Closing the book on Lee Deante Brown?

It looks like another settlement is being finalized in relation to a lawsuit filed in relation to a fatal officer-involved shooting in Riverside, according to the Press Enterprise. This revelation comes only several weeks after the city closed the books on one of its most controversial shootings in recent memory, with what else, a settlement.

In this latest case, it involves the shooting of Lee Deante Brown, a mentally ill African-American, that happened on April 3, 2006 at the Welcome Inn of America on University Avenue in Riverside. Any settlement in this case would follow on the heels of the recent settlement mentioned above in relation to the 2004 fatal shooting of Summer Marie Lane. In that case, the city paid out $395,000 to Lane's family and their attorneys. Currently in the U.S. District Court are about five law suits involving four incustody deaths that occurred between October 2005 and October 2006.

One of those, a lawsuit filed in connection with the fatal shooting of Douglas Steven Cloud, is being discussed in closed session at this week's city council meeting. The status of that case and the lawsuits stemming from the incustody deaths of Terry Rabb and Joseph Darnell Hill are unknown. But if it's true that the city is about to settle Brown, then it probably increases the probability that it will settle the twin lawsuits filed in the Rabb case without necessarily impacting the chances of settling either the Cloud or Hill cases.

What's interesting about any pending financial settlement in the Brown case is if there is a settlement by the city in the wake of decisions by both the police department and the Community Police Review Commission that decided that the actions of the involved officer within policy, then what message is the city sending? If the officers' actions were by the written book of departmental policies, then why are these cases paying out?

As part of most settlements in cases like these, it is part and parcel for the city not to admit any responsibility in the incident being litigated. However, the city's initial attitude when these lawsuits were filed, was to fight them all tooth and nail. What's changed since then, especially in a case like Brown when all the investigations came back clearing the officer of wrongdoing?

The department often starts defending the actions of its officers from the day the shooting happens and if it's a fatal incident, then when presenting its narrative before the CPRC as well. It doesn't exactly have a choice given the dynamics that exist inside most law enforcement agencies in this country which make addressing critical incidents in public particularly delicate for all involved. Listen carefully to one of those presentations and read the language that it chooses to use when these incidents happen. The problem with this rush to defend and the instinctive action to circle the wagons which often occurs after a fatal incident is that it casts doubts on the department's ability to then conduct an unbiased, impartial, thorough investigation or inquiry of the shooting in question. Because if you say from the get go that the officers behaved properly, they acted in fear for their lives or safety, what happens if or when an investigation shows differently? How do you prevent that mindset from influencing your administrative investigation?

The discussion came back this week in some circles in connection with a nonfatal officer-involved shooting in Casa Blanca which rightly or wrongly by some city residents has been attributed to an officer long assigned to that neighborhood who to put it mildly has elicited some complaints over the years. Unlike with prior shootings including the one at the University Village, the department is not going to release the name of the involved officer due to "security reasons" though apparently it's not this particular officer though he was allegedly present at the scene. I didn't even have to mention the name of the officer with the department, which in itself is interesting but not surprising. Hopefully, the area commander in that neighborhood, Lt. Bob Meier will brief the residents on the situation and answer their questions and address concerns about the situation to foster better community relations between a community and the police agency which serves it in the spirit of community policing.

Why the change in departmental practice at this point in time is complex and likely rooted to several evolving factors, some of which are new and others which are older more tightly woven into the fabric of this city.

But in the Brown case, the department had likely determined its officers to be within departmental policy even though it hasn't ever really announced it. It's pretty obvious that was going to be its decision from the statements its representatives made about it early on. The commission which received the case afterward, deliberated over it for almost a year in the midst of another executive director "resigning" and the entire commission nearly turning over with resignations as well.

Late last year, the commissioners including several newer ones voted that Officer Terry Ellefson did not violate the department's use of force policy when he shot and killed Brown who had according to his statement to investigators, picked up Ellefson's missing taser and holding it in his hand, stood up on his feet and lunged at Ellefson and his partner, Officer Michael Paul Stucker. Stucker's version fluctuated a bit in his statement, but he said that Brown was squatting or sitting on the ground with his legs in front of him.

None of the five civilian witnesses interviewed saw a taser in Brown's hand. Only one of them said that Brown was on his feet when he was shot. Fingerprints were lifted and DNA samples were swabbed from Ellefson's taser, yet they yielded information that didn't settle the issue of whether or not Brown had the taser in his hand when he was shot.

