Judge Orders Defendants to Cease Delay Tactics in Buzayan Case

It was summer of 2005 when then 16 year-old Halema Buzayan was arrested by Davis Police Officer Pheng Ly. Much has happened since that time both within the city and the police department. But one thing that has not happened is that the Federal Lawsuit filed by Ms. Buzayan's family has not gone to trial. That may finally change shortly as a Federal Judge last week ordered the defense to quit stalling and allow the case to move forward.

Halema Buzayan and her family allege 16 causes of action against the Davis Police Department, individual police officers, the Yolo County District Attorney and several individual's from the DA's Office, and the City of Davis. Specifically the list of defendants include: City of Davis, former Davis Police Chief James Hyde, Assistant Police Chief Steven Pierce, Officer Pheng Ly and Ben Hartz, Former DA David Henderson, Deputy DA Patricia Fong, and Counsel for Yolo County and the City of Davis Douglas Thorn who is himself a defendant in this case.

The defendants have submitted a series of motions to dismiss, but to this point the only original defendant whose case was dismissed was the Davis Enterprise, dismissed in July of 2007.

US District Judge Morrison England describes the current motion to dismiss as being submitted "in an unusual manner."

He writes:

"Although the Court concludes that the majority of the Second Motion to Dismiss is duplicative and unnecessary, and while Plaintiffs have strong arguments that the Motion to Dismiss is untimely in the first place, the Court will nonetheless exercise its discretion to hear Defendants’ pleading challenge one final time because resolution of Defendants most recent contentions may help clarify the remaining issues in the present action."

Judge England proceeds to deny all but a very small portion of the defendant's motion to dismiss.

"Based on the foregoing analysis, Defendants’ Motion to Strike (Docket No. 156) is DENIED. Defendants’ Motion to Dismiss (Docket No. 138) is also DENIED, except that the Court clarifies, with respect to Plaintiffs’ Fourteenth Cause of Action that any reliance on false light invasion of privacy is precluded. Defendants’ Second Motion to Dismiss is accordingly GRANTED in that regard. Pursuant to Rule 12(f)(1), the Court orders the second sentence of paragraph 190, and the first sentence in paragraph 192, in Plaintiffs’ Second Amended Complaint stricken. All other causes of action shall proceed in a manner consistent with this Order."

While the judge struck those two paragraphs, he left the bulk of the fourteenth cause of action in place.

"However, the Fourteenth Cause of Action remains viable to the extent Plaintiffs rely on alleged disclosure and broadcast of private information."

The Fourteenth cause of action is a complaint regarding a violation of the California Constitutional Right to Privacy. The bulk of that complaint claims a deliberate disclosure and broadcast of private information.

"Defendants' conduct has resulted in Halema Buzayan and her family being placed in a false light in the public and within the community. Defendants have violated Plaintiffs' right to privacy as secured under the California Constitution. Plaintiffs assert claims for violation of their right to privacy as secured under the California Constitution against all involved Defendants."

Judge England then concludes his opinion with the following:

"Additionally, while the Court concludes that entertaining Defendants’ Second Motion to Dismiss had some limited utility in narrowing the arguments, many of the other arguments raised were either cumulative, premature, inadequately developed, and/or unsubstantiated. Defendants are directed to refrain from any further efforts to frustrate the timely resolution of this litigation."

In other words, Judge England is telling the defendants to quit trying to stall this case. It is time to move forward.

He roundly criticizes their arguments as being premature, inadequately developed, and/ or unsubstantiated. He questioned the need for this second motion to strike. And although he limited the 14th complaint somewhat, for the most part virtually summarily dismissed it.

At this point in time, it is time to move forward with the case, and let the Buzayan Family after three and a half years finally have their day in court. Then the court can determine if they were wronged and what the damages were.

---David M. Greenwald reporting

San Francisco Police Officer Sues Antioch Over Taser Incident

When we last checked in on our old friend and former Davis Police Chief Jim Hyde, his new department and city were facing a class action lawsuit over alleged racial profiling in Section 8 housing projects in Antioch.

Now the Antioch Police Department is back in the news, in one of those not-so-good ways as a San Francisco police inspector has filed a federal civil rights lawsuit against the city of Antioch claiming that an Antioch police officer tased her during a confrontation in her home where she was attempting to evict a tenant.

According to SFPD Inspector Marvetia Lynn Richardson, a 41 year-old African-American who has served the SFPD for 14 years, "Antioch officers broke down her door last year, stunned her with a Taser and then took her to jail when she demanded to write "Tasered" on a citation for resisting arrest."

Apparently this incident is an outgrowth of efforts by Antioch police officers to enter homes without warrants to "harass and drive African American tenants out of federally subsidized housing."

According to an article in the San Francisco Chronicle, the suit filed in US District Court in San Francisco names among others the City of Antioch, Police Chief James Hyde, a police sargent, and three officers.

The city of course, denies any wrongdoing claiming that officers acted properly in investigating reports of violence against residents at the home.

"Richardson refused to sign a citation for resisting arrest and tried to write "Tasered" on it. An officer ripped the citation out of her hand and she was taken to jail, the suit said.

Judge Charles Treat of Contra Costa County Superior Court dismissed the resisting-arrest charge in June, saying the police entry into Richardson's house was illegal."

Dan Noyes from KGO in San Francisco, also is covering this story. Some may recall the stories he did on the Buzayan case in Davis.

Noyes has a seven-minute report that aired on Monday night.

You can watch the video of the news broadcast and read the transcript of the report.

There are a number of angles to this story. One of the things that Dan Noyes points out in his "iteam" blog is that the police report does not seem to match the audio of what happened during the incident.

"Antioch Police Officer Santiago Martinez was one of four officers who responded to the scene; he’s also the one who tased Richardson. There are some serious discrepancies in the report Martinez filed, compared to what’s on the audio recording."

Moreover:

"One defense lawyer writes the audio recording provides “a most disturbing account of officer fabricating and bolstering the facts of the incident to rise to a level of leading the witness, putting words into her mouth, and persuasion in effectuating the statements of the victims.”

This entire report seems uncannily familiar. At one point, Noyes reports that Chief Hyde refused to speak with him about this issue. One might recall when Noyes had an interview in Davis set up with Chief Hyde on the Buzayan case, he abruptly ended the interview and then according to emails had some rather choice words to say about Dan Noyes.

Still recent reports out of Antioch indicate that the City Council is pleased with Jim Hyde, they are pleased and credit him that crime is down, but the entire situation and escalation seems eerily familiar to the pattern that occurred in Davis. If anything it is escalated above anything that we saw in Davis. One thing that is clear, there are a number of staunch defenders of the chief in Antioch as there was in Davis and public opinion on him seems highly polarized.

---David M. Greenwald reporting

New York Times Covers Former Davis Police Chief

Even if the article in Sunday's New York Times were not about our old friend, former Davis Police Chief Jim Hyde it would be pretty fascinating.

That is because in a lot of ways there is tremendous change going on in American society, equivalent perhaps to the changes that occurred in the 20th century when large numbers of African-Americans fled from the south to northern cities which in turn spawned a flight of white city dwellars to the suburbs. Now the rising cost of urban housing is causing almost a reverse migration with many whites moving back to the cities and many African-Americans fleeing to the more affordable suburbs aided at times by programs like the Section 8 federal housing program.

Writes the New York Times:

"Under the Section 8 federal housing voucher program, thousands of poor, urban and often African-American residents have left hardscrabble neighborhoods in the nation’s largest cities and resettled in the suburbs.

Law enforcement experts and housing researchers argue that rising crime rates follow Section 8 recipients to their new homes, while other experts discount any direct link. But there is little doubt that cultural shock waves have followed the migration. Social and racial tensions between newcomers and their neighbors have increased, forcing suburban communities like Antioch to re-evaluate their civic identities along with their methods of dealing with the new residents."

In addition to these forces, the foreclosure crisis plays a role as well:

"The foreclosure crisis gnawing away at overbuilt suburbs has accelerated that migration, and the problems. Antioch is one of many suburbs in the midst of a full-blown mortgage meltdown that has seen property owners seeking out low-income renters to fill vacant homes."

Like I said, this would be an interesting story even without the presence of the formerly polarizing police chief of Davis in the story. The issue of "overbuilt suburbs" could probably keep us going for a week with talks about new waves in smart development and questions about what will happen to suburbs as towns struggle to redevelop their cores in hopes of cutting down on the need to consume gasoline in commutes.

For all the talk about racial reconciliation, it appears that the presence of African-Americans in a town like Antioch is just as explosive today as the notion of forced busing and integration was in the 1970s. The more things change, the more they stay the same.

On the front lines of these kinds of cultural struggles is often the face of law enforcement and it is here where our old friend rears his head once again and plants himself firmly in the conscience this time not just of Davis but apparently the entire nation.

