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You can't blame Cal State Fullerton student Maria Hernandez-Figueroa for being nervous in the conference room of the Fullerton Public Library on July 11. At one point, she lost her train of thought and began stammering. Hernandez-Figueroa had good reason to be nervous. After all, her large audience included two Fullerton City Council members as well as Captain Dan Hughes, the city's acting police chief.
The topic of her speech—comparing various models of civilian oversight of police in the United States—is more than a little dicey, not least because there are so few functioning examples of such agencies. "Civilian oversight committees do exist," insisted Hernandez-Figueroa's co-presenter, Eduardo Calderon. "Though not in large numbers, all across the country they do exist."
Despite the lackluster nature of civilian review of law enforcement being described at the conference, the sizeable crowd attested to the surge in support for such oversight, at least in troubled Fullerton in the wake of Kelly Thomas' beating by six police officers in July 2011. The presentation, moderated by Jarret Lovell, a CSUF professor who has written extensively about civilian review, was hosted by the Police Oversight Proposal Committee (POPC), a group of half a dozen local citizens who met regularly in the wake of Thomas' death. It hopes to bring a proposal for some sort of oversight before the City Council this year.
Hughes didn't respond to a request to be interviewed for this story, but Jane Rands, one of POPC's founders and a systems engineer who ran unsuccessfully for a council seat in the recent recall election, said she has spoken to him about the group's goals. "He's of the mind that because of the Police Bill of Rights (POBOR)—and I'm not sure if he's trying to take a union stance—you can't have external oversight by citizens," she said.
The POBOR provides for an encyclopedic array of protections for police officers, laying out in specific detail guidelines on everything from the hours of the day an officer under investigation can be interrogated to the privacy protections afforded to officers, including those being disciplined.
"This new entity would pretty much be limited to that amount of information that the police department wishes to make available," says Peter Scheer, executive director of the First Amendment Coalition. His nonprofit organization gives legal advice on a range of topics including access to police records. "A local entity," explained Scheer, "even backed up by an ordinance, would not be able to exercise powers that conflict with the confidentiality safeguards given especially to police officers in state law."
A State Supreme Court ruling known as Copley Press v. San Diego significantly bolstered the POBOR in 2006. The case began three years earlier, when San Diego Union-Tribune reporters were barred from viewing a county Civil Service Commission hearing in which a sheriff's deputy was appealing termination. Copley Press sued when its public records act requests were denied after the commission asserted confidentiality exemptions.
After the lawsuit worked its way through the judicial system, the high court ruled that the deputy's identity was exempt from disclosure, even if maintained by a public agency independent from the sheriff's department. This effectively prevented the public from accessing complaints against police officers. State Bill 1019, written by Senator Gloria Romero (D-Los Angeles), would have overturned the Copley ruling. It passed the state senate in June of 2007, but when it reached the Assembly for a full vote, members of law enforcement, including representatives of the Orange County Sheriff's Department and the district attorney's office, showed up in Sacramento to oppose it. The Assembly refused to vote on the bill.
"Police, as a rule, are very uncomfortable with having a lot of civilian presence, especially with mechanisms that could result in discipline," says David Haas, a Long Beach-based civil-rights attorney who attended the presentation. Back in the 1990s, Haas served on the Citizens Law Enforcement Review Board in San Diego. "Police unions are very savvy and alert politically," he added.
Despite the restrictions placed on oversight committees by Copley, the Orange County Board of Supervisors moved forward with a civilian review committee following the 2006 Orange County jailhouse beating death of John Chamberlain. The 41-year-old, suspected of possessing child pornography, was allegedly outed as a pedophile to fellow inmates by a guard. After this revelation, inmates proceeded to mercilessly stomp him to death. In May 2007, the board unanimously approved such a panel, leading to the formation of the Orange County Office of Independent Review (OIR), which today is headed by Stephen J. Connolly.
One of the OIR's primary functions is to evaluate the fairness and rigor of internal-affairs investigations and advise Sheriff Sandra Hutchens on employee discipline, as well as inform the public of disciplinary outcomes. Before taking over the Orange County office, Connolly spent seven years at the Los Angeles Office of Independent Review, headed by former U.S. Attorney Michael Gennaco. In February, Gennaco presented an interim report to the Fullerton City Council on the city's police response following Thomas' beating, in which no evidence of an intent to deceive the public was found.
A key limitation—from the perspective of transparency and accountability, at least—of both Connolly's and Genacco's roles vis-a-vis the police is that they adhere to attorney-client privilege when it comes to speaking publicly about the agencies they investigate. "These review boards end up becoming little more than coffee klatches," said Haas.