Commentary: The Bulk of the Buzayan Federal Lawsuit Moves Forward

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

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

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

Judge England writes:

"There is a strong public policy in keeping juvenile court records confidential, and it is up to the juvenile court to determine when disclosure of such records is allowed... Here, the defendants have not shown that they had a court order allowing them to disseminate any information relating to Ms. Buzayan's criminal case."

In fact, although the Judge does not say so explicitly, the Yolo County Superior Court Judge in the case, Thomas Warriner, explicitly told the district attorney's office that they could not release information or even make a statement about the case. They did so anyway. The family's attorneys took the District Attorney back to Judge Warriner's court, but the Judge at that point left it to a lawsuit to determine if rights had been violated by the District Attorney.

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

Attorney Whitney Leigh told the Davis Enterprise:

"It confirms our position that the defendants are liable for the negligent and, in our view, the intentional disclosure of private information that the state court had ordered them not to disclose... The greater majority of the (lawsuit's) claims the defendants have not and could not seek to dismiss, so we're gratified with this decision."

One of the key complaints against Officer Ly was an alleged violation of Miranda Law that was caught on tape.

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

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

In the complaint filed by the Buzayan family and their attorneys, they allege:

"Defendant Anderson also knew that it was unlawful and against Davis Police Department policy to use an investigation of a Davis citizen's complaint as an opportunity to browbeat a minor by threatening her with her mother's incarceration."

This complaint stems from another allegation caught on tape, this one not released to the public that during the course of Sgt. Gina Anderson's investigation of complaints against Officers Hartz and Ly, that she in fact pressed the minor to admit that she was lying and in fact the one driving the car. And at one point, threatening to put her mother in jail if she did not come clean.

"But your mother has admitted to driving the car... So that would mean that if your citation was dismissed then your mother would be arrested... I just needed to let you know that if you are not the person who did it, she’s admitting to doing it, then your case will end up getting dismissed and we would end up arresting her."

In an interview with KGO Channel 7 News, former San Francisco Supervisor Matt Gonzalez, says that the actions of Sgt Anderson were improper.

"They were putting a lot of pressure on her, and I don't think that's an appropriate way to conduct an internal investigation about whether or not a police officer has conducted himself properly."

The job of an internal investigator during a citizen complaint is not to attempt to coerce a confession out of the defendant, it is to gather the facts involving the policies and actions of the police officers involved and determine whether the officers had acted properly.

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

The Davis Enterprise quotes new Davis Police Chief Landy Black as saying:

"While this ruling does not necessarily mean the end of the discussions and proceedings regarding the underlying incident, it clears the way to address what we feel are much more important issues and makes it possible for the healing to continue, and with fewer obstacles."

In fact, Chief Black can play a crucial role in the healing process regardless of how this case turns out. A strong effort is needed to reach out to various parts of the community that feel disenfranchised and to bring them back into the process.

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

---Doug Paul Davis reporting

Police Officer's Falsified Report Leads to Drawn Out Legal Ordeal for Local Resident

On March 7, 2005, police were called out to the Shasta Point Retirement Apartments in Davis on a report of children allegedly left unattended in a vehicle in the parking lot. According to the police report a witness saw two juveniles, ages five and two years old, in a vehicle alone at noon. Nearly an hour later, the witness reported that both juveniles were still in and about this vehicle unsupervised.

Sgt. Delaini arrived on the scene just after 1:00 pm and contacted the mother of the juveniles, Bernita Toney. According to the police report, Ms. Toney told the police a woman who was with a dog had been asked to watch her children. The police would apparently talk to the wrong woman with a dog.

According to Ms. Toney, when Sgt. Delaini arrived at the scene she was kneeled down in the front seat on the passenger side. She stated that when Sgt. Delaini

“looked at the kids his words were they look fine, don’t look like they have been harmed in any way. He went on… They look healthy, not endangered.”