The action filed as Antioch last month claims discrimination, intimidation, and illegal property searches. Police allegedly routinely questioned and harassed Section 8 residents about their housing status, writing letters to the county's housing authority recommending termination of subsidies.

According to the Times article:

"A December 2007 study of Antioch police records by Public Advocates, a law firm in San Francisco, counted 67 investigations of black households, compared with 59 of white families; black households, it found, are four times as likely to be searched based on noncriminal complaints and to be contacted by the police in the first place."

Like any profiling claim, the contentions are difficult to sustain even with such statistics--for all statistics can be a matter of coincidence as well as intent.

For their part, Chief Jim Hyde of the Antioch Police Department denies these claims.

But here is a very telling statement in the New York Times article:

"Chief Hyde also said that the local housing authority was not meeting its obligation to screen tenants properly, and that as his department focused on nuisance issues, the police had become a de facto enforcement arm of the federal government."

The question that immediately jumps to my mind is whether this an appropriate role for the police department to play. I understand the frustration that the police may have if the federal government is being negligent in its duties to enforce its own laws, but at the same time, if the police have gone beyond their own charge, they invite these sorts of complaints and law suits.

The Times article tells a number of stories about white residents complaining about the problems that the Section 8 housing has brought.

There is clear conflict within these stories on the one hand fear and on the other hand a recognition that there is a racial component to that fear and wondering if that is an appropriate response.

Laura Reynolds, 36, an emergency room nurse, said that she often came home to her Country Hills development tract after working a late-shift to find young black teenagers strolling through her neighborhood.

“I know it sounds horrible, but they’re scary. I’m sorry,” said Ms. Reynolds, who like her two friends said she was conflicted about her newfound fear of black youths. “Sometimes I question myself, and I think, Would I feel this way if they were Mexican or white?”

Is this is a legitimate fear and concern or is it being overblown by cultural and racial stereotypes? The problem that I fear is that some are playing on the legitimate fears of residents to their own political advantage. This is far from a new phenomena.

Brad Seligman is a lawyer with a nonprofit civil rights advocacy group based in San Francisco, the Impact Fund. They are one of the groups along with the ACLU, Public Advocates, and the NAACP that have accused the city's police department of racial profiling.

Mr. Seligman is quoted in the New York Times saying:

“Instead of driving while black, it’s renting while black.”

The New York Times talks about an African-American couple, Thomas and Karen Coleman, two of the plaintiffs.

In June 2007, a neighbor told the police that Mr. Coleman had threatened him. Officers from the police community action team visited the house and demanded to be allowed in.

“I cracked the door open, but they pushed me out of the way,” Ms. Coleman said.

The officers searched the house even though they did not have a warrant, said the Colemans, who are now part of the class-action suit against the department. The police questioned Mr. Coleman, a parolee at the time, about his living arrangement. He explained that he and his wife were separated but in the process of reconciling. The police accused the family of violating a Section 8 rule that only listed tenants can live in a subsidized home.

After the raid, officers made repeated visits to the Coleman home and to Mr. Coleman’s job at a movie theater. They also sent a letter to the county housing department recommending that the Colemans be removed from federal housing assistance, a recommendation the authority rejected.

“They kept harassing me until I was off parole,” Mr. Coleman said.

If the account of the Colemans is accurate, we see a number of problems with not only the police's conduct, but their role in this process.

First, even as a parolee, police cannot enter a person's residence without a warrant and without permission to enter.

Second, the police accused the family of violating a Section 8 rule but the family's situation was obviously more complicated than that. Frankly it is not the police's authority to enforce Section 8 rules which are federal. Moreover, by inserting themselves into the process they probably overstepped their boundaries.

Unexplained in this story is the fact that obviously there was no evidence that Mr. Coleman threatened anyone, otherwise they could have simply arrested him and revoked his parole.

Even if the authorities in Antioch technically acted appropriate here, a questionable contention at best, their insertion into this process is part of the problem. Instead of calming the situation down, they seem to be throwing fuel on the fire.

This is part of the problem I had with the Police Chief while he was in Davis. Two years ago, I obtained public records that show that Chief Hyde in response to citizen complaints about police conduct and in response to the HRC pressing the issue, instead of diffusing the situation, launched a PR campaign against the HRC from the police station. Emails show efforts by the police chief to drum up opposition to the HRC. Emails show derogatory statements made by the police chief to the HRC, its chair, and others in this community. While the Chief perhaps had every right to mobilize a counter response to the HRC's complaints, the method in which it was undertaken was polarizing and increased the heat and the tensions.

Moreover the police chief chose to finally take a new position in Antioch, a move he had been looking to make for some time, long before disagreements with the HRC arose. He chose that opportunity to throw the final fuel to the fire, further inciting tensions as he left the scene and forced those who stayed in Davis to clean up his mess including a number of lawsuits that the city currently faces from actions, which took place under his command.

These patterns seem to be reemerging in Antioch. Thus far, it seems that the police chief has the backing of the Antioch Mayor and City Council who also gave him a raise this month. The next question will be how much teeth this lawsuit has and whether the findings by the court, which figures to be a long and drawn out process, will vindicate or indict his current practices.

---Doug Paul Davis reporting

Former Davis Police Chief Finds New Department Subject of Federal Class Action Lawsuit

Police Allegedly Targeting African-American Tenants in Antioch

According to a lawsuit filed by Antioch Community Members and four Bay Area non-profit civil rights organizations, the City of Antioch and its police department are engaged in a concerted campaign of intimidation, harassment and discrimination against citizens, specifically African-American residents, who receive federally funded Section 8 housing rent assistance.

This is the apparent culmination of a long and controversial dispute in Antioch between longer term residents and those who have moved their families to Antioch in search of more affordable housing.

The city of Antioch rejected the lawsuit's claims, arguing that

"any objective review of our city's policing efforts will reveal that these efforts are focused exclusively on criminal and/or dangerous behavior."

However, according to Brad Seligman of the Impact Fund, one of the four groups to file the lawsuit on behalf of community members in Antioch:

“There is no question that the City and its police department are targeting Section 8 families, particularly African American recipients... The Police have a deliberate policy of coercion, intimidation and threats that target these Section 8 families and their landlords. The City’s goal is to force these families to move out of town.”

According to a release from the ACLU:

Plaintiff Alyce Payne moved to Antioch with her children to show her family they could “make it” outside of Oakland and so that her children could attend public schools there. But after her landlord received several letters from the police department, her tenancy was terminated. Ms. Payne relocated her family out of the City.

“Everyone should have the right to live in peace in the community they choose,” said Payne, who testified before the Antioch City Council about the discrimination she encountered from police officers. “We all want to live in a place where our families and our rights are respected.”

The suit alleges among other things that the Antioch Police Deparment:

- Established a special unit in 2006, the Community Action Team (CAT) for the purpose of targeting Section 8 residents, and the unit has directed the majority of its activities at African American families.

- Frequently searches the homes of African American families in the Section 8 program (or those erroneously believed to participate in the program) without their consent and without a warrant in an attempt to gather evidence to be used against Section 8 participants.

- Engages in a pattern of informing neighbors of African-American Section 8 households that the household is receiving Section 8 housing assistance and suggesting that neighbors file nuisance or disturbance reports against the Section 8 household.

- Threatens landlords with letters and visits by suggesting that landlords will be held liable for the activities of Section 8 tenants, and police officers actively encourage landlords to evict Section 8 tenants.

- Attempts to pressure the local Housing Authority in charge of the Section 8 program to terminate the voucher benefits of tenants whom the police department has targeted. Over 70% of these attempts have been directed at African Americans. A majority of these complaints were not sustained by the Housing Authority.

According to the complaint filed, in July of 2006, the City and the Antioch Police Department created a unit called the "Community Action Team" or "CAT" within the department. The CAT has disproportionately focused on Section 8 voucher participants, particularly on those residing in the more affluent neighborhoods of Antioch. "The city and APD [Antioch Police Department] have specifically targeted African-Americans they believe hold Section 8 vouchers."

During this time, former Davis Police Chief Jim Hyde had become Chief of Police for the City of Antioch. While these processes were underway, he was clearly in the position to facilitate the program, and in addition "he is responsible for the administration of APD and the training and supervision of its officers." Furthermore, "Defendant City, APD and Police Chief Hyde are, and at all times material to this complaint were, responsible for the employment, training, supervision, and discipline" of three named officers.

Former Davis Police Chief Jim Hyde remains the subject of another federal lawsuit, this one stemming from the 2005 arrest of then-16 year old Halema Buzayan stemming from a disputed hit-and-run accident in a Safeway parking lot and allegations of unlawful arrest, poor police procedures, and violations of Miranda Rights. A judge in April of 2006 dismissed the charges against Ms. Buzayan. The Buzayan federal lawsuit is moving slowly through the court process, having survived efforts from multiple defendants to drop the complaint.

