Davis to Hire Robert Aaronson as Police Ombudsman

Breaking News—According to reliable sources, I have been told that Davis is set to hire Robert Aaronson as the police ombudsman. He is currently the Independent Police Auditor for the City of Santa Cruz.

Info on him and his department can be Info on him and his department can be located at: http://www.ci.santa-cruz.ca.us/cm/ipa.html

My source who has met with him tells me that he thinks he’s a good hire and this is the best opportunity to fill the position with someone who will be dedicated to doing a good job and oversee the operations of the police.

More on this as info becomes available.

Acting Police Chief Steve Pierce Misses the Point

In an article by Claire St. John in yesterday's Davis Enterprise, she quotes David Greenwald, husband of the former chair of the HRC:

Handling allegations of police misconduct would be removed from the HRC's mission statement, Asmundson and Souza said, because the formation of the Police Advisory Committee, the Community Advisory Board and an ombudsman position will serve that purpose.

David Greenwald, husband of former HRC chairwoman Cecilia Escamilla-Greenwald, questioned where people will turn.

"As I understand it, neither the PAC nor the CAB are open to the public," he said.

People can still come during the HRC's public comment to make statements about alleged police wrongdoing, Asmundson responded.

This morning, Greenwald found that solution troubling.

"The problem with that is that the HRC could not act," he said. "So there would be no public body that the citizens could go to that could hear their complaint and actually act on it."

Steve Pierce however claims that there is a venue for such complaints...

Interim Police Chief Steve Pierce this morning said the ombudsman position, which is still open, will serve that purpose.

Either Pierce is flatout wrong or he's missing the point. As we have reported in our series on police oversight, city staff themselves acknowledge the lack of community outreach incorporated into this model of oversight. “Another downside to the contract police ombudsman function is that it is not structured to allow for much public outreach to the community.” (See Page 11 of the May 2 agenda report on the ombudsman).

The concern here is that the public has no public forum with which to take their complaints. Neither the Community Advisory Board nor the Police Advisory Commission are public meetings. Therefore neither of them serve the purpose formerly served by the HRC.

The Police Ombudsman does take in complaints, but again this is not a public body that will take the place of the role that the HRC served. Pierce is correct that citizens will have the opportunity to file complaints with the ombudsman, but that is something the HRC never had formal jurisdiction over to begin with. Instead the HRC served as a public means by which members of the public could publicly air their complaints and have a forum to have them heard and perhaps investigated. The former part of their function has now been supplanted by a much more private and formal mechanism.

It seems clear that neither the City Council nor the police chief fully understand the importance of having a public forum where these issues can be raised.

---Doug Paul Davis reporting

A step in the wrong direction

The city council meeting last night featured a number of changes to the structure of the commission system. A number of these changes were fairly technical—standardizing the number of commissioners, standardizing the operational language. But there were some substantive changes as well. The public did not receive notice of this item until Monday morning. Fortunately, Heystek moved to table the motion and the council majority agreed.

“The Subcommittee agreed that, with the addition of a Citizen Advisory Board [CAB] to the Police Chief, a Police Advisory Committee [PAC] to the City Manager, a contract Police Ombudsman for the community and other steps underway in the police department, the Human Relations Commission should focus on issues other than police oversight.”

The problem with this proposal is that it removes the only access the public had to the police oversight process. As council argued, they put in place two bodies the CAB and PAC that will handle oversight issues. However, neither body meets in public.

Council did suggest that the public would always have the opportunity to speak before the HRC on whatever issue they wanted. But this again avoids the central problem: the HRC has no power to act on these concerns. There is now no body in Davis with any kind of power that can listen to public complaints and act on them. The city council by changing the charge of the HRC, has now completely cut off the public from the process of police oversight.

Lack of public input into the process was already a concern during our seven-part series on police oversight. Now there is yet another contact with the public that has been removed. This represents a clear step in the wrong direction.

The good news is that because of the efforts of Lamar Heystek, this issue has not been voted on. There will still be an opportunity for public input and community discussion. The council has shown themselves to be relatively unreceptive to public pressure, so we remain skeptical that this can be changed. At the very least the public needs to understand that the council threatening to cut off public input into the vastly important issue of At the very least the public needs to understand that the council threatening to cut off public input into the vastly important issue of police oversight.