Ms. Toney later wrote,

“I did not leave the children unattended and the first officer on the scene did not find the children unattended.”

It was the next police officer on the scene, Officer Docken, who wrote the report and eventually filed it with the DA when a warrant was issued for the arrest of Ms. Toney for failure to care for her children. The Yolo County District Attorney’s office would charge Ms. Toney with two misdemeanor counts of a

“violation of Section 273a(b) of the California Penal Code, Abusing or Endangering Health of a Child, in that [she] did willfully and unlawfully, under circumstances other than those likely to produce great bodily harm or death, cause or permit a child to suffer, and inflict thereon unjustifiable physical pain or mental suffering, and, having the care or custody of said child willfully cause and permit the person and health of said child to be injured, and did permit said child to be placed in a situation that its person and health was endangered.”

According to Officer Docken’s report, the “lady with the dog” was Ms. Burke.

“Witness Burke’s statement: Burke went out the front of the building to walk her dog. She saw two little children in the car parked in front of the building. The rear passenger door was open. She heard crying. She approached the children. The older child shut the door. Burke tried to talk to the children, but they would not talk to her. She was outside for about a minute, before she returned to the lobby. She was in the lobby for about ten minutes before the police arrived…. Burke believes that the children’s mother is a single parent who probably cannot afford to hire someone to watch her children. Burke did not want to see the mother punished.”

This is a key statement as we will later see, for Ms. Burke would testify under oath that she never gave a statement to any officer, investigator, etc. Moreover as Ms. Toney said, “This was not the person I left watching my children.”

The District Attorney’s office offered Ms. Toney diversion and under advice of her public defender, Ms. Toney who believed herself innocent, decided to take diversion. However, in the course of filling out the paperwork, she was required to make statements that she believed cast her within the light of being guilty. She could not in good conscience fill out this paperwork. “Upon receipt of the packet, I found that the questions in the material were impossible to answer. Contents included questions like, where did you commit your crime. The logical option was to retroactively reject the District Attorney’s offer.” And so against the advice of counsel, Ms. Toney rejected the diversion offer and opted to have her day in court in front of a jury.

In the meantime, Ms. Toney filed a complaint against the police for falsifying the police report: “Officer #29 wrote and submitted a police report (05-01347) that contained false information.” She then added,

“I feel this police report was purposely misconstrued to convince members of [the] DA’s office they would have probable cause for my arrest. Probable cause must be based on facts. The fact is, if the report would have been a reflection of the truth there would not [have been] probable cause for my arrest. She was informed that I had [a] witness. She did not give a good faith effort to contact my witness.”

On October 9, 2006 Sgt. Gina Anderson who headed the Professional Standards Unit (until her transfer to Citrus Heights Police Department), sent Ms. Toney a letter.

“I personally viewed your complaint with the Interim Chief of Police, who makes the final decision in all matters of this nature. Your complaint alleging dishonesty has been classified as UNFOUNDED. However, during the course of this investigation I found your criminal case was not sufficiently investigated and therefore a violation of our rules and regulations for which there was a finding of SUSTAINED.”

In fact, Ms. Burke would tell investigators for the public defenders office and later testify on the stand that the report was false.

According to the report,

“Mrs. Burke was asked if she was talked to by an officer from Davis Police Department. Mrs. Burke replied she was not. Mrs. Burke stated she never talked to any officer about the incident.”

Ms. Burke was then read the statement in the police report from Officer Docken.

“Mrs. Burke stated the statement is a fabrication. Mrs. Burke stated the car door was not open, the children were not crying and she returned to her residence, not the lobby.”

Mrs. Burke then suggested that she

“believes [front desk employee of Apartment complex who phoned the police in the first place] may have told the police officer this information. Mrs. Burke stated [she] assumed all of this and blew everything up.”

