2006: The Year in Davis Review

These last days we will have a countdown of the top 10 stories from Davis in 2006. We begin with No.7: Bob Dunning versus the ACLU.

On April 25, 2006, the Davis Enterprise obtained the audio tapes from the arrest of a 16-year-old minor. Two days later, reporter Lauren Keene ran a front page article on the tapes, complete with interviews of Deputy District Attorney Patricia Fong and Defense Attorney for the Buzayans, Whitney Leigh. In addition to the story, the Davis Enterprise took the amazing step of posting the tapes on their website for the entire community to listen to.

That Sunday Davis Enterprise Assistant Publisher/ Editor Debbie Davis wrote in a main editorial about the content of the tapes:

“LISTEN FOR YOURSELF. The audiotapes are available on The Davis Enterprise's Web site, www.davisenterprise.com. Click on the story "Audio of hit-run arrest revealing," and follow the links to the recordings. You'll hear a Davis police officer discharging his duty to this community in a decidedly professional manner. He's doing his job, and he's doing it well. In every contact with the hit-and-run victim, the witness and every member of the Buzayan family, he is polite, respectful and professional.”

However, Debbie Davis is not an attorney and has no legal training. Therefore, it seems actually inappropriate for her to be making legal judgments. She is certainly able to make general comments about what she heard, but by pronouncing him as doing his job and doing it well, without any legal training, she is making legal judgments that she lacks the training to be able to make. Her statements about his demeanor rather than the legality of his conduct confuse the point for the average reader.

The local Yolo County ACLU (attorneys Bill Kopper, Natalie Wormeli and Paul Gerowitz) was very concerned about the propriety of this case and also the coverage of this case. They were extremely critical of the conclusions reached by the Davis Enterprise Editorial Board and Chief Editor, Debbie Davis. They wrote an Op-ed that appeared in the Davis Enterprise on Sunday May 7, 2006.

“The Davis Enterprise's editorial last Sunday touting the propriety of Officer Pheng Ly's conduct in the Halema Buzayan case does a disservice to the citizens of Davis. The editorial demonstrates a profound ignorance of the facts of the case, and also the law. Officer Ly's conduct was not proper or lawful.”

The ACLU makes two key points:

• First, “Officer Ly pursued an action against the Buzayan family without carefully examining the damage to the two vehicles involved in the hit-and run.”
  
  
• Second, Officer Ly made an illegal arrest by arresting the minor for “a misdemeanor charge committed outside his presence without an arrest warrant.”

The bulk of the ensuing debate would focus on point two—whether an officer can make such an arrest of minor as a specific clause in California law.

Robert Day wrote a letter to the editor published in the Davis Enterprise citing this clause:

“California Welfare and Institutions Code 625(a) specially provides for the probable cause arrest of a minor without a warrant for both misdemeanors and felonies. This is a departure from the law as it applies to adults.”

Day fails to identify himself as a retired member of the Yolo County District Attorney’s office. Day and Tim Talbot who represents the DPOA (Davis Police Officer’s Association) begin feeding Davis Enterprise Columnist Bob Dunning information to combat the ACLU’s position on the second issue.

Bob Dunning on May 12, takes his first shot with an entire column devoted to the issue:

“Far be it for me, a nonlawyer sitting in the bleacher seats, to question the opinions of three of this county's finest legal minds, but California Welfare and Institutions Code Section 625 says 'A peace officer may, without a warrant, take into temporary custody a minor: (a) Who is under the age of 18 years when such officer has reasonable cause for believing that such minor is a person described in Section 601 or 602.'”

Bill Kopper then responds to Dunning, with an email to Debbie Davis that was printed at least in portions in Bob Dunning’s May 16 column (by the way notice the Dunning tactics here):

“On Saturday, Enterprise Editor and Assistant Publisher Debbie Davis, who has been my immediate supervisor at this newspaper for many years, received the following e-mail from Bill Kopper, a local attorney and former mayor who the previous Sunday had co-authored an op-ed piece in The Davis Enterprise contending that Officer Pheng Ly's conduct in the Halema Buzayan case "was not proper or lawful."

