All citizens are equal, but some citizens are more equal than others (Part 1)

I have a thought experiment for those of you who work in the private sector.
Let’s suppose you are accused of some misdeed by your employer. It could something minor like rudeness to a customer, or something potentially criminal such as embezzlement, assault or even potentially murder or manslaughter.

Hypothetically

Let’s further suppose your employer comes to you and asks you about certain accusations. What do you suppose would happen if you refused to answer any questions about that incident unless you had an attorney present? And if you did speak to speak to your employer what are the chances they would agree to not use your statement against you in a criminal action? Could you refuse a polygraph test under any circumstance? And could you insist your employer never disclose the results of their investigation upon pain of criminal prosecution?

The answer in the private sector is clear cut: while you have constitutional rights in criminal proceedings (including the right to have an attorney present and against self incrimination) if you refuse to cooperate with an employer you can be fired on the spot.

Not so for many of our public employees. Thanks to the Police Officer’s Bill of Rights (Government Code §3300-3311) many of the rights afforded to all of us in criminal prosecutions are also afforded to officers in administrative actions. For example, pursuant to Government Code §3303(f), statements made under duress, coercion “or threats of punitive action” are inadmissible in civil proceedings as well as criminal. Thanks to the decision in Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822, an officer can be disciplined for refusing to answer questions in an administrative hearing, but only if they are first told that the statements cannot be used against him in any criminal matter. An officer also has a right to have council present during any administrative proceedings relating to their conduct. And if there is a violation of any of these or other rights, there is no requirement to exhaust administrative remedies first (like the rest of us have to); the officer can immediately sue in Superior Court.

The combination of the protections in POBAR and the Supreme Court decision in Copley Press, Inc. v. Superior Court (39 Cal.4th 1272) have combined to essentially make our public safety employees above the law. Copley guarantees that any complaints against officers that are handled through the police department will be investigated at the sole discretion of that department, since the public is typically not told how the department ruled or why. Or even whether they looked into the matter at all. Remember, Chief Dan Hughes once admitted that many complaints against officers were simply tossed into the wastepaper basket, since there was no ramification for the department for doing so.

“After careful deliberation, we have concluded that no evidence exists to warrant disciplinary action. At least, not anymore.”

This does not mean that there are no good officers in Fullerton, but it does mean that there are no meaningful external check on the conduct of officers that are a problem, so long as the conduct is not so shocking it winds up becoming a national story. And even then, the protections afforded by POBAR makes firing for even the most shocking crime difficult. See for example Kenton Hampton, who is still employed by the Fullerton Police Department (and pulling in $175,958.90 in total pay and benefits as of 2015, according to Transparent California) despite his involvement in the beating death of Kelly Thomas and the beating/ false imprisonment of Veth Mam (video here) and the fact that even Joseph Wolfe may actually be reinstated despite his role in Thomas’s death.

Since we cannot rely on transparency (state law prohibits it), and we cannot rely on officers within the department to come forward (don’t forget, Copley makes disclosure of internal personnel records a criminal offense, and as Paul Irish has recently learned, even mild, non-specific criticism of department policy can get you in more trouble with your employer than standing around doing nothing while your fellow officers beat a man to death), I concluded several years ago that an effective independent Civilian Oversight Commission was the best method of placing some check on our public employees. Rather than simply advocate for the civilian oversight, those of us who were advocating it decided to prepare their own proposed ordinance, which Matt Leslie has been hosting on his Fullerton Rag blog ever since (it can be found here, although the transfer does appear to have altered the subsections in a way that makes it a bit confusing).

The specifics of and the benefits of the proposed ordinance, and the means in which this City Council could implement it, will be discussed in Part 2.

52 thoughts on “All citizens are equal, but some citizens are more equal than others (Part 1)

  1. Johnny Donut

    At some point, your only remedy is to assault the police department as a whole, dragging the entire department through the mud until the least-bad cops start turning on the worst.

    Oh, I just described FFFF.

    Reply
    1. fullertonstreets

      No fullerton police officer to my knowledge has ever hinted that that officers involved have ever done anything wrong. They will only state that if they had been there that maybe the outcome would have been different.

      Reply
  2. Lisa CSUF

    I agree with the article. The police department is paid for by the taxpayer but its mishaps are self-solved, hidden or filtered by its internal affairs department. When there is a cancerous culture within the organization, no taxpayer group can “get in there” in an attempt to extirpate it

    Reply
    1. Joe FelzGood

      What proof do you have that Internal Affairs doesn’t do a perfect job at all police departments? You know they investigate the complaints right? No recomendations. Nothing to do with disipline. What examples do you have that Fullerton, or any PD, doesn’t administer fair disipline? I know many Fullerton cops that have been fired the last 5 years. I know many cops across the state that have been fired. i know many that have received 30 days or more off too. from what I’ve seen IA does a pretty good job and disipline is usually very fair or excessive.

      Reply
      1. Sean Paden

        Well for starters I’m prety sure the complaints that were simply thrown in the trash were not handled fairly. As for the others, I would need to review the complaint to make a fair determination, which I cannot do, thanks to POBAR and Copley, so thanks for making my point for me.