Deputy District Attorney Deanna Hayes reportedly wanted to drop the case but was told by her superiors that she had to get the conviction and therefore could not drop this case. We saw similar complaints against Ms. Hayes in the Khalid Berny case where a resident was prosecuted for an offense that was relatively minor and threatened with long imprisonment. This represents a pattern of complaints against the Yolo County District Attorney’s office and their refusal to stop prosecuting cases that lack strong evidentiary support.

Ms. Toney went to trial a few weeks ago and the jury took less than an hour and a half to acquit her of the misdemeanor charges. This is an example of a very unfortunate incident highlighted not only by poor police work and a fabricated police report, but by the Yolo County District Attorney’s Office’s overzealous prosecution of all offenses regardless of their lack of sound basis and evidence. The Yolo County District Attorney’s office steadfastly refuses to drop any case and orders their deputy district attorney’s to proceed in an attempt for a conviction often against their better judgment.

According to many people in the system the police report is a key determination of which cases go to trial and which ones do not. In this case, the falsified report led the Yolo County District Attorney’s office to file charges against Ms. Toney and they would have succeeded based on the recommendations of the public defender’s office who recommended to Ms. Toney that she take diversion.

Others have informed me that in other locales, the District Attorney’s office is much more vigilant in overseeing the production of police reports and frequently bounce them back to the police to fill in missing information and to get them right. However, in Yolo County, the District Attorney’s office NEVER bounces them back to the police. This leads police to often cut corners in their investigation.

When they deal with lower income people and minorities such as Ms. Toney they usually get away with it because they are rarely challenged, since they lack the financial resources to contest such charges.

The other concern here is how Sgt. Gina Anderson came up with an unfounded complaint when the witness herself denied she was ever contacted by Officer Docken. Did Sgt. Anderson contact this witness? And if so, how did she arrive at the conclusion that this was unfounded?

What is perhaps more tragic is that this case went on for nearly two years. Because this situation was ongoing, Ms. Toney was unable to complete her certification to become a manicurist and her testing to get her realtor’s license. This gravely impacted her economic situation as a single mother - with two small children and two older children - who was working hard to make a better life for her family. The ongoing legal situation cost her two years worth of lost wages and income.

This case illustrates the continuing problems with both the Davis Police Department and the Yolo County District Attorney’s Office.

---Doug Paul Davis reporting

Seven Early Stories for Davis in ‘007

At the end of 2006, we covered the top 10 stories in Davis for 2006. In today’s blog entry, we will look ahead to some of the stories brewing as the largest for the first part of 2007. As always, new stories will undoubtedly arise at a seconds notice, but the People’s Vanguard of Davis already has a full plate. These are just some of the stories we plan to be covering in the ‘007.

Open Seat in the 8^th Assembly District

Outgoing Incumbent Lois Wolk's (D-Davis) third and final term as Assemblywoman for the 8th Assembly District of California has barely begun and the speculation for her replacement has already started. In a district that is heavily tilted toward the Democrats, the primary winner will for all practical purposes determine who becomes the next Assemblymember for the 8th Assembly District.

The gauntlet has been thrown down by Woodland Daily Democrat Editor Jim Smith in his blog:

Posturing is taking place right now between supervisors Mariko Yamada and Mike McGowan and West Sacramento Mayor Chris Cabaldan. The word from Assembly speaker Fabian Nunez is that it’s “Chris’ turn” for the 8th District seat. McGowan, an attorney who represents West Sacramento, may be given a judgeship to keep him from seeking higher office. Yamada, if she stays true to the Democratic Party, could have her chance by 2014.

It seems that Nunez has jumped the gun a bit here. Yamada would be an extremely formidable candidate if (and that's still a big if) she chooses to run. Cabaldon is not without baggage of his own. He is unpopular with the unions for bringing Wal-Mart to West Sacramento and for supporting anti-union positions on a variety of issues. He has upset a lot of Democrats for supporting development interests rather than neighborhood and constituent interests.

The race for 8th Assembly District is far from over and the race will be decided on the west side of the Sacramento River, not the East Side.

