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Cop Out

[whitespace] Lisa Rose & Gary Yamane
Squad Gods: Citizens' Police Review Board chairperson Lisa Rose and coordinator Gary Yamane await changes in their organization.

The 4-year-old Citizens'
Police Review Board is:

  1. A citizens group suffering growing pains

  2. A vital oversight agency that needs to be strengthened

  3. A useless, politically correct bureaucracy

  4. All of the above

By Kelly Luker

IT WAS A TYPICAL FRIDAY night in downtown Santa Cruz: the streets filled with party-goers, couples finishing late dinners, kids looking for trouble and the usual smattering of the homeless and lost. What made this night different--November 17, 1997--is that before the sun rose the next day one of those homeless folks would be dead, shot by police.

The tragic shooting of "Happy" John Dine, who made the mistake of waving a toy gun at police officers, was reviewed by the Citizens' Police Review Board, a City Council-appointed commission. Despite the high-profile nature of the incident and conflicting stories from witnesses, the CPRB refused to call for an independent investigation, relying instead on information contained in the Santa Cruz Police Department's internal affairs report.

On March 15, 1998, 33-year-old Bryan Andrus was shot and wounded by police during a domestic dispute. Because claims for damages were filed by Andrus' relatives against the city (a claim is an administrative procedure which falls short of a lawsuit), the City Council has suspended the CPRB's powers of investigation until the matter is resolved. That is not expected to be until May, 14 months after the incident. Such delays, which have a negative impact on the CPRB's ability to conduct investigations, are common in serious incidents.

In the four years since the first Citizens' Police Review Board was seated, the CPRB has never called for public hearings or an independent investigation--despite having the authority to do both, and despite 178 complaints and two highly publicized officer-related shootings in that time.

In addition, the first step of the process, mediation, has never been exercised. Either side, the public or the police, can decline to participate, and so far in eight opportunities all but one of the police officers involved have refused. In the instance where the officer did agree, the complainant was later re-arrested on another charge and could not follow through on the mediation.

Supporters of the CPRB say that the board is doing just what it was commissioned to do--review police conduct and present its findings. But others believe the CPRB has become a useless bureaucracy, designed by cowardly politicians to appease a powerful police union and a gullible public.

Stung by such criticism, the CPRB has responded by proposing ordinance amendments to the City Council that they insist will give their organization more teeth. Board members and politicians are also batting around other ideas that will help shore up the CPRB's sagging credibility.

Councilmember Christopher Krohn wants to see the board do more self-initiated investigations; that is, to actively seek out police problems and input from the community. Councilmember Keith Sugar would like to see the ordinance rewritten to mandate independent investigations for a wider variety of police misconduct.

And although the CPRB must carry out most of its meetings in closed session because of the need to respect the right to privacy enjoyed by all city employees in personnel matters, new CPRB member Sandy Brown would like to find a way to relay more information to the public about her board's actions and procedures.

Finally, many CPRB observers wonder if any amount of tweaking of this bureaucratic machine--which costs taxpayers $70,000 a year--will be enough. Is it time to pull the plug?

Flaw Chart

THE ORDINANCE outlining the powers and purpose of the Citizens' Police Review Board was approved by the City Council in 1994. Each of its seven members, all volunteers, is appointed by a councilmember. In addition, there are two half-time paid staff positions: administrative assistant Donna Hendrick and coordinator Gary Yamane. The board meets monthly to review complaints against the SCPD investigated by the department of internal affairs. The complaints can be initiated with the police department, the police review board or the city clerk's office. Wherever they are filed, all complaints go first to Sgt. Lee Sepulveda, the department's internal affairs officer, who reviews it before making a report to Police Chief Steve Belcher.

In all but the most serious cases, the CPRB is given an opportunity to mediate the dispute between the officer and the complainant. Since that has never happened, complaints are then returned to Sepulveda for an internal affairs investigation. The investigation report is then sent to CPRB for review, which can

  • make a recommendation to the police chief.

  • request more information or further investigation by internal affairs.

  • authorize an independent investigation.

  • require a public hearing.

After a public hearing or further investigation by SCPD internal affairs or the CPRB, the chief has the final word on whether to discipline the officer involved.

