Five before Midnight

This site is dedicated to the continuous oversight of the Riverside(CA)Police Department, which was formerly overseen by the state attorney general. This blog will hopefully play that role being free of City Hall's micromanagement.
"The horror of that moment," the King went on, "I shall never, never forget." "You will though," the Queen said, "if you don't make a memorandum of it." --Lewis Carroll


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Location: RiverCity, Inland Empire

Tuesday, August 29, 2006

Race against the clock

CPRA Watch: 35 days without a written response

Number of times a city attorney has attended a CPRC meeting: once, on Aug. 23, 2006

Once again, time is ticking away for the Community Police Review Commission when it comes to completing its investigation and review of an officer-involved death case before the clock runs out. The clock in question is a state law that dictates that if an officer is to be disciplined for a sustained finding of misconduct against him, it must be done within one year of the date that misconduct occurred.

That time restriction presents problems in the case of the officer-involved death of Terry Rabb as it approaches its first anniversary.

Rabb died on Nov. 2, 2005 at a local hospital after he had suffered a heart attack within minutes of being physically restrained by two Riverside Police Department officers. Both the police department and the CPRC launched their investigations quickly after Rabb’s death.

The police department completed its criminal inquiry last spring and submitted its case book to the CPRC in May, close to the same time that the CPRC investigator completed his own investigation. At one CPRC meeting, it was revealed that the department's upper management had sent its investigation back down the chain of command for further work at least once. Still, the department's OID investigation was completed before the summer months.

However, the department’s Internal Affairs Division, which simply conducts an administrative review of these incidents, did not submit its own findings in this case to the CPRC until some time in July. Even though departmental policy 4.8 requires that the Internal Affairs Division conduct its own independent investigation, that division instead relies on the work product of the OID investigation to fulfill its role as the department's administrative oversight, an issue that the CPRC included in several of its public reports on incustody deaths. Consequently, it also had to wait until at least portions of the OID Team's investigation were completed in order for it to perform its own analysis and reach its own conclusions on the Rabb death.

That left the CPRC in a quandary, when it came to sticking to its own set timeline to release its own finding on Rabb well before the case marked its first anniversary. It also relies on the OID Team's work product which provides its only access to the statements given by the involved police officers. It is unable to gain access to them for further questioning without issuing a subpoena compelling them to appear before the commission.

The CPRC used material from both its own investigation as well as that of the department’s OID investigation to draft its public report on the Rabb incident. The content of that report will include a narrative of the events leading up to and including Rabb’s cardiac arrest as well as a tactical analysis and conclusions. After releasing its report to the public, the commissioners will review the material submitted by the Internal Affairs Division before going into closed session to determine their own finding of whether or not the officers violated departmental policy. The CPRC customarily waits until after the release of the public report to do so, to avoid cross-contamination of the public information included in its and the OID investigations with that information included in the Internal Affairs Division's report which is prohibited from public disclosure by state law.

After they determine a finding, it is then forwarded to City Manager Brad Hudson for final disposition. In theory, Hudson is supposed to review the findings from both the CPRC and the police department before making a decision. In reality, this has not happened in at least one case, that being the Summer Lane case last year.

Unfortunately in the Rabb case, the closed session may not take place until the second week in October, which would place it about nine days after the statutory deadline for that case. This case was further complicated by the fact that the fatal shooting of Todd Argow was also nearing its statutory deadline, which fell on November 14 and its work product was received before that in the Rabb case.

The department's OID investigation case book in the Argow case was not given to the CPRC until June. The commission decided in July to streamline the process of writing and approving its public report, the goal being that the book would be closed on the Argow case early enough to give them enough time to deal with the Rabb case. However, even those changes to the public process will likely not prove to be enough to allow the Rabb incident to clear its Oct. 2 deadline.

At its special meeting on Aug. 23, CPRC Chair Les Davidson expressed his frustration with the delays that left the CPRC with only one month to review the Rabb case.

“I quite frankly find it unbelievable that anyone would give us one month,” Davidson said.

Davidson said that placed the commission in a position of having to rush, rush, hurry, hurry to make its decisions. He also found it upsetting that the CPRC was being unfairly blamed for many of the problems resulting from these delays.

“We have it and it’s not right,” he said.

The CPRC discussed taking its frustration to the attention of the public, including the 60% of the city's voters who placed the CPRC in the city's charter during the November 2004 elction when they passed Measure II. The Rabb case will likely be front and center in that upcoming debate if it does take place, especially if its finding on that case is reached after the statutory deadline.

This issue involving timing first reared its ugly head during the CPRC’s investigation into the Lane shooting last year.

In that case, both the CPRC and the police department had completed their investigations by April 2005. However, the CPRC delayed its own process because it was experiencing a period of transition, which took place after Interim City Manager Tom Evans decided to make staff changes affecting that commission.

