Unlike other states, California laws make it hard for the public to uncover police misconduct
In June 2003, shortly after he was booked into the Sacramento County Main Jail for public intoxication, mortgage broker Jafar Afshar says that Sacramento County Sheriff’s Department Deputy Brett Spaid threw him down on the concrete floor with such force that the top of his head was severely lacerated—requiring stitches to close the wound, according to court records. A jail videotape of the incident showed that after Afshar complied with an order to remove his shoes during the standard jail-intake search process, he was wrestled to the floor by a deputy, later identified as Spaid. Several minutes later, when he was lifted up off the floor by a group of deputies, a pool of blood was clearly visible on the floor.
Timothy Twomey, a 30-year veteran of the sheriff’s department who retired in 2004, is an expert witness in Afshar’s pending federal civil-rights lawsuit against Spaid, the sheriff’s department and the county. Twomey reviewed the video and other evidence from the incident and offered his conclusions in a sworn deposition filed with the court. “It is my opinion, based upon my education, training and experience, that Deputy Spaid applied excessive force by throwing [Afshar] to the floor and busting his head open, as is obvious from the amount of blood on the floor,” he said. Twomey also suggested that the videotape of the altercation had been deliberately altered for the purpose of exonerating the deputies involved.
About eight hours after he was booked into the jail, Afshar was released without any charges being filed against him, and he later filed an internal-affairs complaint against Spaid for police brutality. Afshar contends that his internal-affairs complaint against the deputy was ignored by the sheriff’s department and that the department never conducted an investigation of Spaid’s conduct. SN&R wanted to determine the status of the internal-affairs complaint and assess the work history and credibility of Spaid, and began by asking to inspect the deputy’s personnel file at the sheriff’s department. A peace-officer personnel file contains annual job-performance evaluations, commendations, disciplinary history and internal-affairs investigations, if any. Information in the file can indicate whether an employee has exhibited a pattern of problems, such as the use of excessive force, or generally follows departmental policies and procedures. Sheriff’s Department spokesman Sgt. R.L. Davis refused the request to permit inspection of Spaid’s personnel file and declined to comment on the status of Afshar’s internal-affairs complaint or any aspect of the pending litigation.
Under California law, the public and the media are prohibited from inspecting a peace officer’s personnel file without a court order or the permission of the police agency. The law is a significant obstacle to journalists trying to accurately determine and report on the facts in situations like the one between Afshar and Spaid. In other states, the public has much more power to scrutinize the behavior of its police officers.
Henry Curtis is a staff writer for the Orlando Sentinel. He says that the restrictive public-records laws in California allow police agencies to cover up or obscure police misconduct. In 2003, Curtis was investigating the 1998 death of a Florida college student. In the process, he reviewed the personnel file of a Winter Park, Fla., police detective who had worked on the case.
He learned that in 2002, the cop had resigned from his job after he was disciplined by his employer for violating the trust of a rape victim—in an unrelated case. According to police-department records obtained by Curtis, the detective repeatedly called the rape victim at home, asking her out for drinks and revealing a sexual fantasy he had about her.
Curtis also learned that the detective no longer was employed in Florida, having resigned in 2002 after being reprimanded for propositioning the rape victim. “The police department let him leave town very quietly,” Curtis explained.
The reporter was surprised to learn that the detective was still working as a cop for a city in Maine. Curtis called the detective’s new boss to ask if he knew his history. “[He] left here under a cloud, but his agency apparently gave him a glowing recommendation because the chief up there, who wouldn’t speak on the record, was surprised to hear that this cop appeared to have some strong sexual problems,” Curtis said. The cop was fired from his new job a short time later, according to Curtis. “He was hitting on a rape victim. Do you want someone like that investigating crimes in your neighborhood?” he said.
Curtis said the detective’s misconduct was “an example of the type of stuff that gets hidden within personnel records, if you’re not allowed to take a look at them,” he said. “And this is the sort of thing that California residents apparently don’t want to know about their public officials and the people who are protecting them.”
Susannah Nesmith concurs with Curtis’ assessment but added that cops are often the target of false complaints by disgruntled arrestees or other citizens with an ax to grind. Nesmith is a reporter for The Miami Herald, and she said that having access to personnel files often can provide important context to situations in which a peace officer is accused of misconduct. “I often use personnel files when writing about an officer who is in trouble to point out that that officer has been commended 15 times, has been on the force 15 years and has never had a complaint. Officers often do get accused of things—by defendants, people they’ve arrested or somebody on the street—that are just wrong and untrue,” she explained.
One of the rote objections to making personnel files a public record in California is that it would violate the privacy rights of peace officers. Nesmith emphasized that the Florida law protects the privacy of officers because home addresses, Social Security numbers and any health information in a personnel file is not public. Earlier in her 14-year reporting career, Nesmith worked at a paper in California, and she knows firsthand that the weak California public-records law acts to keep taxpayers in the dark. “The theory behind the [Florida] law is that taxpayers pay these people and have a right to know what they’re doing,” she said.
Tampa Tribune reporter Valerie Kalfrin said that access to personnel files can even improve the relationship between police and the media. Several years ago, Kalfrin did a story about a police officer who had been suspended for losing a traffic-accident report. The suspension was big news in Fort Pierce, a small city on the eastern coast of Florida. But after reviewing the officer’s annual job evaluations and other records in his personnel file, Kalfrin found no smoking gun. Instead, a profile of a mostly diligent, if imperfect, cop emerged.
“There was information in his evaluations that said he was kind of unkempt, like he was a little more rumpled than they’d like—his shoes weren’t perfectly shined and minor things like that,” she said. She said that the officer had very little disciplinary history and had probably lost the report through ordinary carelessness. And, as it turned out, he had put the report in the trunk of his car and then forgotten about it. The report was eventually found. “He was just kind of like a Lt. Columbo type of guy,” she said. When she wrote the story, she also included statements from people who thought the officer polite and courteous. “And the cops loved that. They thought that was more than fair to poor ‘Harry,’ who was getting kicked in the pants for something so insignificant really. They thought that the paper was actually quite fair to him for saying he actually has gotten praised for stuff, too,” she said.
Because of the immense power of California police unions and law-enforcement associations, which strongly oppose making personnel files a public record, a change in the law by the state Legislature is not expected. “In this state, politicians and the type of people who run for the Legislature are more afraid of police disapproval and criticism than they are in other states,” explained Terry Francke, general counsel for Californians Aware, an open-government advocacy group. “The police and sheriff’s organizations and the union’s ability to command what a legislator will and will not do or say is much more powerful here.”
When told that police personnel records were public in Florida, Sacramento County Deputy Sheriff’s Association President Steven Fisk seemingly confirmed Francke’s observation. “Shame on Florida,” he said. “[The police] need a better union in my book.”