AG's Report Does Not Resolve Woodland Taser Case

The local media, namely the Davis Enterprise and the Woodland Daily Democrat were quick to exonerate the actions of Woodland police officers in the death of former Davis resident Ricardo Abrahams who died of asphyxiation after he was repeatedly tasered.

The family responded yesterday by suggesting along with their attorney that the investigation is flawed.

I will state at the onset that I do not know what happened, however, I think it is premature to conclude that there was no wrongdoing on the part of the police officers.

Deputy Attorney General Davis Lowe wrote:

"We find no criminal conduct on the part of any of the involved officers..."

This is not a surprising finding and based on what little we know of the case, an accurate finding. The fact of the matter is, a criminal finding would have had to have shown that the police officers intended to do harm to this individual. That is a very high standard to meet and one that is not in agreement with the known facts of the incident.

In other words, there is no reason to have suspected that the officers acted in a malicious fashion. That would be the difference between an incident like Rodney King where the police officers were clearly using excessive force in an intentional and malicious matter. However, even in the King case there was no criminal conviction--rightly or wrongly. The King case in that regard represents the norm.

But that is not the end of the story. Criminal conduct is only a small amount of this case. The next question will be whether the police are civilly liable for Mr. Abraham's death. That is a much lower standard and one that it does not appear from media accounts that the AG's office looked into.

Sacramento Attorney Johnny L. Griffin represents the Abrahams' family in a pending wrongful-death suit.

In his statement to the Davis Enterprise, he entertained the possibility that the state's ruling was based on information submitted by the Woodland Police Department.

"If the material submitted by the Police Department is incomplete and/or inaccurate, the attorney general's findings will likewise be flawed... Bottom line, the attorney general's finding can only be as trustworthy as the information provided by the Police Department."

If that is the case, we have no evidence to suggest either way and will have to wait for the trial for that to come out.

What we do know is that based on the information that Woodland Lt. Charlie Wilts provided, an internal investigation concluded that the actions of the officers were "consistent with the department's use-of-force policies."

That leads me to two final observations. In Davis, after a serious of community complaints about a variety of incidents involving the Davis Police Department, the City Council authorized the City Manager to hire an Ombudsman who could investigate such complaints as an impartial and independent arm of the city. The advantage in such a case is that you would have independent eyes investigating police tactics and whether these officers followed proper procedure. The Ombudsman would have audited and reviewed the work down by the Woodland PD's internal investigation. Under some conditions, the Ombudsman himself in such a high profile case would have conducted the investigation.

The point here again is that the AG's office was looking largely (apparently) at criminal conduct, much as the District Attorney's office would have had they not been conflicted out. That is different than an internal review.

Unfortunately Woodland does not have an Ombudsman or any kind of independent investigator to do this work. Across the country, Internal Affairs units notoriously are reluctant to criticize and sustain citizen complaints on the use of force. In our investigation from two years in our Police Oversight Series, we found that nationwide over 90% of all use-of-force complaints were unfounded by IADs but a much larger percentage resulted in civil damages for the victim or the victim's family.

That is where this incident is headed--civil court. The family's only recourse is for this case to be adjudicated which is a very timely and very expensive endeavor. The Buzayan family's incident occurred in June of 2005, their case is still pending in Federal Court over three years and large amounts of money later. Most individuals simply cannot afford those kinds of expenses and they end up either settling, dropping their case, or in some circumstances representing themselves. As Davis recognized two years ago, there are better ways to do this and Woodland should look into some sort of independent review process.

Finally, the Woodland PD's finding is that the officers' actions were "consistent with the department's use-of-force polices." If that is true, they ought to take this opportunity to review those policies. Experts I have spoken too, while unfamiliar with the specifics of this case, suggest that the situation with a mentally impaired individual who is largely unresponsive to police commands is a particularly difficult situation for any officer to handle. It is difficult for them to assess what is wrong or how much danger the individual represents to himself or the community.

Several officers I have spoken with off the record privately suggested that they were uncomfortable with this case while stressing that they did not know the particulars. It is their experience that often, but not always, officers are too eager to use tools such as the taser and too reluctant to try to find lower use-of-force alternatives. Better and improve training could potentially have prevented this situation even if the officers did indeed adhere to department policy.