---Doug Paul Davis reporting

Police are leaving Davis

As I waited at the police station with a neighbor of mine who had just had her laptop stolen along with some cash from her home, we fell into an inevitable conversation about how short-handed the police are. This is one of the claims that opponents of police oversight were making that I never quite bought, yet turned out to be quite true.

• 2005-2006 - 12 officers
• 2004-2005 - 6 officers
• 2003-2004 - 3 officers
• 2002-2003 - 5 officers
• 2001-2002 - 7 officers

That's information supplied by the county clerk's office to one of our confederates. As you can see, the number of officers who left this past year is significantly higher than the previous four years. Without going into statistical discussions, it would appear something unusual is going on. Our first thought settled on the amount of relative pay that Davis offers and that has been a concern, although the new MOU provides a healthy pay hike that with benefits brings the amount of money near 100K. This for people with largely high school educations. There's also the ridiculous cost of housing that the city needs to address as does the university--somehow they need to be able to provide housing for their employees because the majority do not live in Davis itself, that is a problem.

The kicker in this discussion is that as we're talking a guy sitting in the lounge informs us it was the HRC that was the reason for some of the police leaving Davis. He goes on to tell us his cousin did not want to "work under the commission." He said he transferred to Fairfield. Then he looks at us in a very frank tone and said that he doesn't understand that logic at all. He'd rather deal with some commission than have people shooting at you like they do in Fairfield.

This reminds us of a conversation that occurred with Bob Dunning of the Davis Enterprise. In his column he suggested that Davis would top the worst place for cops to live. The choice between dealing with getting shot to death and dealing with the former chair seemed like an easy decision. Dunning agreed: "Agreed. Just sticking the needle a bit. Then again, the chief did leave for a higher crime city." Then again Bob, the police chief doesn't generally get shot at.

However the glib exchange with Dunning not withstanding, I'm beginning to believe that somehow we were wrong. That in fact, cops would rather be shot at than face oversight.

It goes past that though. The Human Relations Commission was largely marginalized by the efforts of the police and the majority on the city council. The HRC did not have the majority in council in support of their agenda. The majority on council opposed it strongly and heavily favored the police. The HRC was finally removed in late June, but that move was in the works for five months--the Police Chief had to know that.

None of this makes a great deal of sense to us. What exactly was the police chief afraid of? What exactly caused 12 officers to transfer to over jurisdictions? The threat of oversight? The fear of scrutiny and criticism? Were they afraid that they would be caught up in a legal issue? None of these issues of endemic merely to Davis.

The problem that Davis faces was apparent when we finally went in to see the officer to make the report. The officer was a young guy, looked like he could not be 30 yet. And yet he already seemed jaded, fatiqued, and burnt out. It was almost sad watching him operate. This is our future in this great community?

I do not know where this will go but it is obvious that the police need strong leadership and advocacy that they are not getting. And they also need to not give in to paranoia. The likely affect of any oversight system is very small on an officer. If one does nothing wrong, one need not worry about the system. Is that what they tell us?

---Doug Paul Davis reporting

thanks to Henry Bianco for some of the information...

Saylor's Labor Moment

It was one of those awkward moments when Don Saylor got up before a group of Democrats in Davis on Thursday night and gave a rather long and dispassionate history of labor in this country. It was a strange moment and Saylor who has at times given quite good speeches, and is generally articulate, but here he clearly sounded flat and uncomfortable. Compared to speeches by John Garamendi, JR (son John Garamendi, Democratic Candidate for Lt. Governor), former Yolo County DA candidate Pat Lenzi and former Davis Human Relations Commision Chair Cecilia Escamilla Greenwald, it was a complete yawner.

People have good nights and bad nights, the surprising thing about Saylor’s comments is that he has a track-record that goes against labor. We can trace this back to his days on the school board of Davis. He was initially elected in 1995 with the endorsement of the Davis Teacher’s Association. However, in 1999, he was re-elected despite not getting the teacher’s endorsement. What changed? A few things. For one, the teacher’s felt that with his background as an educator for the CYA, Saylor would be supportive of programs for disadvantaged and at-risk youth. Instead he was primarily concerned with GATE and Spanish Immersions. Those are two very important programs, but he’s clearly in those instances catering to the establishment and the gifted rather than trying to help the lesser gifted students.