When Police Chief Jim Hyde resigned from the city of Davis, the city was rife with turmoil and complaints against the police department. The Buzayan case was the most publicized and notable. However, in February of 2006, a large number of African-American students and faculty, came before the Davis City Council to complain about racial profiling. In May of the same year, several hundred mostly African-American students marched from the Memorial Union on campus to the Davis Police Department.

While it was the efforts of the Human Relations Commission and my wife Cecilia Escamilla-Greenwald, in pushing for police oversight and reform, that earned widespread media attention and criticism by many suggesting they had gone too far in their demands, it was the anger of these separate groups that contributed to an overall sense that the police department under Jim Hyde's leadership was under siege.

In June, following the 2006 elections, Jim Hyde abruptly resigned from his position at the Davis Police Department to take the same position for more pay in the City of Antioch.

As he left, he threw more fuel on the fire, blaming my wife, Cecilia Escamilla-Greenwald, and the HRC.

"In my 27 years of government service, 10 years of clinical psychology and 16 years of working with nonprofit organizations, the HRC is the most dysfunctional and incestuous group I have ever witnessed. I hope that (the) City Council will correct this community problem."

The Davis City Council would act quickly before newly elected Councilmember Lamar Heystek, a strong ally of the HRC and supporter of reform, could be seated. On June 26, 2006, the Davis City Council voted by a 4-1 margin to disband the Human Relations Commission.

To be very honest, this blog would likely not exist had it not been for the events in the Spring of 2006 and the actions by Chief Jim Hyde that led the HRC being disbanded.

Even two years later on the campaign trail, I ran into a number of individuals who still hold anger for the fact that Chief Jim Hyde was perceived to have been run off by Cecilia and the HRC.

And yet at the same time, it seems to me that Chief Jim Hyde was a huge precipitator of both the underlying problems in the Davis Police Department as well as an instigator to many of the tensions that arose in the Spring of 2006. When he left, overnight, tension plummeted. Even more than the hiring of a police ombudsman, the hiring of Chief Landy Black in the spring of 2007 served to cut down on the public complaints. I am not suggesting that things are perfect, I still think things could be better, but we have also not had public marches in the streets the last two years. We have not had hundreds of young African-American students coming into city council complaining about police tactics. In my dealings with Chief Black, he has always been willing to listen and has been completely professional, even on those occasions when we have disagreed.

As Cecilia Escamilla-Greenwald said to Davis Enterprise reporter Claire St. John during her run for City Council in a Davis Enterprise article:

"I think we all learned from that process," she said. "How communications, situations, can be improved. It's those experiences that make us better people."

Escamilla-Greenwald said the things that came of that time have improved the city. The City Council, although it rejected an independent police oversight commission, did appoint a police advisory commission and hired an ombudsman. The new police chief, Landy Black, is a good fit for the city, Escamilla-Greenwald said.

"We have a new chief of police who is doing a great job as far as I've seen," she said. "I've met with him, I did a ride-along with the police, that was an eye-opener. People are happy, from what I hear. There's now a process in place."

While the situation in Antioch may be somewhat different from that in Davis, the basic scenario seems to follow a similar pattern. The police are alleged to take an overly broad approach to law enforcement. It is unclear the extent to which Section 8 Voucher recipients are being perceived to be causing problems or if they are actually causing those problems. But irrespective of that point, the response by the police in Antioch seems to be to allegedly harass all African-Americans, regardless of their Section 8 status. This is the heart of the racial-profiling allegation.

What we see then is a pattern of behavior not only in terms of police profiling, or perceptions thereof, but in terms of the handling of the matter.

Throughout the Buzayan case, a more honest and forthright approach really could have avoided many of the lawsuits and legal remedies that ultimately resulted.

The acrimony between the police and the HRC did not necessarily have to result from events.

As Cecilia Escamilla-Greenwald wrote in 2006 in response to Jim Hyde's parting words:

"After many months of hearing from members of the public, last summer we met with the police chief over concerns about the growing number of complaints about police misconduct. These meetings and interactions quickly turned adversarial as the police chief became defensive. Instead of engaging in public dialogue over these very serious issues, Chief Hyde retreated--he cut off communications with the HRC, he pulled his liaisons to the commission, and began a concerted public campaign to discredit the efforts of the HRC to reach common ground on reforms that could be done within the department."

Furthermore:

"The Human Relations Commission, after hearing repeated accounts from credible citizens in our community, recommended the formation of a Citizen's Review Board of the police department. The Police Chief reacted negatively and with attacks upon the HRC as well myself and members of the community for even suggesting such a body. Once again, Chief Hyde reacted defensively and inappropriately instead of working with the community to resolve these problems."

The situation could have been diffused, perhaps by both sides. The City Council could have approached this by simply acknowledging a potential problem but suggesting that the civilian oversight board would be problematic in Davis. Instead the city endured attacks and allegations and heated rhetoric. No doubt everyone involved could have handled things better.

But we what see now is a pattern. That pattern has repeated itself in Antioch, far away from Cecilia Escamilla-Greenwald, the HRC or even the Vanguard.

At the same time, the response from the Antioch City Council is eerily similar to that in Davis.

Former Councilmember Ted Puntillo at the time of Hyde resignation called Hyde

"a very talented and probably one of the best chiefs that we could ever hope to have."

On Wednesday, the Contra Costa Times reports similar comments from the Mayor of Antioch as well as City Councilmembers.

On Tuesday, the Antioch City Council approved a nearly $17,000 per year raise for the Police Chief.

Antioch Mayor Donald Freitas:

"The salary increase has more to do with salary compaction but it also reflects an endorsement of Chief Hyde and the outstanding job he's doing. He has performed exemplary in the last two years, and has moved the department into the 21st century with the use of new technology. He's well-respected by the men and women under his command, as well as the community."

Councilmember Arne Simonsen:

"I'm sure there are other cities that would like a police chief like Jim Hyde... but I think the majority of people in Antioch would like him to stay."

I think the Davis Police Department is far better without Chief Jim Hyde here. Much work remains to be done, but so far, Landy Black's tenure as Police Chief has gone off without major incident. The city has been relatively calm since the departure of Jim Hyde. That and subsequent law suits in Antioch simply cannot be mere coincidence.

The Vanguard will continue to monitor the situation in Antioch and in the coming weeks, we will be speaking with some of the attorneys involved in the lawsuit down there and also possibly updating the public on the ongoing Buzayan Federal Lawsuit that is currently working its way through the Federal Court in Sacramento.

---Doug Paul Davis reporting

Sunday Morning Musings: Anonymous Emails and City Council Coverage

This has been a busy week and there are two little odds and ends that I wanted to cover.

Anonymous Emails

Whoever invented the concept of anonymous emails, it certainly makes life more entertaining for a blogger. If people realized how many emails I get every week with tips about news stories I need to follow up, they would be amazed. Sometimes I am. And frankly there are a lot of potentially interesting stories that simply have not been followed up on not due to lack of interest but lack of time.

However, there are also some that I would love to follow up on, but they give me very little to go on. I do not know if people simply do not understand what information is needed in order to do sufficient follow up.

What else is very interesting is that I was talking yesterday to a campaign manager and that campaign manager had received a phone call with a tip to follow up on, but it was so vague, all the campaign manager could have done would have been to ask random people about the incident.

I bring this up, because on Friday I got about three very interesting tips and none of them had enough information to even start to follow up. One of them communicated a four year old incident involving an individual accused of vandalism and property destruction in which the police were called. They do not tell me who the victim was only who the perpetrator was. Without the victim, I cannot even start an inquiry. Police records do not tend to be public records. Incident reports are not kept long. And if the case does not go to trial and I doubt this one has, there is little in the way of a records trail.

That means unless I get a name, I cannot find out any information about the case. And because the individual who emailed me, did so anonymously, I cannot even follow up on it. A few times on such tips, I have gotten lucky and stumbled onto something, but for the most part, if you want me to actually do follow up, you have to give me something to go on.

Davis Enterprise Article

I commend the Davis Enterprise and reporter Claire St. John on a good series of articles on the city council candidates. I do not think the Enterprise has done enough frankly in terms of coverage of the campaign--which is unfortunate for the community. That is one reason I have gotten up at 4 am twice this week to transcribe recordings of the candidates forum to bring to the public. It is a lot of work and quite time consuming as anyone who has done transcription knows.

I did want to comment on one of the Enterprise articles that specifically mentions the Vanguard. Of course it is the one about my wife, Cecilia Escamilla-Greenwald. And overall I think it was a very good and fair article, but I think towards the end it goes from reporting to editorializing.

And I should state, I emphasize this because I find it amusing. I have very thick skin these days...

"Around the time the Human Relations Commission was disbanded, Escamilla-Greenwald's husband, David Greenwald, started a blog. Called the People's Vanguard of Davis, it focuses on 'the dark underbelly of Davis,' according to the site, with daily posts taking a decidedly conspiracy-theorist bent. "

The depiction of the blog as "conspiracy-theorist" caught my attention, it sounded like something more out of the X-Files than what the blog actually does. I do not think there is some grand conspiracy in the city of Davis, other than to perhaps not sufficiently cover public affairs.

