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, October 17, 2006

The Lady and the Tiger

The Community Police Review Commission has placed its public report on the Terry Rabb officer involved death online at its Web site.

Terry Rabb OID

Rabb, a Black 35-year-old man suffering from diabetes died in police custody after two officers, Camillo Bonome and John Garcia had responded to a 51/50 call at Rabb's friend's residence.

Missing from the public report, is Commissioner Jim Ward's insightful minority report. When that issue came up to a vote, other commissioners voted against its inclusion in the official report. An assistant city attorney, Susan Wilson, who just happened to be on hand at the meeting said that they could not proceed with a minority report unless they had a process already in place. Actually, the commission has been issuing minority reports on citizen complaints for several years now, and in fact, was encouraged to do so by Chief Russ Leach at a workshop on March 17, 2004. So there is already a process in place.

The lack of a similar written process involving the final disposition of the department's officer-involved deaths did not stop City Manager Brad Hudson from opting out of the process entirely on the Summer Lane shooting and leaving it up to one of the parties in dispute(in this case, Leach) to make that decision. Was there a representative from the city attorney's office present at the time, advising Hudson to put together a process in writing first?

It's doubtful, but the city attorney's office has been fairly busy making up for the years it had spent disinterested in the CPRC, during the past several months and then some.

Susan Wilson has been attending the CPRC's meetings during the past several months not long after a flurry of wrongful death claims and law suits were filed in connection to three out of the past five officer-involved deaths. If the family of Douglas Steven Cloud follows through on its intentions to pursue litigation, then it will be four out of the last five.

Currently known or proposed litigation against the city on officer-involved deaths includes the following:

Summer Marie Lane: At least one law suit filed by family members

Terry Rabb: Two claims filed against the city by family members

Claims filed in Rabb case

Lee Deante Brown: One claim filed by Brown's family

Claim filed in Brown case

Douglas Steven Cloud: A claim could be pending

Family hires attorney

Some more statistics to drop off:

Percentage of OIDs in litigation or threatened litigation, pre-Summer Lane: 16.6%

Percentage of OIDs in litigation or threatened litigation Lane and beyond: 80%

With statistics like this, what's a city to do? Well, wait until opportunity drops into your lap, this time courtesy of a law suit filed by the Riverside Police Officers Association. Or more specifically, by one of its members, Officer Ryan Wilson. On Sept. 5, he filed his lawsuit against both the CPRC and the city of Riverside. The RPOA is duty bound to represent Wilson in a law suit whether it agreed with him or not, though it's likely that it is in agreement in this particular case.

The response I received from city residents who heard the news about this latest law suit, was why on earth would Wilson, the RPOA, the department and the city want to reopen that chapter of the city's history again? After all, many people had thought that the city manager's decision not to make a decision and its end result had closed the book on Lane, as far as those parties were concerned. Well, except for any law suits filed by Lane's family members which are currently being litigated but that's another story.

Councilman Dom Betro himself had explained this process, and then said, that was that. It's time to move on.

Well, it's clear that everyone was wrong about that.

Summer Lane has returned to the forefront again, even as other incustody deaths that have occurred since hers have either come in front of the CPRC or are closing in on their dates of deliberation and decision.

The Rabb case still awaits a finding released by the CPRC, although the clock ran out on that case nearly three weeks ago. The police department has finally released its iron grip on its files pertaining to the Brown shooting and those three case books are currently being examined by the CPRC, with an estimate of 30 days until that is completed. The police department is also scheduled to brief, but not take any questions from the CPRC on the Cloud shooting next week.

Still, Lane, otherwise known as the case which will not go away, has reemerged, thanks this time to Wilson and the organization which represents his interests. The five-page law suit provides insight into what format that will be.

In Ryan Wilson v the City of Riverside (RIC456429), Wilson alleged that he was denied due process when his attempts to administratively appeal a finding against him regarding the Lane shooting were denied. At first glance, this allegation is puzzling giving that the final disposition on the Lane shooting was definitely in his favor. In fact, as stated, Hudson opted out of the decision making process and deferred that responsibility to Leach who backed both his own department's investigation and his Internal Affairs Division's own finding that the shooting was in line with the department's use of force policy, to the surprise of no one. That outcome should have made Wilson, the RPOA and the department happy, but apparently some concerns still linger at least on the part of Wilson.

What Wilson is actually stating in his law suit is that he wants to appeal the CPRC's finding on the same shooting, which was that the shooting violated the department's use of force policy. The same finding that was again, essentially nullified by both his direct employer, Leach and by the city government including those members of the city council (through their public silence) who ran on successful election campaigns while claiming that they were firm supporters of the CPRC.

