Know Your Rights Even if You Are Completely Innocent

There is a popular myth that floats through some segments of the population that disparages the notion of constitutional protections for the rights of the accused. According to that line of thinking, if you didn't do anything, you have nothing to hide.

However that misses the fundamental nature of human character embodied in Federalist 51 by James Madison:

"If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary."

Indeed time and time again, people's failure to understand and exercise their constitutional rights, even when they believe they are innocent or are in fact innocent, pervades this culture. Time and time again, people end up with their lives altered or their liberties curtailed because they failed to heed very simple maxims when dealing with police and authority--the fallibility of human nature. I'm not even necessarily talking about maliciousness, although that certainly enters the picture. I am also speaking simply of human error committed by well intentioned individuals in authority. In the long run, perhaps you can say that people will be vindicated by the truth, but it may be a long process and costly in terms of time, energy, and resources. Innocent people have served decades in jail before release--decades that can never be returned to them. And if you are unfortunate and lack the resources to fight those charges, it may further impair your ability to live life as you once knew it.

The most basic of rights granted by the US Constitution are the right against searches and seizures without a warrant, the right against self-incrimination, which takes the form of the right to remain silent, and the right to have an attorney represent their interests.

Simply put people need to understand that they have the right to refuse to a search of their vehicle without probable cause and they have a right to prevent a search or even entry into their home without a warrant.

Moreover, while some people know that they have these very rights, they sometimes fail to exercise their rights. Just recently I was told a story where a man consented to the search of his vehicle. Why did he do this? Because he knew he had nothing to hide. And yet the police found something and he ended up arrested. Why? Because unbeknownst to him, someone innocently placed something into his vehicle that ended up getting him arrested. I am not at liberty to belabor the details of this incident, although it is interesting in its own right. The larger point is that this individual now faces charges and jail time for something that they had no knowledge of being in their vehicle. And yet, it could have been avoided by simply refusing to grant the police permission to search his vehicle.

Is this an extreme example? Probably. But allowing a police officer to search your vehicle when you have the right not to be searched only allows for the possibility that you will be found with something that maybe you failed to even consider or had no knowledge of. It also opens the door for potentially other more nefarious problems. The bottom line however is use your rights even when you think you do not have to.

To further illustrate this point, I will pick on the recent example in the Buzayan Case. Jamal Buzayan allowed police officers into his home. They gained entry based on a simple request to come in. Now Dr. Buzayan's attorneys will argue in a civil suit that when Davis Police Officer Pheng Ly asked to come in with the clear verbal intention of only talking, but in fact intended to make an arrest, Officer Ly violated the rights of Dr. Buzayan and his daughter by using subterfuge in order to gain entry to a property. This point will be played out in the courts and is the basis for the entire discussion on what an officer can and cannot do without a warrant in cases involving minors.

However, Dr. Buzayan could have avoided all of this had he simply exercised his rights and denied Officer Ly entry into his home. In the Flex Your Right video, which is also linked on the side column, there is a scenario that is played out twice where officers arrive at a home during a party called out on a noise complaint. In the first version, the officers are allowed into the home, spot illegal activity and then arrest the party goers even though the original complaint was not about drug use but rather noise. In the second and correctly handled version from the citizen's standpoint, the resident walks outside to talk to the police officer, closing the door behind them thereby preventing the officer entry or vision into the home. The people inside are not arrested in this version.

Had Dr. Buzayan spoken with Officer Ly and Officer Hartz outside of his home, Officer Ly would have needed to have acquired a warrant in order to arrest Dr. Buzayan's daughter. More likely, he would have simply asked Dr. Buzayan to bring his daughter to the police station in the morning for questioning. This would have avoided many of the problems that ensued from Officer Ly's arrest of the minor and subsequent interrogation of the minor.

Speaking of which, from the police interview tape we see that the minor in the Buzayan case seems to ask for an attorney upon being read her rights by Officer Ly. Officer Ly should have at the very least ceased the interview until he clarified that the request was indeed one for an attorney. However, the minor also erred here. Now, obviously being a minor we have to give her latitude, and this certainly should not be read as a criticism, but rather a point of learning how to better handle such a situation.

Once the minor requested an attorney, she should have stop speaking and insisted that an attorney be called. At that point, the officer would have again been forced to comply and he would have not have been able to attempt to gain a confession from the minor.

