Judge Orders Defendants to Cease Delay Tactics in Buzayan Case

It was summer of 2005 when then 16 year-old Halema Buzayan was arrested by Davis Police Officer Pheng Ly. Much has happened since that time both within the city and the police department. But one thing that has not happened is that the Federal Lawsuit filed by Ms. Buzayan's family has not gone to trial. That may finally change shortly as a Federal Judge last week ordered the defense to quit stalling and allow the case to move forward.

Halema Buzayan and her family allege 16 causes of action against the Davis Police Department, individual police officers, the Yolo County District Attorney and several individual's from the DA's Office, and the City of Davis. Specifically the list of defendants include: City of Davis, former Davis Police Chief James Hyde, Assistant Police Chief Steven Pierce, Officer Pheng Ly and Ben Hartz, Former DA David Henderson, Deputy DA Patricia Fong, and Counsel for Yolo County and the City of Davis Douglas Thorn who is himself a defendant in this case.

The defendants have submitted a series of motions to dismiss, but to this point the only original defendant whose case was dismissed was the Davis Enterprise, dismissed in July of 2007.

US District Judge Morrison England describes the current motion to dismiss as being submitted "in an unusual manner."

He writes:

"Although the Court concludes that the majority of the Second Motion to Dismiss is duplicative and unnecessary, and while Plaintiffs have strong arguments that the Motion to Dismiss is untimely in the first place, the Court will nonetheless exercise its discretion to hear Defendants’ pleading challenge one final time because resolution of Defendants most recent contentions may help clarify the remaining issues in the present action."

Judge England proceeds to deny all but a very small portion of the defendant's motion to dismiss.

"Based on the foregoing analysis, Defendants’ Motion to Strike (Docket No. 156) is DENIED. Defendants’ Motion to Dismiss (Docket No. 138) is also DENIED, except that the Court clarifies, with respect to Plaintiffs’ Fourteenth Cause of Action that any reliance on false light invasion of privacy is precluded. Defendants’ Second Motion to Dismiss is accordingly GRANTED in that regard. Pursuant to Rule 12(f)(1), the Court orders the second sentence of paragraph 190, and the first sentence in paragraph 192, in Plaintiffs’ Second Amended Complaint stricken. All other causes of action shall proceed in a manner consistent with this Order."

While the judge struck those two paragraphs, he left the bulk of the fourteenth cause of action in place.

"However, the Fourteenth Cause of Action remains viable to the extent Plaintiffs rely on alleged disclosure and broadcast of private information."

The Fourteenth cause of action is a complaint regarding a violation of the California Constitutional Right to Privacy. The bulk of that complaint claims a deliberate disclosure and broadcast of private information.

"Defendants' conduct has resulted in Halema Buzayan and her family being placed in a false light in the public and within the community. Defendants have violated Plaintiffs' right to privacy as secured under the California Constitution. Plaintiffs assert claims for violation of their right to privacy as secured under the California Constitution against all involved Defendants."

Judge England then concludes his opinion with the following:

"Additionally, while the Court concludes that entertaining Defendants’ Second Motion to Dismiss had some limited utility in narrowing the arguments, many of the other arguments raised were either cumulative, premature, inadequately developed, and/or unsubstantiated. Defendants are directed to refrain from any further efforts to frustrate the timely resolution of this litigation."

In other words, Judge England is telling the defendants to quit trying to stall this case. It is time to move forward.

He roundly criticizes their arguments as being premature, inadequately developed, and/ or unsubstantiated. He questioned the need for this second motion to strike. And although he limited the 14th complaint somewhat, for the most part virtually summarily dismissed it.

At this point in time, it is time to move forward with the case, and let the Buzayan Family after three and a half years finally have their day in court. Then the court can determine if they were wronged and what the damages were.

---David M. Greenwald reporting

Inside the Numbers: A Further Examination of the DPD Turnover Rate

Yesterday's Sacramento Bee ran an article that found that Citrus Highets and the Davis police departments have the highest staff turnover rates among other law enforcement agencies in the region.

To add fuel to the fire, the Bee recessitates old charges that the climate in Davis involving complaints of racial profiling and the Halema Buzayan case were the prominent if not primary culprits for this turnover rate.

"High-ranking officials from the two departments blame a variety of factors ranging from a new department's normal break-in period to the way a racially charged incident was handled."

The Bee quotes Assistant Chief Steve Pierce discussing issues involving the arrest of Halema Buzayan, then 16 in 2005, along with accusations of racial profiling.

"Davis Assistant Chief Steve Pierce said his department changed its retirement calculation, making retirement more attractive for some officers. In addition, several officers left to work in newly formed departments in Citrus Heights and Elk Grove.