According to state law and the police officers' bill of rights, an officer who has completed his probationary period has the right to appeal a sustained finding and/or any resultant discipline through an arbitration process, as well as through an earlier Skelly hearing. Almost always, the cases that wind up in front of arbitrators are those where the final dispositions have been against the officer and those officers have been disciplined to the extent that they experienced a loss in wages, through either suspension without pay, demotion or termination of employment.

Writ of Mandamus

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One exception occurred in the case of Caloca vs the County of San Diego (1999), a case which is cited in the RPOA's law suit. This law suit which was based on a claim similar to Wilson's was decided in the county's favor in trial court, then overturned on appeal. The response to it has differed from one jurisdiction to the next.

In Berkeley, which is the home of one of the strongest and oldest forms of civilian oversight, the response of the city attorney, Manuela Alburquerque, was to cave, according to an article published in the Berkeley Daily Planet.

Berkeley's response to Caloca


City Attorney Manuela Albuquerque said the Caloca case opens the door for a cumbersome and therefore costly appeal process, and she suggested that the police chief no longer use the commission's findings for any personnel-related purposes.

It is clear that the power of Caloca is entirely dependent on the integrity of the city and county officials who are left to interpret it. It is most influential in cases where governmental officials led by their city attorneys are willing to sell out their civilian oversight mechanisms on the way to denying their police officers the right to an administrative review while claiming that this process is "burdensome" or "too costly". Berkeley's refusal to honor the arbitration process for its officers is also what led it to strike a serious blow against its police review board without its long time foe, the Berkeley's police officers association, having to lift a finger.

On the other hand, this court decision has the least impact in cities and counties where the leadership honors both processes, in that they protect the rights of their civilian oversight mechanisms and they keep the administrative appeal process for officers intact as well.

It is not clear which group the city of Riverside falls into at this point.

However, in his law suit, Wilson is clearly hedging his bets, by providing the city and if not it, the Riverside County Superior Court judge(as long as it's not that Sutton trial judge) with two options in his case. The first being to "compel" the CPRC to overturn or nullify its sustained finding on the Lane shooting. The other being, that Wilson be granted an administrative hearing involving that finding. Whether or not the city government has respect for both processes or not may ultimately determine which of these two options are exercised. Behind door number one, is the process which nullifies the CPRC. Behind the second door, lies that which essentially validates it.

Kind of like the story of the Lady and the Tiger by Frank R. Stockton, Riverside style.

In earlier times in a distant setting, that was the story of a man whose life or death was literally in the hands of a woman whose intentions he was not sure that he could trust. The same is true in a sense involving the CPRC in the role of the male protagonist and the city's government as the king's daughter.

In this updated version, there lies a third option which is to not open either door, but to instead fight the law suit in court. It appears that at least initially the city council has decided to do just that. Perhaps its members are remembering that the majority of the city's voters in every precinct of every ward voted to protect the CPRC from political influence by placing it safely in the city's charter. Of course, simply because the city's voters and many of its other residents believed that the CPRC should be free to perform its duties without facing political pressure does not mean that this is what they will get, as this law suit and its aftermath will ultimately show. There are two separate entities that both want the CPRC to either be weakened or to go away, and at the moment they are on opposite sides of a court room. Months from now, they could face off together against both the CPRC and the voters who supported it and the public could be none the wiser. Or the city could choose the option which best serves both parties, thus negating the Caloca decision's impact in this city.

The RPOA has always opposed the CPRC since even before its creation by city ordinance in 2000. It is honest in its consistency of targeting the CPRC first politically through the local election process(unsuccessfully) and later legally through civil court. It is merely picking up the mantle that has been held by every law enforcement union that has ever existed in a city or county that also includes a civilian review mechanism, except that it has reversed the usual protocol. All of them work from the same playbook until they get tired and toss it aside. The RPOA is doing nothing more than what everyone expects it to do, based on its track record. After all, a tiger's got to eat.

In contrast, the city's government embraced the CPRC as that "most important commission"(a statement made ironically by one of its detractors) until it issued its ruling on the Lane case, and the city realized for perhaps the first time, that its decisions could potentially expose it to civic liability. After that, the city tried to remold the CPRC into a public relations tool to bridge the gap between City Hall, the police department and its communities. Even the commissioners met recently to determine what their role was to be, six years after the commission's inception. The community's response was for its members to get out of their seats and exercise the powers given to them in the charter.

Ultimately, it is what the city council decides behind closed doors and not what happens in public inside a courtroom that may decide the CPRC's fate on remaining the body that is heavily supported by the city's residents. Whatever decision that the city government makes behind closed doors, will likely remain there, in secret as is often the case when it reaches settlements with people or organizations that litigate against it. Though it is hard to imagine that Wilson or the RPOA would remain silent if the decision were made in their favor, a fact that would actually work in the city's favor if the finding were eventually nullified.