It is often amazing to me how many people in situations such as these do not request to have a lawyer present during questioning. It is my view as a layman that no one should ever enter a situation with the police interrogating you without requesting an attorney be present with the caveat being, as long as it is clear that you are or may at some point be considered a target for the investigation rather than merely a witness. This is backed up by the advice that the ACLU gives people: "Do not make any statements regarding the incident. Ask for a lawyer immediately upon your arrest."

Here are some resources available that will illustrate some of these points as well.

• ACLU: Know Your Rights: What to Do If You're Stopped by the Police
  

• ACLU: Know Your Rights PDF
  

• Flex Your Rights Quiz on Police Stops

The final point here that I will reiterate because there is so much confusion. You can be perfectly innocent and yet end up getting into trouble simply because you failed to exercise your constitutional rights. But even if you are not innocent, knowing your rights will only aid you in having a strong defense. It is amazing to me how many problems could be avoided if people simply took heed of their rights.

---Doug Paul Davis reporting

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: An Inappropriate and Insulting Choice For "Teacher of the Year"

Talk about burying your lead, buried toward the end of the Davis Enterprise article highlighting the Senior Awards Night at Davis High School on Tuesday night, in the last four paragraphs is a seemingly innocuous reporting of the recipient of the Rotary Teacher Service Award, otherwise known as, Teacher of the Year.

This year it was awarded to Math teacher Jana Henry. The Davis Enterprise Reporter Maddy Ryen, likely had no idea what kind of story she was actually reporting. This is because Jana Henry was involved in a story that the Davis Enterprise has not once reported on. In fact, even Davis Vanguard readers likely would not have recognized the name, because the Vanguard has done Ms. Henry the courtesy of not reporting her name.

The passage reads:

Math teacher Jana Henry received the Rotary Teacher Service Award, more commonly known as the Teacher of the Year award. Henry, who came to DHS in 2002, received “glowing nominations” from her students, including one who said, “I go to (her) class in a bad mood and leave in merry spirits.”

Cawley noted Henry's “countless hours offering extra tutoring” and her use of technology in the classroom to assist students. He also praised her personal connection with students.

“I'm just really honored,” Henry said of receiving the award. “I just love my job and teaching the kids.”

However, Davis High School Principal Michael Cawley certainly knew the story, and that makes his words and the award all the more appalling. You see Jana Henry is the teacher who pulled the Malcolm X poster off the wall of her classroom that led to the suspension of the Davis High School student for three days for giving a speech in front of the student body that described what happened and how he felt about the teacher singling him out in front of the class and calling the poster "a terrorist message."

We have always done Ms. Henry the courtesy of not reporting her name. But this is too much. In fact, this lies in the realm of the absurd. Just as last year it was absurd that Officer Pheng Ly, accused of serious violations of the rights of a minor and facing a pending federal law suit, would be awarded with Officer of the Year.

In fact, this is worse than that because unlike the case of Officer Ly where you could make the argument at least that he may have had other achievements that could warrant an award, this incident severely impacted Ms. Henry's service record as a teacher.

The audacity of it all is that Mr. Cawley, who knew full well of Ms. Henry's situation and the way that she handled it, had the temerity to praise "her personal connection with students."

Shall we recount her connection with students. There is the incident itself which was handled quite badly. The student brought in the poster and put it up on the wall. Ms. Henry became uncomfortable with it, and frankly that is her right, however, instead of privately discussing with the student why she deemed it inappropriate, she berated him before the class, humiliating and embarrassing him.

We could chalk up that incident as poor judgment and move on, but it becomes a pattern, when she leaves the auditorium in tears.

She compounds it, when the school district makes the determination that the suspension was inappropriate and reinstates the student. She refuses to teach the student again. When the district deems that she is required to teach the student again, she refuses to teach. And for two months she is out of teaching and it is announced to the student body that she has left the teaching position.

After nearly two months of not teaching, suddenly she is back teaching on June 4 and less than a week later is awarded with the Teacher of the Year award.

The Vanguard has nothing against this teacher and wishes her well and hopes she can resume teaching. It is clear that things were not handled appropriately and that she was harmed by the lack of appropriate guidance by the administration on her own campus. However, to award her with teacher of the year is frankly an insult to the other teachers who did not shirk their responsibilities and leave their students high and dry as they prepared for crucial AP examinations. It is an insult to the parents and students who had to take additional tutoring to take the AP exams. For those who had to spend extra time because Ms. Henry did not follow on her commitments. And those students who suffered academically due to the disruption that this caused.