As in most bureaucracies, the plan works a lot better in theory than in practice. The unused option of mediation, which has proven to be all hat and no cattle, seems to be the place where the artfully designed flow chart begins to choke with gaps and flaws.

"We have a mediation process," Yamane says, "but we haven't been able to find anyone to use it."

The problem, he says, is that police officers see little risk of being found culpable because only 8 to 10 percent of the complaints are ever sustained by the internal affairs investigation.

"One hundred percent of the police refuse, because the sustain rate of 10 percent tells them that there's a 90 percent chance they'll be exonerated," says Yamane.

Don Crew, an attorney with the San Francisco office of the American Civil Liberties Union and director of the Police Practices Project, was one of several experts called to address the City Council when it was considering various models of civilian oversight. Crew is blunt in his assessment of the Santa Cruz CPRB: weak, dangerously compromised and fatally flawed.

"It's still the police policing themselves," Crew says.

Meanwhile, if the complainant sues the city, or even threatens to do so, the City Council can suspend the CPRB's power of investigation so that another city agency is not put in the position of developing evidence that might aid the plaintiff in the lawsuit. This essentially short-circuits the process and is, according to Yamane, standard procedure in "every serious" incident.

"I agree this part doesn't work well," says Yamane. "By the time the board gets around to reviewing the case, there's no relevance to it."

If a complaint ever did get to the point of a public hearing, only civilians can be subpoenaed to testify. According to Chief Belcher, police officers can only be compelled to testify at a public hearing by their supervisor.

If a complaint is sustained, some action is always taken, Belcher says, but as a personnel matter it remains confidential. Only the chief and city manager have access to the details, making it impossible for the complainant or anyone else to debate the appropriateness of the chief's response.


The complaint file.


Suspended Solution

THE FORMATION OF A civilian oversight commission in Santa Cruz was surrounded by controversy from the beginning. A group calling itself the Coalition for a Police Review Commission was created in 1990 for at least two important reasons, explains former Councilmember Scott Kennedy: the principles of accountability and citizen involvement in government.

"Citizens were involved in other areas of government," Kennedy says. "So why not the police department?"

But there was more than principle involved, says Mayor Katherine Beiers, who was on the council at the time. "It became apparent that people in the community had serious complaints [against the police] that weren't getting responses."

One of the biggest problems, says Attorney Margaret Marr, who worked to create the CPRB, is that there was a perception that the police department was whitewashing complaints.

"I found it shocking that 95 out of 100 [complainants] weren't telling the truth, if one were to believe the police findings," Marr says. "I was also concerned that most of the work was being done behind closed doors--only the chief and the city manager were looking."

Beiers says she pushed for a review process that relied exclusively on independent investigation, but the majority of the council opposed that.

"Partly it was because of cost," she says, "but there wasn't the political will to go that way, either."

Kennedy was part of the council majority that pushed for the present model.

"I felt it was a rare situation that would warrant a full investigation," Kennedy explains, "but I felt it was important the board have that authority"--an authority, Kennedy says, that the board should have exercised in both the Dine and Andrus shootings.

While the CPRB's powers are still suspended for the Andrus case, board members and staff insist they saw no reason for an independent investigation in the Dine shooting.

"We deliberated a long time about getting an independent investigation," says Yamane. "[But] was it in the community's best interest or was it giving into political pressures from the community? The board finally decided they wouldn't gain any new information, and it would be a waste of money."

CPRB chair Lisa Rose agrees. "After reading all the material that came out of the Dine case," Rose says, "we were convinced it was a justified shooting. I think you would call for an independent investigation if the evidence was problematic."

short picture description
Marr Vista: Attorney Margaret Marr tells her clients not to expect any relief from filing a complaint with the CPRB.

Model Behavior

BY 1995, WHEN THE CPRB was established, 13 communities in California had some form of civilian oversight for their police departments. According to Sam Walker, a professor of criminal justice with the University of Nebraska at Omaha and a nationally recognized expert on police accountability, there are about 100 civilian oversight commissions throughout the country. They reflect an international trend toward civilian oversight, now taking root in Australia, Hungary, Canada, England and South Africa.

"Historically, police have been immune from oversight," says Walker. "It was only in the 1960s that the Supreme Court began challenging police activities."

