Berkeley Police and the Unknown Whistle-Blower

Berkeley Police and the Unknown (Anonymous) Whistle-Blower:

The Berkeley police whistle-blower is anonymous, identity unknown.  Given the nature of the material leaked to the Daily Cal, the whistle-blower is either 1. a member of the Berkeley police review commission (PRC), 2. a former member of the Berkeley PRC, 3. a member of the Berkeley police department (BPD).  The leaker may be more than one person.

Early this month, it was revealed that the Daily Cal had gained access to files pertaining to an investigation into the death of Berkeley resident Kayla Moore, who died on February 13, 2013 while being placed in custody by Berkeley police officers.  The documentation received by the Daily Cal included a detailed outline of events and confidential personnel records of Berkeley police officers who involved in Moore's detainment.  In response to this revelation, a statement was issued to the Daily Cal by Berkeley city manager Christine Daniel: “The information you have been provided includes confidential personnel records protected by Penal Code Section 832.7. You have no authorization to possess the documents or the information.  Whomever provided you with the information is in violation of City policy and state law. The City will look into how this information was improperly released”.  Sarah Burns, the Daily Cal's editor-in-chief and president, noted that the city did not want the student paper to run a story using leaked records; Burns ran the story anyway - feeling that the city's response to the leak was "out of proportion".  The Daily Cal's story was written in collaboration with the Investigative Reporting Program at the UC Berkeley Graduate School of Journalism.

Berkeley city government officials and the Berkeley Police Association, the union organization for Berkeley police officers, wish to prosecute the unknown person(s) who distributed the material to the Daily Cal.  Neither city government nor the police have not stated if they intend to take legal action against the Daily Cal, which did run the story against the wishes of the police and city officials.  The Berkeley police is not cooperating with any review commission investigation until the source of the leak is identified and charged.  On May 28th (2014), the city manager agreed to the break in police cooperation for 45 days, with an expectation that the whistle-blower would be identified and charged by then. Representatives of the Berkeley police have made appearances at normal PRC meetings in which investigations do not take place.

At 11:54PM, February 12 (2013), a 911 call was placed due to Moore having a mental health breakdown.  As a result of cutbacks to mental health services in Berkeley, the police commonly respond to calls for mental health check ups despite having insufficient training.  When police arrived (Officers Smith, Tu and Brown), it was revealed by a friend of Moore's that she was under the influence of alcohol and drugs.  Police instinctively ran a warrant check, receiving a false positive for a warrant under Kayla Moore's name.  There was confusion between police offers, as the warrant was for a person in their 60s named Kayla Moore, while the resident in front of them was only aged 42.  Officer Smith believed the warrant was for another Kayla Moore, while Officer Brown believed the age in the system was entered incorrectly and the warrant was for the Kayla Moore whose residence they were at.  The police made an attempt to Kayla Moore, placing Moore in a prone-position, sometimes referred to as a "face-down take-down".  This maneuver is forbidden by the Berkeley police's Training and Information Bulletin 234: “Placing restrained persons in a face-down prone position for long periods of time should be avoided and never leave a restrained person in a face-down prone position without constantly monitoring her vital signs".  Additional backup arrived, after requested by the officers at the scene.  As Moore resisted arrest, knowing she did not have an open warrant, multiple officers piled on their detainee.  Moore stopped breathing at 12:41AM on February 13th (2013), after what the police said was a lengthy struggle.

Initially, the Berkeley police resisted an investigation into the actions of police officers that contributed to Moore's death, but later began an investigation which impeded an investigation by the PRC. The police made a demand to the coroner's office to slow the release of the autopsy report to the public and to the PRC.  Even though the autopsy of Moore took place the day after her death (February 14th), the cause of death was not revealed until April 15th (2013) and the coroner's report was not released until May 3rd (2013).  Lucinda Simpson, the city's police review commission officer, warned the PRC against investigating the death of Moore, citing that such an investigation would violate police confidentiality.  Williams, as the PRC officer, temporarily stalled the PRC from beginning its own investigation until after the police had concluded their own internal review.

