Canary in the Mine: The shooting that just won't go away

"Sentence first, verdict afterwards."


---Lewis Carroll



It's October 3, 2007 and in several weeks, two fatal officer-involved shootings committed by Riverside Police Department officers will be hitting their first anniversaries.

It is also the 18 month anniversary of a fatal shooting that happened earlier that year that is ahead of it on the assembly line for processing.

In front of them, still lies a resolution of sorts for the April 3, 2006 shooting of Lee Deante Brown, a Black mentally ill man who was shot and killed by a police officer after allegedly grabbing his taser. This one' s known as the one that won't go away.

Not that the city isn't trying. That's the sentiment that's coming out of it these days.


"You know, they're going to settle the law suit," someone told me, "They'll settle it quietly and have both sides sign an agreement so that neither side can talk about it or what happened."


This person could be right and it could be sooner rather than later, if history is on mark. After all, the city's legal teams always start strong when it comes to fighting wrongful death law suits involving the Riverside Police Department but most of the controversial ones ultimately do get settled usually soon after more damaging evidence comes to light. After all, that's the only reason for the city to settle a law suit it previously had believed that it would squash.

Some people expect the Brown case to be a multi-million dollar settlement because many people right or wrong do believe that more evidence does lie out there precisely because this shooting has been so controversial and it fits the pattern of past incidents and settlements by the city. So what's next? What's hiding behind door number three?

After all, this is the shooting that won't go away. It's also the shooting that along with the Summer Marie Lane shooting has changed the course of the Community Police Review Commission into the City Police Review Commission.

It didn't take long for City Manager Brad Hudson and City Attorney Gregory Priamos, both direct employees of the city council to wake up and begin being the first of their kind, to begin a micromanagement campaign involving the CPRC.

In previous years, Priamos rarely appeared to give the CPRC any thought. Commissioners expressed frustration that it took months to receive responses from his office to the most basic legal questions and when invited to a special CPRC workshop in 2004, Priamos said he couldn't attend because he would violate confidentiality requirements if he appeared and spoke at a public meeting.

Contrast that with Priamos attending meetings regularly and being given veto power to determine whether or not items submitted by CPRC commissioners can be placed on a meeting agenda, including whether or not the commissioners can discuss hiring independent counsel. Not surprisingly, that item was sent to the reject pile but before anyone gives Priamos a hard time for his decision, it wasn't exactly his decision.

After watching him the past year, it's laughable that such an excuse would have been suitable to keep him from CPRC meetings, but it's not Priamos who has changed. It's his marching orders which have changed, most likely thanks to the cluster of officer-involved deaths that hit the police department in 2006 along with the CPRC's sustained finding of excessive force against an officer who was involved in a 2004 shooting. Most likely because it's because as Councilman Art Gage who is clearly no fan of the CPRC said in a recent Press Enterprise article, we have a group of people on the city council who can finally get things done. And those who don't go along with the agenda are perfectly happy to play along as long as it benefits them politically.

The city manager, Brad Hudson, jokes about how he's busy micromanaging the CPRC from his office but those who are familiar with him say that he often jokes about the things he's actually doing when he feels most comfortable with his success at doing them. His choice of humor is actually a good window into how he is managing the city and its pieces.

Contrast that with commissioners a few years ago who had to invite then City Manager George Carvalho to a workshop to actually meet him and Asst. City Manager Penny Culbreath-Graft who incidently, became head administrator of Huntington Beach soon after leaving Riverside just before the GASS quartet ousted Carvalho, possibly to make way for Hudson.

So what does that say about the Brown shooting, then and now?


Fresh from the NACOLE conference in San Jose, the commissioners are left with addressing an investigation of a fatal shooting well into its second year. Months and several resignations after conducting a straw poll which found the commission 6-1 in favor of exonerating Officer Terry Ellefson who shot Brown, the commission is in a state of confusion and turmoil, unsure of how to proceed next.

But when the discussion took place, the commissioners were fairly silent until Chair Brian Pearcy took the lead in the discussion then the others joined in. That's how the discussion began over six months ago and that's pretty much how it's continued on that side. The interesting thing is that the commissioner who appeared to be the most familiar with the investigative material was Jim Ward and he cast the sole dissenting vote saying that in his opinion, the shooting violated departmental policy. The others, well it appeared that they hadn't been doing very much reading, given that they believed facts that were presented that weren't true, including the statement Pearcy made not long ago about the taser being not visible to civilian witnesses because it was black and the surface he was shot on was black.