Pierce also said some employees felt uncomfortable working in the city following a 2005 incident involving a 16-year-old Davis High School student arrested for a misdemeanor hit-and-run. Her parents alleged racial bias because the girl is Muslim.

During exit interviews, some departing officers remarked that they "don't want a car stop done on a person of color blowing up in (their) face," Pierce said."

However, that paints at best an incomplete picture. The Vanguard spoke to Davis Police Chief Landy Black who provided context to both the initial interview as well as the data.

First he provided the actual breakdown of those who left from 2006 to the present.

Retirement: 5 (3 sworn)

Attained promotion not available with DPD: 4 (2 sworn)

Failed to complete academy/field training/probationary period (dismissed by DPD): 2 (both sworn)

Non-sworn personnel became sworn officers elsewhere: 3

Resigned to take comparable position elsewhere: 5 (4 sworn)

By his count that allows for at most four sworn officers who left the department under the conditions that were describe prominently in the Sacramento Bee article.

These data suggest a much more mundane explanation for a high turnover rate. Some simply retired, others were able to get promoted to positions unavailable to them in this department, a few failed their probation, and a few became sworn officers elsewhere.

Under those conditions, the turnover rate is neither alarming nor unusual.

Chief Black also suggested that the comments attributed to Assistant Chief Steve Pierce, while accurate were taken somewhat out of context. His comment regarding exit interviews was not unsolicited but rather reflected a direct question from the Bee reporter who asked him point blank what effect the Buzayan incident had on people leaving the department. There was no emphasis made by Assistant Chief Pierce, according to Chief Black, on the Buzayan factor.

"It is unfortunate that the Sacramento Bee article makes it look like he/we put an emphasis on it. He didn't and we don't."

Chief Black continues:

"I was hired after a period of some internal and external turmoil. There was an expectation placed on me to take steps to mend internal and community relations. While I will take credit for what I've done to meet that expectation, the officers and leaders of this department have taken great individual and professional initiative to rehabilitate an image that they and I believe was unnecessarily tarnished. There is always room for improvement, but the vitriol was over the top in many folks' estimation.

I cannot speak to the character of the officers who left in 2006 or early 2007, but the officers who remained and continue to work here have done so, in large part, due to their commitment to this department, their peers, the law enforcement profession, and the citizens & community of Davis."

Chief Black also took on the issue of racial profiling.

"Racial profiling continues to be a publicly debated issue. We are aware of that and the fact that the perception of racial profiling still exists. We continue to develop our department and train our personnel to conduct themselves in ways that minimize the perception of racial bias. Our recruitment and training focuses on finding and developing professionals who have the capacity and inclination to understand the dynamics of a multi-cultural society and are able to be resilient and welcome transparency as a means to improve trust."

Brief Commentary:

From my perspective, it is unfortunate if the Sacramento Bee believed it was important to stir the pot on this issue. I received a number of emails on this article and felt it was important to find out the rest of the story from the Davis Police Department.

This issue rekindled an issue that had arose back in 2006, when many accused community activists including my wife, the chair of the Human Relations Commission at the time of creating an atmosphere that had led a large number of police officers to leave the department culminating with the Police Chief at that time, Chief Jim Hyde who took a job in Antioch.

The truth is that while it appears there may have been some police officers who left for those reasons, it was not the huge number that was being represented in the media or at city council meetings by members of the community.

While the issue of racial profiling remains a sensitive issue in parts of this community, the overall tone of discussions have change drastically. The departure of the previous chief along with the arrival of Chief Black and Ombudsman Bob Aaronson have helped change some of this.

While many undoubtedly still blame my wife for fanning the flames, many of these incidents were taken to her from people within the community and to the best of her ability she followed the charge of the Human Relations Commission as the only place where people could go to air grievances of this nature at that time.

It is my hope that we have all learned from that incident and should an incident of this sort arise in the future, we can all handle it better and avoid a repeat of what occurred in the winter and spring of 2006.

---David M. Greenwald reporting

Complaint Sustained for Rude Conduct by Davis Police Officer

On the night of December 26, 2006, Lasonja Porter, an African-American and a longtime Davis resident was driving home late at night from some errands. It had been raining heavily that evening, the roads were slick and the visibility low. Not far from her residence, her vehicle hit the curb, incapacitating her vehicle and requiring a tow.

"My husband and my son decided to stay by the car and wait for the tow truck. As they waited for the tow truck the Davis police came by and said 'can I help you?' They said, 'no, our tow truck is on the way. '"

For reasons not completely clear, instead of helping the stranded family out, the police officer decided to make their life more difficult. According to Ms. Porter, the officer told them that if the tow truck did not come in five minutes, they would call their own. And in fact, the police officer did call their own tow truck.

