From: San Jose Mercury News
By Kristin J. Bender, Oakland Tribune 8/5/14
OAKLAND — The Berkeley police union filed a lawsuit Monday against the city for allegedly failing to conduct an investigation after confidential information about an in-custody death last year was leaked to the UC Berkeley student newspaper.
In May, the Daily Californian newspaper published an extensive news story detailing confidential information about the Berkeley Police Review Commission’s investigation and findings related to the death of Xavier “Kayla” Moore, 41, in February 2013.
Moore died of toxic levels of methamphetamine and codeine, heart disease and morbid obesity on the night of Feb. 12, 2013, after a struggle with police, according to an Alameda County Coroner’s report. The lawsuit claims the detailed information was leaked to a Daily Cal reporter, even though police review commissioners had agreed to keep all information provided to them confidential.
“The purpose of Berkeley’s PRC is to provide impartial, fair and confidential investigation of complaints — which cannot take place when its representatives break the law by leaking strictly confidential information to the press,” said police union President Sgt. Chris Stines.
The newspaper’s story said the city’s nine-member civilian, independent PRC found that one officer acted improperly by not monitoring Moore’s vital signs during the incident.
In her testimony during the internal investigation, Berkeley police Officer Gwendolyn Brown said Moore never mentioned being hurt or having trouble breathing, according to the Daily Cal story.
Stines said the union asked the city to conduct a formal investigation of the leak, but the city refused and instead asked each police review commissioner to sign an affidavit stating that he or she did not provide the Daily Cal with any confidential information.
“Berkeley police officers were promised a confidential process and that promise was broken by the city of Berkeley and its Police Review Commission,” said union attorney Tim Talbot, of Rains Lucia Stern. “The city did not even investigate the PRC, all of whom deny leaking the information and still remain on the Police Review Commission.”
City of Berkeley spokesman Matthai Chakko and Berkeley Police spokeswoman Jennifer Coats said the city and the department would not comment on pending litigation.
The union was seeking to stop officers from being required to testify at future commission hearings until the source of the leak is determined and the responsible parties are removed from the panel or denied all access to confidential information, Stines said.
Alameda County Superior Court Judge Evelio M. Grillo ruled against the union Tuesday, saying unless there is evidence of who leaked the information he wasn’t going to stop officers from appearing at upcoming board of inquiry hearings.
The saga with Moore started shortly before midnight Feb. 12, 2013, when police received a 911 call about a disturbance on the fifth floor of an apartment building on Allston Way.
Moore had been diagnosed with schizophrenia and was a heavy smoker who used crack cocaine and methamphetamine, said his stepmother, Elysse Paige-Moore. She said Xavier was known to many people in Berkeley as Kayla and identified as a woman.
Friends were going to take an agitated Moore to Alta Bates hospital in Berkeley for a psychiatric evaluation, but stopped when they learned of an outstanding warrant for assault from San Francisco that could have resulted in jail time for Moore. Police said that Moore became combative with officers while lying face down on a mattress on the floor. Officers eventually used two sets of handcuffs and an ankle strap to restrain Moore’s hands and feet, and Moore stopped resisting and was moved onto her side.
At that time she was breathing and had a pulse, but about one minute later, Moore became unresponsive, stopped breathing and officers could not find a pulse, according to the coroner’s report. Officers removed the handcuffs and moved her onto her back and began CPR, the report says.
Moore was taken to a hospital and pronounced dead a short time later.
