Can Berkeley Fix Its Police Oversight? 

A member of Berkeley's Police Review Commission has resigned over the body's structural deficiencies. And a possible fix has been bogged down in negotiations with the police union for over a year.

click to enlarge In the 1970s, Berkeley’s Police Review Commission was groundbreaking.

File photo

In the 1970s, Berkeley’s Police Review Commission was groundbreaking.

When Berkeley formed its Police Review Commission in 1973, it was a leader in citizen oversight of the police. A ballot measure supported by a coalition of accountability groups including the Black Panther Party created the commission, which at the time was cutting-edge, with its body of nine commissioners who could make recommendations on police policy and officer discipline.

But in the years since, other Bay Area cities have passed Berkeley by with stronger citizen oversight bodies that can draft their own policy and even fire the police chief. Berkeley's oversight body lacks access to basic information that is routinely released by other departments, and can only investigate complaints it receives itself rather than being alerted to internal affairs complaints filed with the department.

"The current PRC bears little resemblance to the scrappy agency that once challenged police practices and engaged the community in creating and revising policies, identifying when actual misconduct occurred and monitoring the functioning of the department," former commissioner Andrea Prichett, the co-founder of Berkeley Copwatch, wrote in her May letter of resignation. "This was possible because of the access that the PRC had to information as well as the determination of city officials to guard against violations of the constitutional rights of our citizens."

Prichett ticked off a list of deficiencies in the commission's operations that she said impeded effective oversight and prevented the body from addressing the needs of marginalized people. She said the commission lacks access to basic data about use of force, has a higher standard for sustaining complaints than other citizen oversight bodies. She also said the commission has been steamrolled by the department's adoption of policies from Lexipol, a subscription-based service that delivers ready-made police policies designed to protect departments from liability.

How Berkeley police track use of force and report it has been a contentious subject. After police used tear gas and batons on protesters and journalists during Black Lives Matters protests in 2014, the department agreed to a series of reforms to its use-of-force policies, including requiring officers to document the force they use during protests. But what constitutes a use of force in Berkeley is much more narrow than it is in cities such as San Francisco and Oakland, where officers are required to document when they point a firearm at someone. The department also has resisted releasing data about what force officers use and when, even to the Police Review Commission.

"I think it has to do with being a little sensitive to how the data could be evaluated out of context," said George Perezvelez, the chair of the Police Review Commission. "Any data they released, either voluntarily or not, has been subject to a lot of different interpretations."

Perezvelez has been the chair or vice chair for the last eight years and a commissioner for 12. He also serves on the BART Police Citizen Review Board, which he said has far greater access to use-of-force data in regular reports. Berkeley, he said, should be releasing similar reports about its use of force, but has become shy about it creating a negative narrative.

Some data about use of force was released in a report on racial disparities in traffic and pedestrian stops conducted by the Center for Policing Equity last year. The report studied the years from 2012 to 2016 and found that Black and Hispanic people stopped by Berkeley police were much more likely to be searched but less likely to be arrested after a search. It also found that nearly half of all use-of-force incidents reported by Berkeley police were on a Black person, although it acknowledged that use-of-force reporting by Berkeley police was incomplete.

But the department has declined to release the raw data used to compile the report. In fact, Berkeley police even tried to prevent a draft version of the Center for Policing Equity report from being released in 2017.

The commission also is tasked with evaluating complaints against officers. But complaints need to come directly to the commission to investigate, and it is not alerted to those made to the department's Internal Affairs section. Furthermore, when the commission submits its findings, it is not informed what the Internal Affairs findings were, whether those differed with the commission's findings, and whether the chief decided to discipline the officer.

The Police Review Commission receives fewer than a fifth of the complaints submitted to Internal Affairs. In her resignation letter, Prichett attributed the low number of complaints to the commission's low rate of sustained findings and some commissioners' disinterest in the issues afflicting marginalized people. Each of the body's nine commissioners is appointed by one city council member.

"What was once a relatively accessible agency that welcomed those with the courage to follow through on a complaint is now a place where complaints go to die," Prichett wrote. "The PRC record of sustained complaints in recent years is abysmal, and there has been a huge decline in recent years of people even trying to use the process."

Complicating the issues with sustained complaints, the Police Review Commission uses a higher standard of evidence in evaluating officer complaints than other citizen-oversight bodies.

Acknowledging these structural limitations, activists have pushed for the last two years to bolster the commission's powers through a ballot measure. Last year, the Police Review Commission made its own such proposal, which was then amended by Mayor Jesse Arreguin and Councilmember Kate Harrison. It would allow the commission to compel the department to release officer personnel records and investigative reports, as well as receive alerts of new internal affairs complaints so that it can conduct an independent investigation. The draft measure was submitted to the Berkeley Police Officers Association for review, where it has remained for over a year. Perezvelez said it may appear on the 2020 ballot.

For his part, Perezvelez said he was skeptical that there is much political appetite for greater police accountability in Berkeley. "The broader majority of the citizens of Berkeley believe that the Berkeley Police Department is performing at a high level," he said. "I do not see this incredibly bad behavior that people say the Berkeley Police Department engages in."

But without the measure going to the ballot, it will remain unclear whether citizens really want to see a more robust accountability body. Furthermore, while there seems to be a wide discrepancy between the perspectives of different residents when it comes to the police, Berkeley police undeniably have issues. Racial profiling remains an issue, the police department's response to the Black Lives Matter protests was more violent than that of Oakland or San Francisco, and the extent of officers' use of force compared to other departments is impossible to know.

To determine whether citizen oversight is working, "we need to measure it by the end result of the Police Department," Perezvelez said. "And to do that we need to have the data."

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