarter. Although each officer’s rank, bureau, area, and division are listed, there is no unique identifier aside from the complaint

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number, so there is no way for the public to know whether the officer has engaged in misconduct in the past. If the LAPD could somehow disclose—or make traceable—an officer’s history of misconduct (and the related disciplinary outcomes) whenever a new complaint against that officer is sustained, this would enable the media and general public to better understand the prevalence of “problem officers” within the LAPD and evaluate disciplinary actions in light of officers’ behavioral histories. Detailed officer-specific information is already maintained in the LAPD’s Training Evaluation and Management Systems (TEAMS) II database, per the consent decree’s paragraph 39 requirement that the Department “establish a database containing relevant information about its officers, supervisors, and managers to promote professionalism and best policing practices and to identify and modify at-risk behavior (also known as an early warning system).” TEAMS II, which succeeded the original TEAMS computer system, contains such information as lethal and non-lethal uses of force (including officer-involved shootings and weapons discharges), vehicle pursuits and traffic collisions, complaint investigations, and any disciplinary or non-disciplinary actions taken by the Department in response. The system is designed to generate alerts (“action items”) for selected patterns of activity and behavior by officers, which trigger mandatory supervisory reviews and, if necessary, corrective action. The LAPD’s TEAMS II Development Bureau oversees the use of this system.26

For more information on the TEAMS II Development Bureau, see http://www.lapdonline.org/inside_the_lapd/content_basic_view/6498. 26

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Because much of the information contained in TEAMS II is sensitive, access is highly restricted, even within the Department. Such information no doubt constitutes confidential personnel records under section 832.8 of the Penal Code. However, releasing certain information from officer files without any identifiers— such as the officer’s name or serial number—may be allowable under the law, as long as it is done properly and the disclosures do not still somehow make the officers’ identities determinable. Accordingly, the Police Commission should consider ways to provide greater public access to this information in a meaningful yet legal fashion. As is true of the LAPD’s administrative investigations and disciplinary procedures in general, the Department appears to have robust and effective policies in place for tracking, reviewing, and responding to misconduct and other at-risk behavior by its officers, and so making more information available to the public should therefore be to its benefit. The second category of policies concerns the Police Commission’s enhanced use of the Office of Inspector General to review the LAPD’s administration of discipline. As noted, the OIG already reports various information about officer discipline in its quarterly reviews, including statistical analyses of aggregate complaint data and its assessment of the appropriateness of the Department’s disciplinary actions, as well as any other related issues that the Commission instructs the OIG to review. In addition, paragraph 137 of the consent decree requires the OIG to audit the Department’s use of the TEAMS II system on a

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regular basis. To date, the OIG has performed three TEAMS II audits, and each of these reports appears on its website.27 The OIG already has significant access to the Department’s records, including full access to TEAMS II and Board of Rights hearings, which OIG personnel sometimes attend. Because BOR hearings are no longer open to the public and their findings kept confidential, such proceedings may be one area in which the Police Commission may direct the OIG to increase its level of review and reporting—once again, in a way that is both meaningful and legal. Doing so may help compensate for the loss of transparency resulting from the Copley decision. In general, the Commission should look for ways to maximize the effectiveness of the OIG not only in monitoring the Department’s disciplinary practices, but also in disclosing them to the public in an open yet responsible manner.

Media Outreach Along with developing policies that increase the transparency of LAPD disciplinary information, the Police Commission should consider how it could most effectively disseminate this information to the press, which does not frequently report on officer discipline. This may be true in part because of the media’s lack of access to disciplinary records due to the aforementioned legal restrictions; however, it may also be partially the result of the collective failure of the Commission and Department to adequately promote the information that they can disclose. While the media themselves are, of course, ultimately the ones who decide what to report on, more openness about officer discipline could lead to For example, the most recent TEAMS II audit report is available at http://www.lacity.org/oig/Reports/TEAMSIIReport08-09_10-2-08.pdf. 27