In January 2005, its first executive director Don Williams was replaced by then interim director, Pedro Payne. In addition, Payne had to split his time between directing that commission and also serving as director of the Human Relations Commission, a position he had originally held. While Payne was adjusting to the increased workload and challenges of overseeing two commissions, two new commissioners, Ric Castro and Frank Arroela were appointed to the CPRC to fill vacancies. Due to all these changes, the review into the Lane shooting was postponed until the end of September. Perhaps, events would have occurred differently if the CPRC had known earlier in the process that its investigator, Norm Wight was about to drop a bombshell.

At its Sept. 28, 2005 meeting, Wight told the commission that he believed that Officer Ryan Wilson was not in immediate danger when he shot and killed Lane, a conclusion later reached by the commissioners in their own public report. This meeting became the turning point in its process because the CPRC realized for the first time that it might issue a finding that could result in an officer being disciplined by the police department for an onduty shooting. Consequently, the clock began to run on whether or not that decision could be made with enough time to spare before the statutory deadline of Dec. 6 in order to allow the commission's finding to be evaluated alongside that already reached by the police department.

The CPRC released its public report on Nov. 2 and two weeks later, met for over an hour in closed session before voting unanimously that Wilson had violated the department's use of force policy when he shot Lane. That finding was then forwarded to Hudson's office where it sat, as the deadline approached. Everyone waited to see what would happen next and what the final disposition would be. The deadline passed quietly, and it turned out that Hudson and Asst. City Manager Tom DeSantis had, as several individuals put it delicately, "punked" on assuming the role of final arbiter in this case. Instead, they relayed the decision making process back to Chief Russ Leach, who backed his own department's investigation. With that action, Hudson, DeSantis etal sent a strong message to both the CPRC and the community that has supported it, that the role it would play in investigating officer-involved deaths would be both minimal, and advisory only.

This outcome surprised only those individuals who believed that this city's leadership would ever place the decisions made by the citizens who fund the city's various departments with their tax dollars, on par with those made by their public servants even in situations permitted by the city's charter. It certainly did not surprise several unidentified individuals who posted here last autumn including He Who Likes Ampersands, who predicted that the truth would soon come out about how little power the CPRC would have in this area. They proved to be absolutely right in their reading of the situation.

Ironically, this development with the CPRC, the police department and the city government came not long before the city and the state attorney general's office dissolved their five-year marriage of convenience. One of the recommendations included in the final report submitted by former AG consultant, Joe Brann was that the CPRC be strengthened. That is indeed a worthy goal, but the action taken on the Lane case only proved that the city viewed the commission as a public relations tool to bridge the gap between some of the city's communities and its police department. Not as a viable mechanism that could be used by the city's residents to improve accountability in the police department.

Was this disregard towards the CPRC shown simply because of the case's outcome? Actually, no. Whatever Hudson had ultimately decided in the case of the Lane shooting would have shown at least respect for the process and that he respected both parties involved in the dispute equally. But that was not what happened, hence the disregard.

It was shown when Hudson and De Santis opted out of their roles and responsibilities as arbiters over a process which involved taking input from two different city departments and evaluating it in total before making a final decision. The deed was done when they decided at that moment in time not to act as city managers at a time when it was very important for them to do so. They showed that when faced with a difficult decision, the best they could do was toss it like a hot potato to one of the vested parties in the dispute that had arisen over the outcome of an officer-involved shooting. It was a lesson that would not be quickly forgotten by anyone.

Unfortunately when it came to "fixing" the CPRC's power to independently investigate incustody deaths, they had only just begun as the next several months would reveal. Some patterns were just never made to be broken, even in the aftermath of the aftermath of the shots that were heard around the world, only seven years ago.

Still, with the Rabb case in the process of being decided and the controversial shooting of Lee Deante Brown on the horizon, there are those who will watch to see what happens next. Even in cases when that last grain of sand has fallen out of the hour glass.

Time Frames on Recent OID Investigations:

Summer Lane:

Date: Dec. 6, 2004

CPRC investigation: March 2005

OIS investigation completed: April 2005

Date of public report: Nov. 2, 2005

Date of finding: Nov. 9, 2005 (outside of departmental policy)

Statutory deadline: Dec. 6, 2005

Case delayed several months by CPRC due to the appointment of two new commissioners during the spring and summer of 2005.

Todd Argow:

Date: Nov. 14, 2005

CPRC investigation completed: May 15, 2006

OIS investigation completed: June 2006

Date of public report: July 26, 2006

Date of finding: Aug. 23, 2006 (within department policy)

Statutory deadline: Nov. 14, 2006

Terry Rabb:

Date: Oct. 2, 2005

OIS investigation completed: March 2006

Internal Affairs Administrative review completed: July 2006

Date of public report: possibly Sept. 13, 2006

Delay attributed to the length of the Internal Affairs Division's review.

Date of finding: unknown, probably October at the earliest.

Statutory deadline: Oct. 2, 2006


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