The heads of unions and other professional fraternities of peace officers in California are complaining about a website, RateMyCop.com, which invites anyone to post either praise or complaints about specific, named uniformed officers they have encountered or observed. The fact is, these groups work over the years to keep officer misbehavior secret has created a vacuum of information that some Internet forum was bound to fill. They made RateMyCop.com inevitable.
For perspective, courts have ruled that under the California Public Records Act, substantiated or even simply highly credible complaints of misconduct by identified state and local government employees are matters of public record, not matters of privacy or otherwise confidential. The same goes for information as to what if any discipline the governmental employer imposed after concluding the complaints were well-founded. But this general rule of disclosure of government workers misconduct does not apply to police and sheriffs officers, prison guards and the wide variety of badged and sworn state and local government agents embraced by the term peace officers.
Instead, the law makes confidential under Penal Code Section 832.8, subdivisions (d) and (e), personnel files maintained by the officers employer containing
employee advancement, appraisal, or discipline (and) complaints, or investigations of complaints, concerning an event 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.
This information can be obtained only by court order for discovery as part of a criminal prosecution (for example where the defendant wants to impeach his arresting officers credibility by documenting a history of dishonesty) or a civil lawsuit (for example where the plaintiff alleging excessive use of force seeks to document past complaints of the same kind), and is utterly unreachable under the California Public Records Act. And these laws have expansive effects. The California Supreme Court in 2006 interpreted their implications to mean that when a sheriffs deputy appeals an imposition of discipline to the county civil service commission, information about the complaint and investigative findingspreviously entering the public record in that normally public proceedingis also exempt from disclosure to the public.
Last year peace officer advocacy groups argued to the Supreme Court that these secrecy laws made even officers pay confidential, as well as the bare facts of when they were hired and when they left an employer agency. The court balked at those extremes, however, and ruled against them in two key decisions: International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court, and Commission on Peace Officer Standards and Training v. Superior Court. Nonetheless, as noted by the San Francisco Chronicle in a 2006 analysis,
In California, unlike much of the country, police disciplinary records and citizen complaints against officers are kept secret by law.
By contrast, at least 30 states allow partial or complete public access to police personnel records.
But here, where the disciplinary records of numerous professionsincluding doctors, lawyers and accountantsare readily accessible to consumers, the public is largely kept in the dark, even when officers have a continuing pattern of misconduct.
The confidentiality law was enacted a quarter-century ago at the urging of law enforcement lobbying organizations.
And dozens of such local, regional and statewide groups can be counted on to send representatives to the Capitol when any bill threatens of undo this jealously guarded and comprehensive secrecy. As CalAware reported last June 29, for example,
Hopes for reopening a small window on the process and outcome of peace officer discipline proceedings this year were extinguished this week. No member of the Assembly Committee on Public Safety would even make a courtesy motion to prompt a vote on Senator Gloria Romeros SB 1019 when the bill had its hearing this past Tuesday. Instead, given the presence and scarcely veiled threat of political retaliation by a contingent estimated at more than 100 union officials representing police, sheriffs, probation and other peace officers and prison guards, the committee members left it up to Chairman Jose Solorio (D-Anaheim) to signal that while some form of sunshine on officer brutality, dishonesty and other misconduct might be acceptable in principle, the officer unions would always have a veto on any particular legislative proposal.
SB 1019 . . . would have given public agencies employing peace or correctional officers the authority to resume whatever open civil service appeal proceedings and hearings of police review boards they had in place up to a year ago, unless special circumstances threatening officer safety or investigative effectiveness, specified by the law enforcement agency employing the officer, dictated otherwise. That previous openness was ended by a decision of the California Supreme Court last summer . . .
SB 1019 still sits in the committee, where it could still be taken up for a vote this spring. A San Jose Mercury News editorial urges its passage, citing a recent incident in which a deputy sheriff drove his patrol car across a double yellow line, seriously injuring one bicyclist and killing two others. The deputy was convicted in 2001 of being involved in an unlawful speed contest, a plea reduced from a charge of drunk driving, according to the Los Angeles City Attorneys office, and reportedly was seen by witnesses as asleep at the time of the incident. Says the editorial:
Santa Clara County Sheriff Laurie Smith is profusely apologetic. She has accepted responsibility, on behalf of her department, for the tragic accident that led to the deaths of two bicyclists and serious injury of a third earlier this month. The California Highway Patrol is investigating the traffic accident, in which a deputy sheriff drove his patrol car across the yellow line to hit the bicyclists on Stevens Canyon Road in Cupertino. The sheriff’s department is conducting an internal investigation, and the injured bicyclist plans to file a civil suit. Facts should come out. But the public will never know what disciplinary action Smith may decide to take against deputy James Council. That’s because state law protects cops from public scrutiny. In incidents that escape public view, people have no way of even knowing officers have been accused of misconduct, let alone the outcome.
The RateMyCop.com site is no substitute for the kind of detailed, official disclosure of fault and accountability that is now precluded by the police performance secrecy law and that SB 1019 would in part remedy. But meanwhile it allows citizens to share with one another the positive and negative episodes they have experienced with officers in their communities, and despite rumblings by some that legislation will be attempted to shut it down, no bill is likely to get far if it proposes to make unlawful the posting of public information or citizens reports and comment, which as a prior restraint would violate both the First Amendment and the California Constitution.
There would be no such barrier to a measure making police department rosters confidential information, but politically such a move to create a literal secret police state would seem very unappealing to lawmakers. Moreover, an amendment to the California Constitution now provides that any legislation to limit disclosure under sunshine laws like the Public Records Act must be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest. Such findings would likely be viewed as dubious by the courts, and by the California Supreme Court in particular, which in the recent Commission on Peace Officer Standards and Training case commented:
We find no well-established social norm that recognizes a need to protect the identity of all peace officers. Peace officers operate in the public realm on a daily basis, and identify themselves to the members of the public with whom they deal. Indeed, uniformed peace officers are required to wear a badge or nameplate with the officers name or identification number.
The Commission asserts that in light of the dangerous and demanding work performed by peace officers, releasing such information to the public creates a potential for mischief. We readily acknowledge that throughout the state there are some officers working in agencies who, because of their particular responsibilities, require anonymity in order to perform their duties effectively or to protect their own safety. . . . If the duties of a particular officer, such as one who is operating undercover, demand anonymity, the need to protect the officers safety and effectiveness certainly would justify the Commission in withholding information identifying him or her . . . But [t]he prospect that somehow this information in the hands of the press will increase the danger to some . . . cannot alone support a finding in favor of nondisclosure as to all. (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 652.)
And even if legislation to make police rosters secret were somehow passed and validated in a court challenge, unless the Legislature also removed identity information from officers uniforms, citizens armed with those names or numbers and filing official complaints about their treatment at the hands of the identified officers could simply ask for a copy of their complaintto which they are entitled by lawand forward it to a website like RateMyCop.com. The complainant would be absolutely privileged by one or more provisions of Civil Code Section 47 in posting the complaint, and the sites operator would be immune from liability under federal law for providing an online forum for such postings.
A casual browsing of RateMyCop.com leaves the distinct impression that so far, people are using it to commend officers performance at least as often if not oftener than to condemn it. But if the leaders of Californias professional officer organizations want to make the site less attractive as a forum for branding officers with false or unfair allegations, the most effective stepand likely the only stepthey can take is to permit changes in the law to expose to public scrutiny the tiny minority of officers found to be abusive or unfit for the uniform in investigations conducted by the agencies that employ them. A good start would be allowing passage of SB 1019.