Even a diagram in their own public report shows that the surface that Brown aka as "V-1" was actually white on the diagram and a light bluish white at the motel. But Pearcy and other commissioners except Ward wrote off civilian witnesses and disregarded them, in pretty much the same vein that City Hall has written off community members who depend on the CPRC even though the rationale used to do so makes no practical sense being based largely on erroneous factual recollection and ignorant assumptions about race and skin color.

When the commission last left off with the Brown shooting, it had just received a response from Asst. Chief John DeLaRosa that questions submitted by Ward could not be answered in their entirity because even though the questions were directed at evidence collected in the officer-involved shooting team's investigation, the answers were to be found in the far more cloistered corners of the department's administrative investigation(which actually is more of a review) conducted by its Internal Affairs Division. Some commissioners were left wondering if the city and department were deliberately trying to keep information from them. This is exactly when access to its own independent legal counsel would have been very useful for the CPRC. However, that's one good reason why that discussion will never even be allowed to take place.



These were Ward's questions which he submitted to the police department in August. All of them address evidentiary aspects and issues involving the police department's criminal investigation conducted by its Officer-Involved Death Team.




Conflicting Officer Statements


1) Officer [Michael Paul] Stucker said Mr. Brown was sitting or squatting when shot, Officer Ellefson said he was standing, four(4) independent eyewitnesses said he was sitting or on the ground when shot. Who's credible?

2) Both Officer Stucker and Officer Ellefson said Mr. Brown had possession of the taser. However, six(6) independent eyewitnesses who saw the shooting said he had nothing in his hands when he was shot. Who's credible?

3) What evidence did the RPD find that linked Mr. Brown to the taser other than the officers' statements?

4) Officer Stucker claimed he was tased and, as a result, was disengaged from the struggle prior to the shooting. When he turned around, Mr. Brown had Officer Ellefson's taser in his hands. However, according to his belt recorder, he was engaged up until seconds before the shooting and according to the Coroner's report, Mr. Brown's body had three(3) wounds consistent with taser probes and one taser probe was embedded in his belt. Do you find Officer Stucker's claim creditable? If yes, how? Why?



The Custody of Chain of Officer Ellefson's Belt Recorder


1) Why wasn't Officer Ellefson's transcribed belt recorder not submitted with the criminal casebook?

2) How as the "Drop the gu"-"Drop the gun" discovered?

3) Who discovered it?

4) When was it discovered?

5) Who was it reported to other than the FBI investigator?

6) Why wasn't this information made a part of the criminal casebook?

7) Who shared this information with the FBI investigator?

8) Why wasn't the statement picked up on Officer Stucker's belt recorder? All the other statements were!

9) All other commands were repeated over and over, but the "Drop the gun" command was made only once. After Mr. Brown was shot and reportedly still had the taser in his hands, Officer Ellefson's first command to Mr. Brown after shooting him was, "Stay down", not "Drop the gun". Why?

10) Why didn't Officer Ellefson claim this statement when he signed his enhanced transcribed copy of his belt recorder?




The Custody Chain of Officer Ellefson's Taser


1) Why were there no fingerprints and only traces of DNA on Officer Ellefson's taser?

2) Had it been wiped clean prior to testing?

3) Why was Officer Ellfeson's DNA not found on his taser?

4) Were Officer Ellefson's fingerprints found on his taser? If not, why?

5) Which analysis took place first, the fingerprints or the DNA? Does one compromise the other?

6) Why wasn't proper protocol followed, i.e., using one swab for each area of the taser rather than one swab for all areas? Could this process be tantamount to wiping the taser down?

7) According to the evidence, Officer Ellefson's taser was cycled seven(7) times. The sixth(6th) cycle was at 13:49:11 and the seventh(7th) at 13:49:17. How could Mr. Brown gain control and cycle the taser in six(6) seconds considering all the officers said took place between the statement, "Watch that cuff" and Mr. Brown gaining control and cycling the taser.