In summary, this is not the end of the story, there will be several additional chapters to be written. The family will move forward with their suit and more of the facts will likely come out along the way.

---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

A fresh look at the Ombudsman and Police Oversight in 2007

Today's Sacramento Bee contains a nice piece on the Ombudsman Bob Aaronson (http://www.sacbee.com/257/story/116710.html). This seems like a good time to revisit some of the issues that arise in the article.

Mr. Aaronson is quoted as saying:

"What we have here is a failure to communicate."

"The (hit-and-run) case was actually an opportunity to have a community dialogue about the role of law enforcement, the role of community members and the expectations we have of interactions between law enforcement and community," he said. "That opportunity was missed, to everyone's detriment."

Following the Buzayan case, I completely agree with Mr. Aaronson there was a total and complete failure to communicate. I do not think that served the public's best interest well and I do not think that served law enforcement's best interest well.

Even now, comments I see in the newspaper and on this blog believe that there is disdain for the police. That is just simply untrue. One can be critical of certain practices and even certain particular police officers without having disdain for the police as a whole.

Some of us simply believe in the constitution. The constitution includes protections for the rights of the accused. It lays out conditions under which people can be searched, detained, questioned, etc. And there is a serious concern when the rights of the accused are violated. That concern is often translated as meaning soft on crime, but in fact, it is a concern that innocent people will have their rights violated. In order to protect the rights of the innocent we must protect the rights of all, because in this country we are theoretically innocent until proven guilty.

Moreover there is an unwritten covenant between the community and its law enforcement. It is a covenant based on trust and communication and when that covenant is stressed or broken, it leads to problems on both sides. We as a nation believe that in our system of government there needs to be checks and balances. In the federal government that means one branches has the power to check the power of another branch. In state and local government, it means that there are bodies and individuals with the power to oversee the operations of governing bodies. When a neutral third party is overseeing the operations of the government, it fosters and reinforces that trust and communication.

That is why many of us last year requested the formation of a citizen's body to be that overseer. Law enforcement and the city council prefers this current model, of having an expert such as Mr. Aaronson act as that check, and while some of us have other preferences, we would all like to see Mr. Aaronson succeed.

"In dealing with police departments throughout the state, the most common citizen complaint is that an officer was rude, Aaronson said."

I honestly wish Mr. Aaronson would not have said this. Not because I necessarily think it is untrue, but because I think there are much more serious and more valid complaints than this. What I am concerned with is not whether or not an officer is rude or polite, although I would much rather have a polite and professional officer. I am concerned with the policies that lead to pretense stops and also the rules of engagement for the escalation of police force based on the perception of verbal noncompliance. While I respect Mr. Aaronson, I think his statement makes it too easy for people to be dismissive of what are at times serious and valid complaints about the operations of the police.

The Buzayan case was misinterpreted to be a case based on the demeanor of the officer rather than what are alleged to be serious violations of department policy and state and federal laws.

I was interviewed as well during the course of the interviews for the article that appeared a few weeks ago about the People's Vanguard of Davis.

"Davis resident David Greenwald runs the People's Vanguard of Davis blog and has roundly criticized the Davis Police Department's conduct. He has spoken at length with Aaronson and calls him "an excellent hire."

He wishes Aaronson had more power to implement investigations and mete out discipline; instead, the ombudsman reviews existing internal investigations and makes nonbinding recommendations.

"(Aaronson) is more of an auditor than an ombudsman," Greenwald said."

I spelled a lot of this out in the series about police oversight in Davis. From my conversations with Mr. Aaronson, I think he has a good deal of understanding about what the strengths of the Davis police department are. But he also has a good sense for things that need improvement. My fear is that he really is not in a position where he can recommend changes but does not have the authority to enact changes within the current power structure.

"I expect over the life of his role as ombudsman there will be times he will support the Police Department; other times he will be critical of it," Pierce said. "I'm open to the ideas and criticisms he has.

