ACLU Challenges Witt’s Legal View on Review of Police

The American Civil Liberties Union on Monday released a legal opinion challenging the San Diego city attorney’s view that only the chief of police has the authority to investigate or review citizen complaints of officer misconduct.

The eight-page opinion concludes that City Atty. John Witt’s position on the issue is “unfounded” and “erroneous,” and states that there are no compelling legal obstacles preventing the establishment of an independent civilian board to review allegations of police misconduct in San Diego.

“Our goal was to remove any smoke screen that had been erected to prevent the creation of a meaningful police review system by the city manager,” ACLU legal director Gregory Marshall said. “I think we’ve put our two cents in now and . . . I hope we see some response.”

Lockwood’s View

City Manager John Lockwood said that, unless he is provided with new advice by the city attorney, he will make no changes to the citizens panel that is being formed to review internal investigations of complaints against officers.

Witt has consistently maintained that only Police Chief Bill Kolender has the legal authority to appoint members to the civilian review board. He has further advised that the City Charter and state law prevent Lockwood or other officials from examining confidential records used in the internal investigations.

In making that finding, the city attorney relied on a section of the charter that states that the police chief shall have “all power and authority necessary for the operation and control of the Police Department.” But that section only denies Lockwood access to police records if such a denial is “necessary for the operation and control of the department,” a finding that the ACLU says is “untenable.”

In an April 17 memo, Witt also advised that to allow civilian review of internal police records, “it would be necessary, at a minimum, to amend” the City Charter. The ACLU dismisses that position as “nonsense,” noting that, if Lockwood has access to the records, he may legally delegate his authority to citizens undertaking a civilian review process.

“The thing that stimulated our looking into this in the first place was that it seemed very strange to us that the city manager couldn’t tell the police chief what to do,” Marshall said. “I mean, the city manager is in charge of the city, meaning all branches. It seemed inconceivable that he would be barred a role in police review.”

‘Strong Civilian Panel’

Marshall said the ACLU is a national advocate of independent, civilian reviews of police officers. Locally, he said, the organization favors “a strong civilian panel that would be able to conduct its own investigations, make findings that are published and make recommendations for action.”

Lockwood said Monday that he had not yet seen the legal opinion but would not change his mind about the issue based solely on input from the ACLU.

“The city attorney is my attorney and that’s the one I take advice from,” Lockwood said. “There may be a contrary view on this, but they’ll have to sort that out with the city attorney. I won’t be doing anything differently unless I’m so advised by my attorney, who I’m not going to second-guess.”

The ACLU’s opinion comes on the heels of a similar finding by the La Raza Lawyers Assn., a group of Latino lawyers that reviewed the law for the San Diego Coalition of Hispanic Professionals. The association, which wants the power to appoint the civilian panel to be vested in Lockwood rather than Kolender, is scheduled to meet with the city manager later this week.

On a related matter, the City Council Monday voted unanimously to accept a set of recommendations that call for the Police Department to give a selected number of civilians a say in how to investigate and discipline police officers accused of misconduct.

In accepting the recommendations made by the Citizens Advisory Board on Police-Community Relations, council members did not give final approval to the suggestions, which include extending the life of the board an additional 18 months--until Dec. 31, 1988. The 13-member panel was created by the City Council in 1985 in the wake of two controversial shootings involving police.

A final council decision is not due until the recommendations are studied further by a council committee next month.

Instructions to Lockwood

Council members also instructed Lockwood to meet with the advisory board’s chairman to try to strike a compromise over several key--and controversial--suggestions.

The suggestion that received the most attention Monday was the advisory board’s recommendation that the Police Department discipline an officer if he is the subject of several misconduct allegations, even if a department investigation turns up no evidence to sustain the allegations.

Murray Galinson, the board’s chairman, told council members Monday that the citizens group believes that a pattern of misconduct complaints against an officer could be the basis for discipline, even if subsequent investigations find no hard evidence of wrongdoing.

Galinson pointed out that many of the unsustained charges come from citizens who are involved in one-on-one confrontations with police officers. Since there are no other witnesses, the investigation comes down to the police officer’s word against the citizen’s, and the department will usually rule in favor of its own, he said.

But something is wrong if an individual officer compiles a series of these unsustained charges, especially if they are made by unrelated citizens, Galinson said. When a pattern emerges, the department could use that to take action against the officer, he said.

Lockwood, however, has resisted this idea.

Reaction to Complaints

He told council members Monday that a pattern of unsustained misconduct complaints could prompt counseling or be included in performance reviews, but that he does not consider it enough to discipline an officer. To do otherwise would be a violation of due process, he said.

Another possible sticking point between the citizens group and Lockwood is how to use a proposed board of civilians to monitor how well the Police Department is investigating and meting out discipline in response to misconduct complaints against officers.

The board has recommended that a 12-member civilian panel be selected to monitor the citizen complaints when they are first registered, and that two-member teams of civilians be allowed to monitor the investigation of those complaints and have input on discipline, if deemed necessary.

Galinson said the board should include people who reflect the city’s racial, ethnic and religious makeup, and include people who are community activists free of felony convictions and have not worked for law enforcement agencies.

Galinson told reporters after his appearance at the council that at first Lockwood balked at the idea of including civilians during the investigation of misconduct complaints, but has changed his mind. The only difference now, he said, is that Lockwood does not want to allow civilians to have input when discipline is meted out.