8) If a taser can only be used for contact tasing, can the taser be cycled if no contact was made?

9) On Nov. 30, 2006, we were directed not to review and discuss the Brown OID case because additional relevant information was being developed as part of the criminal investigation and that this information would be important to the criminal review of this case. I am unaware of any additional relevant information being shared with us(The CPRC). All we received was a faxed copy of the physical evidence examination report from the Department of Justice(DOJ) to Det. Medici that was sent on Nov. 13, 2006, approximately two weeks prior to the directive to cease and desist review of the case. This directive was in effect for approximately one and a half(1 1/2) months. I would like to know what relevant information was developed by the RPD during this time (see attached email).



To answer question #1, under the "custody chain" section of Ward's questions, 13 fingerprints were pulled off of Ellefson's taser but were determined to be of insufficient quality for a DOJ computer search and were thus not identifiable. It's not clear from the public report where the fingerprints were found on the taser.



As for the DNA, according to DOJ senior criminalist, Dave Wu, he evaluated a sample contained on a single swab that was taken from as far as he was concerned, unidentified areas of the taser. However, a supplemental report written by Tim Ellis that was dated April 3, 2006(though it included dates in its narrative up to and including April 7) which stated the following.





(excerpt)





On 4/04/06 at approx. 0820 hrs, I removed item FE-1 (black X-24[sic] Tazer S/N#X00-126637) from the evidence vault and took a swab sample (item FE-1A) for possible DNA from the handle and frame of item FE-1. I placed items FE-1 & FE-1A into the evidence vault.




Because the sample consisted of one swab taken covering such a large part of Ellefson's taser, the commission dismissed it as viable evidence, chiding the department for not taking multiple swabbings from different locations on the device. To the commission, it mattered if Brown had held the taser in a way that could have been dangerous, not that he merely had physical contact with it and if a person swabs the entire device with one swab, what else could this person be thinking?

Questions still remain about the incompatibility of the timelines involving the tasers, the content of the transcripts of the officers' belt recordings and the officers' statements. The department was asked to help alleviate this by providing an approximate timeline involving all three but responded that it was unable to do so.

What did assist the situation was a training session provided by Lt. Larry Gonzalez and Officer Robert Tipre which addressed the department's use of M26 and X26 tasers, both of which came to play in the Brown shooting. What was most useful was an explanation of what it meant to "arrest under power" according to the department's own definition rather than the more generic explanation provided by other sources on taser deployment and training.

One of the key elements of "arresting under power" is the repeating of oral commands such as "put your hands behind your back" until there is compliance with those commands and sure enough, the transcripts for both belt recordings show that those commands were given repeatedly before the shooting, seconds before the shooting and even after the shooting when Brown was lying on the ground but still apparently moving.

Except for a barely audible statement that still hasn't been clearly interpreted or explained by anyone, these commands were the ones repeated rather than any commands to drop a taser or a weapon. Late last year, the CPRC had discovered that the police department had told FBI investigators that a statement, "drop the gu..." was barely audible on Ellefson's belt recording. That was one reason why the FBI dropped its probe not long after, according to statements made at several CPRC meetings by commissioners who had tried to discover the origin of that particular statement's discovery.

However, at some point the department dropped its belief that Ellefson had made such a statement, designating it as being made by an unidentified speaker. That makes sense because Ellefson himself never mentioned making such a statement, he was never asked about it in his interview and signed his approval of the transcript which included that statement and had attributed it to an unknown speaker. Just one of many unanswered questions about a shooting investigation and review process well into its second year.

Though a public report and finding by the CPRC that appeared to be on fast-forward six months ago is now at a standstill.

The shooting itself has been the subject of an unknown number of investigations including by at least one federal agency, the Riverside County District Attorney's office and two investigations by the police department. Those are just the ones that have risen up in discussions held by the CPRC. What is not clear is if these investigations are indeed the only ones.

The most likely scenario at this point is that if the city eventually or sooner than that, settles the case and all involved investigators exonerate the officer's actions, how will this settlement be explained to the taxpayers of this city? If the city pays out to Brown's family and their attorneys, how will it explain its decision not to back its own findings?

The answer is, it won't because it can't because of the signed agreement among both sides to not talk about what happened, to bury it away, to click their heels three times and hope it will all go away.





