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

Thursday, September 14, 2006

Minority report

Minority Report.

Some say it was Tom Cruise's last good movie. Others say it's a separate opinion that differs from that of the majority sitting on a judiciary body or any other panel that has to deliberate on a case before it and deliver findings or release public reports.

The issue of whether or not the Community Police Review Commission should allow one to be released in connection with an officer-involved death case was the focus of much debate at its Sept. 14 meeting.

The CPRC did approve the final draft of its public report on the officer-involved death of Terry Rabb, a 35-year-old Black man who died in police custody last October.

In it, the CPRC stated that the commission believed that based on the information gathered so far, the behavior of both officers, Camillo Bonome and John Garcia was within policy 4.30 which is the department's use of force policy.

However, the CPRC believed that the officers' actions during the incident raised two important issues regarding their tactical decisions.


It appears that, upon arriving at the scene, Officers Bonome and Garcia already knew that the cause of Terry Rabb's behavior was due to "his low blood sugar." The call was dispatched as an "assist medical" for a "5150" due to "low blood sugar." In light of this information, it remains unclear why Officer Bonome allegedly attributed Mr. Rabb's behavior to the use of illicit drugs in front of a family friend. It appears that Officer Bonome's decision to verbally express his belief that the patient was under the influence of illicit drugs resulted in a heated argument between himself and Mr. Rabb's friend, adding more distraction to an already chaotic scene.

Several commissioners had said at an earlier meeting that they were not certain under what perception of Rabb's condition, Bonome and Garcia had been acting under. Were they treating him like a very ill diabetic suffering a hypoglycemic episode as they had been told, or were they instead treating him like a relatively healthy man under the influence of an illegal stimulant? Or a combination of the two? If Bonome had indeed made those comments, on what basis did he do so? What criteria did he use to make a presumption that turned out according to toxicology results to be incorrect?

Given that the OID investigators apparently never asked either officer about these alleged comments made by Bonome, these questions involving the officers' perceptions particularly that of Bonome may never be answered. Perhaps, the Internal Affairs Division's investigators questioned the officers on these issues in order to complete their administrative review of the case, which they are certainly allowed to do. However, given the confidentiality that shields that division's actions, this information will never be disseminated to the public.

The second issue was the following.


There is insufficient evidence to determine whether or not airflow to the patient was impeded by the officer's decision to place the patient face first into the cushions of the couch while carrying the weight of Officer Bonome on top of the patient's upper body

So, are they confused about whether or not the actions of these two officers led to Rabb's death? If so, then how would they know whether or not the officers acted in accordance with departmental policy, regarding use of force? Even if the officers' actions had contributed or even caused Rabb's death, that would not have necessarily made their actions a violation of policy, but the incident would have to be examined in a different way to come to that final conclusion. It complicates the situation further and the reaction of the CPRC seems to have been to slip into a default mode, where if they do not have enough information at this point to know for sure, then it has to be within policy.

There is an alternative finding(see below) that could be considered. But first this.

The CPRC's "issues" created more questions than they answered and makes one wonder if they even had enough information to issue a finding either way at all, if they are uncertain as to whether or not Rabb could have shown signs that he might have been experiencing positional asphyxia while restrained by the two officers.

Positional asphyxia occurs when a person is unable to to get enough oxygen into his system because of the position he or she is placed in, i.e. if an individual is lying on his stomach with weight placed on his back, for example.

Positional asphyxia

U.S. Department of Justice: positional asphyxia


Certain factors may render some individuals more susceptible to positional asphyxia following a violent struggle, particularly when prone in a face-down position:
Obesity. Alcohol and high drug use. An enlarged heart (renders an individual more susceptible to a cardiac arrhythmia under conditions of low blood oven and stress).

The risk of positional asphyxia is compounded when an individual with predisposition factors becomes involved in a violent struggle with an officer or officers, particularly when physical restraint includes use of behind-the-back handcuffing combined with placing the subject in a stomach-down position.