While they were waiting for tow truck to arrive, Ms. Porter's husband asked the police officer how his Christmas was. Instead of making polite conversation, the officer lashed out.

"He said, 'you don't give an 'f' about my Christmas.' He just went off on my husband."

Both tow trucks would arrive at the same time, however, the police insisted that their tow truck remove the car and take the vehicle to Dixon.

"I was questioning why did they do this. What for--the car was waiting on a tow truck. They said nope, they're not going to give back the car. I explained to them that it was my manager's car, they didn't care. I told them that this is really harassment."

Upon request, Ms. Porter received the police report the next day.

"When I got the police report, I was very stunned. The police report read--'when I noticed who the suspect was, I immediately called Eric Labbe to the scene.'"

Ms. Porter explained to me that Eric Laabe was a police officer who had a history with herself and her husband. They had previously filed a complaint against him because of the aggressive manner in which he had interacted with them.

They had a series of meetings with the police, but it took a meeting with then interim Chief Steve Pierce for the police to finally agree to pay for the tow truck. Meanwhile, Ms. Porter was forced to have pay for the car to be towed back to Davis where it would be taken to her manager's residence to be repaired.

"Two people was there waiting on a tow truck. And the tow truck did come. At that time, they could have taken into consideration that they really was waiting on a tow truck and let me leave, but they didn't. Because when Eric Labbe got there, he just went off. He's a really aggressive police officer which we had complained previously for his aggressiveness. He'd cuss you out in a minute."

"One of the witness... she's a white lady, she heard the police officer cussing, so she left a message with Steve Pierce and told him that I did not like how he was cussing. I asked him to get on the phone, he was 'hell no.' I mean they was really going off that night."

Ms. Porter then filed a complaint against the Davis police for their handling of this case. Unlike so many of these encounters, this one did not end there.

A letter dated January 8, 2008 arrived from new Davis Police Chief Landy Black. Ms. Porter admitted she almost did not read the letter, it looked like so many other letters from the Davis Police that routinely denied the validity of her previous complaints.

This one appeared to be going the same route:

"Your complaint stemmed from a December 26, 2006 encounter members of your family had with our officers on Covell Blvd., involving a traffic collision and a towed vehicle... Your complaint was thoroughly investigated. I personally review the investigation and render the final decision in matters of this nature."

However, as I said, this one was different:

"Based on the evidence, it became clear the conduct of the Davis Police Officers whom you and/ or your family members interacted with did not meet the highest standards of conduct and service that we expect from our members. In particular I determined that your complaint of Rude Conduct had merit and a basis in fact. It has therefore been classified as SUSTAINED, meaning that there is clear and convincing evidence that the officer(s) engaged in the prohibited conduct."

Chief Black then went on to sincerely apologize:

"I apologize for this breach of high quality, professional police service that the Davis
Police Department prides itself in and the impact that it had on you and your family. It is our desire that these sorts of breaches are not repeated. Your complaint has served to make us aware of this shortcoming and steps will be taken to improve our ability to serve the community respectful fashion."

Commentary:

When this letter was forwarded to me, I had a similar reaction that Ms. Porter did. I almost did not read it. And through the first almost paragraph and a half, it read like any other denial of claim letter. Then I read the next sentence:

"Based on the evidence, it became clear the conduct of the Davis Police Officers whom you and/ or your family members interacted with did not meet the highest standards of conduct and service that we expect from our members."

I was stunned. For the first time since I have been involved in that process, there is a glimmer of hope.

For Lasonja Porter it is a validity and legitimacy, letting all know that she has a legitimate complaint about the way she has been repeatedly and routinely treated by the Davis Police Department. It will not be nearly as easy to dismiss her futures complaints about the treatment given to her by members of the Davis Police.

For the rest of the community it is the promise that this may in fact really be a new day. That the new chief is serious when he talks about professional standards for the conduct of his police officers and that he is willing to hold them accountable when they breech the public's trust and do not up hold the highest standards of quality and professional police service.

It is with great irony that we must acknowledge that when it comes to complaints against the police department, a sustained complaint actually increases one's trust in the service provided by the police and a denied complaint decreases that trust. The reason is simple. People make mistakes. Police are people and inherently there will be times when they do not respond in manner that is indicative of their training and professio. The key is not that they may occasionally err in their ways, but rather how the police department and chain of command responds to those breaches.

Had Chief Jim Hyde responded to the complaints by the Buzayan family in this manner, it is likely that that case would have long since been over and there would be no federal law suit pending.