The Enterprise article also rehashed the police issue, the HRC, and Chief Hyde's exit. And that's fair, it is part of the public record. And I think the article put the comments made by departing Police Chief Jim Hyde into good context.

I want to thank the Enterprise for finally clarifying that it was indeed the Buzayan case that forced the Chief to quit. They have put his famous quote about the Commission into that context, where it properly should be. It exposes the quote as a clear and obvious attempt to divert the public's attention. Hyde wanted to shift public attention from the real message--that he had mishandled the Buzayan case and public criticism, and in so doing had exposed the City to millions in damages--to the messenger--a properly outraged Commission of citizens for which its chairwoman, Cecilia, was properly speaking.

Second, I appreciate that the Enterprise article mentions that the Vanguard tries to report political events in a balanced way.

"Greenwald initially wrote that he wouldn't be writing about the City Council election since his wife is running, but he relented and tries to cover events in a balanced way, disclosing that he is Escamilla-Greenwald's husband."

That is exactly what the Vanguard will continue to do. In fact, the Vanguard, recognizing its unique relationship to one candidate, has since changing the policy had a standing, open invitation to any other candidate to submit comments about anything they want, and the Vanguard will post these comments unedited. This was conveyed personally and by email. To date, no one has taken the Vanguard up on its offer.

The article mentions recent criticism of Don Saylor. In fact, the Vanguard has been critical of several Council members about various issues, not just Mr Saylor, but as the Enterprise has seen fit to single out a Vanguard critique of this one candidate, the Vanguard reiterates its policy and invites Mr. Ssaylor to post his own response as he sees fit.

The Vanguard will continue to provide the city of Davis as well as the region with the best electoral coverage of the City Council, County Supervisor and 8th Assembly Race, in the area.

---Doug Paul Davis reporting

2007 Year in Review--10 Biggest Vanguard Stories of 2007

As the first full year of the People's Vanguard of Davis comes to completion, we will countdown the top 10 stories from year. This is the second year we have done this.

Last year we counted down the 10 Biggest Stories in Davis.

This year we countdown the 10 biggest stories that we followed on the People's Vanguard of Davis.

We continue with the 5th biggest story: Landy Black hired as new Davis Police Chief.

Given all of the controversy surrounding the Police Department and the exit of former Chief Jim Hyde, this is almost a story because it is not a story. The resignation of Police Chief Jim Hyde was the second biggest story in 2006.

However, the hiring of the new police chief was not without at least some early controversy.

City Manager Bill Emlen decided that the best way to conduct these interviews was to keep all of the names confidential.

So on January 9, the City Manager announced that there were seven final candidates for the position of Police Chief.

"Last night the Davis Enterprise reported that the city has seven final candidates for the position of Police Chief and that one of those candidates is not interim Chief Steve Pierce.

City Manager Bill Emlen was quoted as saying:

“We’d like to find somebody who’s going to be around for a while, is able to set the department forward with clear vision and will be able to implement that vision.”

City Manager Bill Emlen not only has not disclosed the list of finalists to the press, but he has not disclosed it to the city council. While this is a personnel matter, it would not be inappropriate to divulge the names of candidates particularly to the members of the council. Several sources have informed us that this is a highly unusual move by the City Manager. While some personnel matters are confidential, the names of those on a short list are not--particularly to the City Council who is ostensibly his boss."

However, just because the intent was to keep the names confidential, doesn't mean that names do not leak out--particularly controversial ones.

As we reported on January 10, 2007:

"The People’s Vanguard of Davis has learned from multiple well-placed sources that one of these seven finalists is former Davis Police Captain Nick Concolino who was dismissed from the Davis Police Department in June of 2000 by then Police Chief Jerry Gonzales and then City Manager John Meyer."

The article laid out some of the reasons for the firing on Concolino and the controversy it spawned.

"The nature of personnel matters is shrouded in confidentiality agreements that prevent the release of reasons for a dismissal. As such, the public and even the City Council at the time were never informed of the reasons. We spoke with the Mayor of Davis during the time of the dismissal, Ken Wagstaff. He expressed his frustration stating, “this was the most frustrating thing about being on the council.”

Any hire of Nick Concolino would re-open old wounds. This action resulted in a huge and ugly controversy as the Davis Police Officer’s Association (DPOA) and many citizens campaigned against the dismissal of Concolino and then began an orchestrated campaign against Chief Gonzales. In response many citizens and civil rights activists came to the defense of Chief Gonzales."

The fact that Mr. Concolino was even under consideration sparked a lot of attention, criticism, and outrage.

Two weeks later, when the field was trimmed to three, Mr. Concolino was not among them.

"The Davis Enterprise reported on Thursday that City Manager Bill Emlen has announced that there are three finalists for the Police Chief position vacated in June by the departure of Jim Hyde for the same position with the Antioch Police Department.

According to several sources, Nick Concolino, who we ran an article on a few weeks ago, is not among the top three candidates. According to Emlen, one of the candidates is a woman, two of them are from out of state, and two of them work currently for law enforcement organizations, but one does not but has experience working as management in police organizations."

By early February it was clear that there was one candidate--Seattle Police Captain Landy Black.

The Police Captain sat down on the phone with me for a 30 minute phone interview. And laid out his position on a number of controversial issues including expressed support for civilian police oversight, which he had worked under while in Seattle.

On February 20, 2007, Landy Black was named the new Police Chief.

"City Manager Bill Emlen at last night's Davis City Council Meeting announced that Seattle Police Captain Landy Black has accepted a job offer for the position of Police Chief. Captain Black's tenure will officially begin on April 9, 2007. Interim Police Chief Steve Pierce will once again return to his previous position of Assistant Police Chief. Captain Black's starting salary will be $130,421.50 which is the highest salary in the city's salary schedule."

The swearing in came in early April:

"Amid much excitement, anticipation, mixed in perhaps with some relief, Davis City Manager Bill Emlen swore in Landy Black as Davis' new police chief.

The newly sworn-in Chief Black was joined by a number of colleagues, friends, and his very proud wife and parents yesterday before a full contingent of Davis Police Officers, elected office holders, and other community leaders."

For the most part since that point, Chief Landy Black has been a non-story.

He earned rare praise from the Vanguard for his handling on the May Day Student Protests.

In an article entitled, "Davis Police Compare Favorably in their Actions on Tuesday Compared with the Problems in Los Angeles," I wrote:

"As I watched the protest on Tuesday as it moved from campus, through the middle of Russell Boulevard and eventually to the intersection of Russell and Anderson, I remarked to several people the professionalism by which the Davis Police Department handled the march. They not only blocked off the streets in advance of the march, but they allowed for the impromptu, never engaging or escalating even when things may have gone slightly off-track.

As the march ended up with several hundred protesters marching in the middle of one of the most heavily trafficked intersections in the city, the police seemingly effortlessly diverted traffic. I understand that this diversion inconvenienced travelers and students who were attempting to get to class, but in terms of their prime duty--safety and peace, the police did their job on that afternoon and they did it well."

Most impressive to me was a conversation that I had with Chief Black on site:

"I spoke first to Lt. Dorothy Pearson and then to the new Chief himself, Landy Black. In both cases, they downplayed the significance of their actions. Telling me that this was their job. Chief Black spoke about the importance of the right to protest as being a centerpiece of a Democratic society and I could not agree more. However, as we have seen throughout history, the actions of the Davis Police Department on this day should not be dismissed as lightly as the leadership did."

There will likely be trying times in the future for the new police chief, in many ways that is the nature of the job. However, the first seven months or so on the job have afforded the chief was an opportunity to put down roots and make contacts in the community before the next trying incident.

For all of this non-controversy, especially after last year, the hiring of Police Chief Landy Black is the fifth biggest story in 2006.

---Doug Paul Davis reporting

Commentary: A One-Year Review of Police Oversight in Davis

One year ago from August 24, 2006 to August 30, 2006, the fledgling Vanguard in the wake of the then Davis City Council majority of Asumundson, Puntillo, Saylor and Souza voting to put the Human Relations Commission on hiatus ran a seven-part series examining the Davis Police Oversight System. Within a month or two, the city of Davis would hire Bob Aaronson as the police ombudsman for the City of Davis. Last week, the Vanguard interviewed Mr. Aaronson and discussed his first year on the job. Today the Vanguard will discuss a number of police oversight issues and make him regret putting his thoughts on the record (just kidding).

My initial response to the proposed oversight system now in place was strong opposition. There were three reasons for that primarily. First, there was no public component to it--there was no place where an individual could make a complaint in public and receive a public redress of their grievance. Second, the Ombudsman position itself was fairly weak--it was a part-time position, the Ombudsman acted basically as an auditor who reviewed completed investigations if the individual making a complaint was not satisfied. Finally and probably most pointedly, I failed to trust the council to produce a system that would work given their misgivings about and opposition to the need for oversight to begin with.

