CALIFORNIA BILL TAKES AIM AT POLICE MISCONDUCT … WATCH OUT FOR UNINTENDED CONSEQUENCES?

State Senator Mark Leno’s bill actively creates and perpetuates what many are calling the “Ferguson Effect” that will not go away by stripping police officers rights to privacy

By Katharine Russ

CityWatch
March 14, 2016

WHAT LOSS OF PRIVACY COST FERGUSON’S WILSON--Just weeks ago, California State Senator Mark Leno introduced SB 1286 that he purports will “improve transparency, accountability and trust between law enforcement and the public.”

Leno’s words, and those of his supporters, seem only to target police officers by making statements that are relative to them and the communities they serve. To further this notion, reports in the last month have touted SB 1286 as a reaction to the high profile and racially motivated officer involved deaths in Ferguson, Baltimore, Staten Island and San Francisco.

In the instance of Ferguson where Michael Brown was fatally shot by Police officer Darren Wilson in August 2014, Wilson was completely exonerated by both the US Department of Justice (DOJ) and the by the State of Missouri for any wrongdoing or misconduct.

Contrary to initial reports, witnesses said that Brown did not have his hands in the air, pleading “don’t shoot.” The presence of high profile dignitaries from Washington, DC preaching about racism and bigotry sparked an organized and highly volatile movement that “bled out” into 176 cities and endangered not only those who would peacefully protest but entire populations within those cities.

The New York Times published Wilson’s home address nationwide. By doing so, it exposed Wilson’s home community (20 miles away from Ferguson) to the same violence that was erupting in Ferguson. The City of Ferguson forced Wilson to retire, citing that he would put other officers at risk if he remained employed as a cop there. The media continued to harass him as he tried to work at other different jobs over the next year, forcing him to resign from them as well.

More than a year later, this man who was doing his job, was decorated for it, and by all accounts was cleared of any wrong doing, still faces a “life sentence.” He cannot work, is in constant danger and must remain on “high alert” to keep his family safe. He still is facing a wrongful death lawsuit filed against him by Michael Brown’s family.

Wilson’s case lies in stark contrast to how events played out in New York and Maryland because a “guilty before proven innocent” mentality was allowed to fester in the community Wilson served, perpetuated by those in “higher places.”

But cops are not the only law enforcement officers (LEO) defined by State of California Penal Codes as peace officers. Section 830.1 provides, “(a) Any sheriff, undersheriff, or deputy sheriff, employed in that capacity, of a county, any chief of police of a city or chief, director, or chief executive officer of a consolidated municipal public safety agency that performs police functions, any police officer, employed in that capacity and appointed by the chief of police or chief, director, or chief executive of a public safety agency, of a city, any chief of police, or police officer of a district, including police officers of the San Diego Unified Port District Harbor Police, authorized by statute to maintain a police department, any marshal or deputy marshal of a superior court or county, any port warden or port police officer of the Harbor Department of the City of Los Angeles, or any inspector or investigator employed in that capacity in the office of a district attorney, is a peace officer.”

You’ll be hard pressed to find any mention in SB 1286 of targeting a marshal or deputy marshal of the Superior Court or an inspector or investigator at the DA’s office – officers who would also be subject to SB 1286’s “open to the public” scrutiny. Leno’s bill takes specific aim at cops and specifically challenges the Police Officers Bill of Rights enacted in the ‘70’s.

The Association for Los Angeles Deputy Sheriffs (ALADS), representing more than 8,200 deputy sheriffs and district attorney investigators working in Los Angeles County, calls the bill “hogwash.”

George Hofstetter, President of ALADS, said in a statement, "SB 1286 singles out peace officers in a prejudicial and discriminatory manner and sets a dangerous precedent for all public employees in California. The bill is unnecessary because existing law provides for accessing police personnel files in appropriate cases -- with safeguards in place that protect officers' privacy.”

ALADS is not alone in its condemnation of SB 1286. Dozens of Unions, like the Los Angeles Police Protective League (LAPPL) have joined with ALADS to help strike down SB 1286, saying, “SB 1286 is a dishonest and dangerous attempt to kowtow to vocal anti-cop activists. Activists that apparently only protest when there is an officer-involved shooting or use-of-force incident. Senator Leno’s bill is a solution in search of a problem.”

The Los Angeles County AFL-CIO that represents over 800,000 workers in Los Angeles cited a decision by the Supreme Court in 2006 that prohibits members of the media and the public from gaining access to sensitive records before and during administrative hearings and appeals.

Rusty Hicks, Executive Secretary-Treasurer AFL-CIO said, “Police officers are entitled to the same protections as all public employees. There are numerous special internal affairs and oversight bodies charged with investigating police misconduct. Putting police officers through public hearings and exposing their personnel records to Public Records Act requests singles out this class of workers and takes away privacy rights that apply to all other workers.”

But proponents of Leno’s bill argue that greater transparency and accountability would restore the public trust by allowing greater access by the public when misconduct or serious uses of force allegations are made against an officer.

“Police can’t earn the public’s trust when there is a wall of secrecy shielding how departments address misconduct and when they allow officers to use deadly force,” said Peter Bibring, director of police practices for the American Civil Liberties Union of California. “Providing greater transparency in state law is crucial to holding police accountable to the communities they serve, which is an important first step in improving public trust – particularly with communities of color.”

There is no doubt that there are “bad actors” in any police department but there are also good cops who, in highly charged and/or volatile situations, might make a tragic mistake -- a human error.

Correcting problems within a department and offering further training makes better sense than stripping good officers of rights that protect their safety and that of others.

Harry S. Stern, an attorney at Rains Lucia Stern, PC, who is in opposition to SB 1286, said, “Cops have, what has become, an untenable job. In the Bay Area, crime is on the rise yet their every move is dissected in a feverish hunt for misconduct and racial bias.”

SB 1286 would allow public hearings on mere “allegations” of police misconduct that could turn a hearing into a circus, and would give ill-intentioned actors bent on disruption and/or retaliation access to information about investigations, regardless of the outcome.

According to Stern, “All Californian's enjoy a constitutional right to privacy by virtue of Article I of our State's Constitution. The protections that have been put in place for police officers' disciplinary cases are there for safety reasons but also as a due process shield against the ‘mob action’ brand of attempts to ‘scapegoat cops.’ In essence, the closed hearing rules seek to keep police cases focused on evidence rather than on public opinion, which can often be biased and uninformed.”

“Locally in San Francisco,” continues Stern, “we have a District Attorney (a former LAPD commander) who has reimagined himself, for reasons of political ambition, as a police reformer. The timing of Leno's bill with some of the DA's efforts, and the Board of Supervisors creation of a ‘Mario Woods’ day [of remembrance], make it clear that this is an act of political theater, rather than a good faith effort to make the State better. In fact, it will have the opposite effect. The clear message to the cops is that it is safer to do little or nothing in terms of police work. Proactively addressing crime can be hazardous to one's career or even to one's freedom.”

Police Officer Darren Wilson committed no crime. Yet because of the reckless release of “public information,” either properly or improperly, he is forced to continue looking over his shoulder in fear of attacks -- courtesy of his time served as a police officer.

Leno’s bill actively creates and perpetuates what many are calling the “Ferguson Effect” that will not go away by stripping police officers rights to privacy.

In a state where a shortage of police officers already exists, such a bill, if passed, would discourage new police recruits, deter proactive policing and embolden criminals. It is those “unintended consequences” among many others that will have a huge impact on any restoration of trust in communities.