Rabb had been leaning against the couch in a prone position, with his face push into the cushions and his knees on the floor. Bonome had placed his body weight onto Rabb's back while trying to apply a carotid restraint as Rabb struggled, tucking his chin to his chest. He apparently remained there while Rabb was being handcuffed.

(excerpt, D.O.J. report)

Basic Physiology of a Struggle

A person lying on his stomach has trouble breathing when pressure is applied to his back. The remedy seems relatively simple: get the pressure off his back. However, during a violent struggle between an officer or officer and a suspect, the solution is not as simple as it may sound. Often, the situation is compounded by a vicious cycle of suspect resistance and officer restraint:

A suspect is restrained in a face-down position, and breathing may become labored.

Weight is applied to the person's back-the more weight, the more severe the degree of compression.

The individual experiences increased difficulty breathing.

The natural reaction to oxygen deficiency occurs-the person struggles more violently.

The officer applies more compression to subdue the individual.

After two officers and a fire fighter had placed handcuffs on Rabb, they sat him down on the floor with his back facing the couch, which falls in line with the D.O.J.'s recommendation to remove a person from a face down position as soon as possible after handcuffing him. However, it is not clear how long Rabb had been lying face down on the couch, his face pressed into the sofa cushions before they did that. What is known is that within minutes after he had been handcuffed, he stopped breathing and went into cardiac arrest. Positional asphyxia can happen even if the force used was not excessive under departmental policy, but if it was present, then it has to be part of what formulates an answer to that question.

Whether or not Rabb died at least in part due to positional asphyxia is an important part of the issue, another of which is, what did the CPRC base its decision on if they could not answer the questions raised above due to lack of available evidence.

If this had been a citizen's complaint, then the commissioners would have had no choice but to issue a "not sustained" finding(a point raised by Commissioner Jim Ward) but for OIDs, apparently the default finding given similar circumstances is that the officers acted within policy even when there is not enough definitive information to know either way. Even after the CPRC's investigator tied Rabb's death to both his illnesses and the use of a restraint, in this case an attempted carotid restraint, which should have opened it up to further inquiry.

Rather than delve even deeper into these issues, which under the current climate is certainly understandable, they instead focused on another important component, the handling of 5150 calls for service which is critical.

In the CPRC's view, these issues provided emphasis as to why the RPD needed to provide training to its officers on how to interface with people who are initially reported as "5150". Also, the report stated that the department's use of force policy did not address the escalation or deescalation of force by officers when they were dealing with individuals unable to mentally process the instructions given by them.

The Riverside Police Department is in the process of creating and implementing an educational component to its training to aid officers in their tactical decisions when interfacing with individuals who have mental, physical and emotional disabilities. The commissioners supported that agency's efforts to do so and stated that in their report. They also raised that issue during their public report on the Todd Argow shooting. The department began tackling the issue after the April officer-involved shooting of Lee Deante Brown.

The Rabb report was quickly approved by the CPRC. That part of the process was hardly unusual, but what preceded it, was. For the first time, one of the commissioners had wanted to offer up a dissenting opinion through what is called, a minority report. Commissioner Jim Ward submitted a two-page draft of his minority report to the other commissioners. Their reactions to it were strong.

Commissioner Bob Garcia agreed with Ward's report, but other commissioners strongly disagreed with both the report as it stood and the release of it.

Not surprisingly, commissioner Jack Brewer was one of them.

"I can not vote to have this report added to a report from the commission," Brewer said.

Other commissioners including Frank Arreola agreed with him.

"I don't agree with or support his findings. The minority report," Arreola said.

Several community members tried to explain to the commissioners that they did not have to agree with the content of the minority repeat because by definition, it is an opinion that the majority of people on a panel does not agree with. That did not seem to clarify the issue for several of them, who still apparently believed that in order to approve its release, they had to agree with it. A representative from the city attorney's office who was sitting in the audience told them there was no current policy in place in their bylaws or policies and procedures addressing the issue of minority reports.