Continuation of Law suits against the Davis Police Department and Yolo County District Attorney’s Office

At least two major lawsuits have gone forward against the District Attorney's Office in November 2006.

Last week, we reported about Khalid Berny, a farmer from Clarksburg who is suing both the Yolo County and the Yolo County Sheriff's Department and Animal Control. This is an amazing case that stems from allegations that Mr. Berny intentionally allowed his goats to run at large. For this horrendous crime, Berny faced 170 misdemeanor charges which carried a maximum sentence of 60 years in prison. Mr. Berny's case was dismissed after a last minute recusal by Yolo County Judge Timothy Fall brought retired Judge Bill Lebov into the case who then oversaw the dismissal of all charges against Mr. Berny. Through a civil lawsuit, Mr. Berny now charges Animal Control and the Sheriff's Office with discriminatory enforcement of the law based on the severity of the punishment inflicted on him in comparison with others for similar offenses. In addition, Berny is charging the Yolo County District Attorney's Office with malicious and discriminatory prosecution. Prior to the dismissal of charges in Judge Lebov's court, Yolo County Deputy DA Deanna Hayes had offered to drop the charges in exchange for Mr. Berny dropping his suit against the county--an offer that Berny refused.

Along similar lines, one of the top stories from last year, is the case of then 16-year-old Halema Buzayan who was arrested for an alleged bumper bender in a Davis supermarket parking lot in 2005. Ms. Buzayan, who is now a freshman at UC Davis, and her family are suing the Davis Police Department including former Chief Jim Hyde, Former Internal Affairs Sgt. Gina Anderson, and Officer Pheng Ly for a variety of offenses. In addition, they are suing the Yolo County District Attorney's Office and the Davis Enterprise newspaper.

Some of the most troubling aspects of the case are: Internal Affairs Sgt. Gina Anderson during her interview of Halema Buzayan (while supposedly conducting an internal review of the actions of Officer Pheng Ly), allegedly threatened her mother with jail if Ms. Buzayan did not confess to the crime. The Yolo County District Attorney's office after the case was dismissed, illegally leaked the arrest tapes to the Davis Enterprise, thus violating juvenile confidentiality laws. The Davis Enterprise not only published the story on the tapes, but posted the tapes on their website, in the process releasing confidential and private information about the Buzayan family but also the victim, Ms. Adriene Wonhof. The District Attorney's office then continued their smear campaign against the Buzayans into May, with Deputy District Attorneys Tim Wallace and Clinton Parish claiming that the Buzayan family paid off Ms. Wonhof to keep her from testifying. Finally, Bob Dunning, a Davis Enterprise columnist got into the act with a long interchange with the ACLU and attorney Bill Kopper. For more on the Buzayan case, please view the video from KGO ABC News 7 in San Francisco.

Ironically both Mr. Berny and the Buzayans filed their court cases in early November and will be proceeding during the course of the year.

Anti-Gay Harassment of the Junior High School Student

Last November, the People's Vanguard of Davis broke the story of a thirteen-year-old Harper Junior High School Student was being harassed because he has two Gay fathers. For good background see the following video clips: Father Speaks at City Council Meeting, Father Speaks at School Board Meeting, and the ABC News 10 in Sacramento report.

There are new revelations coming out tomorrow on this case. Check out the People's Vanguard of Davis first thing tomorrow.

Closing Down of the Valley Oak Elementary School

On Saturday we reported that the Davis Joint Unified enrollment projections were not looking good in terms of the issue of school closure. Neighbors seeking to keep Valley Oak Elementary School open cited possible future development projects as a possible source for future students. This argument was dismissed by the school board, claiming that they should not take into account development plans that are not yet approved. On the other hand, Baki Tezcan pointed out it is "ironic that after counting [the expected population growth] for [the unapproved] Covell Village [development] in building Korematsu, now they [the school district] say they cannot count for something that does not exist even though it will not require a city-wide vote and will probably happen in due course and produce new students in need of a school to go." The decision on the closure has not been made, but parents are concerned about the loss of a neighborhood school in one of the lesser affluent neighborhoods. This figures to remain a very hot issue for 2007.

