You can't blame Cal State Fullerton student Maria Hernandez-Figueroa for being nervous in the conference room of the Fullerton Public Library on July 11. At one point, she lost her train of thought and began stammering. Hernandez-Figueroa had good reason to be nervous. After all, her large audience included two Fullerton City Council members as well as Captain Dan Hughes, the city's acting police chief.
The topic of her speech—comparing various models of civilian
oversight of police in the United States—is more than a little dicey, not least
because there are so few functioning examples of such agencies. "Civilian
oversight committees do exist," insisted Hernandez-Figueroa's
co-presenter, Eduardo Calderon. "Though not in large numbers, all across
the country they do exist."
Despite the lackluster nature of civilian review of law
enforcement being described at the conference, the sizeable crowd attested to
the surge in support for such oversight, at least in troubled Fullerton in the
wake of Kelly Thomas' beating by six police officers in July 2011. The
presentation, moderated by Jarret Lovell, a CSUF professor who has written
extensively about civilian review, was hosted by the Police Oversight Proposal
Committee (POPC), a group of half a dozen local citizens who met regularly in
the wake of Thomas' death. It hopes to bring a proposal for some sort of
oversight before the City Council this year.
Hughes didn't respond to a request to be interviewed for
this story, but Jane Rands, one of POPC's founders and a systems engineer who
ran unsuccessfully for a council seat in the recent recall election, said she
has spoken to him about the group's goals. "He's of the mind that because
of the Police Bill of Rights (POBOR)—and I'm not sure if he's trying to take a
union stance—you can't have external oversight by citizens," she said.
The POBOR provides for an encyclopedic array of protections
for police officers, laying out in specific detail guidelines on everything
from the hours of the day an officer under investigation can be interrogated to
the privacy protections afforded to officers, including those being
disciplined.
"This new entity would pretty much be limited to that
amount of information that the police department wishes to make
available," says Peter Scheer, executive director of the First Amendment
Coalition. His nonprofit organization gives legal advice on a range of topics
including access to police records. "A local entity," explained
Scheer, "even backed up by an ordinance, would not be able to exercise
powers that conflict with the confidentiality safeguards given especially to
police officers in state law."
A State Supreme Court ruling known as Copley Press v. San
Diego significantly bolstered the POBOR in 2006. The case began three years
earlier, when San Diego Union-Tribune reporters were barred from viewing a
county Civil Service Commission hearing in which a sheriff's deputy was
appealing termination. Copley Press sued when its public records act requests
were denied after the commission asserted confidentiality exemptions.
After the lawsuit worked its way through the judicial
system, the high court ruled that the deputy's identity was exempt from disclosure,
even if maintained by a public agency independent from the sheriff's
department. This effectively prevented the public from accessing complaints
against police officers. State Bill 1019, written by Senator Gloria Romero
(D-Los Angeles), would have overturned the Copley ruling. It passed the state
senate in June of 2007, but when it reached the Assembly for a full vote,
members of law enforcement, including representatives of the Orange County
Sheriff's Department and the district attorney's office, showed up in
Sacramento to oppose it. The Assembly refused to vote on the bill.
"Police, as a rule, are very uncomfortable with having
a lot of civilian presence, especially with mechanisms that could result in
discipline," says David Haas, a Long Beach-based civil-rights attorney who
attended the presentation. Back in the 1990s, Haas served on the Citizens Law
Enforcement Review Board in San Diego. "Police unions are very savvy and
alert politically," he added.
Despite the restrictions placed on oversight committees by
Copley, the Orange County Board of Supervisors moved forward with a civilian
review committee following the 2006 Orange County jailhouse beating death of
John Chamberlain. The 41-year-old, suspected of possessing child pornography,
was allegedly outed as a pedophile to fellow inmates by a guard. After this
revelation, inmates proceeded to mercilessly stomp him to death. In May 2007,
the board unanimously approved such a panel, leading to the formation of the
Orange County Office of Independent Review (OIR), which today is headed by
Stephen J. Connolly.
One of the OIR's primary functions is to evaluate the
fairness and rigor of internal-affairs investigations and advise Sheriff Sandra
Hutchens on employee discipline, as well as inform the public of disciplinary
outcomes. Before taking over the Orange County office, Connolly spent seven
years at the Los Angeles Office of Independent Review, headed by former U.S.
Attorney Michael Gennaco. In February, Gennaco presented an interim report to
the Fullerton City Council on the city's police response following Thomas'
beating, in which no evidence of an intent to deceive the public was found.
A key limitation—from the perspective of transparency and
accountability, at least—of both Connolly's and Genacco's roles vis-a-vis the
police is that they adhere to attorney-client privilege when it comes to
speaking publicly about the agencies they investigate. "These review
boards end up becoming little more than coffee klatches," said Haas.
"Certainly because of the attorney-client privilege,
Mr. Connolly has to be cautious [about] what he communicates," countered
Orange County Supervisor John Moorlach. "But he does communicate."
Travis Kiger, a Fullerton council member who replaced former
Mayor Dick Jones, said he felt the POPC presentation didn't get to the core
question of how to meaningfully achieve greater public oversight of the city's
cops. "They didn't touch on the more recent issues that have neutered
police oversight commissions in the past five or six years," he said,
specifically referring to Copley. "Once there's a report against an
officer, it becomes part of their personnel file, and nobody gets to see it.
I'm not sure there's a way around that."
In the weeks following Thomas' death, the police department
refused to release the names of the officers involved. It was only through
confidential police sources sharing information with Tony Bushala's Friends for
Fullerton's Future blog, to which Kiger contributed before entering politics,
that five of the six officers were identified. Following the revelations, all
were put on administrative leave.
Rands knows that official opposition to police review could
prove to be a major obstacle for POPC. "If we run into a brick wall, then
we'll back down and do it separately from the city," she said, adding that
one idea would be to take complaints against police officers directly from
citizens.
But Haas says the greatest danger facing Rands' group is
failing to move quickly while civic enthusiasm in Fullerton remains high.
"You don't want to get caught up in delaying tactics," he warns.
"There's a window that's open because of this terrible event. But it's not
going to stay open forever."