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

Commentary: Judge SLAPPs Down Buzayan Suit Against Newspaper

It was reported last week in the Davis Enterprise that a judge had dismissed the portion of the Buzayan suit that was aimed at sanctioning the Davis Enterprise for posting the audio tapes of the arrest of then 16-year old Halema Buzayan in 2005.

That suit was based on two key factors. First, that the District Attorney's office had leaked the tapes to the newspaper against the orders of Judge Thomas Warriner. And second, that the Davis Enterprise had failed to edit out specific personal information about the Buzayan children and their family, not to mention also personal information about the victim. The tapes containing that personal information were left up for five days, until the victim emailed Assistant Publisher/Editor Debbie Davis at the Davis Enterprise and the paper pulled down the tapes until they could edit them.

Of the 19 complaints filed in the Buzayan lawsuit, from the beginning this would appear to be the most problematic. Could a paper be sanctioned for knowingly publishing tapes that they had acquired from a government body--in this case the DA--that under most conditions they knew should be confidential by law.

If we think about it from another standpoint, the answer appears to be more obvious. Suppose this were not the District Attorney's office but rather a whistle-blower leaking this information to the press. Instead of a case against a juvenile, it involved some sort of corporate malfeasance about a major company and their CEO. The whistle-blower illegally leaks the information to the press and the press reports it as a huge expose. Do we want that company to be able to sue the newspaper under those conditions? I think the answer is simply that we do not. Therefore it is difficult for me to fault the ultimate ruling from Judge England.

However, from other angles this ruling is still a bit perplexing.

Judge England decided this case under SLAPP (Strategic Lawsuit Against Public Participation). He writes:

"California’s Anti-SLAPP law is aimed at curtailing civil actions designed to deter private citizens from exercising their rights of free speech."

SLAPP primarily refers to the suits placed by large corporations or other wealthy entities against individuals who are practicing free speech activities. These large entities can simply use their vast resources to force individuals to defend themselves in the legal arena. The huge discrepancy in resources means that an individual is severely disadvantaged in the fight and therefore such suits create a chilling effect on the free exercise of speech.

In this case, you have a family suing the newspaper for releasing what they deem to be confidential information regarding a juvenile case and negligently posting private information that could end up being used by identity thieves against the family. The Davis Enterprise is not disadvantaged in their resources compared with a private family and so SLAPP in this manner seems to be used to prevent a suit for which it was not intended to be used.

In response to the verdict, Davis Enterprise Editor Debbie Davis proclaimed:

“We're very pleased with the judge's ruling. We were sued, basically, for doing our job - for covering a story of intense public interest and for making important audio files available to the public. We're happy that Judge England affirmed our constitutional right to do so.”

This is a misleading statement by Ms. Davis. The Davis Enterprise was sued because they chose to print and post material from a juvenile case that was supposed to by law and Judge Warrnier's ruling remain confidential. The Deputy District Attorney in this case, Patty Fong was explicitly told by Judge Warriner that the district attorney's office could not release information or discuss this matter because it was a juvenile case. The family is always permitted to release information and discuss this matter. As Judge Warriner explained when he denied Fong a motion to gag the defense, the juvenile laws were set up to protect the rights of minors not to protect the government from charges of impropriety.

It does create a burden on the government, but the law was set up to protect minors and juveniles from just the sort of abuse that Ms. Buzayan received from the DA's office. The DA's office used the Davis Enterprise to achieve their goals here and I think attorney Whitney Leigh was exactly right when he said that "the reporting and recordings were meant to embarrass, humiliate and cause hardship to the Buzayan family.” They clearly were.

The family was not suing the Davis Enterprise for doing their job. They sued the Davis Enterprise for working with the DA's office to violate a juvenile's right to privacy.

In the end, I think the Judge here made a tough ruling. It took him nearly two months from the time of the hearing to the time of his ultimate verdict. That indicates that he felt this was a very close call.

However, what the newspaper failed to note is that 18 of the 19 complaints filed by the Buzayan family have been allowed to go forward for trial. That includes the meat of the case against the Davis Police Department and the District Attorney's Office. In looking at this case, this complaint against the newspaper seemed to be the most difficult to sustain and proceed to trial because of free speech protections provided to newspapers and the unwillingness of most Judges (and rightfully so) to sanction a paper for reporting on something that they obtained legally (at least on their end).

In the end, the Buzayans will get their day in court. The Davis Enterprise will eventually have to own up to Debbie Davis' proclamation that the officer "was doing his job and doing it well." That will be the Buzayan family's ultimate vindication.

---Doug Paul Davis reporting

Column: View From West Davis

This is my weekly column of thoughts and tidbits from the week that has passed. A little bit lighter and more playful than the usual serious and hard-hitting coverage.

Reisig will bring back the Gang Injunction

On April 23, 2007, the appeals court struck down West Sacramento's gang injunction citing its failure to properly notice alleged gang members as a violation of their due process. Yolo County District Attorney Jeff Reisig, as a deputy DA had noticed only a single individual said to be a member of the Broderick Street Gang. When other alleged gang members failed to contest the injunction, Judge Warriner allowed Reisig to impose a curfew and curtail their activities.

