Item L-7 on the January 9, 2001, City Council Agenda was a proposed amendment to the Police Commission Ordinance that would add wording to RMC 3.54.080(a) and (c) to make it clear that "force" against a dog would not be included in the Police Commission's original jurisdiction. Currently, the Police Commission has appellate jurisdiction on any complaint but original jurisdiction only for complaints involving "use of excessive or unnecessary force or racially abusive treatment." 

From the beginning, the Police Commission has exercised original jurisdiction for any "use of excessive or unnecessary force or racially abusive treatment," including force against dogs. In fact, during 2000, the Police Commission heard three force against dog complaints and exonerated the officers involved in all three. Recently, however, an officer and/or the Richmond Police Officers Association (RPOA) threatened to sue the City if it allowed the Police Commission to proceed with original jurisdiction over a complaint of excessive force against a dog. The City Council, in closed session, apparently directed the city attorney (or others -- it's not entirely clear) to insure that the Police Commission jurisdiction over dog-related excessive force be terminated under the theory that the ordinance was being reinterpreted. The City Council apparently instructed the city attorney to draft an amendment to the Police Commission Ordinance that would make it clear that dogs were excluded from excessive force complaints over which the commission would have original jurisdiction. It was this draft amendment that appeared on the January 9 Agenda. 

I asked a number of police commissioners why they were concerned about the proposal. Here are the answers I received: 

* This is an effort to erode the powers that the police Commission has had from the beginning by chipping away at the parts of the ordinance that result in the most seemingly innocuous results.

* They believe the chief of police is not a supporter of civilian review of law enforcement and has tacitly encouraged the RPOA to challenge the commission's authority.

* Relegating the dog cases to appellate jurisdiction would not give complainants the same level of opportunity. They believe that the Police Department tries to limit appeals through not providing information about the appeal process and by making the initial complaint process intimidating. ( I have no personal knowledge of this, but it seems to represent the consensus of the commission). 

I asked Chief Samuels why the Police department wanted to change the policy. He replied that: 

* The number of dog encounters was increasing, and the type of dogs involved was increasingly vicious (pit bulls). He did not want the officers to feel constrained when they were threatened by a dog.

* In answer to another question, Chief Samuels said that there was no written RPD policy on using force specifically against dogs. He said that there is an internal investigation anytime a weapon is discharged. 

The police commissioners I talked to were clear that they do not want the ordinance amended to exclude dog cases from original jurisdiction. This can be accomplished by either by leaving the ordinance unchanged while making it clear that the City Council's intent is to interpret it as it always has been or to amend it to make it clear that dog cases are included in original jurisdiction. 

One other possibility that I broached with several commissioners would be to eliminate dog cases from original jurisdiction but strengthen the opportunity for appeal of all cases by adding a provision that: 

* Information on all initial filings, or even inquiries, for Police Department internal review be provided to the Police Commission so that the commission could contact complainants and advise them of their rights related to intimidation and appeal.

* The Police Department be required to furnish information to all complainants about their rights, including the right to appeal. 

As general background, it was noted that there are about 40 complaints directly to the Police Department annually, of which there are 4 to 5 appeals to the Police Commission. In addition, the Police Commission hears about 22 complaints annually, over which it has original jurisdiction. 

There seems to be a particular sensitivity over dog-related police force ever since a Federal Court jury awarded the Richmond owner of a dog $255,000 in 1998 after the dog was shot and killed by a Richmond police officer when the officer was passing through the owner's yard searching for a car thief. 

The Police Commission text that defines original jurisdiction is shown below. The entire Richmond Municipal code can be found at: http://bpc.iserver.net/codes/richmond/index.htm .  

3.54.080 Powers and duties. 

To effectuate its purpose, the Commission shall: 

(a) Review and evaluate the policies, practices and procedures contained in the Richmond Police Department Manual and develop programs and strategies to promote positive police-community relations and make appropriate recommendations to the Chief of Police. Within thirty (30) days after receiving such recommendations the Chief of Police shall submit a response to the Commission. If the Commission is dissatisfied with the Chief of Police's response, the Commission may submit its recommendations to the City Manager. Within thirty (30) days after receiving such recommendations the City Manager shall forward a response to the Commission. If the Commission is dissatisfied with the City Manager's response, the Commission may submit its recommendations directly to the City Council for appropriate action. 