I will begin with the last point. The other points will be evaluated as I look back over the recommendations I made on August 30, 2006.

To be quite frank, one of the reasons I never trusted the council to create an oversight system that worked is that the very first meeting that I ever saw from them (January 17, 2006), Councilmembers Don Saylor and Ted Puntillo spent their time attempting to demonstrate how unnecessary police oversight in Davis was.

That statement was summarized by this quote by Ted Puntillo:

"What I want are police officers out there that are using their training and their instincts, I don’t want them thinking about oh somebody’s going to be reviewing what I’m doing. "

Don Saylor stated that they had "thoroughly reviewed the complaints against the city and found them totally without merit." This was a stunning statement given it did not seem likely they conducted their own investigation of these complaints. Puntillo then added that this would be "an eye-opener for many in the city."

Up until the point at which these statements were made I have lived in the city of Davis for nearly nine and a half years and had never been involved in city politics. By the time this little scene was done, my life would be unalterably changed. And let me tell you, Ted Puntillo was right, it was an eye-opener for me to hear elected public officials make these sorts of blatantly irresponsible statements.

A few weeks later, on February 21, 2006, then-Police Chief Jim Hyde and Councilmember Don Saylor went through a series of statistics to demonstrate to the public how low the number of sustained complaints were in the city of Davis. Basically what Jim Hyde told Councilmember Saylor was that there were 74 citizen complaints from 2003 to 2005 and of those only 5 were sustained.

Statistics are given a bad rap because most people do not understand how to properly analyze them. This leads to the assumption by many that statistics can be used to say whatever you want them to say. This is patently untrue however. One needs to be able to interpret statistics properly. To his credit, Councilmember Saylor on that date did ask the correct question--asking Chief Hyde how these numbers compare to other communities. However, Chief Hyde dodged this question by stating that communities vary and therefore are difficult to compare. And Saylor never pressed him on the issue when he clearly should have. Had he pressed him, he would have found out that the number of sustained complaints was right around the national average whereby less than 10 percent of all complaints are sustained by the Internal Review Process and in fact, Davis had a higher number than a lot of other jurisdictions.

Ombudsman Bob Aaronson when asked as to whether Davis was in need of an independent oversight system said:

"I’m someone who believes that every law enforcement organization ought to have some form of oversight. I’ve worked with a lot of organizations around the state and to me it’s not a critique of law enforcement it has to do with the fact that in absence of oversight not everyone is going to be squared away."

I still believe that a good police oversight system benefits rather than harms the interests of police officers. It fosters trust that they are doing their jobs the proper way and also provides an outlet for those who are dissatisfied with the handling of their encounter with a police officer. Often that dissatisfaction stems from misunderstanding about the law and an individual's right under the law. By having someone who is independent of the police be in the position and have the authority to explain to an individual that the incident was handled properly, it allows for those who would otherwise distrust the police to be educated about proper procedure.

Getting back however to my original trepidations--the point of this demonstration is to show why I was skeptical of this city council, who had pointedly and deliberately argued that we do not need police oversight, would then be able to turn around and create a police oversight model that would work. They never laid out the case for oversight as Mr. Aaronson did. They took oversight to be a criticism of all police because it arose from specific complaints against the police rather than a means by which to foster community trust in the police.

The jury is still out on that bottom line however. As a whole, I think Bob Aaronson was a good hire. In the comments to the interview last week, some complained he was probably too cautious with his assessment. I would tend to agree with that viewpoint. He has made it a point to protect his political capital until the big case comes forward. While I can understand that desire, I think there are enough data to really look into past practices so that we can come to terms with them and correct them for the future.

At the same time, we have not seen the big case yet either. My biggest problem has been the lack of willingness of those in the community with what appear to be valid complaints that are worthy of investigation (it may turn out that the investigation would clear the officer of wrongdoing, but investigation is still needed) are not willing to come forward. These people are often unwilling to come forward. Part of the reason for that is that they are afraid to. In part, they saw what happened to Buzayans and decided it just was not worth it. That has been a source of much frustration personally.

One of the big questions is that of racial profiling and whether it occurs in the department.

When asked in a California Aggie article if there is "racism within the Davis Police Department," Chief Landy Black who had been in the department for two months at the time responded:

"It's absolutely untrue. I think there was a great deal of political influence in what was going on. There was a need from some people for [their own] publicity, and with the current climate of policing, it gets you notoriety to claim racist policing."

While that was perhaps not the best way to ask the question, I am still uncertain as to how the Chief could know this that soon. Nevertheless, I am not altogether convinced that racial profiling equals racism rather than poor policing technique or even laziness.

During the course of this year I asked the same question of both Former UC Davis Police Chief Calvin Handy who also serves on both the PAC (Police Advisory Commission) and the CAB (Community Advisory Board) and the Ombudsman Bob Aaronson.

When I asked Calvin Handy here was his response:

"My first act as [UC Davis] police chief here was to meet with large groups, students, staff, and faculty, and they had this consistent belief that racial profiling was happening in the city of Davis... After 12 years it is kind of amazing given how much we engaged in the process that people are saying the same thing. This problem has just gone on for too long and too pervasive."

Last week Bob Aaronson said something remarkably similar:

"I have not seen first hand evidence of it. Where I have seen documents or I have seen incidents first hand that would allow me to establish that that occurred. On the other hand, there have been enough complaints by people of color that I’m not prepared to say it’s not an issue. As well there is some statistical information that I don’t know enough about to know whether it’s credible and if it is credible what it’s really saying. But clearly there is something there that requires more attention."

Part of the problem that I have had is how would you even go about proving racial profiling? It is a difficult problem to address.

In response to my evaluation last year of the Police Oversight system. As I examine it now, there are probably several recommendations that I would no longer make, but there are several that I think are still pretty valid.

First, I believed that it would be difficult to have an Ombudsman without it being a full-time position. From my discussions with Bob Aaronson, I believe that more than ever.

Aaronson's response here makes a lot of sense--that it is a matter of balancing priorities:

"Clearly I would like to have more time to spend in Davis doing more active outreach to the community and also doing more ridealongs. But the challenge for a place like Davis—because the implication and the question is ‘what instead’ or ‘in addition to’—the challenge for a community like Davis, and it’s the reason why I came here, most oversight models are geared toward far larger jurisdictions and larger departments. I have a hard time arguing that a jurisdiction the size of Davis ought to be spending a quarter of a million dollars on oversight. I have a hard time arguing that. I could see spending a couple of million dollars on oversight or more for the city of San Jose. But smaller oversight, no one is really trying to figure out a way to do that and so my work here and my work in Santa Cruz also are efforts to explore is there a cost effective way to use some of the oversight tools in a smaller jurisdiction."

It is worth noting that Councilmember Stephen Souza keeps trying to expand the role of the ombudsman to cover the entire city, a notion he first brought up in February of 2006, a notion he mentioned again in March of 2007 and a notion he most recently mentioned in conjunction with a proposal to remove the investigation authority from the Human Relations Commission. I do not see how this is a possibility without hiring a full-time ombudsman with a professional staff.

Second, I recommended that the Ombudsman be given a stronger role in the initial oversight. As this system has developed, it has changed structurally even though it has not changed on paper. What seems to have happened is that the PAC reviews the Internal Reviews from the Department and that the Ombudsman acts as almost a public liaison who assists and talks to individuals about complaints and helps them if they wish to file a formal complaint.

Third, I suggested using the PAC to replace the Internal Affairs Department.

Bob Aaronson last week suggested basic support for Police Internal Affairs departments:

"In my experience, most internal affairs organizations do a good job 90 to 95 percent of the time on cases. And of the remaining five to ten percent, are not handled the way I’d have them handle them. Not out of malice but out of a lack of training."

I differ from Mr. Aaronson here though I lack his over 20 years of direct experience as an ombudsman. My experience had demonstrated in fact a problem with the internal affairs departments in general. Too many cases are returned as not sustained even when the individuals have valid complaints. One of these cases locally was the Bernita Toney case who complained that a police officer falisified a police report. The internal review process concluded this complaint was not sustained. Yet in a court of law, a jury found that the police report had in fact been falisified when they decided to acquit Ms. Toney of all charges against her. This is but one example. The worse example was the use of the Internal Affairs department to threaten and intimidate Halema Buzayan instead of investigating the complaint against Officer Pheng Ly.

It is interesting to note that Mr. Aaronson commented about Davis Police Sgt. Gina Anderson's, who is now in Citrus Heights, handling of the Buzayan Investigation.

"[B]ased on my explicit training to the Department, they now know that you cannot try to advance a criminal investigation through the investigation of a citizen complaint."

The suggestion here is that this was inadvertent and due to a lack of training. Perhaps. But the effect was to intimidate and threaten a minor who was attempting to file a complaint against the actions of a police officer.