While this action by Chief Landy Black will not be a fix-all to the rash of community complaints against the police, it does offer us hope that those complaints will not be summarily dismissed and perhaps that will become the step by which a segment of this community can begin to regain their trust in our law enforcement.

And so on Martin Luther King, Jr. day, we hold forth the promise of a new beginning.

---Doug Paul Davis reporting

Disjointed Thoughts on Election Morning

Today is Election Day. The projections for voter turnout according to Clerk and Recorder Freddie Oakley are rather bleak. Frankly that's not all that surprising, but it is disappointing. We have four elections in the next 365 or so days, each of them has its own inherent importance.

I know many in Davis live for the city council elections--and I agree that those are extremely important. But the school board elections and parcel tax elections are of the utmost importance as well. At times on this blog, we have spent as much time discussing school board issues as we have City Council issues. To the point that there has been a running joke between the two as to which one can stay off the Vanguard. Then acting police chief Steve Pierce was going to send Interim Superintendent Richard Whitmore a fruitcake for helping to keep the police off the Vanguard and focus the attention on the school district (I'm not making that up).

My point here is that school issues at times have dominated the scene in Davis over the first year and a quarter of the Vanguard's existence.

For those with little interest in the school board, we can skip ahead a bit. I noticed that the Final EIR has come down on the Hunt-Boyer Mansion Tank House restoration and relocation project. The city staff is going to recommend the pursuit of Alternative 3--disassembling, reassembling, and then rehabilitating the Tank House while at the same time constructing a new two-story building between the Mansion and the Varsity Theatre.

Guinness will then be called in to assess whether this new building qualifies as the thinnest building in the world. I jest, but that is not a large space between the two.

This issue will be the on the city council agenda at the end of the month. It figures to be a long and heated discussion on the historic nature of the tank house and the site versus the potential for commercial usage there.

However, tonight, the issue is on children and who is best to lead our school district for the next four years in helping to determine policy direction. Honestly, we all have our favorites perhaps. But I am far from certain that we can go wrong no matter who is elected. I have covered numerous events and all the candidates seemed committed to improving the educational prospects of Davis students. That's not to say we agree with everything everyone is proposing, it is only to say there is not a single candidate who lacks the commitment to this school district.

Perhaps as important, we have two ballot measures that would fund a good percentage of our school's budget (Measure Q) and help maintain the library (Measure P).

One point of interest, a lot has been made of Richard Harris and the amount of money he has raised--I'm kind of wondering exactly what he spent it on. There were no ads that we saw in Sunday's Davis Enterprise. We got a mailer or two but certainly nothing massive. So far all the fuss about influence peddling, I just do not see it.

Valley Oak Charter will go forward with more than enough signatures to qualify it for consideration As I said last week, I think the Best Uses of Schools Task Force missed the boat here, focused too early on closing a school and not hard enough on alternatives to closing a school. Now the district will likely have to go back to the drawing board. Did the task force really serve the school district well?

Finally, a hearty farewell to Interim Superintendent Richard Whitmore. Did I agree with everything he did? No. But he was thrust into a difficult situation, his first meeting as Interim Superintendent was when they voted to close Valley Oak. He faced tough challenges in his brief time here. But he was always available to me to answer questions and he was a person who understood the importance of high tech and tried to get many others (at times unsuccessfully) to read the Vanguard as a means to better understand the community. So we will certainly miss him and wish him well on his future endeavors while at the same time looking forward to the new leadership under James Hammond.

So there is much to do and think about in the coming days, but once again today is about the children and who we believe is best to lead them into the future. Stay tuned this evening for live blogging election coverage. We'll have roaming bands of reporters from around the town and I will be blogging live at the Yolo County Election Office.

---Doug Paul Davis reporting

Council Expands Open Container Ordinance

At Tuesday's City Council Meeting, the Council voted to extend the Open Container Ordinance to greenbelts and bike paths and also add the N Street Park to the regular open container ordinance. Eventually it is likely that all parks will require a permit in order for visitors to have alcoholic containers.

Undoubtedly many probably view this ordinance as a common sense approach to create a safe family atmosphere at the park. In fact, one individual asked for a complete ban on alcoholic beverages at all parks.

On the other hand, the ordinance disproportionately effects two population groups--one being the homeless and the other being students.

The impact on students is on convenience. During my years as a student, we would at times have BBQs in the park. Sometimes we had these BBQs impromptu, sometimes we would have them planned in advance. On a hot day after being couped up studying, sometimes it was just nice to get together in the evening at the park and have a few beers. Requiring a permit would take away from those kind of events and force that all such BBQs be planned in advance and permitted. It is a matter of convenience of course, but I think that the rule would take away from the ability of otherwise harmless and law abiding citizens to engage in recreational fun in the parks and that would be a shame.