The court ruling left Reisig with three options--one to appeal the court ruling, the second to fix the problems with the original injunction by providing proper notice, or third to let it die. Apparently Reisig intends to continue to pursue the injunction. We'll have to stay tuned to see how he intends to do that.

Closing of the Cantina: The End of an Era

It is with great sadness that I went to the closing of the Cantina del Cabo this past Wednesday in Davis. The Cantina has long been a mainstay in my life, with its tremendous selection of beers. It is the place where I celebrated many of my life's highs and lows over the last nearly eleven years. And it is a place that I shall dearly miss.

Wednesday evening though felt more like a party than a funeral, with many of Davis' political citizens living it up for a final time with an excellent selection of local music. Many of Davis' political figures from the past, present, and future were on hand--too many to really mention and aside from the point of the evening to begin with.

The Cantina was located across the street from the Davis Democratic Party headquarters in 1998 where I worked as Field Director for Mark DeSio's State Senate Campaign. As a huge St. Louis Cardinals fan, it is where I saw Mark McGwire hit his 62nd home run on a night in early September. It was also a place I would go to unwind after the frustrations of a rough day on the campaign trail--and there are plenty of those in any political campaign.

There are many other memories I share of the Cantina and I will always believe that there is a piece of Davis now missing with its closure. I wish Tom Lovering, the owner, the very best in his future endeavors and I thank him for all the very nice memories over the last 11 years.

School Board will not pursue Second Parcel Tax

Those who saw the news last week should not have been very surprised given the bad polling numbers, but the school board did make it official that they would not pursue the second parcel tax as a means to save Valley Oak. This had been a virtual forgone conclusion since the polling numbers had come out so badly. But it is unfortunate nonetheless. The future of Valley Oak will now depend on the will of those who are in charge of writing up a charter to make Valley Oak a charter school.

Davis Inferno Demolition Night

One of the more humorous and time consuming satires of Davis politics, with a particular bent of lampooning Davis Progressives, including myself, this blog, and some of my close associates was the Davis Inferno. The Inferno had some very intricate stories, poetry, and was heavy on the satire. One day it was up with about four days worth of entries, the next day it was gone. Too bad, I like good satire and this was certainly funny.

---Doug Paul Davis reporting

Commentary: Reisig Cowardly Passes the Buck After Setback

The decision by California's 3rd District Court of Appeal struck down an overly broad injunction against a West Sacramento Gang this week. This is not generally a court known for its activism or its liberalism. However, the violation of due process was obvious even to the more callous and cautious members of the community.

Yolo County District Attorney Jeff Reisig intentionally attempted to circumvent due process requirements in order to get the injunction imposed by only serving one single individual. The fact that Yolo County Judge Thomas Warriner allowed it to stand after the initial challenge on the grounds that the individuals had no standing to contest the law, since they would not acknowledge that they were gang members, speaks volumes about his own judgment.

The attack on civil liberties here is clear--the court struck down the law based on a narrow issue--the lack of proper notification to affected parties. Reisig in his haste and attempt to impose the curfew on a broad range of individuals without anyone to contest the order, served merely one individual with a notice to appear. While he defended his decision based on a notion that they would relay the message through their informal network, the court easily threw that defense aside.

Due process of the law is paramount in any society governed by the rule of law and this policy imposed by Reisig when he was a Deputy District Attorney blatantly violated those norms.

Moreover there was not a requirement that anyone had to be convicted of a crime in order to be labeled a gang member. That combined with the failure to notice individuals about a court hearing created a clear violation of state and federal due process requirements. This was clearly a policy that threatened to sweep a number of innocent people in with hardened gang members. Those decrying this ruling have failed to take into account that a number of the individuals served here have strong evidence that they are not in fact gang members at all.

However, by far the most shocking and appalling act of cowardice was the buck that Reisig passed after the decision--for he promptly dumped the entire mess that he had created through his own laziness and attempt to circumvent due process, into the lap of the city officials of West Sacramento most particularly Mayor Christopher Cabaldon.

Reisig told reporters after the Monday decision that he would seek another injunction only if West Sacramento city leaders, including Mayor Christopher Cabaldon, wanted it.

Mayor Cabaldon of course has been a supporter of the gang injunction. He was quoted in Wednesday's Sacramento Bee as saying:

West Sacramento Mayor Christopher Cabaldon said evidence from residents and police indicates crime is down since the injunction was enforced.

"From the beginning it has all been about achieving a balance between assuring public safety in the community and to protect the constitutional rights for all of our residents," Cabaldon said.

However, the measure is very polarizing. Many Latinos feel that the measure unduly singles out Latinos regardless of whether or not they are gang members--giving police broad discretion to harass any Latino in the gang injunction zone. Residents feel that it has a chilling effect on social and community activities. And some have accused the police of forcing gang confessions on them, placing them under the lifelong ban with no legal recourse or means to fight the charges.