Frankly this is close to the most appalling thing that I have seen in this community, and that is saying something. The school board needs to investigate how this was allowed to happen. And frankly I have real questions about the Principal of the High School anyway, but this just adds fuel to the fire.

The school district and Principal Michael Cawley owe this community an explanation.

---Doug Paul Davis reporting

Friday Afternoon Briefs: Vanguard to Have Farmer's Market Booth and Much More

Vanguard to Host Farmer's Market Booth

The People's Vanguard of Davis will host a booth at the Davis Farmer's Market tomorrow. We will have literature and discussions about local issues.

In addition, a key attraction will be two petitions calling for the end of the Iraq War. One of which will demand a cut-off of funding immediately except that which is necessary bring home the troops and support the veterans after the get back home. The other will have a time-table for a withdrawal and no funding without a deadline by which troops must be home. Both of these petitions are supported by veterans' groups. People will be free to sign the one that they are most comfortable with signing or have a discussion about the issue.

Here's the language:

"We the undersigned do not support funding the Iraq war. We ask that Congress cut off all funding to the war for any purpose other than for bringing the troops home, veteran's needs, and rebuilding Iraq."

"We the undersigned do not support funding the Iraq war without setting definitive deadlines for troop withdrawal and supporting veteran's needs and rebuilding Iraq."

Student Activists Organize Around Malcolm X and Sodexho

Last night at the Silo on the UC Davis campus, more than 50 students and activists met for a panel discussion on a list of topics that ranged from Malcolm X to Civil Rights to modern activism. The group organized by UC Davis student Devon Lee, brought people of various groups and activism together in hopes of networking and branching out to create a new progressive movement in Davis. Devon Lee was one of the chief organizers last year of student march from the MU to the Davis Police Station in protest of racial profiling practices.

One of the panelists a long time civil rights leader helped to organize people against racial profiling in the West Sacramento area and spoke of the success in fighting the gang injunction. Moreover he cautioned people that West Sacramento Police continue to target minorities and that that struggle is still ongoing.

One of the panelists included Javier Ortiz, a Chicano Studies lecturer, remarked that this was the first time he had seen a large black contingent of students on the UC Davis campus.

Activism was a large topic of conversation, with students expressing difficulty in organizing given a heavy class load and many students needing to work multiple jobs in order to pay for the ever rising cost of tuition.

There were several representatives from Students Organizing For Change, the group leading the protests to make food service workers university employees instead of Sodexho employees. They talked about ways in which people can be active and organize in a short period of time using modern resources such as Facebook and the Internet.

My wife, Cecilia Escamilla Greenwald spoke both as a former member of the HRC and current Union organizer with SEIU. She talked about the need to take direct action and spoke of her experience of helping the Janitor's in Houston to organize and obtain union status and get a new contract that substantially raised the level of pay and benefits for over 5,200 workers.

Shh... Don't Tell Officer Ly

In the Halema Buzayan case last year, Officer Ly determined that Ms. Buzayan was lying about her claim that she was not driving that evening, based on a head scarf. Her mother was wearing a head scarf that evening and she was not. Officer Ly reasoned in a recording, that he felt that the witnesses would have mentioned a head scarf. Attorneys for the family have seized upon this as evidence of Officer Ly prosecuting on the basis of a misunderstanding about their religious attire and a contention that Ms. Buzayan since she was not wearing the head scarf that evening, never wore a head scarf. In fact, she does and she did last night.

Here is a picture with my wife Cecilia and Halema's brother, Mahamed, showing Halema in a headscarf. All three of these individuals have been involved in controversial events in the last year.

---Doug Paul Davis reporting

Commentary: School Board Makes It Right in Contrast to the City Council

As the issue of the Davis High School student gets resolved in a rapid and largely acceptable manner, it is easy to look back upon the arrest of 16-year-old Halema Buzayan in 2005 and wonder what if it had been resolved as quickly and amicably as this incident.