"If we're doing something outside the community's expectations and Bob tells us we need to change the way we do business, that is something I will certainly take to heart"

The critical test for Mr. Aaronson will be the next time there is a major incident--and maybe his presence alone will prevent something like the Buzayan case or some of the other lesser known but often just as serious cases from the past year. I think a lot of us thought that Former Chief Jim Hyde was going to be an outstanding Police Chief and were stunned by the manner in which he became defensive and shut down communications in the face of scrutiny and criticism of his department.

"After months of observation, Aaronson says a new police chief is the Davis Police Department's most pressing need."

The next police chief will make or break this department. If we get a good police chief, we can begin to forge a new covenant between the citizens and the police and we can put the last year behind us. If we get a poor police chief or one that lasts only a few years, then in ten years this will be revisited yet again. The most amazing thing about the events of the last year is that they are not new. If you talk to long-time residents who have been involved in the process something like this occurs every so often, the issue comes up and then it is never resolved and reemerges once again in the future. We need to be able to fix it during times of non-crisis so that we can avoid another incident like we had last year.

---Doug Paul Davis reporting

Part VII: Alternative Models of Oversight

This is the final installment in the seven part series.

I’ve spent the last six entries discussing the weaknesses and problems that the current Davis Ombudsman Ordinance faces. During the course of that discussion were some implicit and explicit suggestions for improvement. This final installment will put together a number of those suggestions into a final proposal.

Alternative Ombudsman Models:

Santa Cruz Model: This is very similar to the model that the current council has adopted and it seems to be one of the weaker models. “A complaint may be filed if you have concerns about specific Police conduct or actions. If a complaint is filed, it is forwarded to the Professional Standards Unit and a supervisor will be assigned to conduct a formal investigation. The final investigation is forwarded to the Police Auditor for review. The investigation is reviewed for thoroughness, objectivity and to insure that the evidence supported the finding.” In other words, the auditor, as they do in Davis, merely reviews the investigation rather than conducts the investigation.

San Jose Model: In this model the internal affairs division does the primary investigation just as the current Davis model provides, however, the Independent Police Auditor “monitors and reviews all stages of the complaint process from intake through final disposition of the complaint. One of the most critical stages of the investigation of Formal complaints is to ensure that officers accused of misconduct are interviewed objectively and thoroughly. The IPA participates directly in many of the officer interviews to ensure that this goal is achieved.” Here, the IAD does the primary investigation just as it does in Davis, however where it differs from the Davis Ombudsman is that the IPA monitors each step of the process, sitting in on interviews and ensuring throughout that the investigation is thorough and objective. That would be a great step up over the current law where the Ombudsman only comes into play at the conclusion of the initial investigation.

Boise Model: Boise has an even stronger model, providing flexibility as to who conducts the primary investigation. “The Community Ombudsman has primary responsibility for the investigation and case management of all complaints filed with the Office of the Community Ombudsman… Investigations, as determined by the Community Ombudsman, may be performed by …” any number of law enforcement agencies or by the Ombudsman themselves. “In determining the most appropriate assignment of a complaint for investigation, the Community Ombudsman will consider the following factors: (1) The wishes of the complainant, particularly any expressed fears or anxiety about interacting with the police during the investigation…” This model would seem to enable the complainant uncomfortable with the police doing the primary investigation to opt for other bodies. The advantage of this model is that it gives the complainant a choice as to who conducts the initial investigation and allows for an independent body to investigate rather than the police investigating the police.

There have been a number of proposals for a civilian review board. A civilian review board is generally composed of a professional investigator, who would fulfill the primary tasks that an Ombudsman or Auditor would fill, and there would be a body of appointed citizens who would hear complaints from the public and recommend investigations. That investigation would be carried out by the investigator and presented in public meetings to the review board who could then make recommendations.

A civilian review board would be a good ultimate goal for this community, but it seems clear that a good deal of the community right now and the police are not receptive to the ideal of civilian oversight.

As such, here are several recommendations made based on the examination of the current model and current problems.

