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

Wednesday, January 17, 2007

The Tipping Point

In 2004, about 60 percent of the city's voters cast their ballots to place the Community Police Review Commission in Riverside's city charter. The measure to include it in the city's charter passed in every precinct in every ward throughout the city. The people had spoken at the polls. Too bad the city was about to show that it hadn't really been listening.

What would follow would be the strongest affirmation yet as to why concerned city residents had voted to protect the CPRC from the whims of the city council, the city manager's office and the police department. The example that many hoped they would never see, they would.

Sure enough, 2 1/2 years later, the city has launched its harshest attack on the civilian form of oversight, during an election year. The focus of this latest assault on the seven-year-old panel of nine volunteers and one executive director is the power that provides the commission with the ability and mandate to independantly investigate officer-involved deaths. The Press Enterprise published an article pondering its future, without really examining why it is that the CPRC is facing these challenges now.

Commission Future in the Air

For the first three years, the commission investigated fatal shootings done by Riverside Police Department officers without any complaint from either the police department or the city manager's office. Not that the CPRC gave them much reason because it agreed with the department on each of its findings.

2001: Vanseuth Phaisouphanh by Officer Edgar J. Porche, shooting found within policy by CPRC and the RPD

2002: Anastacio Munoz by officers, Melissa Brazil and Carl Michael Turner, shooting found within policy by CPRC and the RPD, law suit filed in U.S. District Court

2002: Michael Wetter by Officer William Rodriguez, shooting found within policy by CPRC and the RPD, law suit filed in U.S. District Court but soon dismissed

2003: Robert McComb by Officer Ryan Wilson and Officer Jose Loera, shooting found within policy by CPRC and the RPD

2003: Volne Lamont Stokes by officers, Tina Banfill and Adam Brown, shooting found within policy by the CPRC and the RPD

2003: Rene Guevera by Officer Richard Prince, shooting found within policy by the CPRC and the RPD.

The CPRC issued public reports on all of these shootings. Several of them are available online here. Law suits were also filed in U.S. District Court in several of the cases. It's not known whether any of them settled but if they did, it probably was not for very much money. At least in comparison to the money the city could be paying out in civil litigation for later shootings and other incustody deaths.

The city and the department weren't worried back then. In fact it was as one person said it, Chief Russ Leach met with the family of Phaisouphanh with police reports and other investigative information because he knew the investigation would back his belief that the shooting was justified. However, this same person also said that there would be no such meetings with the families of those who were killed by or died in the custody of police officers more recently. And sure enough, there hasn't been nor will there be.

The "tipping point"

In 2004, Officer Ryan Wilson shot and killed Summer Marie Lane at the Food 4 Less Market on the corner of University Avenue and Chicago. It wasn't known at the time, but this fatal shooting would soon change the course of not only the police department, but also the CPRC and its investigations of officer-involved deaths.

Because the RPD had initially provided information at its Dec. 22 briefing before the CPRC which was false, the shooting did not attract much attention either from the CPRC or the public when it happened. That would change nine months later, when the CPRC's investigator and retired FBI agent Norm Wight would come before the CPRC and explain to them what really had happened, which wasn't much different from what the department's investigators had stated in several intradepartmental memos written before the erroneous briefing.

What happened was that Wilson, who had a prior fatal shooting on his record, had not been crouched behind Lane's moving car when he shot, which is what the department had initially said. In actuality, Wilson had gotten up, walked behind the same car that the department had said was backing into him at that point, and continued up to the window, before aiming his gun and shooting three shots inside the window, killing Lane.

That second briefing by Wight in late September 2005 produced what author Malcom Gladwell would call in his book by the same, the tipping point. His book is about little things instituting larger change and the revelations which emerged about the Lane shooting would indeed do that almost two years later.

The commission met for a few times to draft a public report on the Lane shooting and for the first time in its history, personnel from the police department's officer-involved death team and its Internal Affairs Division including then Commander Richard Dana began attending the public meetings. They never said anything so no one knew what they were thinking but that didn't matter much. Their presence alone spoke volumes that things were about to change and not for the better. But even later on, the city attorney's office would begin sending one of its representatives to attend CPRC meetings, especially when the department's incustody deaths were listed on the meeting agenda. By the time deputy city attorney, Susan Wilson began sitting in on CPRC meetings, the first of a slew of law suits and claims for damages had already been filed.

This development was very significant, given that for the most part, the city attorney's office had displayed an apathetic attitude towards the commission, something which had been the topic of more than a few discussions at CPRC general meetings for several years. In 2004, the CPRC had an easier time getting the leadership of the RPOA to participate in its informational forums than the city attorney's office which opted out of the process entirely.

Of course, back then, there were very few law suits being filed against the city in connection with its police department.