Furthermore, the teacher’s association felt he played games in his negotiations. Following a budget negotiation agreement with the DTA in 2000, Saylor strongly opposed a pay increase that had been negotiated and was approved by the school board with a 4-1 vote (Saylor the lone dissenter). In what would become standard Saylor fashion, he spoke from three pages of prepared remarks (something he now does on a regular basis): "noted that he has voted in favor of every contract between the school district and the DTA over the past five years, but said that "in good conscience" he could not vote for this one." (Source: Davis Enterprise). This of course followed his failure to gain endorsement in his reelection bid and during a time of huge budget surplusses for the district that the other members voted to pass onto the teachers. In short, he was not a great friend to the union.

More recently, the issue of Target came forward. Newly elected Councilman Lamar Heystek, wanted to have a discussion agendized on whether there should be union reuquirements for Target. Target is a notoriously anti-union corporation. They’ve strongly opposed unionization and have been union-busters. In the anti-Target campaign you will see Bill Camp and the Sacramento Central Labor Council prominently featured. They had requested a hearing on this, the majority on the council opposed agendizing this. Sue Greenwald attacked them as anti-union. Both Souza and Asmundson defended their opposition but stated their support of union. However, Saylor was silent on this issue.

Saylor of course, has aspirations for higher office, but you wonder whether a Democrat can win the nomination for Assembly without strong labor backing. We shall see. Regardless, Saylor’s labor record leaves a lot to be desired and the those listening to the speech had to be left wondering where his loyalties lie, because while he said the right thing, there was no passion and no conviction behind them. Regardless labor leaders will not forget his continued opposition to their crucial issues.

---Doug Paul Davis reporting

The Disease of Big-Box Retail

Big-Box retail is like a disease. Like most diseases, it has symptoms that appear in a predictable progression after initial contraction. A town that has been newly exposed to Big Box can expect a marked diversion of consumer dollars and traffic followed by store closings. This effect will snowball as more Big Box arrives near the initial exposure site and vacancies spread through other retail centers like cancer. The entire economy then suffers as money once spent and reinvested locally is funneled off to Minnesota or Arkansas. The final stage of the disease is a blighted downtown, vacant neighborhood centers and total dependence on the Big Box for goods. This is the pattern that has played out in every small city that has allowed Big Box in. It is folly to think that Davis will be any different.

If Measure K passes the Big Box process will begin here. At 2.4 football fields in the Target store alone, this project will vastly change the scale of Davis retail. The current limit on retail is 30,000 square feet; this Target is 137.000. No existing business can compete on that scale and any future retail project will have to be able to match this new standard. Once the general plan restriction is discarded and the zoning is amended to allow this Big Box, there will be nothing to stop more Big Boxes from locating in Davis. The rest of the 72 available acres along 2^nd Street will be bid on by the only businesses that can locate and compete next to Big Box: more Big Box. Sam’s Club joined the Davis Chamber of Commerce the same time Target did. Big Box begets Big Box. If you doubt the inevitable progression, ask yourself: Have you ever seen a Target store surrounded by idyllic fields and quiet grassland?

Just the huge Target will cause local business to close. With a massive expansion of the Target in Woodland, a new Target planned for West Sac and the Super Wal-Mart in Dixon, there is no reason for people in the outlying communities to come to a Davis Target. This Big Box will draw its expected $60 million annual sales almost entirely from Davis. Some of these sales will be from Davisites who previously went to out of town Targets, but you can bet that Target Corporation isn’t going to build here to get sales they are already getting in Woodland. So the majority of this Target’s sales will be diverted from existing Davis businesses. That is the only purpose to a store like this.

Let’s be generous and assume that only half of the Target’s sales will be diverted from existing businesses. This really is conservative; people aren’t going to have any more money to spend just because Target is here. But half of their sales is still $30 million per year! Many Davis shops cannot survive such a loss, even spread out, as it would be, all over town. Large groceries and pharmacies operate on small margins and count on much traffic. This Big Box center expects 10,000 car trips per day. That traffic also has to come from somewhere. One stop shopping is the Big Box motto, and it means that consumers don’t go anywhere else! With thousands of customers a day and millions of dollars a year being diverted, it is a certainty that local stores will begin closing soon after this Big Box opens. And the damage will increase geometrically with each new Big Box opening.

