Part IV: Examination of the Police Advisory Committee

Part IV of the seven part series takes a lot at the Police Advisory Committee.

The names for the Police Advisory Committee were barely announced when Bob Dunning of the Davis Enterprise was singing its praises. On May 9, 2006 he writes:

[F]or those who might not recognize the names of Calvin Handy, David Sandino and Joseph Taylor, trust me, we're dealing with integrity at the highest level here … those three, named by new City Manager Bill Emlen to this city's newly created Police Advisory Committee, will serve our city well …

None of them would participate in this if they were simply coming aboard to rubber-stamp police actions … they will approach this task without preconceived notions or political agendas … they are ordinary — yet extraordinary — citizens who have been asked to step into a pot of boiling water and turn down the heat from the inside out … lucky for us, they all said yes …

In short, these three dedicated Davisites already have interesting, relevant lives and have no need to make a name for themselves by participating on this panel … only time will tell how this will all wash out, but at this early date it appears the first major decision of the Emlen Administration is a good one …

I start out by saying that I have no desire to disparage the individuals on the committee. I know many people who speak very highly of Retired Police Chief Calvin Handy. Few probably realize that Handy himself was on the hot seat as Chief of the UC Davis Police Department and the Davis Human Relations Commission came to his aid and helped save his job. David Sandino, an attorney with the CA State Water Resources Board, ran against Mariko Yamada for County Supervisor, certainly that was not a fair fight and he also served for a time on the planning commission. I do not know anything about Joseph Taylor other than the fact that he is a professor at McGeorge Law School.

However, as Bob Dunning himself said, the structure of the model is more important than the individuals and that is what this segment focuses on.

The description of the role of the PAC comes from the City Council Agenda from May 2, 2006:

In addition to the development of the police ombudsman function, staff had already proposed the creation of a three-person Police Advisory Committee (PAC) to work with the City Manager. The PAC will provide an added level of review on police complaints and on the police ombudsman function. The PAC will review citizen complaint investigations, paying special attention to investigations where the police ombudsman noted issues of concern, assess the workload and effectiveness of the police ombudsman and provide comments and recommendations to the City Manager. They will review citizen complaints so that they may look for trends and for the thoroughness of the investigations and will look at Police Department policy and training.”

As with the ombudsman there are several weaknesses with this group:

1. While the PAC reviews citizen complaint investigations, they do not themselves investigate complaints. So this is primarily an auditor function rather than a separate investigation function.
   
   
2. It is unclear how much authority they possess. They appear to have advisory capacity only. They also appear to rely on the City Manager and the Ombudsman to bring issues to their attention, which means they will only be as effective as those two bodies will allow them to be. While in some ways this seems a small point, it also means they are not truly another independent body of review.
   
   
3. The review process of the disposition of complaints is limited unless the PAC is given the actual authority to conduct investigations. In other words, if the PAC reads the report by the IAD on the investigation of the complaint, it may not be apparent where or whether there are shortcomings in the review process. Only a second investigation may reveal key questions that are not asked or consider witnesses not interviewed or other facts not discovered. It does not appear that the PAC would have the authority to conduct such secondary investigations. This is the same problem that the current system has—the City Manager currently possesses the ability to review the investigation of complaints. What none of these bodies have is the ability to conduct investigations on their own to determine that the investigation was thorough and complete. And, none of these bodies has the ability to be the primary investigator of complaints, which again leaves tremendous power in the hands of IAD. This leaves few true checks and balances in a system funded by taxpayers.
   
   
4. This body is to meet four times a year. (Although they suggested it could meet more often). Again, with the charge that this body should have, they would need to meet much more frequently to perform any kind of meaningful duties. To my knowledge they have met approximately two times to discuss the protocol and training needs so that they are all on the same page. They have not met in any sort of review capacity to this point in time.

My sense after reading the description of this position, that despite Dunning’s assertion that these people would not choose to serve on a committee that was a rubber-stamp, that the charge of the PAC is very weak. Some PAC members have at times privately expressed frustration about this body and its charge, since they know they can bring more to the table. In the ideal, a group like this could serve as a replacement for the IAD. That would give professionals—all three of these guys have law enforcement or legal experience—who are independent of the police department primary jurisdiction over internal investigations.