1. Strengthen the Ombudsman position by making it a full-time position. As we’ve seen, the City Manager has had difficulty finding a qualified person to take a part-time position and it seems clear at this point that the city needs a full-time position. In the future, we might be able to cut back on that as department practices adjust to avoid continued complaints and adverse findings.
2. Give the Ombudsman a stronger role in the initial investigation. Both the San Jose and Boise models would accomplish that. The San Jose model would be a less drastic change but it would have a great impact simply allowing the ombudsman to monitor and participate in the entire investigation. The Boise model would change who conducts the primary investigation.
3. Strengthen the PAC by using it to replace the Internal Affairs Department. This is drastic, but it seems very clear that the IAD cannot police or even properly investigate complaints against the police. The PAC is made up of legal professionals, a retired police chief and two attorneys. These are not amateurs. The current model puts them as mere observers; this change would put them into the forefront of the investigation.
4. Strengthen the CAB by giving it specific advisory authority. Right now the CAB is not being used as a Community Advisory group. It needs to be given specific charges to advise the police on specific department policy.
5. Improve Community Outreach. There needs to be forums for the public to participate to express concerns. Some of this happens already. However, in order for this to work properly, the department needs to go into the minority communities and actually interact with segments of the public who feel aggrieved in the current climate—that includes students, the African-American, Muslim-American, and Mexican-American communities.
6. Improve Representation on the Boards. Find a way to get diverse opinions on these boards. Find students not heavily involved in student government. Find minority students. Find people who represent youth. Find representatives from the minority communities who may not support current polices. Give the public a true forum by which to express their views. And make the CAB meetings, public meeting.
7. Re-instate the Human Relations Commission. When the City Council shut down the HRC, it shutdown the most effective body to register dissatisfaction with current system. By removing its membership, the Council chilled the possibility of a future Commission that would heavily voice its dissent of Council goals. That creates a very dangerous precedent for future interactions.

---Doug Paul Davis Reporting

Part VI: Community Outreach and Transparency

In yesterday’s segment, I discussed problems with the lack of representation for specific communities most affected by the police. A reader made a good point that in addition to the lack of representation for minority UC Davis students and others in the minority community who have had the bulk of the adverse dealings with the police department, that there was a lack of people who deal with youth and at-risk children. Carlos Matos does deal with youths and at-risk children, but he’s an exception on the Community Advisory Board in a number of ways.

Compounding this problem is the basic weakness in the Ombudsman Model. On page 11 of the agenda item, city staff wrote: “Another downside to the contract police ombudsman function is that it is not structured to allow for much public outreach to the community.”

There are two separate but related problems that this raises. The first problem, dovetails from yesterday’s discussion and that is the lack of general communication between the police department and certain members of this community.

We can trace the foundation of this problem back to the initial response of former chief Jim Hyde to allegations coming from the Human Relations Commission. The HRC has in the past often worked very closely with the police department. Under previous chiefs and in the early part of Hyde’s tenure, the police and the HRC worked closely on hate crimes. There were liaisons and other contact between the police and the HRC. When the allegations began last summer, Hyde immediately cut off contact. His liaisons no longer attended meetings. He stopped meeting with the chair and other members. And as we’ve seen, he did more than that, he actually according to public records documents, waged a public relations campaign against the HRC.

The problem of communications goes beyond the conflict between the police and the HRC. The Chief would seek out only forums where the people attending would be supportive rather than critical of himself and the department. In much the same way that we see President Bush seek out only very supportive audiences for his speeches and announcements, the Chief operated in much the same way. The organizer of the May 23^rd March Against Racial Profiling tried to get police representatives at an University of California wide conference on April 29 about Police-Community Relations and was turned down. He tried on a number of occasions to organize meetings and public forums and the chief had no interest. The line of communication was cut off.

Now the Ombudsman is going to be in a position to oversee the operations of the police department and yet there is no channel of communication set up in the current system to go from the members of the public who are aggrieved with the current process to the Ombudsman. To make matters worse, the HRC is now disbanded. They will likely reformulate the committee, but is it going to be a place where the public can air their concerns as it has in the past? The City Council has generally been unresponsive to public concern. The police department does not have a replacement chief. And the Ombudsman is part-time and will not be involved in any form of community outreach.

If there is one single area that could be fixed tomorrow and make a huge difference, it is in this respect.