The far bigger impact is on a population group that most in the city of Davis probably have little sympathy for--the homeless population.

Advocates of the homeless such as Richard Cipian came out on Tuesday night to speak against the extension of the open container ordinance.

As Cipian explains there are a number of reasons for the homeless to engage in alcoholic consumption:

"A majority in the homeless community drink alcohol for three reasons. The first reason is that many in the homeless community do not have jobs. The second reason is that the homeless do not have a motivation to get shelter because there are long established waiting for affordable housing along with the other barriers to housing that I do not have to mention. Just refer to the 2007 Homeless Yolo Homeless Summit document. The third reason is that mental illnesses and painful physical disorders run very high in the homeless community and like students and housed community members, we turn to alcohol consumption to reduce stress in our daily lives."

I understand the concerns of residents who complain of large numbers of people drinking in the parks. In fact, I spoke to residents about the N Street Park, many of them warned the homeless who had used that park that they should alternate parks in order to prevent one neighborhood from becoming tired of their presence. The homeless did not heed this advice and the result is now another park where they cannot drink.

I understand the concerns of parents who fear sending their kids to the parks when people are there drinking. There is no doubt in my mind that these are legitimate concerns.

On the other hand, I suspect that this solution is more of a band aid than a cure. The results of the early bans on alcoholic consumption were simply to shift the drinking population from one park to another. It is undoubtedly clear that this pattern will continue until the city bans all drinking at all parks without a permit.

I also understand that law enforcement prefers to be able to stop people from drinking than to respond to problems that result from people drinking.

But I wonder what the ultimate outcome will be of this ordinance. At the end of the day, the homeless that reside in Davis, many of whom will continue to drink. The only question is where.

And in some ways, banning public drinking might make the problem worse rather than better. For example, there is a good deal of evidence that a youth curfew does not reduce crime, it merely forces youth from public city centers where they are visible to neighborhood houses where they are not. The same will likely happen with homeless. In some ways, it may be easier to deal with a few problem people in a visible public area than a less visible area. It was even suggested that a specific drinking area be created where the police could fully monitor the activities.

Ruth Asmundson at the council meeting on Tuesday suggested that if people could purchase the alcohol, they could purchase a permit. Assistant Chief Steve Pierce agreed and stated that he had not heard of the price being prohibitive. Only Councilmember Heystek seemed sympathetic to this problem.

Cipian, however, as a homeless advocate sees the picture differently.

"A key issue brought up at last nights meeting was about the fact of homeless people not being able to afford permit's in order to consume alcohol beverages in Central Park. A person from the Davis Police Department suggested that if a homeless person has the money to buy a beer at a liquor store, they have the money to buy a permit to consume alcohol beverages in the park. This can be the furthest from the truth. Homeless people rarely have money for money beyond money for a drink of alcohol at a liquor store. If the former was the case in the Davis PD's eyes, why would homeless people panhandle? There is no need to panhandle if a homeless person has a abundance of income to pay for a permit fee."

Many Davisites will undoubtedly lack sympathy for this situation, implying paternalistically that homeless people need to stop drinking. While that is undoubtedly true, that simplistic approach overlooks a variety of factors that lead to drinking problems to begin with, the difficulty for people who have homes and resources to stop drinking, and the lack of social services available to aid the homeless.

I mentioned previously that this was a band aid to the problem rather than a solution. One reason for that is that drinking is not the problem, but a symptom of a much broader problem that leads a sizable number of people onto the streets. If the city, county, and community were serious about addressing this problem, they would be looking toward social services and housing solutions in addition to open container laws. While fully recognizing that the city and county governments lack such resources for many services, it is also true that creating and providing basic services to help the homeless including homes and treatment services are very low on the list of priorities. It is far easier to pass open container laws and hope that you shift or pass the problem elsewhere.

---Doug Paul Davis reporting

Chief Black Calls For More Personnel and Training as Budget Priority

On Tuesday May 22, 2007, the Davis City Council had a workshop on the 2007/ 2008 Fiscal Year Proposed Budget. One of the components of this budget were the public safety needs of the police department. Newly hired Chief Landy Black made his first statements as a chief for what he saw as the budgetary needs and priorities of his department.

According to City Manager Bill Emlen, unfunded needs are "basically items that we did not include in the budget but were suggested by the various departments during the course of the budget process."

It is clear to many observers that the Davis Police Department is understaffed in terms of both support staff and actual officers on the beat. Back in February, the Police Ombudsman as well as the council spoke of the need to upgrade training of officers. However, I think one point that really has not been discussed in this community sufficiently is the issue of staffing of the police department and in the unfunded needs (see the graphic), you see a number of them that relate directly to the need for more staff.