Short of that admittedly radical step, it would appear that one could give the group much more teeth including the power to audit and conduct investigations of complaints and the process by which complaints are themselves investigated. Moreover, they along with the Police Ombudsman could be the primary body to hear complaints and determine who investigates these complaints.

Once again this appears to be the case of the City Council and City Staff lacking the commitment to put into place actual positions and bodies that have teeth in their ability to investigate police operations. Some have interpreted this critique as a criticism of the police. On the contrary, if these measures are put into place, the police will be much more effective as they will have a much greater amount of trust within the Davis Community.

---Doug Paul Davis reporting

Part III: Assessing Weaknesses in the Davis Ombudsman Model

This is part three of the seven part series examining the Davis Police Ombudsman and Police Oversight system.

The following is from the Davis City Staff’s report to council on the function of the ombudsman:

• Development of a police ombudsman function is in addition, not in lieu of, existing processes – We must be clear that the police ombudsman provides a complementary level of oversight to police actions; the position does not replace them. The police ombudsman is not meant to circumvent the Police Department. The position does not normally do investigations in lieu of the police doing them. Rather, the position reviews, audits and provides response to investigations. In addition, the position would communicate with the Police Department concerning citizen complaints. The only time a police ombudsman might actually do a formal investigation is if the original investigation was deemed to be flawed and/or if it falls into a specific category (i.e. excessive use of force, etc.) where the police ombudsman believes that the nature of a complaint warrants an independent investigation. In these cases, the ombudsman shall receive direction by the City Manager.

• Whenever possible, the police ombudsman should be contacted only after exhausting other opportunities. The police ombudsman should not be a citizen’s first stop if they have a complaint about city services/employees. Every department has a complaint system in place and attempts should be made to resolve the issue through the existing system. If the complainant does not feel that the issue has been resolved or if the complainant believes that the process was somehow flawed, s/he should turn to the police ombudsman.

The basic weakness of the Davis Ombudsman Model is that all complaints go the Police Internal Affairs Department first. Only when that avenue is exhausted may the complainant seek the aid of the Ombudsman.

There are several reasons that this is a problem:

1. As yesterday’s report indicates, there is a fundamental problem with Internal Affairs departments investigating themselves. The IAD’s generally give the word of police officers the benefit of the doubt and the vast majority of complaints are not sustained.
   
   
2. The Ombudsman does not generally do formal investigations. “The only time a police ombudsman might actually do a formal investigation is if the original investigation was deemed to be flawed and/or if it falls into a specific category (i.e. excessive use of force, etc.) where the police ombudsman believes that the nature of a complaint warrants an independent investigation.” Thus in general, the Ombudsman acts as the city manager does now—simply reviewing the investigation done by the IAD. It is unclear under what conditions or under whose direction the Ombudsman could act as primary investigator, but given that this is a part-time position (more on that shortly), it seems unlikely this would be a frequent occurrence. And it does not seem to provide for the ability of the Ombudsman to do the primary investigation.
   
   
3. The IAD’s findings may bias future investigations. If the IAD already clears the officer that may tend to taint future investigative efforts. Whereas if the Ombudsman and the IAD performed their investigations simultaneously that bias may be averted.
   
   
4. There have been charges by members of the public that the IAD itself has harassed and intimidated witnesses and complainants. If that is true, then allowing the IAD to run the first investigation may contaminate future efforts.
   
   
5. Some citizens are reluctant to file complaints with the police because of fear of reprisals—and would be much more comfortable talking to an Ombudsman who is independent of the police department and their chain of command.
   
   
6. Time considerations. The ombudsman would get the complaints 60 to 90 days after an incident, thus dragging out the process, and potentially hindering additional investigations. The longer an investigation takes—the harder it is to find witnesses and the witnesses will likely remember less about the incident.
   
   
7. Moreover, this is advertised as a part time position. There were 34 citizen complaints in the year of 2005 and likely at least as many this year, it does not seem likely that a part time Ombudsman will be able to adequately review this many complaints.
   