Although it had been tried in a few communities as much as 40 years ago, civilian oversight gained momentum with the civil rights movement, particularly in urban areas with large minority populations. In recent years, civilian oversight commissions have also found support in smaller, predominantly white middle-class communities--like Novato, Fairfield and Santa Cruz.

Although critics trivialize civilian oversight as a product of political correctness, it may actually be fueled by a recent--and effective--direction in police work: community policing. As police leave their squad cars to walk the beat or, as in Santa Cruz County, decentralize to several smaller substations, civilians find themselves more involved in the policing of their communities.

"Community policing undermines the argument that citizens should stay out of policing," Walker notes.

Walker has identified four main models of civilian oversight.

  • San Francisco's Office of Citizen Complaints does all its own independent investigation. One of the strongest models in the country, it also gives the board the power to prosecute and fire officers.

  • San Jose employs an independent auditor to monitor investigations of citizen complaints conducted by the San Jose Police Department's internal affairs office . The independent auditor takes those findings to the police chief and they work together to find an agreement on disposition. Although the police chief has final authority, the auditor may take concerns to the City Council, which has the power to fire the chief.

  • Another model, such as the one in Novato, allows a complainant to appeal to the review board only if he or she is not satisfied with the police department's internal affairs handling of the complaint.

  • Finally, there is the Santa Cruz model, which reviews internal affairs reports of every complaint.

Kennedy argues that the present CPRB has real power--even if it doesn't exercise it--while Walker dismisses the model on which the review board is based as "weak." He warns of dangers in a civilian oversight model with no real powers.

"To some extent, a bad oversight agency is like consumer fraud," he says. "You're promising a remedy that doesn't work."

Despite opposition from rank-and-file cops, Walker has noticed a gradual willingness among the police brass to embrace the concept.

"The police chiefs have talked themselves into saying we should work closely with the public," Walker says. "Also, black police officers are supporting this. It's only the police union fighting this."

Toe the Line

AS A UNION BUSINESS AGENT, Barbara Williams has represented the Santa Cruz Police Officers Association since 1984. Williams--who is in negotiations with the city to renew the current labor contract, which expires April 3--is adamantly opposed to civilian oversight.

"At the time [of the board's formation] we felt that there were already sufficient avenues that a citizen could make a complaint about the police department," Williams says. "There was no compelling reason to have one here except it was politically correct." At the time, she says, there were also concerns that civilian oversight would undermine officer morale.

Five years later, Williams still sees no point to the CPRB. She offers no evidence that civilian oversight has affected morale, and Chief Belcher says that the department turns away many more potential officers than it hires. But Williams now argues against the board for a different reason.

"The fact that this commission generally agrees with this police department tells me that the police review board is not necessary," says Williams. "Virtually every one of their decisions have supported the police, and that says a lot about the officers. It shows the department does have an effective internal review program."

But Williams is also convinced that those who argue for a stronger review board will never be satisfied.

"I suspect people who want something greater are people who aren't going to be happy unless police are hung by their toes," she says. "I think what is compelling that argument is people wanting to show how bad the police are."

CPRB chair Lisa Rose walks a fine line between doubting the necessity of her agency while arguing for its continued existence.

"I doubt it [is effective]," Rose says, but she wants to make it clear that that is not because the board itself is ineffective. It's because the present system of checks and balances for police is effective, she says.

"The standards for policing in this community are so high, I pause and wonder how much more this board can add to the effectiveness," Rose says.

Asked how the taxpayers can justify spending $69,908 for the review board's latest yearly budget, Rose responds that citizens are getting "a higher level of accountability and ... quality assurance."

"You don't leave the police to police themselves," she adds, disagreeing with Crew.

But the cops would rather have it that way, and they bristle at the idea of citizens trying to second-guess their actions.

Bill Aluffi, who retired after 28 years with the SCPD, now works security at Dominican Hospital. Like Williams, he sees the CPRB as a politically motivated waste of time and money. But that's not what bothers him most.

"They want to take the running of the police department away from the chief," figures Aluffi. He hears from his former colleagues who are warily watching the plans to strengthen the CPRB. "I know the cops are nervous about the enhanced police review process," Aluffi says. "I know there's this fear that the CPRB has [or will have] omnipotent power to mete out punishment."

