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Case closed

Police officers need, and deserve, the right to privacy.

January 22, 2007|Gary Ingemunson | GARY INGEMUNSON is independent counsel for the Los Angeles Police Protective League.

THE LAPD board of rights' decision that Officer Steven Garcia acted "in policy" when he shot Devin Brown in 2005 is under attack. The hearing was not open to the public, and according to the media, politicians and some community leaders, that is wrong: There should be no "secrecy" when it comes to disciplining officers and adjudicating complaints against the police.

But, in fact, the Garcia hearing was closed for a good reason. Confidentiality is necessary to protect police officers' fundamental rights, and the California Supreme Court, in the case of Copley Press Inc. vs. Superior Court of San Diego, affirmed that last summer.

Board of rights hearings are held to mete out police discipline, including suspensions, demotions or removals from the department. Garcia's case was sent to the board after the Police Commission, whose members are political appointees, deemed the Brown shooting "out of policy," a determination that requires some form of discipline. The board of rights -- two members of the Los Angeles Police Department command staff and a member of the public -- weighed the evidence according to rules similar to those in a court of law and declined to punish Garcia.

Why should such a hearing be confidential? Because, as the Copley case made clear, if it isn't, a police officer will be forced to choose between his right to an administrative appeal (his right to appeal disciplinary decisions made against him) and his right to privacy. Having to make such a Hobson's choice is neither legal nor fair.

Rights of appeal and privacy are crucial for everyone, but they are especially so for police officers because anyone can make a complaint against them, and the department is legally bound to investigate every one of them, no matter how frivolous.

Arrestees file complaints simply as a bid to get their cases dropped. Gangsters file complaints against effective officers to get them off the street. Some complaints are political. Some complaints come from people who are just flat-out angry at an individual officer for pulling them over or ticketing them for a traffic violation, even when they know they were in the wrong.

Workers in the private sector have protections against frivolous complaints -- in particular, the ability to sue false and malicious accusers. But because our Constitution gives us wide latitude to criticize government actions, including police actions, such suits brought by officers rarely succeed. Most of the people making false complaints couldn't pay a judgment anyway.

And that makes privacy rights all the more important. As the court said in the Copley case, keeping board of rights hearings closed has the effect of "protecting peace officers from publication of frivolous or unwarranted charges and maintaining confidence in law enforcement agencies by avoiding premature disclosure of groundless claims of police misconduct."

The court also found that closed hearings would protect "complainants and witnesses against recrimination or retaliation." In the end, it ruled that "the desirability of confidentiality in police personnel matters does [emphasis added] outweigh the public interest in openness."

An article published last week in the Los Angeles Times is a case study on the importance of confidentiality. Selected facts from a transcript of a 9-year-old disciplinary hearing concerning Garcia were dragged out, presenting him in the worst possible light. It didn't tell the whole story. As Jack Dunphy writes on National Review Online, "what led to Garcia's being disciplined was actually a dispute with a vindictive former girlfriend." The Times' story primarily served to harass Garcia and to lend fuel to the fire for those who want to see him punished in the Brown case, despite the decision of the board of rights.

Over and over, editorial writers and community leaders have attacked the board for acting "in secret." But confidentiality isn't the same as secrecy. Board hearings are open to the LAPD inspector general and the Police Commission, the public's designated watchdogs. Further, state law allows access to personnel records (including board of rights records) in order for officers to be investigated for criminal misconduct. The law protects officers from unwarranted harassment but not from paying for wrongdoing.

Community leaders and elected officials -- who would have said nothing about the Copley decision had the board of rights found Garcia deserving of punishment in the Brown case -- are competing with each other to demand that the Legislature fix a situation that isn't broken. These self-serving actions are shortsighted and ill-conceived.

Even as we look for better tools to fight violence on our streets, we are telling our police officers that their careers, as well as their lives, are at risk. No wonder we cannot find enough men and women brave enough to withstand both the criminals and the politicians.

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