The second problem, relates from the first. And that is the notion of transparency. There is a lot of talk about the word “transparency,” but what does it mean? As used in this situation, it implies openness, communication, and accountability. It is a metaphor from the sciences meaning a transparent object is one that can be seen through (source: Wikipedia). The article goes on to say: “Transparency cannot exist as a purely one-way communication though. If the media and the public knows everything which happens in all authorities and county administrations there will be a lot of questions, protests and suggestions coming from media and the public. People who are interested in a certain issue will try to influence the decisions. Transparency creates an everyday participation in the political processes by media and the public."

And that is the key. “Transparency cannot exist as a purely one-way communication…” The system set up at the moment is exactly that—one-way communication. There is a professional hired to oversee the operations of the police. The investigation process is a closed one. We are given the results of the investigation. The officer has a chance to have a hearing before an administrative law judge. The complainant gets no such luxury. The complainant’s only recourse is to sue the city if they do not like the process. The complainant has to under most conditions bare that cost themselves; whereas the officer is given a chance to appeal, funded by the taxpayers, and in most cases defended by taxpayer expense even in a civil trial.

There is no transparency in this system. We do not have any sort of public investigation of the facts or the findings. There is no part of this system open to public scrutiny. And they’ve even managed to create a system that closes down the lines of communication. So there is no public discourse.

Lack of communication leads to public distrust. Someone wrote me, that a person who files a complaint, has that complaint thoroughly and sincerely investigated, has the complaint found to be unfounded, will often still believe in the veracity of their charges. There is no way around that dilemma per se. However, compare two situations. One in which all investigations are conducted largely in secret and the rulings handed down with no public scrutiny. In the second situation, there is a public meeting discussing the allegations and charges. An investigation is conducted. They then present findings of the investigation (much as you would present an academic paper) in public, where the public can ask questions about the process and the findings. Which situation is the public more likely to have confidence in the overall findings—the secret one or the public one?

Everyone who opposes this forum of civilian oversight believes that those who support public oversight are against the police. I think this system would, if conducted properly, would benefit the police. The current system hides the process and the person who feels wronged is not going to be convinced that the police did their job when they are handed a letter explaining it to them. That leads to an inherent distrust of the police and the system. They are left to either expend vast amounts of money on a lawsuit (which will cost the taxpayers a lot of money as well) or they are left to accept it, often with a degree of bitterness. On the other hand, if you go through a formal process that is open and lose, but if you think the process was fair, you may not like losing, but you’ll at least accept it and have faith in the system. I think that strengthens the hands of the police and fosters rather than erodes public trust. I know a lot of people see this as an attack on the police, but it is really an attack on an ineffective system of oversight and unfortunately, the new system seems to be as lacking in this capacity as the old system.

Tomorrow, I shall discuss alternatives to the existing model in the final installment of this series.

---Doug Paul Davis reporting

Part V: CAB: Representing the Community?

The following is part five in our series looking at police oversight in Davis. In addition to the PAC, the City Manager and the Police Chief have created a Citizen’s Advisory Board.

An advisory board of 12 people representing a cross-section of the community based on neighborhoods, businesses, schools, religion, race, gender, and other factors was formed the last quarter of 2005. The members are selected by the Police Chief with the City Manager’s approval. This board meets with the Chief on a monthly basis to provide input to the department regarding constituent concerns. Additionally, the CAB members will take information away from the police department back into the community. This Board has broad public representation and input into the police department. Most importantly, CAB opens and sustains on-going dialogue with key members of the community on issues of mutual concern. (Source: http://www.city.davis.ca.us/Police/fivepointplan.cfm )

The goal of this body would seem to be relay constituent concerns to the police. From descriptions from some of the members it has generally been used to present information to the members of the board, rather than used in any sort of advisory capacity. Generally they have provided information about crime statistics and new programs that the police have implemented. It is less about solving problems within the police department and more about receiving information about the police department. I do not want to disparage this, because the people involved I have spoken to have found it useful. But we should not be under the illusion that this body is currently being used for any sort of critical inspection of the operations of the police department.

The question is about how representative of the diverse community is this body. And in some ways, it appears to be very diverse. You have people from various communities involved. Shelly Bailes, a gay/ lesbian activist is a member, Hamza Al-Nakal, a member of the Muslim community is a member, Carlos Matos, a prominent Latino, Calvin Handy an African-American former UC Davis Police Chief, representatives of the business community, and even two students are there. One thing you will notice though is that those involved in this group tend to be supporters of the current majority on the council. There are some exceptions, but that seems to be the case. But, that’s not surprising.

