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Monday, August 13, 2007

Commentary: The Bulk of the Buzayan Federal Lawsuit Moves Forward

In late June, it was reported that U.S. District Court Judge England dismissed a single cause of action in the Buzayan case using the SLAPP (Strategic Lawsuit Against Public Participation) statute. Now he has dismissed another cause of action, again under SLAPP, this time clearing the Davis Police Department of defamation allegation against the Buzayan family. These accusations stem from the police speaking out about the teen's arrest for a misdemeanor hit-and-run.

While the Judge dismissed this portion of the suit, the bulk and core of the lawsuit remains. Of the nearly 20 causes of action filed by Attorney's Matt Gonzalez and Whitney Leigh, only two have been dismissed, both of them relating to allegations of speech--one involving the newspaper and the other involving defamation by the police department in the course of defending themselves from the allegation in the public realm.

At the same time, Judge England has ruled that one of the key charges against the District Attorney's office remains very much in play.

Judge England writes:
"There is a strong public policy in keeping juvenile court records confidential, and it is up to the juvenile court to determine when disclosure of such records is allowed... Here, the defendants have not shown that they had a court order allowing them to disseminate any information relating to Ms. Buzayan's criminal case."
In fact, although the Judge does not say so explicitly, the Yolo County Superior Court Judge in the case, Thomas Warriner, explicitly told the district attorney's office that they could not release information or even make a statement about the case. They did so anyway. The family's attorneys took the District Attorney back to Judge Warriner's court, but the Judge at that point left it to a lawsuit to determine if rights had been violated by the District Attorney.

The statement by the Judge in this matter seems to indicate a strong probability that the Buzayan family may prevail on the core of their complaint. In addition to the causes of action against the District Attorney's office for violation of a minor's right to privacy, there are also those that aim at the core of the case--whether Davis Police Officer Pheng Ly's actions violated the civil rights of the then-minor, Halema Buzayan.

Attorney Whitney Leigh told the Davis Enterprise:
"It confirms our position that the defendants are liable for the negligent and, in our view, the intentional disclosure of private information that the state court had ordered them not to disclose... The greater majority of the (lawsuit's) claims the defendants have not and could not seek to dismiss, so we're gratified with this decision."
One of the key complaints against Officer Ly was an alleged violation of Miranda Law that was caught on tape.

This charge has been somewhat confused in the public realm to infer that Officer Ly did not read the minor her Miranda Rights. In fact as this transcript shows, he in fact clearly did read the minor her rights. What he did not do however was provide her with an attorney when she made an apparent request for one or even pause to clarify as to whether or not she asked for an attorney or if there was any question as to whether her statement, "ok, could you? Can you do that" was a request for attorney.

Another of the key complaints, are complaints against Davis Police Internal Affairs Sgt. Gina Anderson, who has since moved on to the Citrus Heights Police Department.

In the complaint filed by the Buzayan family and their attorneys, they allege:
"Defendant Anderson also knew that it was unlawful and against Davis Police Department policy to use an investigation of a Davis citizen's complaint as an opportunity to browbeat a minor by threatening her with her mother's incarceration."
This complaint stems from another allegation caught on tape, this one not released to the public that during the course of Sgt. Gina Anderson's investigation of complaints against Officers Hartz and Ly, that she in fact pressed the minor to admit that she was lying and in fact the one driving the car. And at one point, threatening to put her mother in jail if she did not come clean.
"But your mother has admitted to driving the car... So that would mean that if your citation was dismissed then your mother would be arrested... I just needed to let you know that if you are not the person who did it, she’s admitting to doing it, then your case will end up getting dismissed and we would end up arresting her."
In an interview with KGO Channel 7 News, former San Francisco Supervisor Matt Gonzalez, says that the actions of Sgt Anderson were improper.
"They were putting a lot of pressure on her, and I don't think that's an appropriate way to conduct an internal investigation about whether or not a police officer has conducted himself properly."
The job of an internal investigator during a citizen complaint is not to attempt to coerce a confession out of the defendant, it is to gather the facts involving the policies and actions of the police officers involved and determine whether the officers had acted properly.

As this ruling by Judge England indicates, the bulk of the Buzayan Case shall move forward.

The Davis Enterprise quotes new Davis Police Chief Landy Black as saying:
"While this ruling does not necessarily mean the end of the discussions and proceedings regarding the underlying incident, it clears the way to address what we feel are much more important issues and makes it possible for the healing to continue, and with fewer obstacles."
In fact, Chief Black can play a crucial role in the healing process regardless of how this case turns out. A strong effort is needed to reach out to various parts of the community that feel disenfranchised and to bring them back into the process.

The Buzayan case represents a key moment of understanding and reflection and strong leadership will be needed to avoid a repeat of some of the emotions and anger that erupted just over a year ago.

---Doug Paul Davis reporting