        Reply
      2. Lisa CSUF

        “What proof do you have that Internal Affairs doesn’t do a perfect job at all police departments?” I’m sorry. Very naive question. You should know how the check and balances work. When the check is carried out by the same institution which is being checked, or the check by an outside group takes effect after the institution has had plenty of time , control and resources “to work “on what will have to be checked, your question becomes disingenuous

        Reply
      3. Baseball player

        Do you have proof Joe Felz was driving above the allowed alcohol level ? No breathalyzer test, no blood sample.

        Reply
  3. Anonymous

    Honestly, you’re wasting your breath with the Oversight Commission talk. You’ll need three votes to make progress. No, not just three votes. You’ll need three councilmembers who will vote and then are willing to take on the onslaught of shit that will come from police unions all over the state.

    You don’t have three votes. You have maybe one.

    You’re better off tearing at the system from the outside. Find the victims, get them to speak out. Expose what you can through the system and then tear up the rest from the outside. Chase those leaks. Shine the light. I’ve seen this blog do these over the years with more success than most. They’ve been talking about you up in Sacramento. They don’t like what you’ve been doing. Keep it up.

    Reply
  4. Joe FelzGood

    POBAR protects cops from people like FFFF and dirty polititians. It’s that simple.

    If it was up to FFFF and Bushala, everyone on the call for servise with Kelly would have been fired that day even before an investigation was completed. That’s exactly what POBAR was created for and protects against.

    Without POBAR, cops would be hung by their necks by polititians everyday. Now when polititians do it, the cities pay out millions to the cops and learn a tough lesson. Without POBAR, this would be even more rampant.

    Police comissions are worthless. They don’t have subpenas powers and can’t issue discipline. Look at the biggest most powerful one in the country, LA Police Comission. Beck finds within policy, they find out of policy, Beck issues the disipline and no one ever knows what that disipline is. LAPC clearly makes determinations for political reasons, which POBAR protects those cops from.

    I agree with Anony. Find suposed victims and if their stories are actually true and factual, then get them to speak out. I’ve found that 99.9% of stories by FFFF so called victims, and victims across this country, are lies and all made up. Body cameras and all other recording devices will end up being the best thing that ever happened to cops. Complaints will be almost completly gone because the so called victims will be proven liars before they even walk in the door.

    Anyone seen Ron Thomas? I thought he was going to donate some money to Fullerton’s homeless and force all cops to testify no matter what, no setlement ever, to get to the truth? LOL Like I said from Day 1. He could care less about Fullerton, the army, or Kelly. It was all about the money and the TV exposure.

    Reply
    1. Fullerton Lover

      Funny how you blame the victim’s father for six two hundred pound fully armed police officers beating, tasering, and suffocating a 137 pound mentally ill individual.

      Helps me to understand the mindset of police officers who steadfastly refuse to take responsibility for their own actions.

      Reply
      1. Joe FelzGood

        I know. You put zero blame on the wacked out mentaly il person. You feel cops need to be hert before they retreat to force. Sorry, case law and laws spell it out much diferently, hence, not guilty on all charges. I know that’s hard for you to understand.

        You will never understand the mindset, hence, why you refer to cases from 10 years ago often.

        You will never be considered one of the smarter residents of Fullerton ether.

        Reply
    2. Lisa CSUF

      LOL. Haven’t you seen how in many cities even the mayors have kept video evidence out of external oversight for long time? Remember Chicago fo example. You are saying that the body cameras will be the best things that happens to cops. Indeed, they will. An evidence absolutely controlled by them. Will the video generated by the body cameras go instantaneously to an independent organization for absolute objective, no tampering with preservation? It goes without saying, you could always reply, “what evidence do you have/will you have that the own police department is mishandling the evidence? “That is a vey unfair question, when the same institution which wants to be scrutinized by the public, has first access and controls over the process.

      Reply
      1. Joe FelzGood

        can you show me one exampal of video tampering from body cams or car cams? One? You act like that’s rampint but I’ve never heard of it. The systims I’ve seen you can’t edit them at all. even if you wanted too.

        Reply
        1. just a guy

          The cops aren’t smart enough with the computer thingys to tamper. So they destroy. Would you like an example? Officer Vince Mater in Fullerton almost went to jail for smashing his DAR. No longer with the department, thanks to FFFF. Audios, crook.

          Reply
          1. The Fullerton Harpoon

            Lol, yes, ol’ Vince was quite a propeller head. Threw his DAR against the wall and got fired. If only he had swallowed it he’d still be on the payroll!

            Reply
    3. Johnny Donut

      “I’ve found that 99.9% of stories by FFFF so called victims, and victims across this country, are lies and all made up. ”

      Where have you published your study? LOL. Always a lying turd. A quick perusal of FPD’s history proves you wrong.

      Reply
  5. The Fullerton Harpoon

    “This does not mean that there are no good officers in Fullerton…”

    Are there any? Nobody can prove it.