Writing of the new general plan

In December 2006, the council moved forward with a plan that would create a steering committee to help draft an update to the city of Davis' general plan. This drew a strong and contentious debate between the council majority faction and the progressives Mayor Sue Greenwald and Councilmember Lamar Heystek. And this was just over a procedural issue that would create a 15-member committee comprised of three appointees per council member. The moment of absurdity occurred when Mayor Pro Tem Ruth Asmundson complained about the use of the world "surrogate" being used to describe the members of the proposed commission. Our crack team of lexicon experts however, surmised that this was a correct usage of the term and it did not have a pejorative connotation at all.

One of the issues that the Vanguard figures to follow is one of affordable housing. This comes amid a report that the average family in Yolo County must earn around $17.50 per hour to afford the average two-bedroom apartment. We have also been told that the Eleanor Roosevelt project which was supposed to be provide affordable housing to seniors, has laid mostly vacant due to some rather severe restrictions.

Continued Harassment of Area Minorities by the Police

In May of 2006, 150-200 UC Davis Students Marched on the Davis Police Department complaining of racial profiling and harassment by certain members of the Davis police department. Racial profiling and police oversight were among the large problems of 2006, and the year of 2006 ended the way it begun. We have a video clip of an African American resident getting harassed once again by the Davis Police, this one was caught on tape.The basic problem that faces Davis is a practice of "phishing" by the Davis Police whereby they spot a vehicle that does not appear to "belong." It might be old or poorly maintained. The police officer then looks for a pretense to pull the person over--sometimes it is real as in the case of the video above, other times it may be suspect. In any case, they are looking for people they believe might be gang members, wanted criminals, or on probation. They are using these minor stops as a pretense to see if they can make a big arrest.

Davis hired an Ombudsman in 2006, but that will not put this problem to a rest. Policies must be changed and that will be a large part of the focus in 2007.

New District Attorney for Yolo County

Today, Monday January 8, 2007, the new District Attorney of Yolo County will be sworn in. As we wrote last week, Jeff Reisig faces a formidable task with a department heavily under investigation, many of whom are facing actions in law suits. Reisig faces his own questions with regards to the gang injunction in West Sacramento. That case comes up for appeal in April. Moreover, the Buzayan and Berny cases cast a lot of scrutiny on the actions of the previous District Attorney David Henderson as well as a number of people who currently work as Deputy District Attorneys including a large number of strong supporters of Jeff Reisig. On KDVS, Ron Glick was arguing that we should wait and see how the new DA does, but he has a tough task ahead of him and that will be a large focus of the first part of '007.

Look forward to further coverage in '007 of these stories and much more, here on the People's Vanguard of Davis.

---Doug Paul Davis reporting

Thursday briefs

Officer Pheng Ly's Survival is the Rule not the Exception

Bob Dunning in yesterday's column, unwittingly raises a very key issue when he comes forth with his top 10 list:

"Here then are the Top 10 stories you will not read about on Sunday morning.

1) Pheng Ly does not leave Davis. Despite having abuse heaped upon him right and left, Officer Ly reports for work every day and does the job he was hired to do. Lesser men would have left long ago."

Dunning describes this as though it were an unusual occurrence--a badge of honor if you will. In fact, if we look at the record of those accused and found guilty of police misconduct, it is filled with names who were not fired, were not driven out of the town on a rail, but rather a list of people who were promoted and awarded. As noted civil rights attorney John Burris, who specializes in police misconduct cases, points out in his book, Blue vs. Black, judgments and complaints are often never placed in an officer's service record and these officers remain in the police department often despite long lists of complaints and court judgments. They are then promoted into leadership positions where the problem not only continues but it is perpetuated.