Aluffi feels there's enough oversight with internal affairs, the district attorney's office, the grand jury, the attorney general and the Federal Bureau of Investigation, if necessary.

"Normally, cops will be rougher on their own," Aluffi says. "I know people don't believe this, but if a guy gets out there and screws up, it looks bad on the rest of the department."

He's joined in his sentiments by Jim Jennings, a 24-year veteran of the Watsonville Police Department, also retired. Jennings explains that his former agency had "a hell of a reputation" for corruption 40 years ago. Though he insists that it has gone through extensive housecleaning, that perception of corruption remains with many Watsonville citizens today.

Aluffi, Jennings and Williams all point to real and imagined fears and how they can erode the police force. Crew scoffs at that idea.

"Police unions claim that virtually any discipline--including internal affairs--is bad for morale," says Crew.

"Thirty years ago, the exact same argument was made about the Miranda ruling [which requires every officer to advise a suspect of his or her rights]," he continues. "You can find a dozen examples where the Neanderthals of the department freaked out at the thought of change.

"Another word for that is progress."

Spare Changes

WILLIAMS POINTS TO the lower number of complaints in the past few years as evidence that the police department is doing a better job working with the community (see chart)--and she may be right. But others offer a different explanation for the low numbers.

Margaret Marr says one reason may be that the system discourages the filing of complaints in a couple of ways. The police department makes a distinction between "complaints" and "inquiries," the latter being defined as "misconduct of a minor nature" which is not reviewed by the CPRB. This, says Marr, has skewed downward the number of complaints that reach the board.

More important, when filing either a complaint or an inquiry, the complainant is warned that he or she can be prosecuted for making false charges. The purpose of the warning is to weed out weak accusations, but some consider it to have a chilling effect on those whose only experience with cops is negative.

"There are a lot of people who have serious allegations of wrongdoing and are scared to death to come forward," Marr says. "Long ago there were horrible allegations about crimes against the homeless and that would have never come out if they had to sign sworn statements."

Crew notes that the infamous Los Angeles Police Department has one of the lowest complaint rates in the state, while the San Francisco police department had over 1,000 complaints against it last year out of a statewide total of about 14,000.

"Is SFPD worse?" asks Crew. "No. They have a strong police review system and it's user-friendly."

This could mean citizens feel that their complaints will be taken seriously--or that the system encourages people with spurious cases to step forward. Whatever it means, the advice Marr gives her clients is cautionary: "If they tell me they've had problems with the [Santa Cruz] police, I tell them they can file with the review board--but they won't get any relief." Advice like this also results in fewer complaints.

Changes to the present model appear inevitable. Three amendments to the ordinance are now being reviewed by the City Council:

  • the option of hiring a public hearing officer--if the board ever actually holds a public hearing.

  • adding a definition of "complaint" in the ordinance.

  • a proposal to review all officer shootings, regardless of whether a complaint has been filed. The latter is on next week's council agenda.

Councilmember Sugar stresses that his desire to see some changes is not a reflection of the board's intentions--or the record of the police department.

"I don't believe anyone is acting in bad faith on the board," Sugar says. "But I think the community and the police would be better served with a board that is more proactive in investigating citizen complaints."

Three new CPRB members--Sandy Brown, Becky Blythe and Arnold Leff, M.D.--were appointed in January. Brown, a project coordinator for the Community Action Board, wonders about the board's public image.

"There's a real concern in a portion of the community that the CPRB doesn't do anything, just substantiate the decisions of the police chief," says Brown.

Rose would also like the council to consider hiring an auditor to review a half-dozen internal affairs reports a year. The purpose would be to ensure that reports accurately reflect the transcripts of interviews with complainants and victims used by investigators.

Kennedy thinks that councilmembers and board members can tinker with the model all they want, but they are missing a "fundamental flaw" in the concept of civilian oversight.

"Too much of the discussion focuses on if there's a mistake, what do you do about it?" Kennedy notes. "Like any kind of discipline, it happens after the fact."

In Kennedy's view, the police department's accountability to the public is much more powerfully affected, although much more subtly, by salaries, training and management.

"That," observes Kennedy, "influences the quality of the officer on the street."

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From the February 17-24, 1999 issue of Metro Santa Cruz.

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