    Reply
  6. Dr. Mark H. Shapiro

    In my opinion the vast majority of peace officers (yes in California law they often are referred to as peace officers) here in California, including those here in Fullerton, carry out their responsibilities to protect the public to the best of their abilities. Policing is a dangerous and difficult job. Unfortunately, as in any profession, there are a few who don’t meet the high standards we expect of them. Many departments, but not all, have strong internal affairs squads that mete out discipline when warranted and weed out those officers who don’t meet the standards when necessary.

    However, I do think there is a need for a statewide administrative appeal board that the members of the public can turn to if they feel their complaints have not been given proper consideration at the local level. Such a board should include retired officers with a reputation for high standards, attorneys familiar with the laws in this area and members of the public. This would give members of the public an opportunity to have their concerns heard and resolved without the need for expensive litigation, though that option would remain available.

    Reply
    1. Just Off Euclid

      I don’t buy that “most cops are good” routine. They band together into unions that protect the “bad apples” so as far as I am concerned they are all culpable.

      In Fullerton in 2011 there were at least a dozen instances of “bad cops.” Almost 10% of the sworn force. Add to that the ones didn’t get caught and all the ones that looked the other way and you have quite a cesspool.

      Reply
    2. Joe FelzGood

      That would be a good apeal choice. Subpena power would still be an issue and this would take changing POBAR to match up to it. I don’t think changes to POBAR are going to hapen anytime soon though. But an apeal board is always something good, just to reafirm what is done in the first phase. Usualy if it’s a good solid case, the apeal is the civil case where deposisions can be done and all sides heard, maybe even by a jury if needed. Most are setled beforhand though.

      Reply
  7. Mary Hernandez

    All body cam video is sent live to a true independent storage center, truly independent, whose custodians have no theoretical or practical links to the police department and DA. All footage becomes potential evidence completely sealed and only seen for the first time as required at an open court discovery proceeding. Incorporate an incentive/penalty mechanism for the entire PD to autocorrect itself , -not just for individual officers-changing the cover up by colleagues system into a professional “good cop” group dynamic . This is a simple outline to be perfected, but shows the good path to a positive solution

    Reply
    1. Joe FelzGood

      I don’t think anyone would have a problim with that. Issues are still privacy in terms of release, which involves a good sold policy. Also takeing into account a video never perfectly matches a polise report. Ever. If you want to know why, enact a scene for yerself i envolving anything mellow or excited. Then rite a report about it. See how it maches up to the video. It’s mind boggling how it will have differences start to finish. The human mind is intriguing to say the least.

      Most of the current body cam systems are sent to a cloud and editing the video isn’t even possible. Only thing possible is retreeving and viewing.

      Reply
      1. Lisa CSUF

        If police has 1st access and control of video , police reconstructs events based on the video. When the video has not been seen before by police , the video can overwhelming contradict the police account. Everybody knows that.

        Reply
        1. Anonymous

          LOL Hello?? Everybody knows it. I’ve never gone to Sacramento….Give me a California Thoma’s Guide Map and I will memorize all the roads I took to get there on November 14, 2016.

          Reply
        2. Joe FelzGood

          Yea you are stating the obvious. Make a law that it’s illegal for anyone to review video from anything ever if a crime is involved. That’s a dumb law but do it. No ones account of what happened is ever the same as what actually happened. There have been studies on that. that’s why the issue of identification by victims and witnesses always has issues and questions.

          Reply
          1. Lisa CSUF

            If the video clearly shows officer shooting someone’s back, 20 rounds, while that someone is 15 yards from officer and running away, THAT DID HAPPEN, DIDN’T?????
            It will be the police work to tell that what the video didn’t show was that someone previously trying to kill officer, which caused the officer ‘s mind to be justifiably altered.
            But once again, THAT DID HAPPEN, DIDN’T?????

            Reply
          2. Anonymous

            Joe,
            You are agreeing with us Because video evidence is many times the best clue to what really happened, police should not have first exclusive preferential access to it. Another interesting issue is how to solve the DA lack of will to exercise his usual function when what is looked at is an alleged criminal act by law enforcement officer.
            .

            Reply
  8. Anonymous

    Police has kept a national body count register of third party deaths by police action. Studies have proved the number has been grossly understated. Accuracy of register for number of officers who lost their lives performing duty? 100%

    Reply
      1. Anonymous

        I don’t have to prove it. Others have ,through tedious work adding the numbers from thousands of local newspapers. You need to step out from the police precinct, climb a hill and look at it from a higher point. Your denial is obscuring your mind

        Reply
  9. Anonymous

    The diagnosis is simple. There is a dysfunctional police culture and criminal law procedural court system. Too frequent uncontrolled
    modus operandi by officers and cover ups. District Attorneys disposition to present a well thought and aggressive case to a panel to enter an indictment is very different when the case involves an ordinary alleged criminal or a police officer. Anyone unbiased with regular wisdom understand it this way. The solutions are not easy but we do have good solutions . Another question is the willingness by the status quo for change

    Reply

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