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A bad LAPD decision, squared

January 12, 2007|Erwin Chemerinsky | ERWIN CHEMERINSKY, a professor of law and political science at Duke University, was the author of a report on reforming the LAPD after the Rampart case, prepared at the request of the Los Angeles Police Protective League.

DISCIPLINARY HEARINGS involving police officers accused of misconduct must be open to the media and the public, and they were for more than two decades in Los Angeles, until late last year.

On Monday, a Los Angeles Police Department board of rights, after a secret hearing and without public explanation, determined that Officer Steven Garcia was justified in shooting and killing 13-year-old Devin Brown in 2005 as Brown slowly backed a car toward Garcia.

The board's decision is particularly disturbing because the Police Commission, after a careful review, found that the shooting was not within LAPD policy. In fact, the city last year came to the same conclusion and paid $1.5 million to settle a civil suit brought by the boy's family.

It seems inexplicable that the board of rights, composed of two high-level police officers and one civilian, found that the fatal shooting of a teenage boy under these circumstances was justified. After a short chase, Garcia fired 10 shots at Brown, seven of which hit him. The Police Commission found that Brown was going only about 2 mph, and thus Garcia was able to step out of the way, was not in danger and not justified in using deadly force.

Perhaps there is a legitimate basis for the board's conclusion that Garcia did nothing wrong, but the public will never know. The Police Commission recently reversed a long-standing policy of openness and ordered the closure of police disciplinary hearings. Representatives of the Los Angeles Times who tried to attend the board of rights proceeding were turned away.

Such secrecy undermines the accountability of the LAPD. Without being able to observe disciplinary hearings or know the reasons for the panel's conclusions, there is no way to evaluate whether the disciplinary system is working. Closed proceedings and secret decisions fuel the impression that the board of rights protects officers from warranted discipline and does not serve the interests of the city.

Officers who use deadly force do not have a privacy interest in being free from scrutiny. This is not information about an officer's personal life. This is about how a public employee is performing on the job in the exercise of an enormously important responsibility: the use of deadly force.

Board of rights hearings were closed late last year because of an opinion issued by City Atty. Rocky Delgadillo that a California Supreme Court decision requires it. But the ruling in Copley Press Inc. vs. Superior Court of San Diego does not even deal with the issue of whether police disciplinary hearings must be closed. The issue was whether the California Public Records Act required disclosure to a newspaper publisher of records of the San Diego County Civil Service Commission relating to a police officer's appeal of a disciplinary matter. The court found that exceptions within the law protected the secrecy of personnel files of law enforcement officers. The L.A. city attorney is simply wrong in reading the Copley Press decision as requiring closed disciplinary hearings.

The simplest solution would be for the city attorney to reconsider his position and issue a new opinion that disciplinary hearings should be open. Or the Police Commission, on its own, should return to the policy of openness for the board of rights.

The problem also can be solved by the Legislature. The court's decision was based on its interpretation of a state law. The Legislature should change this statute to explicitly provide that disciplinary proceedings and disciplinary files be open to the media and the public. This fix would not be a radical change; it would return the law to what it was in L.A. for more than two decades before the California Supreme Court's ruling.

Holding board of rights hearings in secret serves no one's interest.

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