While the Buzayan case is itself still being adjudicated and the officer's involved are presumed innocent, it is nevertheless interesting to note that three of the key actors in this case from the Davis Police Department all still have jobs, two of them have transferred to other departments with promotions, and one was named Officer of the Year in Davis.

Gina Anderson is now Lt. Gina Anderson of the Citrus Heights Police Department, she was given the transfer and promotion a few months ago despite being implicated for abuse of the internal investigation unit's power by threatening Halema Buzayan on tape with her mother's incarceration if she did not confess. In June, Police Chief Jim Hyde, himself strongly implicated in the event accepted a higher paying job with the City of Antioch. Finally, Pheng Ly while not promoted to our knowledge has received an Officer of the Year award in March as well an apology from the Mayor.

While we accept the notion of innocent until proven guilty, it seems untoward to give promotions to officer's under legal scrutiny and it seems even more untoward to promote officers who have long histories of complaints and malfeasance. Nevertheless, this is the way the police world works and Officer Ly's example is the rule and not the exception as Dunning would indicate.


Benefit for the Children of Myanmar on January 13, 2007

Max Harrington invites members of the Davis Community to the Palm Court Hotel on Saturday, January 13, 2007 from 6 - 8:30 PM for a win and dessert reception. Proceeds will go directly to help 185 children of the Myo Oo Orphanage in Myanmar.

Contact MCF USA Assistant Director Rita Montes-Martin at (530) 759-8434 or email her at:
rita@myanmarchildrensfoundation.org

For more information: http://www.myanmarchildrensfoundation.org

---Doug Paul Davis reporting

Changes in the Davis Internal Affairs Department

Davis Police Internal Affairs Department Sgt. Gina Anderson has apparently left the Davis Police Department for another position in the city of Citrus Heights. Anderson is one of the central figures in Buzayan incident. She is caught on tape threatening Halema that if she did not confess, her mother would go to jail. This is a violation of the law and department policy. While it might seem that this is good news for those of us hoping to clean up the department. The replacement for Sgt. Gina Anderson, is Lt. Dorothy Pearson.

In June, it was reported that then Davis Police Chief Jim Hyde used public resources to launch a campaign against the Davis Human Relations Commission and specifically its chairperson, Cecilia Escamilla Greenwald.

A public records request reveals that Hyde enlisted Lt. Dorothy Pearson to recruit supporters for police department who would attack the HRC and its chairperson.

In early January in an e-mail exchange between Hyde and Lt. Dorothy Pearson:

Chief Jim Hyde: "FYI, calling in my cards. Are any of the military supporters willing to speak at public comment time … on the 17th at city council in support of the police department? HRC is pushing for there (sic) own police review commission."

Lt. Dorothy Pearson: "I am already circling the wagons! I am trying to get as many people as possible to attend and possibly speak."

On Jan. 12, Lt. Dorothy Pearson thanks James Hechtl. "The Chief called me last night after the meeting. He was singing the Military Family's praises. … I can't thank you enough for your help. I also sent Bob Glynn a thank you e-mail and told him that you would keep the group posted on upcoming strategies."

Hechtl responds, "What kind of availability do you and the Chief have this afternoon (Thur). I want to meet with both of you with (sic) and discuss some strategy."

Hechtl and Glynn proceed to write numerous letters attacking Escamilla Greenwald.

James Hechtl writes, "Ms. Greenwald and Ms. Garcia apply their racist views to every possible issue that confronts them. They look at the world through their prism of hate. ... The mere fact that they support numerous frivolous and hate-based lawsuits against the city should be enough to invite them and the rest of the Human Relations Commission to practice their trade in a more appropriate city. I recommend Johannesburg, South Africa."