Few except those intimately involved in this situation realize that the chain of events that the Buzayan arrest on that June night now nearly two years ago was entirely avoidable. For Dr. Buzayan's first call was not to a lawyer, but rather to his elected representatives. His first move was to go before the Davis City Council and explain his situation. His first action was to file a formal complaint with the department. Somewhere between that point and now things went horribly wrong.

In retrospect it is easy to find faults in the manner in which this was handled by the police officer involved, the city, and the district attorney's office. No one quite understands the reason that Ms. Buzayan was arrested in her home for misdemeanor. No one quite understands the reason that Ms. Buzayan was taken to the police department rather than a probation officer at juvenile hall. No one quite understands the need to arrest anyone for alleged bumper damage to a car.

It was only when the process failed that Dr. Buzayan felt compelled to seek out legal counsel. It was only when his complaint was rejected that the Human Relations Commission felt compelled to create a civilian police review board. Had the process worked, none of these things would have happened.

Certainly no one understands why this situation was catastrophic enough to take down a City Manager, a Police Chief, and the City's Human Relations Commission. But just over a year later it had done exactly that.

And while publicly you still may hear some apologists for the department attempt to argue that things were handled correctly, no one when pressed in private is willing to do so.

Frankly, I have not spoken to a single police officer outside of the Davis Police Department who upon hearing about this case would have handled it as Officer Ly did. No one would have arrested the minor in her home. Some may have had her father bring her down to the police station. Most would have let it go after the damage was paid. Once the victim was made whole there was simply no compelling reason to pursue the case. That is the purpose of the law to begin with--to ensure that people own up to the responsibility of their actions. That was the judge's ruling as well.

I will not get into the further arguments here about the evidence that the vehicle the Buzayans drove did not strike the Wonhof vehicle (and if you saw the pictures, you would be very strongly convinced on this point). Nor will I get into the actions that occur after the decision to arrest Ms. Buzayan.

The bottom line here is that the decision was made by Officer Ly to arrest Ms. Buzayan and the decision was made by the Police Chief, City Council, and District Attorney's office to complicate matters by failing to hold the police officer responsible for his actions.

We flash forward now to an incident that we have been following involving the suspension of a Davis High School student that is very similar except it involves a teacher, the Vice Principal and the school district.

In my opinion, mistakes were made at several different levels in this case.

First, the teacher made the decision to pull down a Malcolm X poster. This is the teacher's prerogative and fully reasonable--even if we might quibble at this. However, the manner in which the teacher reportedly handled it was unacceptable. The correct action would be to inform the student that the teacher had concerns about the appropriateness of the poster in a math class. The course of action the teacher took was to publicly embarrass and berate a student and to proclaim their poster a "terrorist message."

Second, the student was asked to give a speech, the speech was approved, and then after the fact the Vice Principal determined that this student should be suspended for three days for giving the speech. The official text of this speech is available on this blog.

Now here is where history was changed. The school district's upper administration and school board were clearly not happy with the handling of this matter and likely did not believe the punishment was appropriate. So instead of digging in their heals and blindly backing the teacher and Vice Principal, they forced a resolution of the situation which resulted in the suspension being ended, the student going back to school and back to this class.

Additional efforts to rectify this situation may happen in the future, but the major point here is that the school board took a leadership role and resolved this situation likely without any legal action. Because of that there will be no lawsuit against the district. Furthermore, there will not be a slew of upper administrators who will lose their job--although this situation should be viewed as wake up call for the district to look at their on-site administrators and teachers and better structure how punishments should be doled out and for what reason.

Finally, this situation will likely fade away rapidly whereas the Buzayan case is going to federal court. Just yesterday, the federal court judge heard motions to dismiss the portion of the case that is against the Davis Enterprise. That judge will rule on that shortly. Judge refused to dismiss the portion of the case against the Davis Police Department or the District Attorney's Office. So that case will continue for at least another year or so, while the most recent case will soon be forgot.

The moral of this story is for public agencies to take responsibility early and it will avoid problems down the line. It is a lesson that the City Council needs to learn from the Davis Joint Unified School Board.

---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

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

Examining the Buzayan Case: Miranda Rights Violation

Buzayan Case Charges that Davis Police Officer Ly Ignored Request for Attorney

Last spring Davis Enterprise Editor Debbie Davis upon hearing the tapes from the Buzayan case--the ones that the prosecutor wanted her to hear--proclaimed:

"LISTEN FOR YOURSELF... 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."