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more coverage. This would be a welcome development, as it would help make the LAPD more publicly accountable for its personnel practices and perhaps improve the Department’s public image as a result. In seeking ways to generate meaningful coverage of officer discipline, the Commission should also consider the proper mix of communication—in other words, to what extent communication with the media should come from the Commission itself, the Inspector General, or from within the Department. Because the Los Angeles Times has a dominant media presence in the city, the Police Commission should direct its outreach efforts accordingly. The Times’ wide readership and strong influence in the community make it the single most important medium for reaching the public, although outlets such as the Los Angeles Daily News and City News Service also remain important. In addition, several other print and electronic forms of news media—some established and others emerging—also have a local presence, and should therefore be part of a broader communications strategy as well. The significant presence of ethnic media in Los Angeles also offers an opportunity to reach minority communities, especially those who do not rely on English-language media for the news. In communicating information about officer discipline across the rapidly evolving media landscape, the Commission should leverage its existing media relationships while establishing and cultivating relationships with others. The media’s reporting of LAPD officer discipline is typically limited to general policy matters and discipline for high-profile incidents. Much of the coverage, which often appears in newspaper editorials and op-eds, has been highly critical, largely in response to the Department’s lack of transparency. For example,

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the media reported widely on the Department’s responses to the 2005 fatal shooting of 13-year-old Devin Brown and the 2007 “May Day” incident at MacArthur Park. The Devin Brown shooting received negative media attention in part because even though the Police Commission ruled that the officer who shot Devin Brown acted out of policy, the officer was subsequently exonerated in a closed Board of Rights hearing.28 Serious violations of LAPD policy, including the use of excessive force, also occurred during the May Day incident, and Chief of Police Bill Bratton announced that the Department would seek to terminate four officers and discipline 11 others. However, the officers were not publicly identified, and any related BOR hearings held about this incident will be closed to the public. In response, the media once again strongly denounced the Department’s policies.29 Even with current restrictions in place, however, a considerable amount of LAPD disciplinary information is still publicly available. Yet, much of this information goes unreported by local media. As noted, the Department’s Quarterly Discipline Reports, which include lists of all sustained complaints during the quarter, are available through the LAPD website, and the Inspector General’s reviews of those reports appear on the OIG website. Additionally, the Police Commission publishes its findings for all Categorical Use of Force incidents, which include fairly detailed descriptions of what happened, along with the Commission’s assessment of whether the involved officers acted appropriately.30 Clearly, such

While the Devin Brown shooting occurred in February 2005, the BOR hearing did not occur until January 2007, after the LAPD’s Copley-driven change in policy had taken effect. Although the hearing was closed, the involved officer (Steven Garcia) permitted the release of the transcript (http://lapd.axxiomportal.com/custom/10/1082/misc/BF_23463___RATIONALE.pdf), which would have otherwise remained confidential. http://www.lacitybeat.com/cms/story/detail/secret_police/4993/ 29 http://www.latimes.com/news/opinion/editorials/la-ed-mayday23-2008sep23,0,363465.story 30 The Commission’s findings are available at http://www.lapdonline.org/categorical_use_of_force. 28

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reports include a great deal of interesting information, even without officers’ names attached, but they receive scant media attention. To address the problem of underreporting, the Police Commission should take more proactive steps to circulate these various reports, which would perhaps lead to an increase in coverage of officer discipline on a regular and ongoing basis, rather than simply when controversial incidents occur. Furthermore, if the Commission and Department can develop additional disciplinary-related disclosures to enhance the current level of reporting, this could make the information they do release more likely to capture the interest of the media. Greater coverage in this regard could help the public better understand to what extent LAPD officers engage in misconduct, and what actions the Department takes in response. Although the Commission and Inspector General serve as able watchdogs over the Department’s practices, the press has an important role to play as well, and should be given adequate opportunity to do so.

Legislative Action There are currently no plans for further legislative attempts to restore public access to peace officer disciplinary records through amendments to the California Penal Code. After proposed legislation to this effect failed in 2007 and again in 2008, its proponents, including the California Newspaper Publishers Association and the American Civil Liberties Union—both of which were active in drafting the legislation and lobbying Senator Romero to introduce it—have determined that the political dynamics surrounding the issue are not favorable enough to warrant continued efforts. While these dynamics are subject to change,