There is one issue involving the CAB that is of particular concern. And this extends beyond the CAB itself to include the UC Davis-Davis Police Liaison Committee. My concern comes from observing the largely minority student march on the Davis Police Station in late May. There were somewhere between 100-200 minority students. And let me tell you, if you have been a long time resident of Davis, the number of minorities, particularly African-Americans in this crowd was surprising in and of itself.

What particularly struck me that day was the level of anger I saw in the marchers. The level of frustration seemed to be at a boiling point. And a big problem was the lack of legitimate channels of communication open between these students and the police department but also city government in general. No fewer than 20 students came forward in a two hour protest outside of the police station following the two mile plus march and talked about their experiences with the police. Very naked and raw stories about being pulled over on very little pretense, asked if they were in a gang or on probation. They were asked routinely if they were from Sacramento or Oakland. Finally, they were released. Almost none of them received any sort of citation and almost none of them were accused of breaking any laws. For some this happened multiple times—to the point where some refuse to drive in Davis because they do not want to deal with this police.

The reputation of Davis for minority students is absolutely horrendous. There are almost two separate types of complaints about the Davis Police. One is the excessive force, violation of rights and procedures, and general intimidation. The other is the racial profiling. They’ve been lumped together at times, but in many ways, they are different and need to be addressed differently.

The police refused to have a spokesperson even talk with the students. A number of officers stood behind the glass, practically jeering and taunting the students. It would have been a marvelous gesture on the part of the police to send someone out there and try to have a dialogue with these obviously frustrated students. The organizer for this march tried on a number of occasions to meet with the Police Chief or Assistant Chief and was rebuffed.

But the other thing that struck me was to compare the students at this march to the students traditionally involved with student government. Those are the students now sitting on the CAB and on the Liaison Committee. And these students are not represented in this process.

Why is this omission important? Because there is no one on these committees that has gone through the experience of being pulled over for no apparent reason other than to ask questions to ascertain whether or not this is a criminal or someone dangerous. There is no legitimate reason to believe that this person is a criminal or someone dangerous other than the color of their skin. There is no one on any of these boards that can personally relay that to the police. And the police have refused to engage on this issue.

More alarming are stories I have heard relayed to me that indicate that otherwise liberal and progressive individuals are either oblivious to this problem or support these policies. A story was told to me that a woman, a self-described progressive, did not have a problem with racial profiling. That her primary concern was rising crime and she wanted to stop it at all costs. She was asked, if a black person committed a crime in Davis, should every black person be pulled over in an attempt to catch the criminal. Her response was yes. When pushed on it, she said, she didn’t care, all she wanted to do was stop the crime, she did not care how they did it or whether people’s rights were violated.

I find this not only alarming, but emblematic of the attitude of the Davis populace. There is probably only a 15 percent segment of the population that has had problems with the police, but this problem has gone on for years, and unless there is a way to get these communities represented on the CAB, the problem is going to continue. As presently composed, the CAB fails to address the fundamental problems that are going on in this community. I will warn you, watching these students in May, things were near a boiling point. Unfortunately, it may take a major incident to alert the general public to the treatment that a sizeable segment of the population faces each day.

---Doug Paul Davis reporting

Part IV: Examination of the Police Advisory Committee

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

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

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

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

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

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

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

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

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

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

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

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

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

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

---Doug Paul Davis reporting

Part III: Assessing Weaknesses in the Davis Ombudsman Model

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

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

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

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

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

There are several reasons that this is a problem:

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

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

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

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

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

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

---Doug Paul Davis Reporting

Part II: The Ombudsman and Problems with Police Internal Affairs

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

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

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

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

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

· 2003 -- 23 citizen complaints filed; 2 sustained

· 2004 -- 17 citizen complaints filed; 0 sustained

· 2005 -- 34 citizen complaints filed; 3 sustained

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

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

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

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

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

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

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

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

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

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

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

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

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

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

---Doug Paul Davis Reporting

Assessing the Davis Ombudsman Position: Part 1

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

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

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

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

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

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

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

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

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

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

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

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

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

---Doug Paul Davis reporting