Once the retail outlets that Big Box competes with directly begin closing, other businesses will follow suit. The restaurant with vacant storefronts around it will not last long. After the anchor stores close in the neighborhood centers, the small shops will have to follow. Even the professionals will suffer as their small business clients go out of business. This progression will combine with the acceleration of more Big Box to cause eventual but inevitable blight. And once blight occurs, it is irreversible. Berkeley is hemorrhaging money trying to cure the symptoms of Big Box on Telegraph, to no avail. Once the Big Box disease is in its final stages of a blighted downtown and permanently vacant shopping centers, everything the city hoped to gain is lost. The taxes, jobs and convenience are all gone as the cumulative sales tax, employees and convenience once found in the closed businesses vastly exceeds that created by the Big Boxes. This is not a Chicken Little prediction; it has happened in every small town across America that has allowed Big Box retail on its outskirts. Go to downtown Woodland, Fairfield or Vacaville to remember why you live in Davis and why we don’t want Big Box here.

Cities everywhere are resisting Big Box because they see the damage it does to their communities. For 20 years Davis’ leadership had the foresight to block Big Box proposals. Now it is up to us citizens. The negative effects of Big Box are documented facts. Big Box is a disease for which prevention is the only cure. Preserve our community. Vote NO on K.

---Dan Urazandi, guest commentator

Dan Urazandi owns "Bizarro World" in Davis and is a member of the group opposing Target coming to Davis, "Don't Big-Box Davis"

http://www.DontBigBoxDavis.org/

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

Driving with Money

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

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

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

One of the judges dissented:

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

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

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

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

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

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

---Doug Paul Davis reporting

A couple of notes:

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

More on Pesticides

Pesticides have not been my highest concern in this community. As I've stated previously, I'm much more interested in civil liberties and human rights than pesticides. But I find myself writing another column on pesticides in Davis--partly out of the fact that this is a slow period with the City Council on vacation, but partly out of concern for the process itself.

There was a good debate on the use of pesticides in the Davis Enterprise on Sunday. On one side were three entomologists from UC Davis and on the other side, a couple of activists Jack Milton and Jim Norton.

I find it interesting first of all that Milton, who is a math professor at UC Davis is indentified as only being a member of an anti-spraying group. I don't know if that matters or not for his credibility, but it was interesting nonetheless.

The real point here comes down to this blurb at the bottom:

"Rick Roush, Bob Washino and Mike Parrella are all members of the entomology department at UC Davis. Parrella and Washino also serve on the board of trustees for the Sacramento-Yolo Mosquito and Vector Control District."

The authors of this piece are all entomologists from UC Davis. I find that interesting because I've been told (I need to finish my research before I'm willing to declare) that the entomology department receives a large percentage of their grants from chemical manufacturing companies and that this department tends to be very pro-pesticide use. I do not know enough about the field to know if entomology as a field is generally predisposed to beng pro-pesticide use or if there are debates within the field about the use of chemicals to kill insect populations.

The second interesting thing in that blurb is that both Parrella and Washino also serve on the board of trustees for the Mosquito and Vector Control District. So we have two entomologists who would seemingly know a lot about the use of pesticides serving on a board of trustees of a district that makes the determination of whether or not pesticides should be used. That makes perfect sense to me.

But here again is where I get into the foggy area where I just do not know enough. If you have two researchers who are reliant on grants from chemical manunfacturers in order to do your research, and those people are responsible for the decision as to whether those same chemicals are used, is this not at least potentially a problem?

Everything that Roush, Parrella, and Washino is telling us might be true. I've heard similar things from people who do not receive grants from the chemical industry. But the process here concerns me, just as the fact that an unelected body could have authority over an elected body disturbed me two weeks ago.

---Doug Paul Davis reporting

Would Profiling Make Us Safer?

