By Mary Shelton

For the past four years, the role of subpoena power has been one of many issues faced by Riverside's only form of civilian oversight over the police department. In recent months, this issue has come under fire again, at the same time the Community Police Review Commission's future is being hotly debated. As a result, many people are left wondering how independent the commission is and whether or not it will still be standing by the end of the year.

During several recent workshops, commissioners and community members have again raised the issue of subpoena power, most specifically their concern about its usage or rather its lack of usage by the commission.

When the City Manager George Carvalho, and Assistant City Manager Penny Culbreth-Graft were asked to discuss this issue at their workshop, they demurred.

"That is a good conversation to have with the city attorney," Culbreth-Graft said.

Community members, however had plenty to say about this issue.

UCR Chicano Studies Program Director Alfredo Figueroa, who served on the Police Review Policy Committee in 1999, said at a Feb. 25 workshop, that the issue of subpoena power had been debated by members of his committee, which was assigned the task of evaluating various forms of police oversight.

"I would love to have subpoena power," Figueroa said, "It may happen. It may not."

Commission Chair Michael Gardner said that the commission had the power to compel an officer or other witness to appear before them and be questioned but it could not compel them to answer these questions.

Others were frustrated by the fact that subpoena power has never even been tested.

Pastor Jesse Wilson of the Kansas Avenue Seventh Day Adventist Church said that the commission would not know if it had subpoena power until it tried to use it.

"Be proactive," he said. "Put the ball in their court. Let the chips fall."

Commissioner James Ward said that he wanted the question of subpoena power to be answered by the city.

"We need to have that question answered, do we or don't we," Ward said, "A subpoena has to compel testimony or it is not a subpoena."

Figueroa acknowledged that they knew the subpoena issue would be a tough one at the start.

"We knew from the beginning we weren't going to have officers coming into testify," he said, "We thought, what are they afraid of?"

Former councilmember Maureen Kane said that the Riverside Police Officers Association did not want subpoena power to be granted.

"The RPOA is a special interest advocacy group," Kane said, emphasizing that it was a separate entity from the department. "They did not want further oversight by anyone."

The issue of granting subpoena power to police review boards and commissions has been one addressed in almost every jurisdiction that has invested in civilian review.

Battles have been waged for, and against its usage pitting cities and counties against powerful law enforcement unions. However, in state court, the right to exercise subpoena power has prevailed most of the time, most notably in San Diego County. However, for at least one other commission, a similar victory rang hollow because its commission has yet to receive complaints.

The city of Louisville first passed a resolution to implement its own review process in 2000. Four years later, that review board has yet to become a reality despite surviving a lawsuit filed against it by the Fraternal Order of Police. The state court of Appeals ultimately upheld the ordinance, but activists from the Kentucky Alliance Against Racist & Political Repression reported by email that they are still fighting to implement independent civilian review.

Samuel Walker, a criminal justice professor at the University of Nebraska, Omaha who has written numerous books on policing, civil rights and criminal justice said in an earlier interview that subpoena power was an important component of independent civilian review, and that ordinances creating forms of oversight should include language that compels officers to respond to questions after being subpoened.

The bylaws which govern the commission in Riverside recognize subpoena power to a limited degree.

The text states that to the extent permissible by law, the commission can subpoena and require the attendance of witnesses, the production of books, documents, papers, audio, video and other electronic media pertinent to the investigation upon the affirmative votes of six commissioners.

The text does not include a provision which states that officers have to answer questions they are asked, as a condition of employment. That, Walker and others have said, creates a problem for a commission's independence.

Currently, officers can refuse to respond to questions if subpoened, as much as they can during criminal investigations. Officers are required to answer questions only during administrative investigations conducted by their own departments but there, they are protected by the Lyberger admonition which states that nothing they say is admissible in any future criminal investigation.

To date, no subpoenas have been served by the commission on any officer nor have any hearings been conducted by the commission.

The issues of subpoena power and the independence of the police commission are becoming increasingly contentious ones as many community members wonder if the commission has a future or whether it will be disbanded by the city council, which includes four members who were financially backed by the RPOA.

The RPOA once used its legal muscle to force the commission to cancel case review for several months when it sent its new attorney Michael Lackie and RPOA Secretary Chrisian Dinco to a closed session meeting of the commission on Nov. 13, 2002. Lackie told the commissioners that they were in violation of state law since they were not allowed to view an officer's file without his consent, but was unable to cite case law on the illegality of the commission's actions, according to the minutes record.

At a later meeting, at least one former commissioner, Bill Floyd, said that he had felt intimidated by the lawyer’s presence at the meeting because he perceived that they had been threatened with a lawsuit. After consulting with Priamos, the commission was able to continue reviewing cases two months later.

The commission was scheduled to conduct workshops with Police Chief Russ Leach on March 17 and RPOA president Pat McCarthy on March 24. The commission is set to meet with City Attorney Gregory Priamos at a future undisclosed date.