My fourth suggestion was to strengthen the CAB. The CAB is composed of many individuals purportedly from diverse segments of the population, but for the most part only a few of these individuals were critical or skeptical of the police department. It was not until March, that the city finally admitted that this was not part of the oversight process. Nevertheless, it would behoove the new police chief to reconstitute the CAB and place on it more individuals who are critical of the police for the very reason that he would get better feedback from the community if he did so.

Fifth, I suggested improving community outreach. The new police chief seems amenable to that, and some of that is going on. But without specific impetus, I think there are segments of the population that would not be reached. Along the same lines, I suggested improving representation on the boards, make the CAB meetings public. This has not occurred yet.

Finally, I suggested they reinstate the Human Relations Commission. They did this but really stripped this commission of its power and influence. They did at least keep the civil rights ordinance intact, but the HRC is not the body that it was prior to June of 2006. I have spent enough time on this subject, but I think the community really misunderstood what the HRC was aiming to do with police oversight and the valuable function it performed prior to 2006.

In many ways, I do not think either the Ombudsman's job or the Chief's job have started yet. We are still waiting for the "big one." That will occur at some point, it is inevitable no matter how well-intentioned we are, something is going to occur. The question will then become, are we properly equipped to handle things. Overall, I would say that some of my fears about this system have been alleviated. I think we were fortunate to land an individual with the experience of Mr. Aaronson. But as he discovered in Santa Cruz, when you rule against the police there is a heavy price to pay. We have not seen whether anyone can withstand that kind of pressure just yet and that will be the crucial test for this system.

---Doug Paul Davis reporting

Interview with Davis Police Ombudsman Bob Aaronson

Last year around this time, the City of Davis hired its first Police Ombudsman Bob Aaronson. Aaronson has served in the capacity of independent auditor for the City of Santa Cruz among other municipalities. At the time this culminated a rather tumultuous year in Davis that saw allegations, protests, and the disbanding of the city's Human Relations Commission. Now a year later, things have calmed down, but have the underlying problems that led to these complaints and protests dissipated, the Vanguard sits down as talks to the Ombudsman Bob Aaronson to get his take on the current situation.

You’ve been here nearly a year, I know you’ve talked about it before, but is Davis what you expected?

No. Davis is a much more interesting place than I expected. And Davis is a much more interesting place culturally than I expected. As someone who has passed by Davis thousands and thousands of times, I did not have a clue.

What are your impressions of the Davis Police Department?

I don’t think that’s changed a whole lot since my discussion in front of the council. I think there are a lot of good people in the Davis Police Department. I think there are a lot of the challenges, some of the challenges are because of history, problems that have been present historically and you still live with the ghosts and then there are problems that are related to how many people are comparatively new at being peace officers. I think those are quite significant challenges.

So far, what are your impressions of Landy Black?

So far my impressions of Landy Black are positive. My sense is that he is getting out into the community; my sense is that he’s making connections within the department. And my sense is that those connections are good. Landy Black strikes me as an eminently decent guy and someone who is a real cop.

What has the primary focus of your position entailed?

There are two different things that I have been doing. One component that I have been doing is responding to citizens who have complaints and on average I am probably talking to between half a dozen and a dozen people a month. They call to talk about their situations and telling them what the process is and sometimes all it is is explaining to them that the procedural issues that they saw were appropriate.

The second part of what I’m doing is almost like being an organizational facilitator. And an example of that is being part of a process that got the cameras and the computers working. But there are also a myriad of ways that I have become an alternative channel for communication for different parts of city government about what’s going on. And what the problems are.

Do you believe that Davis was in need of an independent police oversight system?

I’m not the right person to ask because I’m someone who believes that every law enforcement organization ought to have some form of oversight. I’ve worked with a lot of organizations around the state and to me it’s not a critique of law enforcement it has to do with the fact that in absence of oversight not everyone is going to be squared away. That’s why we have cops. Because in the absence of cops, some of us are going to speed. Some of us are not going obey traffic laws and commit offenses. We need oversight. I think we all need oversight and benefit from it. It’s the reason why we don’t come into the world hatched out of eggs. We come into the world with two overseers.

Do you believe that the Police Internal Affairs Department serves an effective function or do you believe that too often police departments seek to protect themselves from scrutiny?

In my experience, most internal affairs organizations do a good job 90 to 95 percent of the time on cases. And of the remaining five to ten percent, are not handled the way I’d have them handle them. Not out of malice but out of a lack of training. There are instances where organizations will have a tendancy in order to avoid the limelight or order to avoid the harsh reality will try to find a way to avoid getting to the right result. But the number of times I’ve seen that happen I could probably count on two hands. And that’s based on over 20 years of work with law enforcement.

What changes would you like to see in the Davis police oversight system?

Clearly I would like to have more time to spend in Davis doing more active outreach to the community and also doing more ridealongs. But the challenge for a place like Davis—because the implication and the question is ‘what instead’ or ‘in addition to’—the challenge for a community like Davis, and it’s the reason why I came here, most oversight models are geared toward far larger jurisdictions and larger departments. I have a hard time arguing that a jurisdiction the size of Davis ought to be spending a quarter of a million dollars on oversight. I have a hard time arguing that. I could see spending a couple of million dollars on oversight or more for the city of San Jose. But smaller oversight, no one is really trying to figure out a way to do that and so my work here and my work in Santa Cruz also are efforts to explore is there a cost effective way to use some of the oversight tools in a smaller jurisdiction.

What do you view as the biggest mistake made by former Chief Jim Hyde during his tenure? How can we work to prevent repeat mistakes with the new Chief, Landy Black?

I try to have this rule that if I was not present, it is not fair of me to find fault. I have not viewed my charge as what occurred prior to my watch although I’ve accumulated some information about it. I think there is a host of things, where if I had been involved I would have hoped would have been responded to differently. I certainly have not been shy about the fact that I believe there was a missed opportunity for the community and the department to use the Buzayan incident as a means of having a discussion as opposed to a means of having an argument.

You mentioned that the city of Davis missed out on an opportunity during the contentious 2006 year. What do you think as an outsider looking in, should have been done differently?

If I had been involved in the underlying incident and I have not listened to tapes and I have not reviewed reports, but I have read enough information. I think I would have made different decisions about what occurred at the scene. Decisions that were not as intrusive. I think that decisions that were made in my view don’t amount to misconduct or I certainly haven’t seen anything that would suggest to me that they were misconduct, but I would say that in my view they are misjudgments. Candidly on the other side of it, I will also tell you… if I had been, if my family had been in the situation, I think I would have responded differently as well. And that to me is the point of the Buzayan case, there were opportunities for everyone to learn. Not just for the department to learn about how to handle something in a way that it is as effect but less intrusive, but also for the community to learn about how they can more effectively interact with the department in a way that increases the likelihood of a more positive or less negative outcome.

Does Davis PD have a problem of racial profiling in your view?

I have not seen first hand evidence of it. Where I have seen documents or I have seen incidents first hand that would allow me to establish that that occurred. On the other hand, there have been enough complaints by people of color that I’m not prepared to say it’s not an issue. As well there is some statistical information that I don’t know enough about to know whether it’s credible and if it is credible what it’s really saying. But clearly there is something there that requires more attention.

The DPOA has repeatedly asked for more police officers as a means for crime prevention, do you believe that such hires are necessary?

I am far more conscious about how much I don’t know than how much I do. If I were going to answer that question in this sort of a public fashion, I would want to have done some sort of a serious study of auditing response times, auditing workloads and the like. In all honesty, I don’t know. To answer that question one way or another would require me on some level to speculate.

What lessons can we learn from the UCLA tasering incident?

That one to me is pretty clean. Tasers are less than deadly force. But are probably the equivalent to the use of the baton. It is pretty hard to kill someone with a baton, but you are likely to have more moderate range injuries. You can argue it one way or another. I would be surprised if any officer would have used a baton on the student in the UCLA PD case. When you have a passive resister, you should not be using Tasers. To me that is a fairly basic lesson and one of the problems has been… that most of the first round of instruction in how to use Tasers was controlled by Taser International. And Taser International, and I’ve viewed some of their instruction, in the first round, but definitely in the first round there were scenarios where Tasers were being used on people who were not violently resisting. Hence what happened at UCLA PD.

(I follow up: So how best would it be for police officers to handle people who are not cooperating but not violent resisting and not a physical threat to either the officer or the public?)

Depends on the situation and the size of the person. Officers get taught all sorts of control holds and take down techniques, in the academy and in the FTO process. In an instance where there’s a large crowd gathered, the use of a Taser on someone who is not actively resistant and who is not actively violent is actually increasing the risk to the officer not decreasing it. Now it’s important to be clear and I have viewed on a number of occasions the videotape of the UCLA PD incident and my problem with the videotapes while the videotapes are very troubling, it’s really hard to be able to see enough of the student in a lot of the frames to know what things I would have done or what things I hoped an officer would have done.

What changes can Davis do in the next year to improve relations between portions of the community and the police department?

