Editorial: Privacy rules around police investigation put San Rafael in tough spot
San Rafael City Hall’s announcement that the findings of a special investigator’s review of police officers’ handling of their bloody arrest of a man in July does not come as a surprise.
City Attorney Rob Epstein’s announcement that the text and details of the investigator’s report are exempt from public disclosure laws and will be kept confidential due to a state law protecting employee privacy rights was expected.
According to the state-mandated rights, it is up to those two officers involved whether to waive their rights.
What’s missing from that state law is that the man who was arrested – and injured – doesn’t have state-mandated rights to read the report.
Prosecution of the arrest was dropped by District Attorney Lori Frugoli, herself a former San Rafael police officer. She said her office was reviewing the officers’ actions. Her office, not unexpectedly, has been tight-lipped about its progress and any decisions, as well.
That predictable dynamic is frustrating for members of the public who have been demanding greater transparency in the city’s lengthy investigation into the incident that was captured on video and put online.
City officials, recognizing the growing national attention on police conduct and race relations, have promised that there will be as much transparency as possible.
The operative words, clearly, are “as possible.”
City Hall has already been the target of demonstrations over the length of time it has taken to complete the investigation. For critics, the results are clear from the body-cam video taken of the arrest. For them, City Hall is dragging out the review, hoping time will quiet their demands for action and transparency.
The limited transparency of the details of the city’s review will likely spur more protests and make the healing of public trust and confidence more difficult.
Epstein said the city will ask the police officers involved in the incident and whose actions were reviewed in the investigation if they will waive their privacy rights so the report can be released.
A similar scenario often plays out in other public arenas, where trusted top officials are ousted, either fired or forced to resign, and the public is left in the dark regarding reasons for the change. Officials involved in those decisions make it clear that their agencies and themselves could be sued for disclosing details and violating the rights of their former employee.
The public’s right to know is sadly compromised.
In San Rafael’s case, the report is on the desk of police Chief David Spiller, who will determine whether disciplinary action is appropriate. That decision will also remain confidential, according to employee privacy rights, Epstein told the IJ.
Spiller has called the investigation “thorough, detailed, comprehensive and complete,” but told the IJ he has not yet decided if disciplinary action is warranted.
If he does, the officers are entitled to appeal his decision in closed-door deliberations, in compliance with state law that protects police officers’ privacy rights above transparency.
The city already faces the threat of legal action. Julio Jimenez Lopez, the man who was injured in the July 27 arrest, alleges that he is the victim of assault, battery, negligence, false arrest, false imprisonment, intentional emotional distress, unreasonable search and seizure and, if that’s not enough, excessive force by police.
Jimenez Lopez’s attorney, Theo Emison, is calling the city’s actions a whitewashing.
Don’t be surprised if the attorney seeks a copy of the report as he builds his client’s case. At that point, it may be up to a judge, not City Hall bureaucrats and politicians.
The report’s findings may not justify disciplinary action, but keeping it under wraps will fan the fire of critics’ distrust of the bureaucracy and the investigation.
For some critics, their minds are already made up. They promise they are not going to go away.