The majority of the CPRC facilitated by the associate city attorney voted 4 to 3 against allowing Ward to do so. The argument was that as the city attorney had said, there was no process in place to allow the issuance of minority reports, although such a process had been in place when handling citizen complaints for several years. In fact that process was encouraged by Chief Russ Leach at a workshop with the CPRC in March 2004.

So the minority report will not appear in the report on the Rabb incident that will be released to the public and posted online at the CPRC Web site, but it addressed issues that quite possibly could come up for further introspection and review in the future. Who knows, several of these issues could find their way in the majority reports, if they are indeed trends that need to be watched.

Ward stated that the department was conducting substandard investigations in OID cases that resulted in investigations that were "insufficient enough to make credible findings." Differences between the accounts provided by involved police officers and civilian witnesses were not explored through follow up and these inconsistencies were not addressed. The role of the CPRC commissioners was to seek out information an fill in the inconsistencies in order to make an informed decision, but that ability was hampered because they had access only to civilian witnesses, not police officers. Ward added in his conclusions that he believed that the department's investigations were incomplete and inadequate and placed too much emphasis on the officer's perception and not enough on other components of policing. Consequently, this results in and from the improper and inadequate supervision, monitoring and training of the department's officers.

The quality of the investigation conducted by the OID team was not addressed in the public report's conclusions even though several commissioners particularly Brian Pearcy had said at an earlier meeting that this was the primary focus of their concerns involving the case.

Ward also challenged some of the text of any department's holy grail(or as some might say, its Rosetta stone), its use of force policy. He cited numerous ambiguities in its text and believed that its content was inadequate to prevent violations of the state's constitution.


RPD Policy 4.30

(emphasis, Ward's)

The situation of physical force and the type of force employed, depends on the situation as perceived by the officer

The purpose of this policy is to provide guidelines as to when physical force may be employed and the type of physical force that the law will permit.

However, guidelines can not cover every possible situation presented to the officers. Therefore, officers must be reasonable in their actions.

Officers should clearly understand that the standard for determining whether or not the force applied was reasonable in that conduct which a reasonable peace officer would exercise based upon the information the officer had when the conduct occurred.

RPD Policy 4.30 B philosophy reads in part "...officers must have an understanding of and true appreciation for the limitations of their authority.

Ward's concerns about the language of the policy included the following:

What is most important, when it comes to officer's behavior?

Is it perception, law or limitation of authority?

Can an officer's perception be unlawful?

Can an officer's perception be unreasonable?

Can an officer's perception exceed the limitation of his authority?

Ward provided an example clearly drawn from the Rabb case to illustrate his points of how the three expectations listed in policy #4.30 can collide with each other. An officer is provided with credible information, but allegedly dismisses it and acts upon his perception. Is that lawful? Reasonable? Does it exceed authority?

Ward added that he understood that perception was an important component of police work, but that it was not infallible and should not be treated as if it was. He believed that the department's investigations were devoid of "perceptions checks", meaning that there was no attempts to determine whether or not those perceptions are consistent with the situation the officer is confronted with. That was what had been lacking in this case.

Ward also cited from the writ of mandamus filed by the state attorney general's office in 2001 that had alleged that the department's policies were inadequate to the point where they impaired the department's ability to uniformly and adequately enforce the law. Policies that were adequate often were not adequately and properly implemented. The state and city entered into the stipulated judgment in March 2001 and exited from it earlier this year, with all the items on the list of reform completed and the underpinnings of a much improved department in place, according to those surrounding the process. Ward wondered if all those concerns had truly been erased.

He did state his realization that the city and police department were no longer held to the stipulated judgment with the state attorney general's office but added this.

However, if the issues that caused them to be under the consent decree are still manifesting themselves today, this commission has the responsibility to bring this to the attention of the policy makers and citizens of our community.

One would certainly hope so and that others including members of the oft-mentioned triad of city, department and community would do the same if the conditions ever do arise.


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