These needs include: an IT analyst/ project manager, a fourth lieutenant, a new training officer, a police dispatch supervisor, a police services specialist who specializes in calls for service, and of course additional police officers. The need for new police officers is quite clear and has been for some time. This point has been driven home not only with long response times to often serious crimes such as a daylight downtown bank robbery, but also by basic logistical problems.

Chief Black spoke strongly to the need for the proper levels of personnel as a means to adequately train and supervise officers on patrol. He acknowledged that this was crucial toward dealing with public confidence issues that have arisen in recent years. However, his point also drove home the need for the people that the public may not see--the supervisors, training officers, and support staff all of which appear to be greatly lacking.

"50 percent of our officers are working in the patrol division with minimal supervision. With the public confidence issues that have been dealt with over the last couple of years with the city of Davis I think can be remedied by having quality training, quality supervision, and oversight, and that can't be done by simply moving people around, we need to actually take an aggressive plan, to put in that oversight process, to bring in the people who will be doing the oversight, and show how to properly do their job."

Moreover Chief Black also spoke of the need to ensure that technology such as the video cameras and police computers are operational not just as a means to protect the public but also to protect the officers.

"Part of the problem that we are trying to overcome is a perception of our inability to manage the technology within the department which is creating both a public confidence problem because they expect that our technology's going to do what it is supposed to do to ensure their rights and give us the ability to defend ourself when there are criticism of our actions."

Fortunately it seems that both the video cameras and the in-car computers are now working most of the time, but there was a long delay that not only fed into the perception about the department but also put police officers at risk in several different ways as the chief alluded.

One of the positions in great need is for a fourth Lieutenant position. However, Black also suggested that dispatch is in need of a supervisor. Basically there is one person who is responsible for that job 24 hours a day.

I witnessed this first hand last Saturday as I rode along with a police officer for a "ride along." On this Saturday night they had five units on the beat and two "party officers" who are on overtime and are there to respond to noise complaints and other out of the control party events late on the weekend or Thursday nights. At 1:00 a.m. officers responded to a serious incident involving injuries and an assault.

This incident eventually took up all but one unit that was on duty. Because they needed that last unit free, they did not respond to several of the noise complaints. This was done just in case another serious incident occurred, the one unit could not be tied down.

This incident illustrates how thin the resources are stretch, if a single moderate incident can tie down all but one unit, it is clear that the department simply does not have enough resources to ensure the safety of the city at peak times such as late at night on the weekends.

While the department also requested some equipment, it is clear that personnel is a clear priority both for the department and this community. However, it is also clear that the new personnel needs to coincide with more training. Unfortunately, there are a great number of departments and services in this city that also need to be funded. However, in my view, getting more police officers and more command officers should be one of the highest priorities in this city. Some of the problems that we have seen in the last few years result directly from the lack of staffing and as importantly the lack of supervision and training of the officers who patrol this city. From that perspective of both this community and our police force, we owe it them to fully staff them and properly train them.

I do not mean this to dismiss the need for equipment. Assistant Chief Pierce who is more familiar with past issues, once again made a pitch for a live-fire training facility. I understand the need for that and how that could be of value. However, scarcity of funding means making tough decisions in terms of what gets funded and what does not. From my standpoint, I would prefer that money go toward more personnel, supervisors, support staff, and some of the training proposals that have been discussed in recent years.

---Doug Paul Davis reporting

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

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

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

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

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

Ms. Toney later wrote,

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

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

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

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

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

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

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

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

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

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

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

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

According to the report,

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

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

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

Mrs. Burke then suggested that she

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

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

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

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

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

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

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

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

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

---Doug Paul Davis reporting

Commentary: More Thinking About the Police Audit

For those who did not catch Debra LoGuercio's column in yesterday's Davis Enterprise, it is worth a read if you haven't already turned your paper into compost. LoGuercio is editor of the Winter's Express, also owned by the McNaughtons.

LoGuercio really questions what we learned from this study that has been given coverage across the state from the non-profit group Cal-Aware. I have never directly submitted a public records requests with the Davis Police Department, but I have with the city and requested information from the Police Department with City Clerk Margaret Roberts and I have always been treated fairly and received the information I have wanted.

The most pertinent portion of her column though relates to our article that we ran on Sunday, January 14, 2007 that dealt with the handling of the story by the Davis Enterprise and tip off (claimed to be inadvertent) by Debbie Davis. If you haven't read the story there is a good response from Davis Enterprise reporter Cory Golden who was the reporter who conducted the audit. My major concern with the handling of it was that I believe the test should have been invalidated when Davis Enterprise Editor Davis tipped them off--hey mistakes happen, we understand that. But they continue. Interim Police Chief Steve Pierce then is quoted as saying his department would have handled it the same way, despite questions raised by the reporter himself in his notes to that effect. And the Davis Enterprise article never really illuminates all of this.