After drafting its public report, the CPRC reviewed the department's administrative review of the shooting and went behind closed doors, not coming out until they had decided that Wilson had violated departmental policy when he had shot Lane. That finding was released and forwarded up to City Manager Brad Hudson and Asst. City Manager Tom DeSantis, something which must have caused them considerable anxiety. So they did what any management employees would do in a situation like this one, especially after the department forwarded a finding that the shooting was within its policy. The two men passed the buck back to Leach, who not surprisingly backed his own investigation, not long before the city voted to give him a five-year contract and the career stability it apparently believed he would need once the state attorney general's office lifted its stipulated judgement several months later. No other police chief in recent memory had received such a contract even back when Leach was first hired and community members had asked for the city council to provide one for that reason.

It turned out that the stipulated judgement had also been key to the CPRC's long-term survival, since the latest round of attacks against it began after the decree had expired.

A casualty in the city's quest to rein in the CPRC's investigations of officer-involved deaths would be its executive director Pedro Payne who would submit his resignation this month.

(excerpt, Press Enterprise article)

"Pedro Payne is an exceptionally talented individual whose skills will be better appreciated elsewhere," said attorney Danuta Tuszynska, who negotiated Payne's resignation.

"He has always been professional and objective in carrying out his duties and was well-liked by all with whom he had contact."

Unfortunately, that sentiment was apparently not shared by either the city manager's office or the police department. But then in the case of Hudson and DeSantis, it appears that the more the community is appreciative and supportive of city employees, the more they appear to resent these employees for that. They showed that when they banned Payne from attending community meetings even apparently during his own time because they said that it created a sense of bias against the police department. But restricting the ability of Payne to conduct the public outreach that is included as part of his job description was only the beginning and not really the target of the city manager's office's campaign against the CPRC. And as far as what the target of this campaign would be, it's not like the current actions of the police department have left the city with much choice. Something had to be done in the wake of the "next wave".

The next wave

When the state attorney general's auditor Joe Brann completed his final progress report on the police department, he included a series of recommendations that he hoped to see implemented after the dissolution of the stipulated judgement. One of them, was that the CPRC should be a stronger mechanism. The inclusion of this recommendation in his report was noteworthy in large part because the CPRC was not mentioned in the stipulated judgement or the Strategic Plan. But on some level, a representative of its process recognized its importance.

His report was probably meant to be read by a much more mature crowd than could be found among Riverside's leadership, most of whom promptly forgot that there even was a Strategic Plan in place let alone any recommendations involving the CPRC. It appears that State Attorney General employees, Bill Lockyer and Lou Verdugo greatly overestimated the good will and intentions of those that they had entrusted with the continuation of the police department's reforms and the willingness of the city and department to engage with the community members on issues that impact all three of them. Not that the warning signs weren't there, given that the city council failed to act on the promises it had made at a March 28 process until nine months after it made them. And during a time period when it became especially critical for the city and the department to work with the community, instead both parties began circling the wagons.

The incustody deaths did not stop after Lane, but continued at a rate of about two to three a year, or at a rate of between 5.2 to 8.0 per 1,000 officers. One thing that would begin to increase beginning with the Lane shooting was the number and frequency of law suits filed in connection with the following deaths.

2005: Todd Argow, by Officer Terry Ellefson, shooting found within policy by the CPRC and the RPD

2005: Terry Rabb(died in custody) by officers, Camillo Bonome and John Garcia, death found within policy by the CPRC(after a long discussion process) and the RPD, at least two law suits filed, one in U.S. District Court and the other in Riverside County Superior Court

2006: Lee Deante Brown by Officer Terry Ellefson, CPRC investigation suspended by the city manager's office, one law suit pending by Cochran law firm in Los Angeles

2006: Douglas Steven Cloud, by officers, Nicholas Vasquez and David Johansen, under investigation by the RPD, CPRC investigation suspended by the city manager's office, law suit pending by Cochran law firm in Los Angeles

2006: Joseph Darnell Hill, by Officer Jeffrey Adcox, under investigated by the RPD, CPRC investigation suspended by city manager's office, law suit pending

One thing that is easy to notice in this second list of officer-involved deaths is that more of them are being litigated than those on the earlier list. The second detail that should have leaped out especially if you include the Lane shooting, will be discussed in a future posting.

The article by the Press Enterprise detailed for the first time, the plans that Hudson and DeSantis have for the CPRC.

As the latest article has stated, Hudson and DeSantis have decided to stop using the Baker Street Group to conduct the investigations of officer-involved deaths and rationalized this action by saying that there needed to be a greater pool of investigators used rather than simply those from one firm. However, it appears more likely that both men want to utilize local talent to conduct investigations instead and the problem with that, is that there was a reason that the decision was made to retain the San Diego-based firm of Baker Street Group in the first place. That being, that most of the local private investigators were either former Riverside Police Department officers or had personal or professional ties to that police department. This was done to avoid any potential conflicts of interest.

The city's sudden reluctance to continue to use the Baker Street Group seems a bit odd, even considering the timing.