   
8. Along the same lines, there is a question of the quality of individual that a part-time position will attract. Some on the council have suggested that the lack of budget led to the decision for a part-time Ombudsman. That lack of budget will rule out some higher quality options. On the other hand, there has been the suggestion that this decision was intentional, because the police department wanted the Ombudsman to play a lesser role in overseeing the operations of the police. In either case, it seems very unfortunate that the decision was made to potentially weaken this position.

It should be noted that this was not even the original suggestion by the City Council. In their discussion on February 21, 2006, the Davis City Council and Police Chief both suggested that citizens could take their complaints directly to the ombudsman, however, the May 2, 2006 ordinance that was passed only provides for that possibility under very limited conditions.

The goal of a transparent and independent investigation would be better served by allowing citizens to file their complaints directly with the ombudsman and allowing that office to have original jurisdiction of all police complaints. A future report will more thoroughly discuss alternatives; however, briefly there are two alternative approaches that keep this basic structure in place. In one alternative, the IAD still performs the primary role of investigating complaints, but the Ombudsman monitors the investigation throughout the process. This ensures fairness and thoroughness. The other alternative suggests that the Ombudsman have the primary responsibility for deciding who can investigate the complaint. The complainant can request that the Ombudsman conduct that investigation or the Ombudsman can assign the investigation to the IAD or even another law enforcement agency.

A more radical suggestion comes from John Burris, an Oakland Civil Rights Attorney who specializes in police misconduct cases. He recommends in his book Blue vs. Black (1999) that police departments “replace Internal Affairs with an independent review board.” Part II of this series demonstrated some of the flaws of IADs not just in Davis, but nationwide. The structure of this independent review board could be similar to that of the current Police Advisory Board where three individuals with legal and law enforcement experience may be used to review the complaint process. Burris’ suggestion would give them primary authority to investigate all complaints against the police department.

Yesterday, I was told that Bill Emlen, the City Manager, has had difficulty finding an individual to be the Ombudsman. It seems that no one wants to take that position. There are likely a variety of reasons for this difficulty, but it all seems to come back to the fact that this is a part-time position, with part-time pay. If the Davis City Council is serious about oversight, I would suggest strongly that they make the position full-time. At least then we would have someone in that position, even if the position itself is far weaker than it needs to be.

Part IV in this series will discuss the support organizations, most importantly the Police Advisory Committee (PAC).

---Doug Paul Davis Reporting

Part II: The Ombudsman and Problems with Police Internal Affairs

This is part of two of a seven part series examing the Davis Police Ombudsman Position. Yesterday, I reviewed the Davis City Council’s attitude toward police oversight in general and speculated that they implemented the system reluctantly and that as we examine the system itself, we will see that reflected in the weakness of the model overall.

In order to understand the Davis Police Ombudsman model, we must examine the Police Internal Affairs Department (PIAD). The Internal Affairs department is important because under the Davis model, the PIAD continues to perform the primary investigation. The following is directly from the City Council May 2, 2006 Agenda item (emphasis in the original):

Development of a police ombudsman function is in addition, not in lieu of, existing processes – We must be clear that the police ombudsman provides a complementary level of oversight to police actions; the position does not replace them. The police ombudsman is not meant to circumvent the Police Department. The position does not normally do investigations in lieu of the police doing them.

To this point, we have assumed we need a new process for review of police complaints. The question is, does Davis have a problem with regards to police complaints and is the current process suitable for addressing these problems.

At the February 21, 2006 City Council Meeting, then Police Chief Jim Hyde, described what he called a fairly low number of police complaints and an extremely low number of sustained complaints.

· 2003 -- 23 citizen complaints filed; 2 sustained

· 2004 -- 17 citizen complaints filed; 0 sustained

· 2005 -- 34 citizen complaints filed; 3 sustained

These numbers were purported by the chief to reflect a very low level of need for police oversight (basically low complaints—lack of sustained complaints). The utter lack of sustained complaints has been cited again and again by the police and the council as evidence that this problem is being blown up beyond all proportions. On May 2, 2006, Don Saylor said, “Every specific case that has been raised has been shown to be without merit.”