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the outlook for overturning the Copley decision through statutory reform nevertheless remains highly negative, and is unlikely to improve anytime soon. The experience in 2007 highlights the difficulty of passing Copley-related reform at a statewide level. Although SB 1019 drew support from a number of high-profile public officials, including Chief Bratton and much of the Los Angeles political establishment, the influential opposition of the police union lobby was evident. More than 100 police union representatives from across the state attended the June 2007 Assembly Public Safety Committee hearing at which the Committee refused to take a vote on the bill.31 The unions have argued forcefully that public access to officers’ disciplinary records violates their right to privacy and threatens their safety. They can thus be expected to continue fiercely opposing any efforts to change the status quo. Despite the fact that the police unions were the most visible and outspoken opponents of the 2007 legislation, any additional attempts to reintroduce similar legislation would also surely be met with significant opposition from law enforcement agencies throughout the state. Too many agencies have traditionally had closed disciplinary processes, and most of them no doubt prefer the protection from scrutiny that the Penal Code affords them. Therefore, many police chiefs and sheriffs would likely pressure their representatives in state government to oppose legislation removing these protections. As a result, even if the unions were somehow neutralized, such legislation would still face an uphill battle. The experience in 2008 suggests that restricting the scope of Copley-related legislation to particular jurisdictions does not improve its prospects for passage. 31

http://www.aclusantacruz.org/node/145

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Even though the narrower version of SB 1019 had the strong backing of Los Angeles Mayor Antonio Villaraigosa, Chief Bratton refused to support it due to his concern that it “singled out” the LAPD, and the LAPPL mounted an active campaign against the legislation.32 Once again, SB 1019 failed to make it out of the Assembly’s Public Safety Committee, receiving just one vote in its favor. While the lack of unified support for the bill from Villaraigosa and Bratton certainly did not help matters, it probably did not make much of a difference overall. Convincing enough legislators from other districts to support a law that would only affect the LAPD—in ways that many of them would not even welcome in their own districts— could be an insurmountable hurdle. Moreover, though the Mayor and City Council both support the restoration of public access to LAPD disciplinary records, enacting local legislation along these lines would be ineffective since it is superseded by state law and would not survive a court challenge. In light of these obstacles, proponents of reform in this area may consider further moderating their goals to make them more politically feasible, perhaps through a more incremental, longer-term approach that first targets jurisdictions unaffected by the Copley decision. Ironically, the jurisdictions directly affected by Copley are the ones whose practices concerning officer discipline were the most progressive in the first place. In many of these jurisdictions, including the city of Los Angeles, the current level of disclosure far exceeds that of most others, even when accounting for changes of policy pursuant to Copley. As it stands, law enforcement agencies in California are only required by law to submit to the Attorney General the number of complaints against peace officers received and 32

http://articles.latimes.com/2008/jun/25/local/me-lapd25

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sustained—and even then, such statistics are only reported at an aggregate statewide level.33 Because the vast majority of law enforcement agencies throughout the state currently offer the public little to no information about officer discipline, it may therefore make sense for supporters of greater access to disciplinary records to first push for legislation that establishes a minimum level of public reporting for all agencies employing peace officers—for example, a law requiring the publication of an annual disciplinary report similar to what the LAPD publishes each quarter. While opponents of increased transparency may continue their efforts to block reform, they would have a more difficult time invoking the privacy and safety arguments that the police unions used to justify their opposition to previous legislation, and so a bill that does not threaten the Copley precedent may face better political prospects. If enacted, such legislation could also provide a foundation for its proponents to build upon in the future through additional statutory amendments, and perhaps the idea of reopening disciplinary hearings might even one day be revisited with a greater chance of success. Although the Police Commission has essentially no role in the state legislative arena—the Commission as a body cannot take a formal position on state-level matters—individual Commissioners could nonetheless encourage other proponents of increased transparency to push for less-ambitious measures such as the establishment of minimum statewide reporting standards. Any Commissioners supportive of these efforts could also promote particular LAPD

33 Cal. Penal Code § 13012(e). The aggregate statistics are published in the Attorney General’s annual “Crime in California” report. The 2007 report is available at http://ag.ca.gov/cjsc/publications/candd/cd07/preface.pdf. See page 96 for the complaint statistics.

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practices in this area as the basis for a model for others to follow. Further, if related legislation were introduced in the state legislature, members of the Commission could testify—again, as individuals, rather than on behalf of the Commission itself—to the positive impact that disciplinary reporting has had on the LAPD.

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5. Process-Related Considerations and Recommendations The potential policy options and strategies described earlier are intended to provide a framework for the Police Commission to consider when thinking about a possible way forward on this issue. However, the Commission will also need to develop a plan of action, and the purpose of this section of the memo is to suggest a process for doing so. Because the Commission sets LAPD policies, oversees its operations, and forms an important bridge between the Department and the community, it is uniquely qualified to lead this process.