The Berkeley police review commission can only make admonishments, and recommendations of action; it cannot discipline any member of the police department.  Disciplinary action can only come from within the police department.  The Berkeley police do not discipline officers when review commission recommendations are submitted after 120 days from when a complaint is filed.  The review commission was not permitted to begin its own investigation until after the police completed its own internal review.  It was not until May of 2013, approximately 90 days into the 120 day timeline, that the PRC was cleared to begin its own review of the police.  To meet the timeline for officer disciplinary action, the PRC had a month to conduct a review that took the police 3 months.  Internal conflict within the PRC, conflict often created by PRC commissioner George Perezvelez, pushed the PRC's inquiry hearing on the death of Moore to February 19th and 20th of 2014, a little over a year after Moore's death and far past the deadline for disciplinary action.  The investigation was being hindered by politics and police influence, with the police able to use PRC officer Simpson and PRC commissioner Perezvelez to slow the process down.

It does appear the police never intended to punish or reprimand officers in the death of Kayla Moore.  BPD manipulated the investigation process at the coroner and at the Berkeley police review commission, to slow the release of information to journalists and the greater public, including Moore's own family.  The PRC was unwilling to challenge the police, to push the process along quicker to meet the disciplinary timeline.  The PRC waited for permission from police to begin a review, rather than challenge the police's assertion that such permission was required.  Furthermore, people associated with the PRC actively created tensions and disagreements within the review commission, causing further delays as to move the hearing into February 2014, a year after the incident occurred.

The whistle-blower was part of, in some capacity, the process that failed, either as a member of the review commission, a former member of the commission, or as a member of the Berkeley police department.  (The commission did switch some members in the time it took for the investigation to be completed.)  The whistle-blower allowed the process of investigation to play out, but the process was corrupted to make it impossible for any officer to be held accountable for actions leading to the death of Kayla Moore.  Both the police's owned internal review process and the city review commission had treated the situation with disregard.  The leaker sought to bring accountability to the review process through the press.

The leak could have come from a member of the police department, someone who would have had access to the investigation.  In the United States - California is no exception - police officers who try to report and challenge misconduct to their chain of command are often retaliated against, and their careers suffer.  The identity of the leaker could have been someone from within the review commission, who was afraid of police retaliation for pressing dissatisfaction with the handling of the investigation, or was concerned that their complaints about the investigation would go ignored.  (It may have been possible, but it is unknown at this time if it is the case, that the whistle-blower reached out to county or state officials to invoke higher action; it is possible attempts were tried but failed.)

The United States does not have a Official Secrets Act (some countries do), that would preclude any release of sensitive documents in any and all circumstances, regardless of effect and reason for disclosure.  The United States Constitution has its First Amendment, which protects free speech and freedom of the press.  On the grounds of unconstitutionally violating the First Amendment, proposals for an Official Secrets Act have always been defeated.  In 2000, Clinton vetoed H.R. 4392, the Intelligence Authorization Act for Fiscal Year 2001, as it had a provision for an Official Secrets Act, making any disclosure a felony.  The Berkeley Police Association and the city manager believe that the leak to the Daily Cal violated California Penal Code Section 832.7, which prohibits disclosure of police personnel records.  Because there is no Official Secrets Act, California Penal Code Section 832.7 is not absolute, and the section must be read with the understanding that there First Amendment whistle-bowing exceptions that can be argued for.  Section 832.7 has never been challenged with a whistle-blower defense.  A whistle-blower defense is a defense of disclosure for public benefit/interest.  Just as the Espionage Act does not explicitly state exceptions for disclosure for reasons of public benefit/interest, neither does California Penal Code Section 832.7.  However, it never actually has been upheld that there are not exceptions in the Espionage Act for public benefit/interest, and the same can be said for Section 832.7.  A public interest defense is argued by many legal scholars to be protected by the First Amendment; many legal scholars argue that whistle-blowing is protected free speech.  It has never been stated by the Supreme Court that there is not a public interest defense, as they have not heard any case regarding the right to disclose classified information for the purposes of upholding public interest, even though there have been chances for them to do so.  Under the Obama Administration, more whistle-blowers have been prosecuted than by all other former presidents combined.  The laws on whistle-blowing and free speech have not been changed by legislation; all that has changed is increased power (overreach) of the administrative branch.  The Supreme Court has not heard any cases on whistle-blowing and the status of the public interest defense that grants authority to Obama's targeting of whistle-blowers.  The Obama administration lost a whistle-blowing case against Thomas Drake; charges related to the disclosure of classified information were dropped and he was only found guilty of a misdemeanor misuse of a government computer system.  The rights of whistle-blowers and the limits of government secrecy have been highly debated in recent years; some whistle-blowers avoided jail and others have not.  Whistle-blower protection, free speech and free press are weighty concepts, preventing tyranny by providing balance against authority.  When it comes to issues of unauthorized disclosure, and the rights of whistle-blowers, Berkeley city officials have followed Obama's lead.