A 2002 report by the U.S. Department of Justice warns against such a conclusion.

[T]he meaning of a complaint rate is not entirely clear: a low force complaint rate could mean that police are performing well or that the complaint process is inaccessible; likewise, a high force complaint rate could mean that officers use force often or that the complaint process is more accessible.

The problem with the data presentation by the chief is that it lacked any sort of means to evaluate the wrong numbers. Are these numbers low as the chief suggested? Or are they actually high. Saylor on February 21 actually asked the chief the right question, asking him how this compares to other communities. Hyde dodged this question by stating that communities vary and therefore are difficult to compare. And Saylor never pushed him on the issue.

If he had, we might have gotten a very different story. A good example appears in John Burris’ book, “Blue versus Black.”

Los Angeles in 1995 was the poster-child for police corruption that eventually led to the FBI and the Department of Justice mandating changes. In 1995, there were 561 citizen complaints against the LAPD. Of these, ZERO were sustained. Zero. Now you can argue, well that is because the citizens are making faulty complaints that have no merit. Yet if we look at another figure, Los Angeles ended up paying out $34 million in settlements to lawsuits filed against the Police Department during that year.

Los Angeles can represent a baseline for a measure of police corruption. Los Angeles in 1995 had roughly 3.5 million people or 55 times the population of Davis. If we prorate LA to a city the size of Davis, we might expect 10.098 complaints in Davis in a given year, and zero sustained. What we see over the last three year period is 74 complaints or nearly 25 per year, 2.5 times the expected rate of complaints. Instead of zero sustained complaints, there were actually five.

The lesson here is that for a city the size of Davis, what looks like a small number of complaints, is actually a much higher rate than for 1995 Los Angeles with a thoroughly corrupt police department.

The next question is why there are so few sustained complaints by Internal Affairs Departments. And the problem is universal, in 2002, there were around 26,000 complaints nationwide. About a third of all complaints in 2002 were not sustained (34%). Twenty-five percent were unfounded, 23% resulted in officers being exonerated, and 8% were sustained.

Burris’ experience as a litigator against police misconduct leads him to the following conclusion about Internal Affairs investigations: They “offer little opportunity for the complainant to be heard. Invariably, when it’s his or her word against a police officer’s, the complaint is judged “unfounded”—even when the officer in question has a history of misconduct or abuse complaints. And, even when Internal Affairs “sustains” a complaint, the sanctions often fall painfully short of being reasonable—or punitive (84).”

This is not to suggest that every complaint against a police officer has merit or is accurate. “People lie to get off the hook; they lie to get back at an officer who may have arrested them, or a friend, or a family member; they overreact; they resist a legitimate arrest and cause the actions that take place. But it’s ludicrous to believe that 84 percent of citizen complaints are unwarranted—as Philadelphia’s records suggests. (85, emphasis added).”

Burris also cites a Dateline NBC story from 1999 where they sent an undercover reporter into several precincts in New York City. In all but one case, the African-American reporter was treated with hostility and sarcasm. He was asked repeatedly what he did and whether he was on probation, etc.

These occurred in New York, but the experiences that citizens in Davis have had is not much different. In the recent Buzayan case, the Internal Affairs Officer, Sgt. Gina Anderson is accused of using an interview with the minor to attempt to coerce and intimidate her into confession.

In the current process, a citizen files a complaint; Sgt. Anderson investigates that complaint and issues a finding. The individual can then appeal the complaint to the City Manager, who does not conduct a new investigation, rather he simply reviews the existing investigation and issues a ruling based on that. As we will see tomorrow, the new system put in place by the Davis City Council, does not change this process nearly as much as they purport to.