(Dr. Jann Murray-Garcia is a Davis resident, parent, pediatrician and president of BECA (a Davis civil rights group) who worked with the commission on researching and drafting a report on racial profiling and recommending a proposed civilian police oversight review commission. )

Bob Glynn writes on May 5, "Davis must rid itself of this antiquated, racist commission and its bully chairperson, Cecilia Escamilla Greenwald."

What particularly catches my eye however is a letter to the editor from James Pearson dated February 22, 2006, who is the husband of Dorothy Pearson.

It is revealing because it gives us insight into their views about citizen complaints about the police department.

"I have yet to read an account of police misconduct that didn't fall into one of these categories: 1) uncorroborated anecdote, 2) a self-interested attack by a plaintiff suing Davis or 3) Aacalculated (sic) step by a would-be politician (who says she is not running for office)."

Let us put this into context. Dorothy Pearson is now in charge of investigating complaints against the Davis police officers. Her husband in February expresses an extremely negative view of those who complain about the police. The last statement is a thinly veiled attack against Escamilla Greenwald despite the fact that she has never run for political office.

It is extremely disturbing that the husband of the officer in charge of internal affairs would express such a view. It seems highly unlikely that this letter went out without his wife's tacit approval.

It seems to me that the officer in charge of such an investigative unit should have at least the pretense of impartiality.

A description of the ombudsman puts the primary investigative power into the hands of the internal affairs department:

"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."

In this case, the person doing the investigations seems to have a rather low opinion of the motivations of those who make complaints against the department.

---Doug Paul Davis reporting

Davis Internal Review Process Under Scrutiny in Buzayan Case

In the latest in our periodic series that examines the Buzayan lawsuit, we examine the complaint against Sgt. Gina Anderson, who is in charge of the Davis Police Department's Internal Affairs Department (IAD).

When the Buzayans complained that Officer Ly's conduct was unlawful, the first thing they did was to file a formal complaint with the Davis Police Department. Every complaint filed proceeds to the IAD and Sgt. Gina Anderson.

According to the complaint, the Buzayans met with Anderson on June 28, 2005 where the minor told Anderson that her mother had been the one driving on the day in question.

It was Anderson's job to investigate the actions of Officers Hartz and Ly regarding the complaint. It is not the job of the IAD to continue a criminal investigation against the defendant. However, that is exactly what Anderson did during her IAD interview with the minor.

"But your mother has admitted to driving the car... So that would mean that if your citation was dismissed then your mother would be arrested... I just needed to let you know that if you are not the person who did it, she’s admitting to doing it, then your case will end up getting dismissed and we would end up arresting her."

In a May interview with KGO, the Buzayans' attorney, former San Francisco Supervisor Matt Gonzalez, says that the actions of Sgt Anderson were improper.

"They were putting a lot of pressure on her, and I don't think that's an appropriate way to conduct an internal investigation about whether or not a police officer has conducted himself properly."

It is very important that the public understands that the job of the IAD, Sgt. Anderson in this case, is to ascertain whether or not the officers involved in this case--Hartz and Ly--acted properly. It is not her job to interrogate the witness. It is not her job to investigate whether the minor or her mother was the one driving. It is not her job to obtain a confession from the minor.

Anderson admits as much during the course of the interview of the minor:

"This is a side note because I’m interested in Officer Ly’s behavior, and if he violated any (phone rings), if he violated any of our department policy then I need to know that too. As far as on a personnel level we can handle that with him. Because you know we take allegations of misconduct by our police officers seriously. So that is a complete side-note. I want to get back to it and handle it, but that is an aside to what I’m talking about right now."

In fact, she is specifically forbidden from doing so.

As the complaint filed with the Northern Division of the California Federal District Court alleges:

"Defendant Anderson also knew that it was unlawful and against Davis Police Department policy to use an investigation of a Davis citizen's complaint as an opportunity to browbeat a minor by threatening her with her mother's incarceration."