I would like to see a way that members of the Davis police department become more involved in the community as individuals and as officers and that means community meetings, neighborhood meetings, it also means encouraging people to do ridealongs with the Davis Police Department. There does need to be more of a connection. There clearly does.

You have previously mentioned problems with both supervision, chain of command, and overall morale—have these areas improved under the new chief? What further needs to be done?

Morale has improved because the department is grateful to have a new chief on board. But the underlying issues—the new chief has been there for three and a half months. You don’t fix a damaged family in three and a half months—this is clearly a work in progress. And the underlying issues involving supervision, chain of command, and communication are still there. They remain to be resolved in a successful way.

My biggest frustration for the past year has been the inability or unwillingness for people with legitimate complaints against the police department to come forward—what can we do about that?

That’s a good question. I have had a similar experience and not just with you but with other people who have brought forward to me that there are people who they were in touch with who had complaints and I have begged, cajoled, pleaded… You know, I have two different ways of expressing it. One is that I have an Amnesty International T-shirt that says ‘All it takes for the triumph of evil is for enough good people to be silent.’ The other one is just a more straightforward one. In the absence of people willing to bear witness, no one goes to jail. I understand why people are reluctant, I genuinely do, I understand that for a lot of people, it’s an act of bravery, it’s an act of courage to come forward with a complaint. But it’s really important, and part of the side benefit is that people who come forward with complaints ultimately, regardless of any other resolution, feel unburdened by having done that.

How can we effect change in the absence of people willing to come forward and to use your words—bear witness?

I don’t know, I think that’s probably my single biggest challenge. One of the things I could do is to do more outreach in the community. I have been reluctant to ask the city for more hours, because the city is trying to be fiscally responsible and I respect that. And the problem with what I talk about in terms of getting out into the community is that it’s time consuming. But there is a way candidly that I feel that I know the Davis Police Department right now better than I do the community.

I’ve been told you are not a big fan of anonymity on the internet, can you share your thoughts?

I tend to work by analogy. I think that people’s behavior on freeways is much worse than their behavior at parties or in bars because they are basically anonymous. I think that when you provide people with an anonymous environment a lot of the social controls for some people tend to dissipate. And if we can be anonymous, there are people who are prepared in a theater to stand up and scream [obscenities] to a guy on stage. Now they would never do that if the guy on stage could see their face and see who they were. But in a darkened theater there are people who do that. I have watched and I respect both the vote that was taken and also the sentiment that there are people who otherwise would not post if it was [not] anonymous, but if no one has noticed it, I’m an outspoken person, I’m not shy about offering my perspective and part of my attitude as a student of race relations and the holocaust is you got be willing to speak out and put your name to something.

Your impressions so far of the Vanguard? How can the Vanguard become a more effective tool in the community?

The most positive thing I think about the Vanguard is that there are things being reported in the Vanguard that I haven’t seen in any other media outlets that are at least available to me. And I appreciate that because I don’t just study Davis police issues, I study all of the Davis community issues to better educate myself. So I really appreciated that. I think there have been times that I have been concerned that the tenor of comments and discussion and some of them of them are by the bloggist and some of them by the commenters that are less than civil. I guess the starting place for me, if I caste you as evil, I lose the opportunity to have an effective conversation with you where I really get through to you. I worry about that aspect. That being said, I’m not arguing that the bite should go away. I think part of the bite is what works about it. It’s also true that I think in the year that the Vanguard, I ought to be interviewing you about the Vanguard because it has been about a year and three months or a year and two months that you’ve been doing the Vanguard, and I ought to be interviewing you about how’s that year been, what do you think your successes have been and what have your failures been. I think that the Vanguard has matured in that past year in really powerful ways. I’m sure that you asking in a way is a little self-serving… but I’m grateful that the Vanguard is there. I don’t always agree with it, but it’s rare I don’t learn something.

---Doug Paul Davis reporting

UCLA Incident Demonstrates Need for Independent Review and Policy Changes

The recent ruling on last fall's Tasering of a UCLA student gives us the unusual opportunity to review and scrutinize the police review system in addition to discuss policies on use of force by police departments.

In August of 2006, the fledgling Vanguard, took on a seven-part series of review of the Davis Police Oversight system--evaluating each part and making recommendations for changing it.

One of the key criticisms was the use of the Internal Affairs Department (IAD) as the agency with original jurisdiction over IAs. The chief problem that was cited at this time was a relatively low number of sustained complaints by the IAD in Davis. From 2003-2005 there were 74 complaints, only 5 of which were sustained.

These numbers were used by then Chief Jim Hyde and Davis Councilmember Don Saylor (among others) to demonstrate the lack of need for additional police oversight.

However, a 2002 report by the US Department of Justice warned that:

"[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."

Further statistics suggest that the low sustained complaint rate in Davis is actually not atypical. For instance one year in Los Angeles, there were 561 complaints against the LAPD and none of them were sustained.

The UCLA case provides us with another example as to why we cannot merely rely on IADs to provide oversight of police departments.

The initial review of the UCLA case

"cleared Officer Terrence Duren and two colleagues of wrongdoing. Details of the review are confidential but it concluded officers did not violate campus policies, according to a statement released by Norman Abrams, former acting chancellor of the University of California, Los Angeles." (See Sacramento Bee, August 3, 2007).

Furthermore, as the Los Angeles Times reported, the officer involved has been involved in a number of other controversial incidents on the campus. This is a frequent problem in oversight, that you have officers often who are repeat offenders, who end up being involved in incidents over and over again. The people that these officers harm are not only the citizens, but their law abiding and dedicated colleagues.

Fortunately in this case, instead of settling for the IAD report, someone made a decision to bring in Merrick Bobb, a noted police accountability expert.

Bobb found that the officer's decision to use a taser here was "unnecessary, avoidable and excessive."

The student is by no means innocent here either and that should be noted and was noted by Mr. Bobb.

"This story has no heroes... While the student should have simply obeyed the order to produce the card ... the police response was substantially out of proportion to the provocation."

Citizens have the responsibility to cooperate with the police always. People ought to know their rights and when they can assert them, however, when push comes to shove, obey the police and dispute their conduct later. However, police are professionals and trained, and they need to respond to difficult situations appropriately, this was not a case where an officer was in danger and therefore the use of force here was clearly not justified.

This case also provides us with an opportunity to examine use of force. We have talked about it in the past as well, especially regarding an incident that did not escalate quite as far as the UCLA incident was, but that had to do with the actions against a UC Davis student involved in a bicycle stop sign incident which also grew out of hand. The key question is how should non-cooperative individuals be treated by the police.

In this case, Mr. Bobb makes specific recommendations for chaing policy on the use of Tasers on "passively or mildly resistant individuals." The main question is, when should officers use force against an individual? It is obvious that if an individual is violent or represents a physical threat to the officers or the public, that use of force is justified.

But if the individual is simply being non-compliant why are you using a taser three times? There have to be other means by which to handle a situation.

Merrick Bobb makes some very strong recommendations to "forbid their use against passively or mildly resistant individuals." Moreover he recommends:

"Restrict Taser use to violent, actively aggressive or imminently violent subjects -- and only after a warning. Discourage repeated shocks. Prohibit shocking of handcuffed prisoners."

Acting UCLA Chancellor Norman Abrams and UCLA Police Chief Karl Ross were both in agreement with the policy change. That is a good start.

But the secrecy of the internal investigation given state law protecting confidentiality of the police involved in citizen complaints led to the independent investigation by Merrick Bobb. The concern is that this was a very high profile case, how many other complaints have also been swept under the rug at UCLA and other UCs across California?

This is a very serious point in evaluating complaints against UC Davis police officers. We have heard of several in the last year and note that there is no Ombudsman or any sort of police oversight system on the UCLA campus.

The City of Davis does have an Ombudsman and they have a three member Police Advisory Committee (PAC) reviewing IAs. Some of my concerns about the Police Oversight system in Davis have been alleviated in the past year. However, a big one that remains is the lack of willingness of individuals to file IAs.

As the UCLA case attests however, a small minority of officers are repeat offenders in violations of the rights of citizens and it is those small number of officers who probably cause the majority of complaints. A system that can identify those officers, can protect the law abiding and dedicated majority of police officers from the type of adverse scrutiny that they do not deserve. Officers put their lives on the line every day and we need to put a system in place that protects them and the citizens.

---Doug Paul Davis reporting

Commentary: Council and Staff Try To Justify Weakening of Historic Civil Rights Ordinance

If you read the Davis Enterprise last night, you would be led to believe that the historic, anti-discrimination ordinance that passed in 1986 was no longer needed. This justification might make sense if they were removing the entire ordinance, but instead they are removing one portion of text dealing with an enforcement mechanism and then attempting to suture up that hole somewhat artificially.

When it was adopted in 1986, the ordinance offered protections not otherwise available at the time, said Assistant City Manager Kelly Stachowicz.