Key Stakeholders There are certain actions that the Police Commission or individual Commissioners could take unilaterally, such as asking City Attorney Delgadillo’s successor to review the existing opinion on the legality of the LAPD’s former disclosure practices, taking a more proactive approach to the dissemination of disciplinary information to the media, and supporting legislative efforts to increase the transparency of peace officer discipline throughout the rest of the state. However, when considering changes to LAPD policies and procedures, it will be important for the Commission to involve all key stakeholders in this process, so that everyone’s interests in the matter are taken into account when crafting a solution to the confidentiality problem. Aside from the Commission and Inspector General, important stakeholders include senior Department leadership; union representatives from the Los Angeles Police Protective League; elected city officials, including the Mayor, City Councilmembers, and the City Attorney; and any interested members of the general public, including the media.

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Most of these stakeholders already support, at least publicly, more transparency surrounding the LAPD’s disciplinary practices. Mayor Villaraigosa strongly supported previous legislation that would have allowed the LAPD to reopen Board of Rights hearings to the public. The City Council, moreover, voted almost unanimously in 2007 to adopt a formal resolution in support of legislation to overturn the Copley decision.34 Furthermore, while Chief Bratton expressed reservations about the legislation introduced in 2008, he did endorse the 2007 version of Senator Romero’s bill, and has also stated, “I am in support of change...I am very frustrated by [the current process]. The public has no access to it. The media has no access to it. That's crazy, absolutely crazy. We have nothing to hide in the Los Angeles Police Department.”35 The Commission should therefore receive at least some level of support from within the city establishment for efforts to add to the quality and depth of disciplinary reporting. The one important exception to this general consensus, however, is the LAPPL, which would be likely to vociferously protest any efforts to increase the transparency of LAPD officer discipline. The union believes that the Department’s current practices concerning the public disclosure of disciplinary information already go too far in some respects, and may even be legally questionable to a certain extent. It would thus almost unquestionably view any enhancement of these practices as yet another encroachment on officers’ statutory right to privacy, and possibly even a threat to their safety as well.

http://cityclerk.lacity.org/lacityclerkconnect/index.cfm?fa=ccfi.viewrecord&cfnumber=07-0002S111&CFID=7289549&CFTOKEN=f78c6306612ce1df-52B703F5-9986-2D9A8046BF7EE70CB194&jsessionid=f03095cab32db2ddcdd61775a277a6643149 35 http://www.aclunc.org/docs/criminal_justice/police_practices/Frequently_Asked_Questions.pdf 34

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Nonetheless, engaging the LAPPL in this process is important for several reasons. First, LAPD leadership no doubt wants to preserve good relations with the Department’s officers and maintain a high level of officer morale. Accordingly, it will need to be sensitive to the concerns of LAPPL representatives brought on behalf of the union’s rank-and-file membership. Second, the Office of Inspector General also currently enjoys good working relations with Department personnel and typically does not have to struggle for access to information, as it often had to do in the past. As a result, Inspector General André Birotte could be reluctant to pursue any measures that might jeopardize the high level of cooperation that his office now receives from the Department. Third, it would of course be preferable to develop policies in collaboration with union leadership, if possible, rather than having to settle the matter in court. Finally, despite what appears to be a certain degree of hyperbole and bluster in the LAPPL’s public statements on this issue, the union could potentially bring a number of valid concerns to the table, and might even be willing to compromise on some points, especially if its membership’s own interests are also reflected in any new policies.36

Formation of a Working Group The most effective way for the Police Commission to bring LAPD and city government stakeholders together is through the formation of a working group that would meet periodically to discuss issues, develop policy options, and report back to the BOPC with a set of recommendations. Police Commission Executive 36 For example, one of the LAPPL’s concerns relates to the publishing of potentially-sensitive information on the Internet, due to its ease of access by any member of the public. Therefore, increases in the amount of information subject to public disclosure could perhaps somehow be combined with policies that require more effort on the part of interested citizens to access particular information, such as having to file a Public Records Act request or pick up the information at LAPD headquarters.

