Berkeley Copwatchers attempt to access public records

Public records are key for ongoing police accountability and should be easily accessible. The California Public Records Act (CPRA or PRA) is a law that grants anyone access to public records. While the law includes many exceptions, you have a right to view more records than you might realize. Public records can include police reports, body camera footage, email communications, and many other documents that help when investigating police activity. However, Copwatchers recently witnessed how police departments can complicate the process, and even fail to produce the requested records. Since we were unable to access public records that we requested about this incident from the Berkeley Police Department, Berkeley Copwatch decided to make their own record and make it accessible to the public in both print and online through Street Spirit.

Recently, Copwatch has experienced an increase in barriers to gathering evidence via PRA for our investigations into police misconduct. This report is Berkeley Copwatch’s public record of just one incident. It started on February 24th, at 10:50PM Three Copwatchers heard a call on the police scanner: A tow truck driver at Ellis and Ashby called 911 after being threatened at gunpoint. Copwatchers rushed to the scene to see how the BPD would answer a call for help after a potentially life threatening situation. The incident that unfolded led us to investigate for racial profiling, a process that has been hindered by Berkeley Police evading compliance with the CPRA. When Copwatchers arrived, three police cars and four officers were at the scene. The tow truck driver, who called for help, stood outside of his vehicle as two of the officers on scene spoke to him.

Copwatchers realized that the tow truck driver was a Spanish speaker and needed translation services. While the police tried to communicate with the truck driver without a translator, one of the officers began to walk the perimeter of the tow truck. With a flashlight, he checked under the truck bed, and then opened the truck’s driver door. The officer was searching the vehicle without the driver’s apparent consent. Copwatchers wanted to investigate further and made a plan to request access to the police report using our CRPA right to public records. One of the Copwatchers, who is a Spanish speaker, heard the truck driver attempt to explain why he called 911. He said he was trying to tow a vehicle, but the owner ran out of the house, threatened to kill him, got into their own car, and drove off.

As the tow truck driver tried to explain what happened, Copwatchers noticed that the officers kept questioning the driver’s employment status. They asked him if he had work, where he worked, his employer’s name, and if his employer spoke Spanish. Copwatchers thought this questioning sounded more like an investigation, as if the man who called them for help was now someone who had done something wrong. Berkeley Copwatch has seen this pattern before. Sometimes it is those who call for help that end up in danger at the hands of police, particularly for marginalized communities. As we found in our previous Textgate report, the reality is many people have called 911 for help only to have themselves or their loved ones criminalized, institutionalized, or killed by police.

For the incident Copwatchers had just observed, the police officers on scene may have performed an unconstitutional investigation of the driver. BPD policy requires a translator, but their Spanish-speaking officer arrived after consent for a search was required. Doing this, the BPD may have also violated the driver’s constitutional right against unlawful search and seizure, having no warrant and did not have a translator before the search to get legitimate consent to search from the driver.

One week following the incident, Copwatchers filed a public records request through the city portal asking for the police report and body camera footage. While police reports are not required for all incidents, some record must be made, such as an incident report or field card. A police report would have included all officers involved, allowing us to name them in a policy violation complaint. The report would have also told them if they acknowledged or would deny searching without consent. Body camera footage would allow for better audio of their interrogation and provide proof of search without consent.

Copwatchers were told that they needed to make a records request in person at the station during working hours. This is not true. According to CA law, a request is valid if made by email, by phone, or in person. They were also told in the same message that body camera footage would not be provided due to the fact that the incident was still under investigation. They were not told when the investigation would end and footage would become available.

Copwatchers tried on March 25th to make the request through email rather than the online portal, in order to have a personal record of communications. They sent an email to the Custodian of Records for BPD and received a response the next day detailing steps to pick up the police report in person at the station. Nothing was mentioned in the response email about the body camera footage.

However, two days later, Copwatchers received a phone call from the BPD saying they could not find the incident in their system, and that there was only one incident involving a tow truck driver on that date. They requested that police report, thinking that it would be the correct incident, since apparently there was only one that occurred.

Later, on April 19th, two Copwatchers went to the station, paid 20 cents, and picked up the police report. Once they read the report, they realized that this was not about the incident they had witnessed. In fact, the only similarity between them was that both incidents involved tow trucks, but they occurred at different times and locations.

Why is public knowledge being shielded as if we do not have a right to readily access it? Copwatchers originally sought records to investigate which officers were violating law and policy in the February 24th incident. However, in trying to investigate, they found the police department has raised its barriers to transparency higher than Copwatch have ever seen in three plus decades of organizing in Berkeley. When police departments become more clandestine with the official records and reports, all people should wonder what might be going on behind the scenes that is causing them to do so.