Notes Toward a Complainant’s Bill of Rights

What follows is a first draft of rough ideas concerning the problem of equity in the Police Accountability Board (PAB), recently passed as a charter amendment in Berkeley, and how to address some of its central inequities. These ideas emerged from recent discussions in the PAB, and are offered broadly to groups and individuals for initiating discussions and investigations into this problem.


1- An introduction into the parameters of equity with respect to the PAB.

One of the most egregious imbalances in the old Police Review Commission (PRC) was the exclusion of a complainant from the testimony and examination of the officer of the complaint. This was a condition imposed under the aegis of a state law called a “police bill of rights” (PBOR). The new PAB has taken a step toward rectifying this imbalance by repealing this requirement for the complainant. Both parties to a complaint hearing will (hopefully) be able to remain present. This was done in the interest of parity in procedure. But it falls short of equity. Parity refers to structure and procedure, whereas the real problem lies with equity, which has to do with rights. In an effort to counter-balance a police bill of rights, a “Complainant’s Bill of Rights” suggests itself.

The police are a social institution of force, and a militarized organization. Their power and existence reaches beyond them, producing a paradigm of hegemony and domination, and giving them a different social and political standing in the world from individual persons. Special laws have granted them special rights and privileges, impunities and confidentialities. These “rights” are acceptable only through social consent, without which they become oppressive. Only social consent can legitimize the “right” of an institution to use force. Neither force nor the imbalance of power it expresses can be legitimized by a parity in procedures. There can be neither parity nor “equal rights” between an individual and a militarized entity based on legitimized force. Nevertheless, individuals have only “rights” to counterpose to organizational force. Rectification of the power imbalance calls instead for “comparable rights.”

Comparable rights would refer, for instance, to legal “protections” that parallel those provided for the police by law. By examining the “rights” granted the police (in California state law, Government Code, sect. 3300 et seq), a certain sense of comparability suggests itself. I offer these suggestions for broad discussion among those concerned with the problems of police accountability.

2- On the issue of the symbols of power.

Since complaints against police misconduct will be addressing some form of use of force against a person (even falsifying or planting evidence is a deployment of force), it should be permissible for a complainant to withdraw consent to a display of force in the face of the complaint. Thus, an officer responding to a person’s complaint could be barred from appearing at any such hearing while armed and in uniform. This is not just a procedural matter, but rather a comparable right to the police power to command. It would reduce the officer to the level (at least in appearance) of an individual, and give greater permission to questioning their motives.

3- A sense of equalization implicit in PAB operation itself.

The very existence of a police accountability board provides an alternative mode of organization against that represented by each officer. It implies that a PAB should have a functional advocacy role comparable to the position of advocacy that the police can claim to have with respect to the law. For instance, in a high percentage of cases, misconduct emerges from police regimenting operations, viz. the imposition of commands as social control. If a person balks at a command, the police generally respond with force and “law enforcement” measures, treating disobedience as an instance of criminality. In such cases, it is not law enforcement that led to a use of force and arrest, but the militarized character of the command. While an officer will refer to the law in justifying the commands used, it should be permissible for the PAB to distinguish between objective law enforcement and misconduct arising from self-initiated police actions.

There may be some question as to whether drawing a distinction between crime scene law enforcement and the police engendering of criminality through command powers would amount to advocacy or not. But the issue would be instrumental in shifting PAB discussion of events from the alleged purity of factual description to the politics of police-civilian relations engendered by misconduct. It would provide a complainant with a comparable right to self-defense against an officer’s right to ascribe criminality to command refusal.

If the PAB could not shoulder that task of advocacy, the complainant would have to hire a lawyer, which would be discriminatory against low income people. For that reason, a level of complainant advocacy should legitimately attach to the operations of an accountability board.

4- The relation of personal data to PAB hearings.

