The Law Enforcement “Bill of Rights” operates, in many cases, in opposition to the Constitution’s Bill of Rights, by sharply limiting accountability and transparency when it comes to police brutality and other misconduct.
LOS ANGELES — Most of us living in the United States were familiar with the Bill of Rights – the first 10 amendments to the U.S. Constitution – by the time we left high school. Those rights — such as freedom of speech, religion, the press, and to assemble — are guarantees granted to each and every individual within the U.S. Unfortunately most of us never heard about a second “bill of rights:” that exclusively protecting law enforcement personnel.
The Law Enforcement “Bill of Rights” operates in many cases in opposition to the Constitution’s Bill of Rights, by sharply limiting accountability and transparency when it comes to police brutality and other misconduct.
The “right of privacy,” for example, is extended to what some say are outrageous lengths for police officers, with the state of California apparently leading the way in that regard. Even the Los Angeles Times lamented that “far from being a beacon of transparency, California — when it comes to the public’s ability to assess the performance of its law enforcement agencies — is the nation’s information black hole.”
Anything having to do with the disciplining of a police officer is considered part of his or her personnel file and is thus subject to privacy. In California, not even prosecutors are allowed to view those files.
After the April 2015 death of Freddie Gray in Baltimore, the subject of Maryland’s Police Officer Bill of Rights came to light. According to state law, police officers under investigation for brutality or misconduct are allowed to have representation — and they can take up to 10 days to obtain counsel. Critics say the 10 days is time used by the officers to “get their stories straight.” In the words of Manhattan Institute Fellow Heather McDonald:
[A] 10-day window of immunity from questioning is clearly excessive. It creates the appearance, if not the reality, of officers’ colluding to tailor their stories to exculpate themselves.”
In Los Angeles, the Sheriff’s Department (LASD) has a “secret list” of 300 deputies it considers problematic. Only high-level sheriff’s office officials can view this list, which was compiled as a means of keeping the department on its toes. In the event that one of the listed deputies has to appear in court, his or her credibility as a witness could be impugned and the case lost.
For this reason, it makes sense that the county prosecutor should also be able to view the list. Yet the discipline meted out to these officers is considered a personnel issue and thus their records are held private even from the prosecutor. The state’s supreme court will be taking up this issue sometime in 2018.
California’s laws for police privacy are so stringent that individuals who file brutality complaints against officers cannot receive information on the status of the investigation or its outcome. State Senator Mark Leno was the sponsor of a bill last year that would have uncloaked that basic level of accountability. A Senate committee laid the bill to rest and, to date, another one has not been proposed.
The effort to shield police officers’ actions in the name of privacy would seem to work more like a tactic to shield them from accountability. A bill in the Virginia state legislature that also died in committee last year would have kept the names of officers completely hidden from the public. Not just officers involved in shootings; not just officers accused of misconduct; but all police officers in all circumstances.
In 2014, the California Supreme Court ruled that the names of officers involved in shootings could be made public. But it also acknowledged the Copley decision that disciplinary proceedings are part of an officer’s protected personnel file.
Such egregious existing or contemplated imbalances in police-specific versus public rights have been the source of broad outrage, especially when highlighted by each in an ongoing parade of high-profile incidents in which police brutality or misconduct appears to have been shielded at the expense of getting at the truth. From this outrage and these provocations has grown a movement to restore the balance of rights contemplated by the Constitution.
Written by Thandisizwe Chimurenga