---Doug Paul Davis Reporting

Assessing the Davis Ombudsman Position: Part 1

On the night that Davis City Council put the Human Relations Commission on “hiatus” one comment caught my attention. Outgoing Councilman Ted Puntillo said:

“They told us their concerns of no oversight, no this, no that. We tried to compromise and we came up with a blue ribbon panel and I think if you know who’s on that blue ribbon panel, you respect everyone of those people. We also came up with a professional ombudsman who does this for a living. But, you know what, that was just rejected out of hand, wouldn’t even consider that… At least give it a chance, how can you reject something that you don’t even know how it works. So that tells me right there that this commission is not even trying to work with us.”

The charge that the ombudsman was not given a chance is an effective one. But an analysis of the implemented Ombudsman model reveals several potentially damaging weakness in the proposal.

In what follows over the next six or seven days, I will breakdown the ombudsman proposal as follows:

• Questions about the intent of the implementers, the City Council, City Manager, and Police Chief
• Apparent weaknesses in the implemented ombudsman position
• Concerns about the support committees the Community Advisory Board (CAB) and the Police Advisory Board (PAC)
• Alternatives and suggestions for improvement

In my decision to do this series, it was most difficult to find the proper place to start this examination of the ombudsman proposal. The background of it is rather straight forward. Last summer, the Davis Human Relations Commission heard a series of complaints about police conduct on a number of occasions. The chair formed a subcommittee who drafted a report and made recommendations to the City Council. The HRC recommended for civilian review of the Davis Police Department. This proposal was opposed immediately by Police Chief Jim Hyde, the Davis Police Officers’ Association, the City Manager, and eventually by the City Council.

On January 17, 2006, City Manager Jim Antonen presented his alternative which included a recommendation for the Ombudsman. On February 21, 2006, the HRC presented their Civilian Review Board proposal, this was rejected by Council who then implemented steps for the development of an Ombudsman position. This was completed on May 2, 2006 with the passage of the current model. To date, it should be noted, the city has not hired an ombudsman. It should also be noted that the position is advertised as being part-time. (Here’s a description of the position on the application: http://nacole.org/DavisCA_PoliceOmbudsman.pdf )

Those who argue that the HRC has been ineffective miss a key point, and that is that the City Council would never have created an Ombudsman position. The City Council not only implemented this program, they did so reluctantly, and as I will argue in the next few days, they implemented one of the weakest possible models of oversight.

The fundamental problem and the focus of this entry is that the Davis City Council never acknowledged a problem with the police department. In fact, they’ve made measured and strong statements to the opposite.

The first step toward solving a problem is admit that there is a problem. This has never occurred with the Davis City Council.

• When the city council passed their ombudsman on May 2, 2006, Don Saylor said, “Every specific case that has been raised has been shown to be without merit.” Never mind that the city’s insurance company is now prepared to pay out in excess of $1 million in an effort to settle these cases that are supposedly without merit.
• Mayor Ruth Asmundson at the May 2, 2006 City Council Meeting apologized to Officer Pheng Ly on behalf of the city of Davis. This despite the pending litigation against Officer Ly and the City Davis based on his actions (please see: http://iteamblog.abc7news.com/2006/06/davis_hit_run_d.html). On June 20, 2006 Asmundson was asked by members of the public to apologize to Halema Buzayan, Asumndson’s response was that she felt Halema “had learned her lesson.”
• Ted Puntillo in an April 23, 2006 Letter to the Editor, published in the Davis Enterprise wrote, “Please do not confuse the dismissal of the case against Halema Buzayan as an indictment of the police action. The judge made no mention of police misconduct. Many cases are dismissed every day in the interest of justice and expediency. I have not changed my mind on the conduct of Officer Pheng Ly, who is an outstanding police officer”
• Don Saylor at the April 18, 2006 City Council Meeting said, “Another disturbing aspect of the irresponsible treatment of this case by some in the media is that the facts of the interactions between the Davis Police Department and between the juvenile and her family have been misrepresented to the point of comic book caricature. This has done harm to the juvenile, to the police officer, to our sense of community, and potentially to our safety in the community. The police officer who carried out his duties professionally has had his reputation attacked unjustly.”

Not only did the council fail to acknowledge the problem, but in communications with the public, Puntillo repeatedly described his support for even an ombudsman as “forced.” “I think we will be forced to hire a police ombudsman.” “I think the chief would be okay with that.” Thus, they did not see a problem and these steps were taken only reluctantly in an attempt to alleviate public pressure.