On the other hand, many residents feel the opposite, that the gangs are a menace and that this is the only way to fight them.

Thus no matter what the Mayor does at this point, he will anger a large constituency as he faces a nomination fight in the Democratic Party for the 8th Assembly District. Reisig has done him no favors here by passing the decision making to Cabaldon. Cabaldon would be well served by dumping it right back into Reisig's lap by criticizing the District Attorney for trying to cut corners with the initial injunction and recognizing to the public that Reisig is the county's chief law enforcement officer and that Reisig himself makes such decisions.

Whatever one feels about Cabaldon here, there an issue of fairness and it was simply not fair for Reisig to dump this into the lap of the Mayor. Reisig is the one that made several crucial mistakes in the application of this policy that would be controversial enough even with proper notification. In other words, the court decision to strike down this injunction was completely and totally on District Attorney Jeff Reisig watch and instead of making a decision as to whether or not he should attempt to rewrite the injunction and properly notice individuals he dumped it on Mayor Cabaldon.

District Attorney Jeff Reisig was just seated this January as Yolo County's first new District Attorney in over 20 years. He was elected with near unanimous support from law enforcement and yet promised to make reforms and do things differently. However, this policy and the handling of this decision demonstrate that in fact it is still business as usual in the Yolo County criminal justice system. Civil liberties are still violated and responsibility and accountability skirted. At the end of the day, Yolo County needed a clean break in the District Attorney's office and Reisig will not provide that.

The Sacramento Bee had their own scathing editorial for the District Attorney who less than one year ago they had endorsed:

After the ruling, a disappointed Yolo County District Attorney Jeff Reisig cited the brutal attack on an Amtrak conductor last week allegedly by members of the Broderick Boys as proof of the need for the gang injunction. But Reisig overlooks the obvious: The injunction was in place and had been for more than two years when the attack took place. It did not prevent that crime.

As the court's opinion makes clear, the injunction was too blunt an instrument. The order lacked necessary safeguards for those affected. In the tight-knit communities of working-class Broderick, the injunction posed the risk of sweeping too many innocent people into a very wide net.

The next time Reisig moves against gangs, he should consult first with local officials and residents to get their advice and their support, both of which appeared noticeably absent the first time around.

This was a point that was made yesterday in the comments section--the gang injunction did nothing to protect the Amtrak employee from being beaten. It is nice to see the Sacramento Bee call Reisig on that aspect.

However, it remains even more appalling to me that it took an appellate court to strike down this rather obvious and blatant violation of the constitutional right to due process which seems to shape the entire Yolo County criminal justice system.

It is Reisig who needs to make the decision to revisit the injunction and not Mayor Cabaldon. Proper noticing will require great effort on the part of the prosecutor's office and then it will involve a lengthy court challenge as the defendants and the ACLU challenge the constitutionality of the gang injunction itself. The court explicitly left open that possibility, however, the proper process will take time and expense. It would seem to us that there would be other ways to combat gang activity that do not infringe upon the rights of potentially innocent people without the possiblity of due process of law.

This entire episode has left an unfortunate smudge on Yolo County law enforcement, but even more unfortunately represents only the tip of the iceberg. Someone needs to come in and clean up Yolo County and unfortunately this case confirms what we already suspected, Jeff Reisig is not the man to do it.

---Doug Paul Davis reporting

MAJOR DEFEAT FOR REISIG ON GANG INJUNCTION; FUTURE OF GANG ORDER IN THE HANDS OF CABALDON

The Sacramento Bee this morning reported that a state appellate court Monday struck down the infamous "Gang Injunction" that imposed a curfew and banned public gatherings of accused gang members without the due process of law.

In a major slap to Yolo County District Attorney Jeff Reisig, who began this process while he was still a deputy DA, Justice Fred K. Morrison ruled:

The district attorney knew of “veteranos” and “shot callers” yet served only Billy Wolfington, whose rank is unknown but who was characterized as a “soldier” at oral argument in this court; further, when served Wolfington disavowed any intention to appear. Thus, whether he would tell others was a matter of chance.

On this record, service on Billy Wolfington alone was insufficient under state law absent proof that he was of sufficient rank and character within The Broderick Boys that it is reasonable to infer that service on him effectively apprised the gang of the pendency of the legal proceeding.

As we explain, neither of the next two arguments tendered by the district attorney demonstrate that service on one gang member of unknown rank was reasonably calculated to achieve notice in this case, therefore such manner of service does not meet the Mullane federal due process standard.

(The full ruling can be read by clicking here)

In the February 20, 2007 Sacramento Bee District Attorney Reisig defended his policy:

Reisig defended the method police used to notify alleged gang members of the injunction.

"When you serve one street terrorist, they're all going to find out that the cops are coming," he said.

Reisig, who was at the time a Deputy District Attorney, gave notice of the suit to just one of the alleged gang members. When neither that individual nor anyone else showed up in court, Warriner granted the injunction.

