Richmond threatened with suit over police pact


Staff member
Posted on Mon, May. 31, 2004

Richmond threatened with suit over police pact

By Karl Fischer


A lawyer is threatening to sue the city of Richmond over a settlement with its police union that could force the watchdog Police Commission to drop 12 active complaints of excessive-force and civil rights violations.

In addition, commission supporters say, the fact that the City Council finalized the settlement in private violated the state's open-meetings law.

The issue is the latest conflict in an acrimonious period between the commission and the police union dating to 2001.

The settlement in the latest case, reached in April, resolved a lawsuit that officer Charles Whitney brought after the Police Commission scheduled an open meeting to consider brutality charges against him. Whitney claimed the charges were trumped up, and the Richmond Police Officers Union, whom Whitney served as president last year, got the hearing barred.

The settlement awarded Whitney $16,500 and protection against future scrutiny in those cases.

But it also imposes a one-year statute of limitations for the Richmond Police Commission to investigate misconduct complaints.

The commission is now investigating 12 cases it opened more than one year ago, Commissioner Bob Sutcliffe said. If the settlement stands, the statute of limitations would force the commission to drop all of those cases and possibly more in the near future.

Supporters of the commission, an advisory panel created in 1984 as an independent watchdog over the police department, say the agreement in the settlement amounts to an amendment to a city ordinance without public process, a violation of state law.

In a letter Friday to City Clerk Diane Holmes, attorney H.F. Layton wrote that his client, Richmond political activist Andres Soto, would sue the city if he did not receive written confirmation within 30 days that the city had rescinded the settlement.

"The action taken by the city in amending the city ordinance related to the police commission, and which was made pursuant to a settlement agreement with one of your police officers," Layton wrote, "should have been made in public because it affected the public policy of police oversight."

Last week the American Civil Liberties Union weighed in on the settlement, calling the council's lack of public deliberation improper and the effect of the settlement on city policy chilling, functionally ending any misconduct probe in which the department does not wish to participate.

"Basically what (council members) are saying is, 'We don't care if we actually could bring these cases or not,'" said attorney Mark Schlossberg, a police practices specialist for the ACLU. "They're turning a blind eye to them. It makes no sense at all."

The council's action "would hamstring its police oversight agency in a way that far exceeds the requirements of state law," Schlossberg said.

Representatives for the police union disagree. They say the settlement conforms with state law. A Contra Costa Superior Court judge would not have signed the order if it did not, union attorney Alison Berry Wilkinson said.

"The language in the settlement is consistent with the city's ordinance and with state law," Wilkinson said. "Besides, we've already got a signed settlement."

The commission sowed the seeds of the current controversy last November, when it scheduled a public hearing into misconduct complaints against Whitney.

Commissioners said at the time that the public hearing was the only way to effectively investigate a pair of excessive-force complaints from 2001 against Whitney, claiming the union and the department stonewalled commission requests for information about the cases, both previously cleared by the department's internal affairs unit.

The union sought and received a temporary restraining order and later an injunction barring the public hearing on grounds that it would violate Whitney's rights under the state Peace Officers' Bill of Rights, which afford broad privacy and legal protections to police in California.

Acting police chief Charles Bennett, who in December asked the FBI to intercede in Whitney's case, told the Times last week that he is not happy with the settlement.

Besides the hearing being closed, Wilkinson, the union lawyer, challenged the timing of the commission investigations. With a few exceptions, state law prohibits officers from being punished for misconduct complaints that go unresolved longer than a year, as did both cases in question.

The commission repeatedly asked to interview officers involved in the case, but the city attorney's office advised the department not to allow the interviews because of civil litigation against Richmond filed by one of the complainants. The city hoped not to jeopardize its defense in that case by creating an investigation that could be used as evidence in court.

"The investigation must always be done within a year," Wilkinson said. "You also have to remember, the only reason these officers appear to be interviewed is because the chief orders them to go. It's up to the department to cooperate with an investigation."

But the sides offer differing interpretations of the statute of limitations imposed by state law.

Schlossberg maintains that the one-year limit applies only to imposing discipline on officers, not for investigating complaints of misconduct. Further, several exceptions are built into the law for cases that become the subject of civil or criminal litigation, for example, or for certain complicated cases.

The police commission does not impose discipline. It investigates complaints relating to excessive force or other civil rights violations and offers its findings and recommendations for discipline and policy changes to the police chief.

In addition, Soto sued the city last year claiming civil rights violations stemming from police beatings that he and other Latinos claim to have received during 2002 Cinco de Mayo festivities.

"The reason why the commission is concerned is what if, somewhere down the road, we get another police chief who does not support civilian review," Sutcliffe said.

"Then we're back in the hole."