By Kelly Davis.
You might’ve heard the question “Who polices the police?” get tossed around a lot over the last several months as cities across the nation grapple with how to hold law enforcement agencies accountable to the public.
This week, San Diego will take it up a notch: How do we police the group that polices the police?
On Thursday, the City Council’s charter-review committee — currently engaged in a months-long revise of the city’s main governing document — will consider proposing an overhaul to the citizen watchdog group that monitors the San Diego Police Department. The group’s role is enshrined in the City Charter.
The review comes at the request of a coalition of civil rights activists who are urging changes to how the Citizens Review Board on Police Practices (CRB) operates. Like with other charter revisions, any changes would need approval from the City Council and then voters.
The CRB is a 23-member, volunteer panel appointed by the mayor that reviews the department’s Internal Affairs investigations of so-called “Category One” citizen complaints, which can range from allegations of discrimination to improper use of force. If someone’s shot by an officer or dies during the arrest process, the CRB reviews those cases regardless of whether a complaint’s been filed.
After reviewing the Internal Affairs investigation, the board votes to either agree with police findings, disagree or ask the department to reopen the case. If the two sides can’t agree, they’ll negotiate until they do. If they still can’t agree, the case goes to the mayor to decide, but that rarely happens, said CRB chair Yuki Marsden.
The board’s also working against the clock. With a few exceptions, state law says any investigation into police misconduct must be completed within a year; if it’s not, the complaint’s dismissed.
The CRB can suggest policy changes and recommend discipline, but it can’t force the department to comply.
The activists say the CRB lacks independence and too often agrees with Internal Affairs findings. They want a review board that’s able to conduct its own investigations — a model used by some other citizen watchdog groups, including the county’s Citizens Law Enforcement Review Board, which employs two full-time investigators, has subpoena power and regularly publishes summaries of its findings.
In other words, they want more power.
“We’re looking for a review board that has some teeth,” said Mark Jones, who heads the Black Student Justice Coalition, one of the groups, along with Women Occupy San Diego and United Against Police Terror San Diego, urging the overhaul. They point to a raft of problems the Police Department’s faced over the last few years:sexual misconduct cases, allegations of racial profiling, at least two controversial shootings and other violent encounters with the public.
A recent Justice Department review found that officers weren’t being held accountable for bad behavior and the SDPD’s internal system for dealing with misconduct was seriously flawed.
Jones, a former Marine, grabbed attention in December when he organized a silent police-brutality demonstration at a City Council inauguration. It wasn’t the demonstration that made headlines, but rather comments muttered by a Council staffer, who called the protesters “fucking idiots” and said she wanted to shoot them, within earshot of a KPBS reporter. The resulting controversy led tooffers for Jones to meet with city officials.
High on his priority list: how to create a more independent review board.
“Give us the power we need to hold police accountable to the community they’re supposed to be protecting,” Jones said. “It saves lives in the end because you get to root out people who shouldn’t be behind the badge.”
The CRB was created in 1988, via ballot measure. A competing measure sought to create a review board with the kind of powers the committee is now considering: subpoena power and the ability to independently investigate complaints. It was strongly opposed by the police union and lost by 815 votes.
As for the current proposal, law enforcement hasn’t taken a position. Brian Marvel, president of the San Diego Police Officers Association, said his group needs more details, but generally prefers the CRB model.
“Unlike CLERB, CRB actually has the ability to change the outcome of an SDPD IA investigation if they believe IA did an inadequate job,” he said.
San Diego Police Chief Shelley Zimmerman said the department will comply with whatever voters approve.
“Having worked in the Internal Affairs Unit, I have great respect and appreciation for the hard work the members of the Citizen’s Review Board on Police Practices do,” Zimmerman said in a written statement. “The Police Department follows the CRB guidelines put in place by the City Charter and will continue to do so if any changes are made.”
But the CRB’s top leaders questioned whether what the activists are proposing is necessary.
Sharmaine Moseley, the board’s executive director who came to San Diego from Albany, N.Y., where she headed that city’s police review board for seven years, doesn’t have an opinion on whether San Diego needs to change its police-oversight model — she’s too new to the city to make such a determination, she said. But on one key change being mulled – subpoena power – Moseley disagrees.
The activists argue the board needs subpoena power to compel testimony from officers and reluctant witnesses and get access to records tied to the investigation.
Albany’s board had subpoena power but never needed to use it, Moseley said.
“Here the CRB members go into Internal Affairs and they get the entire case file,” she said. “So they have access to information right up front. If they didn’t have access, that would be grounds for subpoena power.”
Marsden, the CRB chair, agreed subpoena power is unnecessary because the board’s work is considered an administrative review.
“And as an administrative review, [officers] are admonished and are compelled — they have to answer every question that is asked of them,” she said. “We have the ability to reopen an investigation and contact the officer … until we’re satisfied. If we want an answer, [the officer] is compelled to answer.”
Marsden also disagrees that the CRB’s structure needs to be changed.
“The model that we have works for the city of San Diego,” she said.
Because there tends to be the perception that review boards like San Diego’s lack independence, some cities have adopted a hybrid model, said Brian Buchner, president of the National Association for Civilian Oversight of Law Enforcement. Eugene, Ore., for instance, has both a civilian review board and an independent police auditor.
“Oversight is a process just like policing is a process,” Buchner said. “It’s important to continue to evaluate the oversight entity and whether it’s meeting the goals and objectives it was set up to meet.”
And for the CRB, there’s the rub. Over the last several years, it’s been difficult for the board to meet its goals and objectives. In 2009, to save money, then-Mayor Jerry Sanders cut the board’s full-time executive director. Up until earlier this year, when Mayor Kevin Faulconer restored that funding, the CRB had to share an executive director with the city’s Human Relations Commission. As a result, the board’s last annual report was filed in 2009 and its public outreach efforts have been almost nonexistent.
Moseley said she’s working on compiling those missing reports. In the future, she’d like to be able to produce more detailed reports, she said, though state law strictly limits what the reports can include. In 2000, after the CRB issued a critical report on the police shooting of a homeless man wielding a tree branch, the POA sued. That lawsuit came after a similar suit filed against CLERB by the Deputy Sheriff’s Association. Everett Bobbitt, the attorney for both unions at the time, bragged in a law-enforcement magazine article about the effect the lawsuits had on police oversight.
“These past rulings have for the most part made such review boards irrelevant,” he wrote.
Moseley said she’s met with Marvel, the police union president, about the need for greater transparency.
“We’re on the same page as far as trying to make things as transparent as possible,” she said.
But there are some things the CRB can’t know. They don’t have access to an officer’s disciplinary record, for instance. They can ask to see records of citizen complaints filed against an officer, but they’ll only get to see complaints similar to the one they’re reviewing. That makes it difficult for the CRB to provide an extra check on rooting out problem officers.
“I’d much rather see the emphasis on how do you change that,” Marsden said. “Efforts would be better focused there.”
Margaret Dooley-Sammuli, criminal justice and drug policy director for the ACLU of California, said what the activists want — subpoena power and independent review — isn’t enough to bring about the changes they’re seeking.
There’s a larger conversation that needs to happen, she said, about the rules that dictate when an officer-involved shooting is justified and how California law, more than any other state, hobbles oversight efforts by restricting access to information.
“A citizens review board … can only work within the existing rules, and the rules suck,” she said.