Speaking of shootings and tasers, police officers in Desert Hot Springs shot and killed a homeless man because he defied their orders, according to an article in the Press Enterprise.


(excerpt)


The 48-year-old man was shot while riding a bicycle shortly after 10 a.m. in front of a Pizza Hut restaurant on a busy commercial stretch of Palm Drive. His identity was withheld pending family notification.

Police released few details Tuesday. Those details the department did make public were contained in two paragraphs of a news release. Desert Hot Springs Police Chief Patrick Williams did not return a call for comment Tuesday, nor did an investigating sergeant.

Desert Hot Springs police officers were alerted to a disturbance at the Pizza Hut involving two men, one possibly armed with a knife, the department said in the news release. When they arrived, they found the man presumed to be armed and confronted him as he rode in the area.

It was then that he "became hostile and failed to comply with orders," the statement related.

One officer, whose name was not released, tried to subdue the man by using his Taser gun, the statement reported, but when that failed, fired his handgun.

The man was taken to Desert Regional Medical Center, where he died shortly after. It was unknown if police recovered a weapon.






Hundreds of people watched as the new sheriff was appointed, not elected at the Riverside County Administrative Building, according to the Press Enterprise.

Riverside County Sheriff Stanley Sniff was sworn into his position, replacing the departing Bob Doyle who's off to fill a position he was appointed to by the state.


(excerpt)


"This is the start of a positive change," said Assistant Sheriff Valerie Hill, the highest-ranking woman in the Riverside Sheriff's Department. Hill was one of five candidates the board had considered to replace Doyle.

Riverside Police Chief Russ Leach said the board made the right decision when choosing Sniff, a former assistant sheriff and retired Army Reserve colonel.

"He stands head and shoulders above the rest," Leach said.

District Attorney Rod Pacheco, who was barely on speaking terms with Doyle, said Sniff would bring a mature perspective to the multitude of public safety issues that need addressing in the fast-growing county.

The supervisors said Tuesday that Sniff would serve the remaining three years on Doyle's term. Sniff has said he would seek election at that time.

Previously, the board said it would attempt to hold a special election before the regularly scheduled election for sheriff in 2010.





The judicial career of Riverside County Superior Court Judge Robert Spitzer is over, according to this article in the Press Enterprise.


(excerpt)


The pattern of misconduct before us involving inexcusable delays, failure to act and gross neglect of court orders demonstrates an unwillingness or inability to perform judicial functions," the commission wrote in its decision.

The commissioners found Spitzer, 58, had committed willful misconduct involving salary affidavits, improper involvement in cases known as embroilment, and communicating with one side of a case without the other side knowing about it.

Spitzer was charged with eight counts of judicial misconduct a year ago and underwent a series of hearings in Riverside, Sacramento and San Francisco before commissioners issued their decision today.

Commissioners said a "lack of candor and accountability manifested by Judge Spitzer in these proceedings raises substantial concerns regarding his suitability to remain on the bench."




A citizen advisory panel might be coming to Redlands soon, according to this article in the San Bernardino Sun.

The commission on public safety if created would allow the public to address it with concerns and questions about the operations of the city's police department. The opinion on the city council is split on whether such a commission is needed at this time. The police department appears to support it for now.


(excerpt)


Police Chief James Bueermann strongly supports the idea, which he described as an avenue for Redlanders to provide input on law enforcement strategies and a way to improve communications between the department and the general public.

"I think police work is frequently mystifying to people and we want to demystify it," Bueermann said.

If created, the commission's powers would be limited to reviewing public safety policy and providing advice to officials. Commissioners would not act as a citizen review board with authority to investigate any complaints lodged against police officers.





In Atlantic City, New Jersey, A Latino police officer is suing the city alleging racial discrimination, according to the Press of Atlantic City.

Police Sgt. Ernesto Delvalle Jr. alleges that he faced discrimination because the department's officers dicriminated against him on the basis of ethinicity and race after he was promoted to a designated bilingual sergeant position.



(excerpt)


It was "so blatant that (Delvalle)'s coworkers would comment about why (Delvalle), a Hispanic with brown skin, would be assigned to work in sections of the city which were primarily white in their population, it being the routine, custom and proactive of the city to have white police officers primarily assigned to those areas and to prohibit minorities, such as (Delvalle), from even participating in the arrest of white suspects."