This pronouncement by Debbie Davis has always troubled me, because to the best of my knowledge Ms. Davis is neither an attorney nor does she have any sort of legal training.

The issue of Officer Pheng Ly's demeanor during the incident got some how overblown in the press. The issue was never that Officer Ly was rude or abrasive, rather that he violated the rights of young Buzayan.

As the complaint filed by the Buzayan family states:

"The Yolo County District Attorney's Office and Ly mischaracterized the complaints made by the Buzayan family as arising out of Ly's demeanor during his interactions with them - as opposed to his multiple violations of federal, state and local laws - and then refuted "strawman” arguments never made by the Buzayan family"

The complaint filed by the Buzayans however claims a much more serious violation of the law--"Defendant Ly also deliberately and unlawfully denied her request for an attorney in direct violation of both federal and state law."

This is a violation of Miss Buzayan's Miranda Rights. This was taken by some to mean that Officer Ly failed to read Miss Buzayan her Miranda rights. But the rights embodied under Miranda not only include the requirement that the officer inform the individual of their rights, but also that at the moment that she requests an attorney, any interview immediately cease. Particularly, in the case of a minor, it is incumbent upon the police officer to ensure that her rights are not violated.

Listening to the recorded transcript between Officer Pheng Ly and Halema Buzayan one hears:

Officer Ly: ugh before I…emmm… ask you questions about the case, I wanna read you something very important.. emm OK?

Halema Buzayan: Umhem

Ly: You have the right to remain silent. Do you understand?

HB: Yeah… to be quiet?

Ly: Yes

HB: And not answer your question OK?

Ly: Any thing you say may be used against you in court. Do you understand?

HB: Not really.. no.

Ly: Ok. Anything you say may be used against you in court. OK. Basically, if you tell you me anything I can go to court and say this is what she told me. OK.

HB: Umm OK?

Ly: You have the right to the presence of an attorney before and during any questioning. Do you understand?

HB: So, like right now or no?

Ly: Yeah right now if you want one you can.

HB: Will it be my attorney? Or…

Ly: It could be……….any attorney that you want.

HB: OK… uhhh… my parents… like my dad has an attorney. Could I use that one?

Ly: He has a…. he has a…he’s…he’s… he’s…an attorney…? He has a law partner..?

HB: No no no no he has…. No no he has an attorney like for UC Davis employees they have them.

Ly: Ugh umm yeah.

HB: OK

Ly: Yeah, if he is available

HB: OK, could you? Can you do that?

Ly: if you can not afford one, then one will be appointed for you free of charge before any questioning if you want. Do you understand that.

As the complaint explains: "As Ly well understood, Halema's statement, "ok, could you? Can you do that" constituted a request for an attorney under federal and state law, requiring him to cease his already unlawful interrogation of Halema. But Officer Ly, in direct violation of state and federal law, denied a minor's request for an attorney. Officer Ly, Davis Police Chief Jim Hyde and the Yolo County District Attorney would later falsely claim that Halema Buzayan did not request an attorney, or that her request was "ambiguous.""

According to legal experts who I have spoken with, the moment that Miss Buzayan said, "Ok, could? Can you do that?" Officer Ly was required to cease his interrogation. For some reason however, the issue of Miranda became focused on the question of did Officer Ly read Miss Buzayan her Miranda Rights.

For example, on May 2, 2006, Bob Dunning in his column writes:

“As the alleged "facts" of this arrest have seeped into the public consciousness over the last few months, I was told time and time again that Pheng Ly never advised Halema Buzayan of her Miranda rights, a serious violation in any arrest. And yet, as I listened to the tapes, there was Officer Ly ¬ clearly and directly and deliberately ¬ advising Halema of her Miranda rights and making certain she understood.”

Dunning’s column illustrates the misconception about this issue that was repeated in the Davis Enterprise newspaper last spring which created that perception that Officer Ly had been unjustly accused of wrong doing and that the community owed him an apology. Officer Ly on his website (which in the last week seems to have been taken down) similarly would claim that the issue was the reading of the Miranda rights rather than the denial of attorney upon request.
The record here on the transcript is pretty clear if you are familiar with the law. The error for the community was when non-lawyers such as Debbie Davis clouded the public issues by false assertions that Officer Pheng Ly was “doing his job and doing it well.”

---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