“According to the city attorney, most of those things are now covered by state and federal law,” she added.

The city now has several mechanisms in place to deal with charges of discrimination, including a police ombudsman hired in September, the city's Mediation and Fair Housing Program and the Police Advisory Committee.

“The subcommittee believes there is an adequate web of resources available to individuals and the best roles for the current Human Relations Commission include listening, information intake and referral,” Souza and Asmundson wrote.

There are several components to this claim that need to be addressed.

First, most of these things are indeed covered by state and federal law. The problem is that unless the case of discrimination is egregious enough to warrant the Attorney General of California or the Justice Department/ FBI to intervene, the enforcement mechanism is a lawsuit in court. As we discussed last week, such a mode is expensive and impractical for most situations that arise. Moreover, as we also discussed, the only recourse available to individuals should not be the court system, this is a chief reason why the HRC was empowered in the first place even lacking the ability to subpoena people to testify.

Second the city may have several mechanisms, but most of them involve the police or housing. Those account for a very small percentage of the types of incidents that the HRC in the past has dealt with. So who is going to handle those type of complaints?

The word we are getting is that those complaints of discrimination would be rolled into the Police Ombudsman, Bob Aaronson's duty. Or at least that is what Councilmember Stephen Souza is reportedly thinking at this time. This is not the first time he has suggested expanding the role of the ombudsman. The problem is that it is not altogether clear that the ombudsman is the proper authority to deal with a number of these kinds of disputes that used to be handled by the HRC. Moreover, the ombudsman is currently working well beyond his part time duties, expanding his role would likely necessitate the city hiring additional staff to do the duties that the HRC used to perform.

The Enterprise Article cites the report from the subcommittee:

“As a public body, the commission is limited to what it can discuss in open session,” Asmundson and Souza wrote. “It is also limited in information it can seek regarding personnel issues, information about police officers, and information it can require other jurisdictions to share. This makes it difficult for the commission to appropriately, thoroughly and fairly mediate/adjudicate individual cases.”

As Mr. Souza ought to know since he was on the HRC, police issues encompass only a very small portion of the types of complaints that the HRC dealt with in the past. Moreover, Souza's report only dealt with again a very narrow issue base--police issues. The disputes that arose last year undoubtedly have led to this decision, but the subcommittee is thinking very narrowly when they justify the removal of the ordinance item based on a single-issue area that has now been dealt with through the hiring of the ombudsman.

"At a recent meeting, commissioners discussed the ordinance, and several said they felt uncomfortable in the role of mediator. Others said to dismantle an important city ordinance was inappropriate."

I find the fact that several members of the commission were uncomfortable with the role of mediator appalling. In past HRCs, it was strongly encouraged that the members go through mediation training--and many did. It is part of the duties that they had and were listed in the description. It would be like a member of the BEDC or the Planning Commission uncomfortable with reading and analyzing zoning laws or development agreements. My response is 'oh well, if you are uncomfortable, resign.' As we found out last year, this body and these laws are bigger than the individuals currently holding the appointments.

There is a perception out there that bodies like the HRC are limited in terms of what they can do to effect change. Nothing is really further from the truth. In 2002 and early 2003, the HRC heard a number of incidents involving racism and bullying at the Davis High School. The HRC, helped organize a community meeting that turned out be a real eye-opener for the entire community. Following the Forum on Bullying and Racism hosted by the HRC, the Davis Enterprise reported:

Talk about racism at Davis High School became real for school district officials Monday night, as emotional students recounted experiences with violence, discrimination and taunting.

Davis Joint Unified School District Board of Education members, Superintendent David Murphy, teachers and Davis City Council members joined more than 100 community members and students at a public forum on racism.

The forum, organized by the Davis Human Relations Commission and held Monday at the Veterans' Memorial Center, produced a long list of possible solutions and nearly five hours of testimony and discussion.

"I thought there was a problem. I had no idea of the depth and breadth of the problem and how deep it seems to be within ... our schools, particularly the high school," Joan Sallee, school board president, said after hearing the students' stories. "And I'm grateful for this meeting." (Davis Enterprise, February 25, 2003).

The result of this meeting was that numerous students came forward with heartfelt and emotional experiences and the school board and superintendent could no longer simply ignore the problem.

Emotional -- at times tearful -- students recounted vivid stories of discrimination and poor treatment on campus by their peers, administrators and staff. Some said they are uncomfortable talking to administrators about experiences. Others accused the school district of unfair punishments.

"There is no word in the English language like (the N-word)," Babajide Olupona, a DHS students and commission member, said, recalling years of discrimination and negative experiences in the schools and community. "No one really understands the impact of that word."

Other students offered detailed accounts of discrimination, vandalism of their property and violence based on race, ethnicity, religion and status.

The result of that meeting was that the Superintendent Murphy worked with members of the HRC to create new programs and new positions to deal with the problem. One of the results of that work is the climate coordinator position, now held by Mel Lewis.

We see from this both the possibilities but the shortcomings of the a body such as the HRC. First, the HRC was able to organize a meeting to educate the community. Second, they were able to work with the Superintendent to create new programs.

But third, as many who read these pages realize, the problems that were identified then, still exist now. Why? There was a lack of follow-through after the crisis abated.

However, the HRC was able to facilitate with the school district new programs, new discipline code language, and a new position. This set the stage for what has happened this year, where all of these aspects have been tightened up due to greater levels of follow-through and commitment by the current school board.

Most importantly, there was key communication fostered and changes enacted without a lawsuit having to be filed. I do not see how the Ombudsman would be able to perform this function.

In October of 2003, four teenagers threw more than 120 eggs at five vehicles--mainly owned by minorities including a gay man.

Russell and several friends, concerned community members and fellow victims of hate crimes scratched out signs and banners to protest the Yolo County District Attorney's Office's willingness to drop hate crime charges against a teen-ager who is charged with vandalizing several cars and a home on Oct. 26, 2003.

One of the victims is Russell, a 27-year-old openly gay UC Davis lab assistant.

"This is silent affirmation to people who commit these type of crimes because they can look and see that nothing is going to happen to them if they get caught," Russell said of the plea offer. "This allows this type of behavior to continue."

Four youths reportedly shouted racist and bigoted remarks as they threw more than 120 eggs at five vehicles and one house early that October morning. One car was owned by Russell; another was owned by a black family. The house was owned by a black family.

Witnesses told police they saw four juveniles throw more than 120 eggs at the two cars. Russell's vehicle suffered more than $4,000 in damage, he said. Liquid from the eggs seeped through into the engine, causing damage, and the paint was also ruined.

Russell was able to pick one of the juveniles out of a photo lineup and he was arrested for the crimes. However, the youth has refused to tell authorities the names of the other three suspects.

"This was devastating to me," Russell said about the hate crime. "Then to have the crimes basically dismissed makes the whole experience exponentially worse."

Raphael Moore, Russell's attorney, said the proposed deal - announced at a pretrial hearing last week - might include dropping the hate crime charges against the juvenile. The 16-year-old could face limited probation and the possibility of having his record expunged in three years if the plea agreement is approved. (Davis Enterprise July 15, 2004).

As a result the HRC took up Mr. Russell's cause. The result was that the HRC worked with the new police chief Jim Hyde, yes the same police chief and the same HRC chair that were at odds a year later. At this time however, the HRC arranged for public meetings where various individuals spoke about the problems of hate crimes. As the result of those meetings, Chief Hyde greatly improved and expanded the department's enforcement of hate crimes legislation.

Even though, Mr. Russell's case was never prosecuted as a hate crime and the juvenile was slapped on the wrist at most, it set in motion a series of changes that will ensure that such events do not occur in the future.

These are but two of the more recent and easily accessible examples of what the HRC has been able to do in the past. Both of these incidents show an effective use of this commission that can both investigate and use community resources to resolve disputes that do not have to go into the legal system as law suits and litigation.

The council now wishes to turn this commission primarily into a listening, intake and referral commission. My experience is that few will come before such a commission. In the past many came before the commission because it was the only body that would listen to their complaints where they believe they were getting a fair hearing. The council wishes for the most part to take this vetting which is often healthy and cathartic out of the public process.

In the end, the council is weakening an historic document to fix a small and limited problem that arose in 2005-06 when the dispute over the proper way in which to deal with a given set of complaints erupted more broadly than it should have. Instead of finding ways to resolve the situation, the council opted for the hatchet approach first purging the HRC, then rewriting its rules, and now changing a landmark civil rights document. This is compounding the problem that began with the inability of either the police chief or the council to recognize the existence of problems and complaints within the community. These actions may quell the public complaints at this time, but they also put a lid on problems rather than solve them, at some point they will erupt again, boiling to the surface. This current council will probably not be in power when they do and they will not have to deal with the mess that they have created.

Unfortunately this is a done deal, fait accompli. And it is a shame that Davis will once again take a dramatic step backwards in their protections against civil rights abuses.

---Doug Paul Davis reporting