The Chief of Police and the City Manager may extend for an additional thirty (30) days the time periods in which they are required to submit their responses to the Commission by giving the Commission written notice of such extension. 

(b) Receive, investigate and hear complaints against Richmond Police officers alleging the use of excessive or unnecessary force or racially abusive treatment and submit recommendations to the City Manager and Chief of Police in accordance with the following guidelines: 

(1) All complaints filed with the Commission must be in writing on forms supplied by the Commission and shall be signed by the complainant. 

(2) A copy of each complaint filed with the Commission shall immediately be forwarded to the Chief of Police. 

(3) No complaint shall be accepted, investigated, or heard if it is not filed with the Commission within forty-five days of the alleged misconduct by the Richmond Police Officer unless the complainant establishes to the Investigative Officer's satisfaction that the failure to file the complaint within the required time limit was due to mistake or excusable neglect. 

(4) The Investigative Officer shall investigate timely complaints as soon as possible. At the conclusion of the investigation, the Investigative Officer shall submit findings and recommendations, either orally or in writing, to the Commission. 

(5) Upon receipt of the Investigative Officer's report, the Commission may: 

(a) Direct the Investigative Officer to investigate the complaint further; 

(b) Forward the Commission's findings and recommendations concerning the complaint to the Chief of Police based upon the Investigative Officer's report; or 

(c) Conduct a hearing on the complaint. 

(6) Pursuant to California Penal Code Sections 832.5 and 832.7, the complaints filed with the Commission and the investigations and investigative reports of the Investigative Officer and the Police Commission shall be confidential and shall not be disclosed except by discovery pursuant to Sections 1043 and 1046 of the California Evidence Code. 

(7) All hearings concerning police officer misconduct shall be open to the general public. At least ten (10) days' advance written notice of the date of the hearing shall be given to the complainant and the police officer involved. 

(8) To the extent permissible by the Richmond City Charter or any other laws, the Commission shall have the authority to subpoena witnesses to testify at the hearing concerning the complaint. 

(9) The complainant, police officers and all other witnesses shall be questioned by the Commission only, without cross-examination by police officers, citizen witnesses, the complainant, or their respective counsel. 

(10) Within thirty (30) days after the conclusion of the hearing, the Commission shall submit written findings and recommendations to the Police Chief. 

(11) Within thirty (30) days after the submission of the Commission's findings and recommendations to the Police Chief, the Commission shall notify the complainant of the disposition (sustained, not sustained, exonerated, or unfounded) of the complaint. 

(12) The Commission shall not sustain any complaint unless the complainant establishes by clear and convincing evidence the allegations of the complaint. "Clear and convincing" evidence is more than a preponderance of the evidence, but less than the "beyond a reasonable doubt" standard. 

(13) If the Commission sustains a complaint, and if the Chief of Police agrees with the findings and recommendations of the Commission, the Chief of Police shall take appropriate action on the complaint consistent with the Commission's report and so inform the Commission. Within 30 days after receiving such findings and recom mendations, the Chief of Police shall submit a written response to the Commission. Within 30 days after receiving such findings and recommendations, the Chief of Police shall also notify the complainant of the disposition (sustained, not sustained, exonerated, or unfounded) of the complaint. 

(14) If the Commission sustains a complaint, and if the Chief of Police agrees with the Commission's findings and recommendations, the Chief of Police shall submit the Commission's determinations concerning the complaint and any other pertinent information to the City Manager within 30 days after receiving the Commission's findings and recommendations. 

(15) The City manager shall review the findings and recommendations of the Police Commission along with the other information submitted by the Chief of Police. After said review, the City Manager shall prepare written conclusions concerning the documentation presented. The City manager's written conclusions regarding the com plaint shall be transmitted to the Commission, the Chief of Police, and the involved police officer within 30 days after receiving the information from the Chief of Police. The City Manager shall also notify the Complainant of the disposition (sustained, not sustained, exonerated or unfounded) of the complaint within 30 days after receiving the information from the Chief of Police. 