LoGuercio writes:

Some local police departments fared better. Dixon got an A-minus, Davis scored a B-plus, and Winters a B. However, not only was the Davis Police Department inadvertently tipped off about the audit, their "average citizen" was a familiar Davis Enterprise reporter. Big, fat cheaterheads. Davis should've gotten a zero and been disqualified. On the other hand… they cheated and still only got a B-plus? Losers. Elsewhere, Fairfield scored a solid F, while Suisun and Vacaville less-than-failed.

So let me get this straight, the police department that happens to be tipped off, also gets one of the higher grades. Now in fairness, again, Golden points out that in fact, a number of departments around the state figured out what was going on and still rated very low--which makes you all the more concerned.

Nevertheless our concern from the start was the lack of public accounting of this story--when you read the Enterprise it is more of a whitewash of the event buried in the middle of the story and without the background which should truly concern the average reader.

--Doug Paul Davis reporting

Sacramento Bee Covers the People's Vanguard of Davis

This past Sunday, January 14, 2007, the Sacramento Bee had a feature article on this blog. I thought that reporter Erika Chavez did an excellent job on this. I thought it was a good article and also a balanced article in that, they had a number statements from people that this blog has criticized in the past. I absolutely welcome that, as I want this blog to be a way to facilitate open and honest discussion for the community.

By now the vast majority of my readers have read this article:

http://www.sacbee.com/101/story/107637.html

I did want to point out a couple of interesting comments in the article.

First of all, I said:

"The blog is not a tool to vindicate his wife, Greenwald said."

This point needs clarification. The purpose of this blog was to present information to the public that in my opinion and I think the opinion of others was not getting told by the local newspaper and some local officials who have a vested interest in outcomes favorable to their politics and public policy positions. Certainly, some of that revolved around issues that arose from the Human Relations Commission (where my wife served for over four years as chair) including the need for police oversight and racial profiling. But, as anyone can see by reviewing the many articles written and posted on this blog most issues and subjects covered have had nothing to do with the HRC or specifically my wife. This blog was founded to help disseminate information to the community about issues which are misreported, underreported or not reported on at all by the Davis Enterprise. This blog has focused on issues such as the lackluster as well as the biased reporting or omission by the Davis Enterprise on government malfeasance and misfeasance at both the city and county level, the aborted attempt to disband the Senior Citizens Commission, the Target and SMUD vs. PG&E election, misconduct at the District Attorney's Office, gay-bashing in the DJUSD schools etc. Those issues are what drove the creation of this blog and have built its readership over the past six months.

"Born and raised in San Luis Obispo"

As my mother pointed out, she was there when I was born and I was not born in San Luis Obispo. This is a slight correction, I probably was not that clear during the interview. I moved to San Luis Obispo with my family when I was 10 months old. I was born in Los Angeles county and lived in Santa Ana. I also briefly lived in St. Louis, Missouri.

While [Stephen] Souza supports blogs as a form of expression, "the problem is there doesn't necessarily have to be factual content," he said. "I appear to be the target of many close-to-defamatory statements. You don't have to get personal; I think that takes away from the credibility of his position, so I have personally chosen not to participate in that discussion."

The defamation charge is interesting--while I have been very critical of Souza's policies, I'm not sure any of them rise to the level of defamation if he were a private citizen, let alone a public official.

If he takes it personally that I question his positions, statements, and actions, then I say welcome to politics. I also note that he responded to the MLK thread and I hope he will continue to do so.

Chavez also interviewed Debbie Davis who had mostly kind words for this blogger.

"Our news coverage is fair and accurate"

That sounds like a Fox News self-description to me. I will point out that the very day this article was published, the People's Vanguard of Davis had an article that demonstrated that the Davis Enterprise coverage was neither fair nor accurate with regards to the police public records audit story and their failure to disclose some key information about the tipping off of interim Chief Steve Pierce to the study.

"Steven Pierce, the Davis Police Department's interim police chief since June, said Greenwald is entitled to express his opinions, whether he agrees with him or not.

But he cautions readers who would take any media, be it television, newspapers or blogs, at face value.

"It's certainly not without its own political slant," said Pierce, who said he has read the blog on several occasions. "To assume that it's neutral and without its own bias is naive and inaccurate."

I have never claimed to be neutral or without bias, I think that's pretty clear from the People's Vanguard of Davis site description.