Whether the finding is nullified either in open court by a judge or behind closed doors by the city council, one involved party will ultimately be painted as the villain in this piece, complete with sound effects and the other party will wring its hands and say to its constituents, well we tried very hard when community members protest. In response, the city will merely point to the entity with the track record etched in stone when it comes to fighting the CPRC and there is not a single resident in the city who does not recognize the identity of that party. The other party, whose identity is also known, could be in a situation of sitting back in relief that by nullifying the finding on the Lane shooting, it has lessened its own risk of civil liability in any litigation related to that incident without being held accountable for doing so.

And that reality, which could be as inevitable as the rising sun, would not be entirely fair if it were both parties who were involved in the nullification of the Lane finding, but as they say, que sera, sera. That process began several weeks ago when one city council member publicly complained that people were not showing up at city council meetings criticizing the "RPOA's law suit".

At least, the city did respond right on schedule to the law suit through a document filed on Oct. 6 which was sent to a judge which the city finds much more hospitable than that Sutton trial judge. Handling the case is the Honorable Dallas Holmes, an individual with many civic ties.

In its seven-page response, the city rebutted nearly all of the arguments filed by Wilson, stating that it denied each and every allegation in its entirety, from the first paragraph to its last. Interestingly enough, the city challenged Wilson's contention that the CPRC was a separate legal entity worthy of being sued separately. Instead, the city argued that the CPRC was actually an agency of the city. The real reason the city made this distinction is critical, but a separate issue from this law suit and worthy of its own discussion down the line.

There were several allegations, the city did not initially deny, most significantly those in paragraphs that addressed the actions that Wilson engaged into up to and including the Lane shooting. The city's response was that these allegations were immaterial to this litigation and thus there is no need to respond to them. Then the city went and responded to the allegations anyway by denying all of them which is interesting, because all these "allegations" were directly related to Wilson's account of the Lane shooting. The unwillingness of the city's outside legal counsel to address this issue without a big caveat attached makes it clear that civil liability and its twin, risk management, not defending the CPRC's right to investigate officer-involved deaths, is what comes first in their minds. That may not be good news for the CPRC. It is not really good news for the RPOA either.

That is also why that even if it were necessary to do so to defend the CPRC's powers and responsibilities under the city's charter by bringing the issue to trial, that day would never happen. The city would never take that risk, not with pending litigation filed in the case against both Wilson and the city. Remember, the plaintiff and one of the defendants in this law suit are both defendants in another case being processed in the same courthouse, hence the quandary. Not to mention that the city that is opposing Wilson in his own law suit today will be paying for his defense in any wrongful death litigation tomorrow, because he is a city employee.

Of course, if this law suit mirrors the Caloca case, it could end up going to trial inside a courtroom and once the door has been opened on the shooting(by Wilson through his statement of facts), it may be difficult to shut it again or like trying to put a genie back in its bottle. Of course, a trial involving any part of the Lane shooting which would place Wilson on the witness stand under cross-examination is probably the last thing the city or the police department would want to face, if there were any way to avoid it. Why, because again, Wilson and the city are defendants in other pending litigation in connection with the Lane shooting taking place in the same courthouse. And as mentioned previously, all decisions regarding Wilson's defense in any wrongful death litigation will be made by his employer, the city.

The city completed its response by listing six affirmative defenses against the validity of Wilson's writ, and its lawyer signed off as a representative of both the city and the CPRC, which again, was erroneously sued, according to the city. The last thing the city also wants is for the CPRC to be viewed as and sued as a separate legal entity, for obvious reasons.

Wilson's attorney and the city's attorney from its outside firm of choice met inside a courtroom, on Oct. 11 in order to postpone their first hearing to a future date. Initial briefs were scheduled to be filed later this month.

In this final report to the city before the dissolution of the stipulated judgment, monitor Joe Brann had recommended that the CPRC be strengthened. The city leadership appeared to nod in agreement to that suggestion, as it nodded in agreement with many things in the eve of that judgment, like the 120 digital video recorders which have yet to be purchased using the $500,000 that was allotted from the general fund to pay for them. Currently, according to Hudson and his sidekick, Asst. City Manager, Tom DeSantis, the cameras are at the bottom of a growing shopping list. Unlike the CPRC, the cameras are still viewed as assets, not liabilities.

Now, seven months later, is the city still serious about honoring its promise regarding its only form of civilian oversight? Here sits the CPRC in the arena, facing two doors. What will the city decide today? What will it decide six months from now?

(excerpt, from Stockton)

Her decision had been indicated in an instant, but it had been made after days and nights of anguished deliberation. She had known she would be asked, she had decided what she would answer, and, without the slightest hesitation, she had moved her hand to the right.

The question of her decision is one not to be lightly considered, and it is not for me to presume to set myself up as the one person able to answer it. And so I leave it with all of you: Which came out of the opened door - the lady, or the tiger?

Which will it be?


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