There is a clear pattern by the majority on the Davis City Council to deny that a problem exists in the area of policing and oversight of the police. Bob Dunning in his May 9, 2006 column attacked the former chair of the HRC saying, “this "model" is not about the current council, which is as replaceable as a burned-out light bulb.” He is correct, that this model is not merely about the current council. It’s not merely about those who implemented it. But it is important to understand the motivations of those who implemented it because that forms the basis of the model itself. The next four days we shall examine the weaknesses of the actual model and we will then see the problems that it faces in trying to oversee the operations of the police department and as importantly serve the needs of diverse members of the public.

---Doug Paul Davis reporting

Driving with Money

We've all heard of the crime of "driving while black," there are a number of derivations of it. But now according to the 8th circuit court, driving with money can get your money taken away.

Eighth Circuit Appeals Court ruling says police may seize cash from motorists even in the absence of any evidence that a crime has been committed.

A federal appeals court ruled last week that if a motorist is carrying large sums of money, it is automatically subject to confiscation. In the case entitled, "United States of America v. $124,700 in U.S. Currency," the U.S. Court of Appeals for the Eighth Circuit took that amount of cash away from Emiliano Gomez Gonzolez, a man with a "lack of significant criminal history" neither accused nor convicted of any crime.

One of the judges dissented:

Judge Donald Lay found the majority's reasoning faulty and issued a strong dissent.

"Notwithstanding the fact that claimants seemingly suspicious activities were reasoned away with plausible, and thus presumptively trustworthy, explanations which the government failed to contradict or rebut, I note that no drugs, drug paraphernalia, or drug records were recovered in connection with the seized money," Judge Lay wrote. "There is no evidence claimants were ever convicted of any drug-related crime, nor is there any indication the manner in which the currency was bundled was indicative of
drug use or distribution."

"Finally, the mere fact that the canine alerted officers to the presence of drug residue in a rental car, no doubt driven by dozens, perhaps scores, of patrons during the course of a given year, coupled with the fact that the alert came from the same location where the currency was discovered, does little to connect the money to a controlled substance offense," Judge Lay Concluded.

This is a frightening extension of forfeiture laws. Basically, any item obtained from funds derived illegally is subject to forfeiture, whereby the police can come and take the property. Unlike a criminal proceeding, where the state has the burden of proof and must prove beyond a reasonable doubt that you committed a crime, in forfeiture, the individual has the burden of proof and has to prove with a preponderance of the evidence that one has come to the money or property through legal means. Essentially, with no proof of any crime being committed, you can lose your property through forfeiture.

In this case, a guy was driving his car, was pulled over ostensibly for speeding. It's interesting to note that the Nebraska state police didn't even charge Gonzalez with a speeding violation, even though that was their probable cause for stopping him. They found him with money, the dogs seemed to indicate that the money had drug residue, they confiscated the money. Now they lacked evidence to charge the man with a crime, but nevertheless could seize his money.

While the appeals court may be correct in concluding this was drug money, I'm concerned by the propensity of our law enforcement structure to impose civil financial penalties in situations where the burden of proof is not sufficient to support criminal convictions. That gives too much incentive for police officers to fabricate evidence. I am not suggesting they did in this case, but the reason for the presumption of innocence, burden of proof, and other protections under the law are designed to protect the individual from such situations. As courts extend the rights of law enforcement to act outside of the criminal system, they give them a great deal of power and a great deal of discretion.

---Doug Paul Davis reporting

A couple of notes:

I've now returned from vacation and there is a busy agenda ahead on the People's Vanguard of Davis. Beginning tomorrow we will have a multi-part series that examines the issue of police oversight in Davis and examines the remedy that the Davis City Council chose to implement. In addition, as a way of a teaser, we are in the process of negotiating the release of previously unreleased taped recordings that shed an entirely different light on the handling of the Halema Buzayan case. The DA's office chose to release selective recordings that they claim show the actions of Officer Ly in better light, but those are not the end of the story.