I was flipping channels the other night right after the revelations about the terror plot were uncovered. I came upon Scarborough Country, the host is Joe Scarborough, a retired Republican Congressman from Florida. He had on his show, author, Michael Smerconish, whose book “Muzzled,” basically argues that we need to adopt some form of profiling in order to avoid terror attacks.

Scarborough said: "the suspects in this terror plot fit the same profile of those who killed Americans on 9/11, who killed British in the London attacks, who killed Spaniards in the Madrid bombings, who killed U.S. sailors in the USS Cole explosion, and of course, and all the other terror plots."

Smerconish said: "by process of elimination, I can tell you who they‘re not. And Thurston Howell II (ph), some guy with whales on his pants from country club suburban America, is not out there wreaking havoc on our airlines, is not seeking to blow up in mid-flight. And I think that law enforcement needs to take that into account at both our borders and at our airports. I mean, the reality is, it‘s radical Islam."

The amazing thing about all of these talk show-type hosts is that when someone disagrees with them, they ask the toughest questions in the world and really push the guests. When someone agrees with them, they do not ask very tough questions at all. If I were ever to unfortunately be foisted on American viewers, I would ask tough questions regardless, it's the only way to really get at the good tough truth.

And we did not in this case, because, Scarborough didn't ask the questions that needed to be asked. In the case of 9/11 and the case of whatever they are calling this foiled attempt--how would profiling have made us safer?

A couple of points here. First, they were using common products to make explosives. So it seems to reason that they would not have caught these people with a routine check. Now maybe, you could argue that they could interrogate the information out of the collaborators, but that would presuppose a level of ingenuity I have not found at airport security. It's possible that if they pulled over every single Muslim flying a plane, someone could have asked the right question and figured it out.

More likely, the only way to catch these people was the way they did, using security and not racial profiling.

That brings me to a second point. What does a Muslim look like? Muslims of course inhabit large areas of Africa, Asian including the near East, Middle East, East Asian, the Sub continent, and even parts of Europe. I've known Muslims who look like Mexicans. So basically in order to truly profile, you'd have to pull over all non-whites. I can see why some people have no problem with this policy.

But again, given what the hijackers on 9/11 used, the fact that the materials were seemingly innocuous and wouldn't have raised much suspicion, I suspect that once again, profiling is the lazy-person's way out of a very tough situation. If they can create explosives from household products, how are you going to catch them?

In the meantime, in the name of safety, people ditched sometimes hundreds of dollars worth of products and medicines. Fear and deprivation of liberties are huge costs and prices to pay in each attempted terror attack. Each time, the terrorists even threaten, liberty is taken away from the citizens of this country. In our fear, we allow the terrorists to win a not-so-small victory as we seek to continue to respond.

Now I bring this up as a segue to a problem in the Davis community. And that is racial profiling by the police. The police claim they don't do it, but if you talk to any number of minorities in this community, it is clear that they do. According to the Davis Police website, "bias profiling is defined as the detention, interdiction, or other disparate treatment of any person based solely on their sex, religion, race, color, ethnic status, sexual preference, ancestry, age, marital status, medical condition, or physical handicap."

So it is against department policy to pullover an individual based solely on any number of factors. And minorities are regularly stopped and asked questions. The question is usually either are you from a certain city (often Oakland or Sacramento) or are you on probation. More research is needed on the local gang interdiction efforts, but it the former question is aimed at establishing gang activity. West Sacramento has a much more extensive program, but there have been stories in Davis of police officers detaining individuals of color and then using coercion methods to make people sign declarations of membership in gangs. Gang interdiction seems to be one of the few available sources for external money.

This problem has been going on for quite some time. A lot of people have left this community because they have grown tired of the hassle and the lack of official steps to reduce the problem. There also seems to be a legitimate fear of crime and a willingness to violate the rights of others to make the community safer. A resident, a self-proclaimed liberal, was involved in a conversation on racial profiling. That person was asked if a crime was committed by a black person in Davis, would the police be justified in pulling over every black person. That person responded yes. And was adament about it, stating that they did not care, they just wanted to be safe.

That is the attitude of some in this community toward racial profiling. I wish I had a chance to ask that person a follow up question. Mine would have been, if the crime was committed by a white person, should the police pullover every white person in Davis until they find the culprit. I wonder what the answer would have been then.

---Doug Paul Davis reporting