In August of 2005, Cosmo Garvin of the Sacramento News and Review wrote:

"But Deputy District Attorney Reisig told SN&R that the Broderick Boys have an active communication network, through which the individual who was served notice of the injunction was able to spread word to the rest of the gang.

Reisig added that serving notice on each individual who would be subject to the injunction would have expended “a tremendous amount of resources.”

“The law simply doesn’t require us to do that. The judge even said it was OK,” added Reisig."

The State Appellate Court however has disputed that logic:

"Whether he would tell others was a matter of chance," Justice Morrison ruled.

The big problem here is that once Reisig served only the one gang member, the others did not show up in court to contest the injunction. Once that happened, Superior Court Judge Thomas Warriner simply granted the injunction. So in effect, Reisig's method deprived the defendants even the opportunity to challenge the injunction. This is the portion of the law that this court struck down.

The law itself--the notion of a gang injunction--is also in dispute. According to the three justices on the appellate-court panel, they saw enough evidence of gang activity in West Sacramento to potentially justify a gang injunction.

Attorney's for the ACLU such as Alan Scholesser have argued:

“A lifetime curfew for an adult is an extraordinary punishment. I think if people had their day in court, there would have been some serious legal challenges and some very different outcomes.”

That may be the next fight, but it will be Christopher Cabaldon, the Mayor of West Sacramento and candidate for the Democratic Nomination of California's 8th Assembly District who will make this call according to Reisig.

"District Attorney Jeff Reisig said he would seek another injunction only if city leaders, including Mayor Christopher Cabaldon, wanted it.

Cabaldon was out of town Monday and could not be reached for comment."

Commentary

District Attorney Jeff Reisig instituted this controversial policy a few years ago. He argues that the policy has been successful. It may be. But he also likely deprived a number of people--some of them indeed gang members, some of them unquestionably not gang members--their right to contest these charges in a court of law. They were not served notice of this hearing. They were thus deprived their constitutional right to due process.

Whatever you think of this policy and this law, that action by Reisig is in and of itself a gross miscarriage of justice. In this country people, even accused gang members, are considered innocent until proven guilty in a court of law. In this country, the rule of law must prevail even when it involves despicable human beings who perform despicable acts. Why? Because that is the only way we protect the innocent from an overbearing government.

What disturbs me most is first the arrogance of Reisig in pushing through and defending this policy when it seems to a layman so blatantly in violation of law. What was even more galling is that a Yolo County Judge, Thomas Warriner, would support such an obvious miscarriage of justice.

This case unfortunately illustrates all that is wrong once again with Yolo County's Criminal Justice System. It is not that we want guilty criminals to go free, it is that we want a fair process for all.

The ball is now in Mayor Christopher Cabaldon's court, we urge him to do the right thing and let this go.

---Doug Paul Davis reporting

Suits Filed Against Yolo Grand Jury Dismissed

The Sacramento Bee reports this morning that a Federal Judge threw out a lawsuit challenging the recruitment and selection process for Yolo County grand juries. Former Director of the Yolo County Housing Authority David Serena had contended that the composition process of the grand jury was discriminatory against Latinos.

Toward that end, Serena and his legal team that included James Hammer and Whitney Leigh, produced statistics that showed a 13.5 percent discrepancy between expected and actual Latino composition.

U.S. District Judge Frank C. Damrell Jr. ruled that the three year time period was not long enough to demonstrate substantial underrepresentation of Latinos. Moreover, they did not have direct evidence of intent to discriminate.

Over the past 10 years, Latinos have only been underrepresented by 6.5 percent which would be equivalent of around one juror on average. This was not enough to demonstrate a violation under the Constitution's equal protection clause.

However, Judge Damrell did say that while he could not consider solely the last three years, he did find the higher disparity in the last three years to be troubling. The Sacramento Bee quotes him as saying "Unaddressed or ignored, this continuing disparity is likely to provide future evidence of systemic underrepresentation of a constitutional dimension."

The defendants in this case were Judges Steve Mock and Thomas Warriner along with Jury Commissioner Robin Weaver.

According to the lawsuit filed, "the lack of specific rules for grand jury selection in Yolo County has left it open to abuse." Serena and his attorneys argued that residents of Latino decent comprise around 26 percent of the population but only 5 to 11 percent of the make up of the grand jury.

While the suit was dismissed, local civil rights groups can take some comfort from the ruling that Yolo County is on notice to improve their record of the racial composition of grand juries. This is a vital link between the citizenry and the justice system.

Unfortunately it appears at this time, that in order for action to be taken the situation must continue for the next few years. That is unfortunate not only for Mr. Serena who is facing criminal prosecution for his role in the Yolo County Housing Authority, but also minorities in this county who seems to have their rights violated on a regular basis through the criminal justice system.

The Judge's ruling gives a reprieve to Judge Mock and Judge Warriner, but they will remain under scrutiny if they do not figure out ways to remedy the situation.

---Doug Paul Davis reporting

Gang Injunction: Crackdown on Gangs or Minorities who can't fight back?