He said white officers talked down to him and subjected him to persistent derogatory comments about Hispanic people in general and him specifically.

His suit said one retired officer, Michael Cohen, called him "Sgt. Paco" following his promotion, while another current officer, Michael Mason, routinely spit on the ground near him as a gesture of contempt.



In news that is sure to shock few people, the federal Equal Employment Opportunity Commission has determined that men of color and women are denied their civil rights and subjected to a pattern and practice of racial and gender discrimination, harassment and retaliation according to the Los Angeles Times.


Numerous law suits have been filed and paid out on in relation to problems in the city's fire department with racism, sexism and harassment.


(excerpt)



Pierce's lawyer, Genie Harrison, said Tuesday that she planned to file a federal employment commission claim against the department on behalf of another firefighter, Capt. Alicia Mathis, who alleges that officials retaliated against her after she went public with a harassment complaint.

A 27-year department veteran who is white, Mathis alleged last year that she and other females were subjected to sexually explicit remarks, unwanted touching and excessive training designed to run them out of the department.

"We're going to combine our efforts with the EEOC," Harrison said.

For the last year, records show, the federal agency has been probing allegations on behalf of the two female firefighters and others who alleged they suffered unfair discipline and retaliation after complaining of discrimination and harassment.

One of the two, an African American, told investigators that she had been denied transfer requests and promotions because of her race and gender, according to her attorney.

"Her complaint was one that exemplifies what has happened to many firefighters," said attorney Nana Gyamfi.

Jerry Thomas, a veteran captain who retired in June, said he met for three hours last month with one federal investigator and confirmed that the department had failed to take up a complaint he had written on behalf of two female firefighters. One was Latina, he said, and the other was black.

"It was blatant racism," Thomas said. "They buried it."



It doesn't look like it stayed that way and it looks like it's going to cost them.





When it rains, it pours


More in Chicago, as a Cook County jury determined that the the family of a man shot to death by a police officer should receive $3.9 million, according to the Chicago Tribune.


(excerpt)


Police, who cleared Roberts of wrongdoing, said that Roberts was outside the police station on July 6, 2004, when he heard a dispute and tires squealing at the gas station. He tried to stop Mullins and, when Mullins refused to stop, reached inside his car and grabbed him.



But Gary Laatsch, one of the lawyers for Mullins' survivors, said Roberts had acted recklessly. He said the officer pursued Mullins as Mullins drove away and jumped at or in the car and then shot Mullins three times in the back. "There were other options available," Laatsch said.




Another chapter in the ongoing probe into the latest scandal involved one police officer who provided information to investigators about his misconduct as well as those of others was sentenced to six years in federal prison according to the Chicago Tribune.


(excerpt)


Erik Johnson drew a stiff rebuke from U.S. District Judge Ronald Guzman after tearfully apologizing for shaking down drug dealers with other corrupt officers.

Guzman said he couldn't begin to describe the amount of harm the
Englewood District tactical officers caused, saying their
scheme "quite literally turned day into night and right into wrong
and turned our system upside down." Guzman told Johnson that citizens
of some of Chicago's most depressed neighborhoods rely on the Chicago
Police Department for "safety, comfort and order."

"And you and your friends turned it into a criminal enterprise," the
judge said.strong>


Even with all the serious scandals faced by the Chicago Police Department, it still refuses to release a list of officers with multiple excessive force complaints.


(excerpt)


A copy of the documents with police officers' names redacted was made public in July. The records show that the top four police officers on the list, who all had 50 or more misconduct complaints in five years, were members of SOS. The top 10 Special Operations Section officers with the most complaints on the list had a combined total of 408 complaints during five years. Of those complaints, only three were sustained by OPS, and only one resulted in a suspension—for 15 days. The other two cases ended with reprimands.

One SOS officer was accused of misconduct 55 times, with none of the complaints sustained, according to the documents.

Daley last week defended the unit as a critical law enforcement tool that has been unfairly marred by a few bad apples.





The All-Blacks may be going all gray in the World Rugby Cup quarter finals match against France but the team said it shouldn't matter.