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Director Richard Tefank, the BOPC’s liaison to the LAPD, would be a strong choice to chair the group.37 While the stakeholders would each have the discretion to determine their own representation, the Commission should encourage the participation of fairly senior leadership due to the importance of the issue. The Commission could also assign members of its staff to record the minutes, draft the eventual report, and research “best practices” from other jurisdictions to assist in the working group’s analysis. In terms of the working group’s makeup, First Assistant Chief Jim McDonnell would be a good fit to represent the LAPD, since he already chairs the Use of Force Review Board and has direct command over the Employee Relations Group and Public Information Office.38 Inspector General Birotte may also wish to participate, or could delegate the responsibility to one of his three Assistant Inspectors General. In addition, Deputy Mayor for Homeland Security and Public Safety Arif Alikhan could perhaps represent the Mayor’s Office, and at least one representative from the City Council’s Public Safety Committee—whether a Councilmember or high-level staffer—should also attend. Likewise, it will be important for a representative from the City Attorney’s Office to be present at any such proceedings, so that legal expertise is brought to bear on the deliberations. The General Counsel to the Police Department Division, Carlos de la Guerra, could potentially fill this role. The Commission should request that the LAPPL assign at least one of its directors and senior attorneys to the working group as well.

A description of the Police Commission’s Office of the Executive Director is available at http://www.lapdonline.org/police_commission/content_basic_view/1072. 38 http://www.lapdonline.org/lapd_command_staff/comm_bio_view/7641. First Assistant Chief McDonnell also has significant credibility within the Department; per discussion with an LAPD sergeant, he is highly regarded by the rank-and-file officers. 37

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Solicitation of Public Comments The Police Commission should also seek input from the media, interest groups, and concerned members of the community by inviting public submissions that could be presented to the working group for consideration. Although the debate thus far has revolved almost entirely around the closure of administrative hearings, with this issue now effectively off the table, it is possible that a number of constructive and innovative ideas about how to improve disciplinary reporting within the constraints of the Penal Code would be offered. At the very least, such input should help the working group better understand what type of information the media and others are most interested in knowing more about. The working group would consider these submissions and decide how to incorporate them into its final report.

Policy Evaluation The Police Commission will also need a way to evaluate whatever set of policies, if any, it adopts and implements pursuant to the working group’s report. The Commission should therefore task the working group with incorporating a plan of evaluation to accompany its recommendations. While the specific nature and design of the evaluation depends on the policies recommended, chances are that it would need to rely largely on qualitative indicators of effectiveness, though there may be certain quantitative metrics that would help complete the picture. A six-month or one-year evaluation (or both) would probably be most appropriate, as it would balance the need to provide these policies with a sufficient opportunity to take effect while still enabling the Commission to address any adverse outcomes

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in a timely fashion. Normally, this would be a job for the Inspector General. However, because the OIG may very well be involved in effecting the policies themselves, it may behoove the Commission to instead hire an outside organization, such as the Police Assessment Resource Center, to conduct an independent evaluation.39

According to the Police Assessment Resource Center (PARC) website, “PARC is a non-profit organization that, in cooperation with monitors, law enforcement executives, civic and government officials, community groups, and other interested constituencies, aims to strengthen police oversight so as to advance effective, respectful, and publicly accountable policing.” http://parc.info/about_parc.chtml PARC’s President, Merrick Bobb, previously participated in Board of Inquiry formed by Chief Bratton to review Special Weapons and Tactics (SWAT) team operations after 19-month-old Suzie Peña was accidentally shot and killed by a SWAT officer during a hostage situation in 2005. http://www.lapdonline.org/home/news_view/37975 39

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6. Conclusion The ramifications of California’s statutory restrictions on the disclosure of peace officer disciplinary records are unfortunate. These restrictions are especially problematic for the LAPD, which has had to discontinue its longstanding practices of releasing officer charge sheets and holding open Board of Rights hearings. Consequently, the Department is less accountable to the public than it once was, and its community relations have, at times, suffered as a result. Even though the LAPD’s public image has improved in recent years, such confidentiality requirements are an impediment to further progress in this regard. There are no easy solutions to this problem. Powerful interests in Los Angeles and throughout the state are heavily vested in the status quo, which makes sweeping reforms and the resumption of former practices very difficult, if not impossible. However, the Police Commission could still take several steps to improve upon the current situation, and it should therefore explore the full range of possibilities. While most, if not all, other jurisdictions in California have either given up their search for a solution or are content to rely on the Penal Code and Copley decision as justification for their continued secrecy, the city of Los Angeles and LAPD have an opportunity to show real leadership on the issue.

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