A recent article that appeared in the San Francisco Chronicle on December 26, 2006 (and reprinted in the Davis Enterprise shortly thereafter) brings the issue of the gang injunction back to the public spotlight.

It is a tricky issue because proponents believe that these tactics have reduced crime. Jeff Reisig told the San Francisco Chronicle that "It's absolutely worked... This works, and it's legal."

However, this is not just a nation built on positive outcomes but also policy and procedure. The ACLU filed lawsuit, but as I understand the court ruling, they never ruled on the constitutionality of the policy. In fact, it won on a technicality.

If this policy is legal, it is also marginal and troubling.

Perhaps most troubling was the way the injunction was enacted.

"In a move that still angers opponents, prosecutors gave notice of the suit to just one alleged member, and he lived in Rancho Cordova, 15 miles away. Reisig wrote in a court filing that the alleged Norteño, Billy Wolfington, would spread the word to compatriots.

Wolfington didn't show up in court to contest the injunction, however, and neither did any other alleged members of the gang. With no opposition in attendance, Superior Court Judge Thomas Warriner granted a permanent injunction on Feb. 3, 2005. "

This is the same Thomas Warriner who was the presiding judge in the Halema Buzayan criminal trial. He was a Deukmejian apointee to the bench and a right wing Republican.

Cosmo Garvin in August, 2005 ran an article on injunction. He quotes ACLU attorney Alan Scholesser.

“A lifetime curfew for an adult is an extraordinary punishment. I think if people had their day in court, there would have been some serious legal challenges and some very different outcomes.”

"But Deputy District Attorney Reisig told SN&R that the Broderick Boys have an active communication network, through which the individual who was served notice of the injunction was able to spread word to the rest of the gang.

Reisig added that serving notice on each individual who would be subject to the injunction would have expended “a tremendous amount of resources.”

“The law simply doesn’t require us to do that. The judge even said it was OK,” added Reisig."

Therein lies the rub--a judge with a notorious reputation for favoring the prosecution has legitimated this process. This is precisely the problem with the criminal justice system in Yolo County.

Is this targeting just gang members? Or are innocent people getting caught up in this legal net?

For example:

"In one declaration to the court, Benjamin Juarez said that he had been in trouble with the police as a juvenile but had completed his probation two years ago. Now 24, Juarez has a steady job and has purchased a home with his wife and young son in the “safety zone.”

“Although I complied with all conditions of my juvenile probation, and in fact was released from probation early for 'good behavior,’” Juarez explained in his statement, “the permanent injunction virtually imposes a lifetime of probation conditions for me.”

Is this guy a dangerous criminal or someone who just got caught up in this system? Then there is the 45-year-old grandfather who has a few tattoos and some very minor convictions from over 30 years ago as a youth.

Warriner's ruling on the gang injunction is outrageous. This from the SNR's follow up piece on December 1, 2005.

"All four of the ACLU’s clients in the case claim that they are not members of the Broderick Boys gang. (In fact, many West Sacramento residents say there is no such thing as the Broderick Boys and that local police and prosecutors have exaggerated the existence of the supposed gang.) And all said they received no notice that the gang injunction was being sought in the courts or that they would be subject to its restrictions.

But Judge Warriner ruled that the four had no standing to challenge the law, because they claim they are not gang members. The injunction “binds only defendant Broderick Boys and its members and authorized representatives” wrote Warriner in his ruling.

Furthermore, he ruled, “any person who is charged with criminal contempt for violating the terms of the injunction is entitled to the protection of numerous rights when defending such a charge.”

This ruling makes no sense, since the clients of the ACLU were in fact affected directly by the injunction.

"The judge’s logic exasperated opponents of the injunction. Jory Steele, an attorney with the ACLU, said, “Obviously, we vehemently disagree with the judge’s ruling. Our clients were indeed directly affected by the injunction.” Directly affected because they have been labeled as gang members by police and prosecutors and because--even though they deny gang membership--they nevertheless risk arrest if they are stopped by police after 10 p.m. in West Sacramento or if they are seen in public with anyone else identified as a Broderick Boy."

So yes, a judge ruled not on the constitutionality of the injunction, but rather that they had no legal standing to challenge it. A ruling that on its face fundamentally makes no sense.

Everyone is against gangs and wants to reduce crimes, but this once again appears to be a fundamental violation of the basic protections of our constitution. And frankly what Judge Warriner has done here is criminal.

---Doug Paul Davis reporting

2006: The Year in Davis Review

These last days we will have a countdown of the top 10 stories from Davis in 2006. We continue with our fifth installment, No.8 Police Officer of the Year Pheng Ly.

On April 17, 2006, Judge Thomas Warriner dismissed the misdemeanor hit-and-run charged against 16-year-old Halema Buzayan. The family had complained about the conduct of Officer Pheng Ly during the course of his arrest and questioning of the minor. This case had become a focal point in the struggle for police oversight.

The father, Jamal Buzayan declared, “Case Dismissed, Justice is Done.”

Halema Buzayan said, "It's a really good day. I think it's a great feeling to know that justice has prevailed."