Said Kopper's e-mail to Davis: "Mr. Dunning's May 12th column lambasting Ms. Wormeli, Mr. Gerowitz and myself about our May 7th Op. Ed. is particularly offensive because [attorney and retired administrative law judge] Mel Trujillo had informed Mr. Dunning that he was incorrect on the law (and the precise reasons Mr. Dunning was incorrect) prior to Mr. Dunning writing the column."

Continued the e-mail: "Officer Ly was not permitted to take Halema down to the police station, question her, and arrest her without an arrest warrant under the auspices of Welfare and Institutions Code section 625."

Kopper then went on to argue why "statutory law and case law absolutely prohibits Officer Ly's conduct toward Halema without an arrest warrant."

Note this part: (Dunning continues)

“Kopper's charge, basically, is that I wrote a column knowingly using false information. He makes this contention based on the alleged timing and the alleged contents of a phone conversation he was not a party to. It's hearsay at best, and an outright falsehood at worst. Plus, you'd have to agree that the information I allegedly "received" was accurate, on point and overwhelmingly conclusive.”

Dunning then proceeds to argue points of law—(after admitting that he was a "nonlawyer) which obviously required some assistance since he’s not a practicing attorney. The assistance came from Mr. Day and Mr. Talbot.

This episode succeeded in creating a tremendous amount of uncertainty about the Buzayan case to the point where few in the community were certain about whether or not Officer Ly acted properly or improperly (mission accomplished!). One thing became very clear to this blogger—Bob Dunning was carrying the water for the Davis Police Department and the Yolo County District Attorney’s Office. There was no effective way to communicate with the public without the interference of Dunning. There was no effective way to win a debate against Dunning. That is a tremendous amount of (largely unchecked) power.

Dunning’s bottom line is this:

“In the California case ‘In re Samuel V.’ the court clearly states, ‘On this appeal we determine Welfare and Institutions Code section 625, subdivision (a) does not violate federal constitutional equal protection rights of a juvenile by allowing a peace officer to arrest juvenile misdemeanants solely on probable cause without a warrant or any requirement the offense be committed in the officer's presence.’

That case seems to answer most of the questions raised about the propriety of the arrest of Halema Buzayan: probable cause, no warrant and the arrest of a juvenile for a misdemeanor not committed in the officer's presence.”

Sorry Mr. Dunning, but that does not even address (let alone answer) most of the questions about the propriety of the arrest because you failed to address the central contention as directed in Section 625 and 626 of the California Welfare and Institutions code.

Bill Kopper writes the Editor of the Davis Enterprise published on May 26, 2006:

California law barred Officer Pheng Ly's arrest of Halema Buzayan without a warrant. The law in this area has been settled for more than 25 years.

Bob Dunning and others rely on Welfare and Institutions Code section 625, which allows an officer to take a minor into temporary custody without a warrant. If an officer takes a minor into custody under section 625 for a nonviolent misdemeanor, WIC sections 626 and 626.5 require the officer to immediately take the minor before a probation officer. An officer cannot take the minor to the police station for questioning before taking her to the probation officer. (In Re Michael E, 112 Cal.App.3d 74.)

.......

The best that can be said is that Dunning was careless. Mel Trujillo advised Dunning to review WIC sections 626 and 626.5 the day before his column was printed. Dunning did not ask the ACLU why we concluded Officer Ly's conduct was illegal before he published his column. Apparently, Dunning still does not understand the shortcomings of his legal analysis.

According to Buzayan Attorney Whitney Leigh, this still constitutes an illegal arrest precisely because Officer Pheng Ly failed to follow the provisions of the aforementioned code.

“Pursuant to California Welfare and Institutions Code Sections 625 and 626, Officer Ly was required to take Halema, a minor, to a probation officer prior to conducting any interview with Halema. But Ly deliberately disregarded this rule in a blatant effort to exploit a minor in confessing to a hit and run outside of the presence of her parents. Ly later attempted to justify his nighttime arrest of Halema in her pajamas based upon his need to ensure that the minor and her parents would not engage in a further conspiracy.”

This critical provision in the code was conveniently omitted by Dunning in his discussion and for good reason—it undermined his case. However, this give and take between Kopper and Dunning shows us clearly and distinctly, whose side Dunning was on in this case. He was far from the neutral bystander that he portrays himself as.

This was a crucial development in the Buzayan case and the City Council races in May of 2006. For that, this earns our No.7 story of the year.

---Doug Paul Davis reporting