After all, it's not like the police department or the city manager's office took issue with Wight when he stated in his analysis that the Munoz shooting was in self-defense and that police officers should have actually fired their guns sooner than they did in the case of Guevara. It was only when Wight said that in his opinion, Wilson's life and the lives of others around him were not in immediate danger when he fired his weapon at Lane that questions were raised, which apparently would be revisited after Wight's colleague, Butch Warnberg delivered his initial briefing in his investigation of the Brown shooting during a CPRC meeting in November. A briefing that included information that did not cast the Brown shooting in a very positive light.

It's interesting that the topic of what investigating firm to hire was even brought up by Hudson and DeSantis at all, given their decision to amend the policy governing the CPRC's investigation of officer-involved deaths so that what they conduct is actually a "review" and not an actual investigation. Also, there will be no investigating done by the CPRC until after the RPD and the Riverside County District Attorney's office have conducted their own investigations.

By these actions, they have effectively ended any investigations by the CPRC involving officer-involved deaths by the Riverside Police Department's officers. The timing is interesting considering how much the rate of litigation in relation to officer-involved deaths has increased during the past year.

A logical rebuttal to this decision by the city is to say that it impacts the time line set by Governmental Code 3304(d) that states that any discipline that is relevant in an investigation must be communicated to the involved officers within one year of the incident. A major law firm circulated this memo to its clients in 2003 about the application of this amendment to the Peace Officers' Bill of Rights.

Faced with this reality, the city will only have one option at its disposal. It will have to rewrite the rules of this timeline. Don't be surprised if that's what happens next, because it's all the city can do if it intends on maintaining its course against the CPRC. Why? Because to actually examine the issues that were raised by the Brown shooting and could pop up again in the investigations of the other two, is apparently too unpleasant a task for the city and police department to even contemplate, let alone exhibit the courage to do in a way that remains transparent to a public that has yet to fully trust either. How the city and police department ultimately decide to handle the timeline issue will reveal much about the intentions of both concerning the CPRC and its charter-endowed power to investigate incustody deaths.

But then there are other signs of problems ahead, signs that had been absent for the past several years.

On April 3, over 100 people emerged at the corner of Ottawa and University Avenue after Ellefson had shot Brown. They began yelling and cursing at the two police officers to the point where they had to call in reinforcements to push the crowd back from the scene of the shooting. This information was included in reports filed by numerous officers who appeared onscene as well as Officer Michael Paul Stucker. The community which surrounded the site of the shooting remained tense for weeks after the shooting, and things became tense again after the Oct. 8 shooting of Cloud, which was unusual in that Cloud was a White man.

Tension like this after officer-involved shootings was last seen in 1998 after the shooting of Tyisha Miller. It's depressing and disheartening to note that once again, despite $22 million spent on police reforms, it's bubbling back to the surface and it serves as a harbinger if the tension in the communities of Riverside reaches its tipping point.

In a different way, the labor strife involving both police officer associations was sobering, as was watching how the city government treated their members.

But by then, two of the partners in this idealistic partnership envisioned by Lockyer and Verdugo and at one time, Leach appeared not to notice. If they did, they would be opening channels, not closing them.

It does make sense that the city manager's office has chosen to do what it's doing when you look at the entire issue from a fiscal perspective but there are other perspectives that matter besides that one. Still, for each law suit that is filed against the police department and thus the city, money from the city's general fund which is funneled into a special litigation fund, has to be spent litigating it up to the point where the law suit is either dismissed, settled or tried in front of a jury. Obviously, the city doesn't want the court systems to reach their tipping points which it perceives may happen if the CPRC were allowed to independently investigate shootings and potentially reach findings that shootings were in violation of departmental policy as it did in the Lane case.

And sure enough, Lane's relatives who did file suit used the CPRC's sustained finding as a crux behind their argument that Lane's civil rights were violated.

The city probably took notice of this which is what probably led it to conclude that the CPRC was placing the city at increased risk of civil liability, when actually the CPRC is simply the messenger and the real risk is potentially being manifested some place else. But it's easier to blame and to take action against a commission that counts volunteers as its members than the agency which if any problems do indeed exist, is where they are probably based.

The situation on the Lane shooting was complicated further when Wilson decided to file his own law suit against the city in order to get it to either grant him an administrative hearing or to compel the CPRC to nullify its finding. Given that this law suit is apparently in settlement talks, it's not that hard to figure out what option the city is likely aiming for given the current climate with it and the CPRC. Unlike its actions against the CPRC that are being played out in a more public arena now, this action could be taken care of in private without the public being any the wiser to it.

More civil litigation involving the cases of Rabb, Brown, Cloud and possibly Hill would follow and may continue to follow.

Last autumn, the city council was faced with the reality that it had to confer with the city attorney for legal advice on how to handle the five cases which had appeared on one single agenda during the closed session portion of its weekly meeting. No doubt, the city council plans to fight each and every claim for damages and law suit with everything in its arsenal, to avoid paying out settlements or verdicts on any of them, which would then place the city at further risk of civil liability. This is exactly what the city did during the 1980s and 1990s until the law suit was threatened that it could not turn its back on. The law suit that was to have changed everything, yet the lesson it may ultimately taught a city was that if you don't learn the lessons from history, then you are doomed to repeat them.

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