---Doug Paul Davis reporting

Davis Enterprise: Sabotage and Misreporting in Police Audit Study

In Friday morning’s Sacramento Bee—four Sac Bee staff writers composed a story on an audit of California law enforcement agency practices in response to public records requests. The audit was performed by a nonprofit group known as Californians Aware and conducted by reporters at 27 newspapers and three TV stations across the state. They visited 216 law enforcement offices in 34 counties on December 4, 2006. Overall, law enforcement agencies scored in the “F” range in terms of responsiveness to the compliance with the California Public Records Act.

The Sacramento Bee reported:

“The Davis Police Department earned a B minus, a low grade considering that a Davis Enterprise editor tipped the police chief to the audit on the day it [the requests] happened.”

In Friday’s Davis Enterprise, reporter Lauren Keene wrote a front page story on the audit. On the second page, she discussed in some detail the results from the Davis Police Department. In it she indicated, accurately,

“The Davis Police Department was the county’s highest-scoring agency, receiving a B+ from CalAware (which raised the agency’s grade from a B- in light of a scoring error discovered Thursday night).”

Moreover, she also reported that Interim Police Chief Steve Pierce was tipped off by a Davis Enterprise editor; however, Pierce “said it did not affect how his agency responded to the requests.”

This raised a number of questions about the efficacy of the scoring process and whether the Davis Enterprise had inappropriately sabotaged the process.

The Californians Aware website provides some of these answers. There is a detailed account of the audit conducted by Davis Enterprise reporter Corey Golden.

Golden provides us with detailed notes.

“On Dec. 4, just before 9 a.m., I went to the station. The front desk clerk recognized me immediately, though I'm not our regular police reporter. She accepted the requests but said the station was short-staffed. I offered to wait, but she said she would not be able to get to any of them that day. I was given the name of the head of the records department, Karen Berry, and was told she'd contact me. Within about two hours, the interim chief called my editor, Debbie Davis.”

Apparently Debbie Davis was supposed to stick to the script so as to not tip off the Police Chief to the fact that they were conducting an audit.

“Unfortunately, Debbie [Davis] did not stick to the script, explaining what was going on.”

Notice that Golden does not characterize this error as inadvertent or unintentional.

“The chief [Steve Pierce] said he'd fulfill the requests within 10 days. He later called and e-mailed me a couple of times with questions and in one voice mail mentioned that he and others were working on the requests.”

Contrary to the statement from Steve Pierce that “it did not affect how his agency responded to the requests,” Golden openly wonders whether an ordinary citizen in such a situation would encounter such devoted treatment from the interim Chief of Police and his staff.

“Certainly not the sort of situation a normal citizen would encounter, I'm sure. However, I suppose it says something that the interim chief knew exactly what these requests were for, but it still took until 12/13 -- nine days -- to fulfill them. What that says likely varies widely depending on your point of view.”

Golden does not jump to conclusions; however his questions—which were completely appropriate—are very telling.

More telling is that the Davis Enterprise never mentions Golden’s report nor his concerns about the process.

There are three critical concerns in this incident. First, the question has arisen in the past about the inappropriate collaboration between the Davis Enterprise and the Davis Police Department. Editor and Assistant Publisher Debbie Davis used exceedingly poor judgment in how she chose to handle this situation. Golden suggests that she “did not stick” to the script. The Davis Enterprise chooses to characterize this as inadvertent, but it is clear that Debbie Davis knew in advance the role that she was to play, so it is unclear how she could inadvertently disclose the reasons for the Public Records Act requests.

Second, there is an issue of reporting. Davis Enterprise reporter Lauren Keene does not disclose the misgivings that Golden expresses in his report. Instead she takes Pierce at his word that it had no effect on how his agency responded to the requests.

Finally, even knowing that the express purpose of the public records request was to test his department, Pierce could only score an 86 which was graded a B+. Pierce purportedly disagreed with some of the grading criteria:

“But Pierce took issue with some of the deductions, saying additional time was needed in some cases to properly fulfill the auditor’s requests. Collecting the desired crime and arrest reports was particularly time-consuming, he added.”

However, the bottom line is that this test and its purpose was revealed to Steve Pierce & the Davis Police Department and therefore loses any element of credibility that it might have had. Part of the test was to see how ordinary citizens are treated in response to requests for information. That test was sabotaged the moment Debbie Davis revealed to Steve Pierce that this was part of an audit and would be reported in the newspapers.

While Californians Aware was less concerned about any single department, this should have invalidated this examination of the Davis Police Department responsiveness and thoroughness as a part of the statewide study as soon as it was clear that the cover was blown and most likely intentionally so by Ms. Davis.

---Doug Paul Davis reporting