As we suggested in our seven-part series on Police Oversight, IAD's are notorious for problems in terms of their ability to investigate the wrongdoings of police officers. That is one reason why many experts have suggested removing internal investigations from the IAD and placing it in an independent body of law enforcement professionals. Moreover, this is an example of why the current Ombudsman model is problematic--complaints under this model still go to the Internal Affairs Department first. While the current model has some problems, at least now Anderson knows that Ombudsman Bob Aaronson will be looking over her shoulder, and that alone could be an improvement for this system.

Meanwhile it will be up to the court to sort out whether or not Anderson's actions in the Buzayan case violated the minor's civil rights.

---Doug Paul Davis reporting

Buzayan Lawsuit Goes Forward Against Davis Enterprise

Last week a US Federal Court Judge allowed the Buzayan lawsuit to proceed against the Davis Police Department, the Yolo County District Attorney's Office and the Davis Enterprise. The defense was denied a motion for summary judgment. Moreover, the Judge allowed the Buzayan family to sue the Davis Enterprise and the Yolo County District Attorney's office for the unauthorized release of tapes of the Buzayan family which caused the improper online broadcast of the private and confidential information about the Buzayan family including their home address, unlisted phone number, names, ages and birthdates of the families' minor children (unrelated completely to the case), and the driver's license number and social security numbers of several of the people involved.

There were several remarkable things about this release of information about the Buzayan misdemeanor hit and run case involving a 16 year old minor at the time. First of all, the DA's office took it upon themselves to release the information without court clearance--in fact the judge had specifically told them not to do so. Second, the Davis Enterprise was apprised of the personal nature of the information and refused to pull it off their website. In fact, it is still available from their front page even today.

http://www.davisenterprise.com/news/hit_and_run_audio/hitandrun.txt

A book could be written about various portions of this case.

A few highlights of what will come up. First, a statement by the Deputy District Attorney in charge of this case that the reason that this case was brought to trial, was that the family was planning tp sue the Davis Police Department. This was said in front of Judge Warriner, who was reportedly so surprised he asked the DA to repeat herself, which she did… verbatim.

Second, the paper, the Yolo County District Attorney's Office and Officer Ly all mischaracterized the nature of the complaints made by the Buzayan family. They were not complaining about Ly's demeanor during his interactions--rather they were complaining about multiple violations of federal, state, and local laws.

Third, the news accounts reported a series of statements and misleading summaries of the tape recording in the paper. Those individuals, who relied on the newspaper's account of the description of the tapes, would have been misled as to their contents. Moreover, the plaintiffs allege that there was a selective release of the tapes. For instance, we do not hear the interaction between the Internal Affairs Sgt. Gina Anderson and Halema Buzayan. On the Internal Affairs tape you can hear Sgt. Gina Anderson threaten Halema to confess or her mother would go to prison.

Fourth, a member of the Yolo County District Attorney's Office on the Yolosoapbox accused the Buzayan family of paying off the victim in order to get her to drop her charges.

Finally, Ly on his website makes the stunning challenge to the Buzayans to take a polygraph.

All of these are additional points peripheral to the original arrest.

For those somewhat unfamiliar with this case, I recommend the KGO news reports which are quite good. If you use MSN Internet Explorer, you can view a series of videos of the newscast which provide good details of the case.

http://abclocal.go.com/kgo/story?section=i_team&id=4000500

Most of this will be sorted out during the course of the trial. Now it will be interesting as to how the Davis Enterprise chooses to report on the lawsuit--and if they do. The Davis Enterprise itself is a defendant, as is Debbie Davis the assistant publisher/editor as well as Lauren Keene the reporter who covered the lawsuit. You can foresee the possibility of some sort of conflict of interest in attempting to report on a story which you are a party to and report on a case to which you are a defendant in. How will the Enterprise attempt to bridge this gap or will they not report it all.

Newspapers obviously have a great deal of legal protection against such cases and this will be interesting to see how this proceeds. Obviously the key point will be less that they published this stuff and more that they left it up on the server now for a full six months after publication.

---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