The basis on which, in PRC hearings, the complainant was refused presence to an officer’s testimony was the PBOR insistence on the confidentiality of police personal data (address, family, assets, past history, etc.). A comparable right on the part of the complainant would be the ability to introduce in an evidentiary capacity whatever personal data or stories the complainant saw fit to recount (while reserving testimony on all else), including accounts of one’s social situation, job stresses, exposure to racial disparagement and institutional racism, environmental impoverishment factors, and the cultural reputation of the police themselves as extenuating circumstances.

In particular, because the police have a reputation for being disrespectful and forceful toward any individual who defends his sense of self-respect and dignity (by questioning or objecting to commands that appear arbitrary), a person’s sense of the police should be considered evidentiary for the complainant if so desired. The social fear that police brutality has instilled in people, and the degree to which misconduct in the form of assault responds to any exception to obedience, should have equal weight to questions concerning whether the officer correctly followed procedures or protocols or not.

That is, as a “comparable right” to the ability of the officer to fall back on law and procedure, the complainant should be able to fall back upon social knowledge and history concerning social bias, histories of police violence, and even a person’s resistance to the structures of impoverishment, as motivating their choice of response to the police. Just as law serves in an evidentiary capacity for the police, so a variety of social and psychological aspects of life in today’s society should serve a comparable level of the evidentiary.

5- The fear of police harassment and retaliation

A central fear people feel with respect to coming forward with complaints about police misconduct is the possibility of future harassment by the police department. Standard procedure for the PAB should be the option to enjoin the police as an organization from approaching a complainant in the absence of clear and evident criminality being committed as witnessed by at least two officers. The restraining order would require all officers to remain a certain distance from the person and their family, and approach only in the event of observing objective criminal activity. The details, time component, public character, etc. of such a restraining order would necessarily vary from case by case. But with respect to an officer’s power and impunity, such a “comparable right” would be a just protection mechanism.

6- The question of a person’s access to their personal file

In PBOR sec. 3305, an officer’s rights concerning the confidentiality of what is entered into his/her personal file is elaborated, and the ability to correct mistaken data or erroneous entries is provided. A “comparable right” for a complainant should be granted.

No report should be entered into the record of a complainant as a result of having made a complaint, whether with respect to the complaint, or any other aspect of the person’s interaction with the police that led to the complaint without that report being shown to the person, who would then be given the right to reject it, correct it, or not agree to sign it. (Actual criminal activity should not even appear on such a report, being the purview of a court and not of the PAB.) In effect, a complainant should have the right to contest any entry into his/her record as a result of the accountability process.

In addition, given that officers have the right to examine their own personnel files, that right should be extended to complainants as well. The complainant should have the right to demand correction of any mistaken information in that file, with the same degree of credibility as an officer would have with respect to his own file.

7- No complainant should be required to disclose information about any item of property, income, assets, debts, etc. unless obtained under proper state legal procedure.

8- All complainants should be protected against any frivolous or fraudulent or bad faith actions or charges by the police with respect to anything the complainant may say or imply in their testimony against the officer for misconduct. Should any officer make a maliciously false statement to the purpose of injuring the complainant, the officer should be liable for a civil penalty of $25,000. (9.7 e)

9- In conclusion: Equity implies mutual respect. Comparable rights would involve fostering mutual respect through a recognition of differential power, and thus a differential of rights. In this manner, disparity in social standing can be superseded, and power itself reduced to a dialogue on social issues and interests. It is the inability to transform power into social dialogue that results in power instead expressing itself as domination.

Steve Martinot is Instructor Emeritus at the Center for Interdisciplinary Programs at San Francisco State University. He is the author of The Rule of Racialization: Class, Identity, Governance, Forms in the Abyss: a Philosophical Bridge between Sartre and Derrida (both Temple) and The Machinery of Whiteness. He is also the editor of two previous books, and translator of Racism by Albert Memmi. He has written extensively on the structures of racism and white supremacy in the United States, as well as on corporate culture and economics, and leads seminars on these subjects in the Bay Area.