Just two weeks later however, the entire scene shifted. The Yolo County District Attorney’s Office, in opposition to a ruling from Judge Warriner, released audio recordings of the hit-and-run investigation to the Davis Enterprise. The Davis Enterprise would run a front page story on April 28, 2006 and post those recordings on their website.

More damaging however was the April 30, 2006 Editorial from Davis Enterprise Editor Debbie Davis.

Listen for yourself, and then decide whether you believe Davis police Officer Pheng Ly was hostile, discriminatory or abusive when he arrested a Davis teenager last summer for suspected hit-and-run.

After hearing the audiotapes released Friday by the Yolo County District Attorney's Office, our answers are no, no and no.

Jamal Buzayan filed a citizen's complaint against the Police Department two days after his daughter Halema's arrest on June 13, 2005, saying the incident "went beyond the reasonable standards of acceptable, civilized behavior." He's wrong.

LISTEN FOR YOURSELF. The audiotapes are available on The Davis Enterprise's Web site, www.davisenterprise.com. Click on the story "Audio of hit-run arrest revealing," and follow the links to the recordings.

You'll hear a Davis police officer discharging his duty to this community in a decidedly professional manner. He's doing his job, and he's doing it well. In every contact with the hit-and-run victim, the witness and every member of the Buzayan family, he is polite, respectful and professional.

(I will remind people once again, Debbie Davis is not a lawyer).

Bob Dunning on May 2, 2006, would follow up this editorial with his own remarks.

Frankly, I expected the tapes might provide a little something for everyone to hang their hats on. Maybe a harsh voice on one side or the other, or a moment of misunderstanding that would be interpreted one way by one group and another way by the opposite side, leading to one of those inevitable impasses where everyone digs in their heels and nobody wins.

I was wrong. There were no harsh voices, misunderstandings or unclear meanings on the tapes. They are straightforward and easy to understand. It would be hard for 100 impartial observers who know nothing of this case to not reach exactly the same conclusion about their contents.

And, while there are aspects of this case that people may wish to continue to argue about, one thing is clear from a close analysis of the tapes: Davis police Officer Pheng Ly is owed an apology by all those who have suggested he is a rogue cop motivated by both racial and religious discrimination.

That apology would come that evening at the Davis City Council.

Officer Ly addressed the council, "I am not bitter about what has happened to me. I have already forgiven and moved on. It is time for me to get back to working for the good citizens of this community."

Mayor Ruth Asmundson would utter that apology on behalf of the city. A few months later, some of the supporters of the Buzayans pointed out to the Mayor that Halema Buzayan had been arrested and had her case dismissed, was she not owed an apology as well. Asmundson’s response was that “I think Halema has learned her lesson.”

Despite Ly’s words that night that he was not bitter and that he had forgiven and moved on. His words on his website which was only taken down in the last few weeks say something very different:

“I hereby challenge the family (particularly the arrested minor) to take a polygraph test with me, regarding the facts surrounding this case, with an independent and certified company or polygrapher and that the results of those tests be immediately made public in their entirety. I have nothing to hide and want the truth to come out.

From the very beginning, it was crystal clear to me that the highly paid defense and wealthy family did not want this case to be tried in a court of law, where all the facts would have been legally brought out, but rather in the more ambiguous and inflammable court of public opinion through the careful use and manipulation of the media. Yes, the family has spent a lot of money over this "minor fender bender". In fact, they paid the other car owner almost $900 even though they denied ever hitting her car! Now if someone accused me of hitting their car or damaging their property and I know I didn't do it, I would never pay them off; particularly so quickly and especially with no questions asked! I believe this type of behavior is commonly referred to as "consciousness of guilt" in the legal system. This is clearly a wealthy family that believes they can buy their way out of any and everything.”

Yes, Officer Ly was not bitter, not bitter at all.

Like everyone else involved, Ly shifts the emphasis to demeanor and away from process.

“Was I so upset at the family that they truly thought I was going to physically strike them as they have accused me of? Was I rude, demeaning and yelling to the family when I questioned them as they have accused me of? Did I illegally question the minor without advising her of her Miranda rights and deny her an attorney or parent as they have accused me of?”

As we showed previously, the tapes clearly indicate that while Officer Ly read Miss Buzayan her Miranda rights, he ignored her request for counsel.