The reaction of Berkeley city officials to the unknown police whistle-blower is the same as city council's response to Chelsea Manning.  In December of 2010, the city council tabled a proposal to declare Manning a hero; members of the council referred to Manning's actions as criminal.  Berkeley city government has remained silent on the Obama administration's persecution of leaker Edward Snowden, not having heard one agenda item on Snowden or the NSA in the year since Snowden's leaks were first revealed.  Despite city government's attitude towards whistle-blowers, there is support for whistle-blowing in Berkeley.  Berkeley is home to Daniel Ellsberg, leaker of the Pentagon Papers.  As a Berkeley resident, Ellsberg has held many speaking engagement over the years in support of whistle-blowing and disclosure of government corruption.  Speaking in Berkeley venues, Ellsberg has expressed support of military whistle-blower Chelsea Manning, NSA whistle-blower Edward Snowden, and other whistle-blowers and truth-tellers persecuted by the government.  Former Wikileaks volunteer, and Iceland parlimentary member (Pirate Party) Birgitta Jónsdóttir spoke to a full audience in Berkeley on June 11th of 2013, in support of both Manning and Snowden.  In February of 2012, a whistle-blower conference (called the Occupy the Truth) was held in Berkeley at the International House.  The event featured speakers including Daniel Ellsberg, whistle-blower Thomas Drake, attorney Jesselyn Radack, and former intelligence analyst Ray McGovern, as well as a teleconferenced presentation from journalist Alexa O'Brien who provided coverage of the Manning trial.  Despite the actions of city government officials, and the Berkeley police, there is broad support in Berkeley for whistle-blowers and for journalists who report on their disclosures.

The Berkeley Police Association and the Berkeley city manager have both claimed that the unauthorized disclosure of police files "challenged the integrity" (as phrased by the city manager) of the review process.  But it could be argued that the integrity of the review process needed to be challenged, as evidenced by the delays that hindered the investigation, disruptions caused by disagreements within the review process, and the lack of disciplinary action towards any officer involved in the death of a resident.  It can be argued that journalists and whistle-blowers should be seen as part of the review process, particularly when the process fails without oversight.

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Notes:

Berkeley Leaker:
http://www.dailycal.org/2014/05/29/police-officers-attend-review-board-meetings-leak-confidential-information/
http://www.dailycal.org/2014/05/07/leaked-documents-shed-new-light-kayla-moore-death/
http://www.contracostatimes.com/breaking-news/ci_25852352/berkeley-leak-shuts-down-confidential-police-hearings

Secrets Act:
https://www.fas.org/sgp/news/2000/11/wh110400.html
https://www.fas.org/sgp/news/2000/11/lat110500.html

California Penal Code Section 832.7
http://law.onecle.com/california/penal/832.7.html

Daniel Ellsberg:
http://www.msnbc.com/andrea-mitchell-reports/watch/will-justice-be-served-against-snowden-270522435577
http://live.huffingtonpost.com/r/archive/segment/5387831278c90a1b760000bd
http://live.huffingtonpost.com/r/highlight/daniel-ellsberg-defends-snowden-blasts-john-kerry/53878213fe34440a400000b8

Birgitta Jónsdóttir:
http://arstechnica.com/tech-policy/2013/06/icelandic-lawmaker-asylum-for-nsa-leaker-far-from-a-sure-thing/

Occupy the Truth:
http://www.dailycal.org/2012/02/17/occupy-the-truth-conference-to-occur-at-uc-berkeley/