(16) The Chief of Police and the City Manager may extend for an additional thirty (30) days the time periods in which they are required to submit their responses to the Commission (or their notification to the complainant) by giving the Commission written notice of such extension. 

(17) All recommendations concerning proposed discipline of police officers made by the Commission or the Investigative Officer shall be kept confidential until after the City's disciplinary administrative process has been concluded. 

(c) Review appeals from the disposition by the Richmond Police Department of complaints against Richmond Police Officers not involving allegations of the use of excessive or unnecessary force or racially abusive treatment and submit recommendations to the City Manager and Chief of Police in accordance with the following guidelines: 

(1) All appeals filed with the Commission shall be in writing signed by the appellant, shall state the specific grounds of the appeal, and must be filed with the Commission within ten (10) days of the date contained on the letter from the Chief of Police notifying the complainant of the disposition of the complaint. 

(2) A copy of each appeal filed with the Commission shall immediately be forwarded to the Chief of Police. 

(3) The Investigative Officer shall investigate timely appeals and transmit findings and recommendations, either orally or in writing, to the Commission. 

(4) Upon receipt of the Investigative Officer's report, the Commission may either direct the Investigative Officer to investigate further or forward its findings and recommendations to the Chief of Police based solely upon the Investigative Officer's report. 

(5) Pursuant to California Penal Code Sections 832.5 and 832.7, the appeals filed with the Commission and the investigations and investigative reports of the Investigative Officer and the Police Commission shall be confidential and shall not be disclosed except by discovery pursuant to Sections 1043 and 1046 of the California Evidence Code. 

(6) Within thirty (30) days after the submission of the commission's findings and recommendations to the Police chief, the Commission shall notify the complainant of the disposition (sustained, not sustained, exonerated, or unfounded) of the complaint. 

(7) The Commission shall not sustain any appeal unless the appellant establishes by clear and convincing evidence the allegations of the appeal. "Clear and convincing" evidence is more than a preponderance of the evidence, but less than the "beyond a reasonable doubt" standard. 

(8) If the Commission sustains an appeal, and if the Chief of Police agrees with the findings and recommendations by the Commission, the Chief of Police shall take appropriate action on the appeal consistent with the Commission's report and so inform the Commission. Within 30 days after receiving such findings and recommendations, the Chief of Police shall submit a written response to the Commission. Within 30 days after receiving such findings and recommendations, the Chief of Police shall also notify the complainant of the disposition (sustained, not sustained, exonerated, or unfounded) of the complaint and the appeal. 

(9) If the Commission sustains an appeal, and if the Chief of Police disagrees with the Commission's findings and recommendations, the Chief of Police shall forward the Commission's determinations and any other pertinent information to the City Manager within 30 days after receiving the Commission's findings and recommendations. 

(10) The City Manager shall review the findings and recommendations of the Police Commission along with the other information submitted by the Chief of Police. After said review, the City Manager shall prepare written conclusions concerning the documentation presented. The City Manager's conclusions concerning the appeal shall be transmitted to the Commission, the Chief of Police, the appellant and the involved police officer within 30 days after receiving the information from the Chief of Police. The City Manager shall also notify the Complainant of the disposition (sustained, not sustained, exonerated or unfounded) of the complaint and the appeal within 30 days after receiving the information from the Chief of Police. 

(11) The Chief of Police and the City Manager may extend for an additional thirty (30) days the time periods in which they are required to submit their responses to the Commission (or their notification to the complainant) by giving the Commission written notice of such extension. 

(12) All recommendations concerning proposed discipline of police officers made by the Commission or the Investigative Officer shall be kept confidential until after the City's disciplinary administrative process has been concluded. 

(d) Perform such other duties as requested by the City Council. 

(Amended by Ordinance No. 11-85 N.S., 11-92 N.S. and 25-93 N.S.)