As the lawsuit alleges:

“Ly also challenged the Buzayans to take a polygraph, but conspicuously did not offer to answer questions regarding whether:

• He determined that members of the Buzayan family were making false statements, based upon his assumptions about their cultural characteristics;

• He lied to Andrienne Wonhof-Gustafson regarding the Buzayan families' willingness to pay for the damage to her vehicle regardless of fault;

• He instructed the Buzayan family to compensate Mrs. Wonhof-Gustafson, and then claimed that their willingness to do so was evidence of guilt;

• He lied to Dr. Buzayan when he claimed to want only to "speak to Halema;"

• After arresting Halema, he deliberately did not take her to a probation officer, as the law expressly requires;

• He entered the Buzayan home on the 13th of June, 2005, without a warrant, while concealing his intent to arrest Halema;

• He knew that Halema had asked for an attorney, and ignored her request;"

These matters will fortunately be sorted out in a court of law rather than in the Davis Enterprise or City Council Chambers. However, it seems irresponsible for an officer of the law to be making those types of accusations on a website. It is striking that the day the story on the Buzayans filing a lawsuit against the police came out in the Davis Enterprise, Officer Pheng Ly’s webpage came down. Moreover, it was completely irresponsible of Mayor Ruth Asmundson to apologize to Officer Ly on behalf of the city. When the lawsuit is finally adjudicated, Mayor Asmundson will have to answer for those words. She will either be vindicated by those words or she will be condemned for them. I think a responsible government official should have withheld comment until the civil case was resolved.

---Doug Paul Davis reporting

Cleaning up the District Attorney’s Office

Last June, Jeff Reisig was elected Yolo County District Attorney with strong support from the current employees of the district attorney’s office. As he is about to take office, he faces a number of very tough choices, for if he is to survive in office, he will need to deal with numerous problems among the very people who helped get him elected in the first place. It is in many ways an unenviable task, but one for which he may have no choice.

While it did not gain the attention of some of the more notorious cases, perhaps the most egregious case of overzealous prosecution stemmed from charges filed against a Clarksburg goat farmer, Khalid Berny, an immigrant from Morocco. He was charged with 170 misdemeanor counts that would have put him in prison for three years. His crime: he allowed his livestock to roam uncontained on a number of occasions. They prosecuted him despite his payment of restitution and impound fees to the animal services department and despite the fact that he no longer even owned goats and therefore was not a threat to repeat his crime.

Most amazingly is that on the eve of his trial, he obtained new attorneys, Matt Gonzalez and Whitney Leigh, who sought and received a continuance. On July 26, 2006, just two months after they were set to go to trial and put him in jail, the Yolo County District Attorney dismissed the charges.

Better known and in many ways equally disturbing is the handling of the Buzayan case by the Yolo County District attorney’s office. While Officer Ly has shouldered much blame within the community for pursuing this arrest—without the prosecution by the Yolo County District Attorney’s Office, this case likely never would have come to public light.

The question is why pursue a legal case against a juvenile for a minor bumper bender that resulted in $800 worth of damage and was settled civilly?

In Judge Thomas Warriner’s Court Deputy District Attorney Patricia Fong twice admitted that the DA was determined to pursue juvenile proceedings against Miss Buzayan based on their concern that the Buzayan family would sue the Davis Police Department and the City of Davis for the improper conduct of Officer Ly.

Following the dismissal of the misdemeanor charges, the Yolo County District attorneys office released the tapes of the incident to the Davis Enterprise resulting in an “improper online broadcast of the private and confidential information about the Buzayan family.” This despite going into court and asking the Judge to release such information and having Judge Warriner deny their request. Remember juvenile proceedings are confidential. The family and the defense attorney have the latitude to release information that may benefit the juvenile, however, the prosecution is not allowed to release information. This is to protect the juvenile from cases such as these.

Finally, in the ensuing spin, Deputy District Attorneys Tim Wallace and Clinton Parish would accuse the Buzayan family of “paying off” the victim in order to avoid prosecution. Parish writes on the “Yolosoap” website, “Simply put, there is no wrong doing on our part. The only wrong doing was that of paying of a victim so they would not testify.”

Tim Wallace put the blame squarely on the family of the juvenile stating that she “knew she screwed up and was unwilling to accept responsibility for it. Sadly, her parents only enabled their child’s deceipt. (sic)” Further he blames the uproar over this case as “the doing of very small and vocal portion of the community accepting a SF criminal defense lawyers (sic) spin of the facts rather than trust their own institutions.”

Of course, the small portion of the community was concerned about this case in the summer of 2005 long before the arrival of the San Francisco criminal defense lawyers in late January of 2006. Moreover, Wallace should not have been discussing this juvenile case. Finally, “rather than trust their own institutions”? This is precisely the problem—it is difficult to trust our institutions such as the District Attorney’s office when they appear to be waging a war of retribution rather than a furtherance of justice.

When these institutions appear to abuse prosecutorial discretion by the pursuit and the prosecution of individuals who do not pose a danger to either themselves or the community for reasons that appear, at least by the admission of Fong, to not fall into the realm of protection or guidance, then we naturally begin to question rather than trust our institutions. Trust in institutions is not a blind check. It must be earned and it must be maintained.

The Berny and Buzayan prosecutions demonstrate the danger involved if the District Attorney fails to serve the interest of justice and instead serves the interest of prosecutorial zeal. And it is this instinct that needs to be cleaned up in addition to many others.

---Doug Paul Davis reporting

Davis Enterprise Coverage of Buzayan Lawsuit

Sunday morning, December 10, 2006, I awoke to a front page story in the Davis Enterprise with the headline--"Buzayan family sues city, police."

My first thought was--well shoot, if I didn't read the Vanguard everyday, that might have been news to me. That might seem a little bit glib to some, and for that I apologize, but let me just say, that the People's Vanguard of Davis first wrote about the lawsuit going forward on November 20, 2006. We followed it up with an article on November 29, 2006 and finally an article on December 4, 2006. And we'll have another one later this week.

The Davis Enterprise reads the Vanguard and knew about this story over three weeks ago, if not shortly after the lawsuit was publicly filed on Wednesday, Nov. 3, 2006 in Federal Court in the Eastern District of California. The Davis Enterprise is, after all, a defendant in the lawsuit. In contrast, when the Enterprise received *some* of the police tapes from the District Attorney's Office they ran a story on the front page within two days.

Moreover, much of this article focuses on a rehash of what had been public back in April and May. It focused heavily on the arrest itself. This is not to suggest that the arrest itself is not important; it is vital. However, the claims made by the Buzayans and their attorneys are very far-reaching. This blog has done three stories on the lawsuit already and we have barely scratched the surface of the depths of the complaint.

A few interesting points that surface in this article...

The basis of the racial discrimination charge: the “bloody” headscarf…

"[The lawsuit] alleges the defendants are guilty of racial discrimination, false imprisonment, assault, intentional infliction of emotional distress, negligent infliction of emotional distress, abuse of process, slander, libel, defamation, battery and racial discrimination, among other conduct."

If you read that closely you will notice that the first and last charge listed by Davis Enterprise reporter Claire St. John is "racial discrimination." Very interesting that she mentions that twice.

I am about the last person in the world to be pointing out typos and oversights, but I find this very illustrative for substantive reasons. The lawsuit itself mentions 20 separate complaints and 19 causes of action. Only two of those even mention or contain the word "race."

One is the Sixth Cause of Action--"Violation of Civil Code § 51.7--Freedom from violence. The above-described conduct violated Plaintiff Halema Buzayan's right to be free from any violence or threat of violence or intimidation by threat of violence on the basis of race, color, ethnicity or religion as provided in Cal. Civ. Code § 51.7."

The other is the Second Cause of Action--Violation of 14th Amendments of the U.S. Constitution and 42 U.S.C. §1983--Racial Discrimination."

In this case, the Buzayan Family alleges Halema Buzayan was intentionally singled out for false arrest based on her race, ethnicity, color and religious beliefs. Davis Police Officer Pheng Ly's sole basis for arrest is his observation that Ms. Buzayan wore no headscarf and her mother did.

Officer Ly states: "The interesting thing I noticed about the mom is she wore a something over her head and the daughter doesn't and the witnesses didn't mention anything about that. I think they would have mentioned that to me. So, it's probable the daughter was driving the car."

However, more than 90% of this case has no direct connection to Buzayan's race or ethnicity. And yet, while Officer Ly on his website vehemently defends himself against the charge of racism, the majority of the complaints against Ly have to do with violations of police procedure and the constitutional rights of Ms. Buzayan.

The importance of racial discrimination rests on one portion of the incident—Officer Ly's conclusion that Ms. Buzayan was the one driving based on his observations about a headscarf. I certainly would not accuse him of racism for coming to those conclusions, I would however, question whether he conducted a thorough enough investigation.

The audio tapes are revealing...

A second issue of importance has to do with the publication of *some* of the audio tapes on the Davis Enterprise website. The first point relating to this is that personal and confidential information (unlisted phone numbers & home addresses, driver’s license numbers, names & birth dates) of all the involved parties were included in the recordings (as well as the names and birth dates of the other Buzayan Family children.) The Davis Enterprise was notified of this by the victim of the accident who had received phone calls from members of the general public who had gotten her private information from the website. Once notified, the Enterprise removed the tapes, and then uploaded a redacted version a few days later.

The second point relating to this is that the District Attorney's Office released these tapes to the Davis Enterprise without authorization from Yolo County Judge Thomas Warriner who had specifically denied them permission to do so.

Whitney Leigh, attorney to the Buzayan Family, summarizes this point:

"I think the issue, from what I can tell, is The Davis Enterprise's publication of the information may have resulted simply by the failure to closely review the tapes, and the district attorney's wrongful disclosure of that to The Davis Enterprise... But the harm was already done once the information was released."

More questions than answers still...

There are many unanswered questions about the Buzayan case for the public. One of them, is why has this case created such controversy? It is a minor arrest of a teenager for allegedly pulling too close to another vehicle in a parking lot, hitting it, and leaving the scene. Misdemeanor hit and run cases are usually handled either civilly through restitution or by a small fine. Why are we still talking about it a year and a half after the incident?

My answer is because if you understand what went wrong in this case, from the moment that Halema Buzayan was arrested until the moment the Buzayan Family filed their lawsuit, you will understand what is wrong with the legal system in the City of Davis and Yolo County from the arresting officer, to the internal affairs department, to the police chief, to the district attorney's office, to the Davis Enterprise Newspaper, to the city manager and the city council itself.

Over the course of the next few months we will be exploring these issues in that context.

---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