Although fingerprints were found on the device, they were not able to be identified through the databases because they were of insufficient quality, according to the department's investigative report. The DNA swabs yielded one sample that likely belonged to Brown and at least one other unidentified DNA sample, according to the report on the DNA test. However, according to a document submitted by the police department in its investigative report, the taser was swabbed in the handle, stock and barrel by one single swab, rather than having multiple separate swabbings taken from the device. Because there were already ample opportunities by Brown to get his DNA on the taser through prior contact tasings and contact between his bodily fluids and the taser when it allegedly was knocked out of Ellefson's hand and lying on or beneath his body, it rendered the test inconclusive for determining whether Brown had actually held the device.

Ellefson had shot and killed Todd Argow in what was called, a "suicide by cop" about six months before the Brown shooting. Stucker would later shoot and injure a man holding a gun that was a replica and a bystander in a shooting at the University Village in 2007. Ryan Wilson, the officer who had shot and killed Lane, also had a prior shooting that like Ellefson involved a man with a gun and like with Ellefson, his first shooting was also found within policy by both the CPRC and the police department.



Commissioner Jim Ward cast the sole dissenting vote against the commission's public decision on the Brown case. He also wrote what is called a "minority report", his second such response in a case involving an officer-involved death. His first minority report dealt with the officer-involved death case of Terry Rabb in the autumn of 2005, but this is the first one he wrote that actually was included with the majority analysis in connection with a public report issued by the CPRC.

He was not allowed to release a minority report in the Rabb case because the majority of the commissioners voted against its release because they said they disagreed with its content. That's proof positive that few if any of them understood what a minority report actually was and the interpretation by the city attorney's office didn't clarify that issue in any meaningful way.

But this time around, Ward got permission from the commission and City Hall.



(excerpt)



In a rare move, one commissioner filed a statement detailing why he believes the shooting was not justified.

"I saw fit to write a minority report because what happened in the Brown case is not unique to the Brown case," Commissioner Jim Ward said. "It's a pattern of the commission to focus too much on officer's statements and not enough on other evidence that contradicts what the officers are saying."




The report and the article addressed many unanswered questions in connection with the Brown shooting including questions that couldn't be answered because the police department declined to provide answers to those questions submitted by the CPRC, in a brief written response back to the commission.

Ward's concern about inconsistencies in the officers' statements, problems with the timeline and whether the autopsy account of the taser probe strikes matched those during the incident was not abated even as the discussion turned from weeks into months.




"Drop the Gun."




Then there was the strange statement that today, remains as mysterious as it was when it was first presented. The statement that no one wanted to own up or sign their name to at least not in public. If either officer ever did, then it would almost certainly have to have been during the administrative review conducted by the internal affairs division through compelled interviews. This question may never be answered.


(excerpt)



Another point was a recording of someone saying "Drop the gun" discovered late in the investigation when tapes were slowed down and presented to FBI investigators. The quote had not been included in earlier transcripts. Neither officer claimed the command.

The commission believed one of the officers said it to Brown, referring to the Taser. Ward said he believes it is someone saying it to the officers.

The discrepancies could not be resolved because the Police Department refused to answer the commissioners' follow-up questions, according to the commission. The questions included: Why were there no fingerprints and only traces of DNA on Ellefson's Taser? Had it been wiped clean prior to testing? Why was Ellefson's DNA not found on his Taser?

The report said the lack of response to the inquiries was "detrimental to their efforts to provide a transparent process to the community."

Ward said the officers' statements were not supported by witness accounts, evidence, DNA or fingerprint analysis.



The department would never provide these answers to these questions, except to say that the questions they could answer could only be answered behind closed doors even though they were raised after reviewing the work product presented in public.

But then in the wake of the Lane case and in the midst of the Brown shooting, questions had also been raised about what was going on with the CPRC, which today remains a shadow of its former self in the wake of what's been going on at City Hall.


Inside City Hall




The prickly relationship between the CPRC and the police department has historically been part of the problems that have afflicted the commission, as have been the changing dynamics at City Hall and how the two invested parties of the three listed by former State Attorney General Bill Lockyer several times through comments about the department's reform process factor in together. Given that only one police officer has ever publicly admitted that he liked the CPRC out of a force of around 400, the relationship between the CPRC and the department is a work in progress, albeit one that's proceeded down a difficult, rocky and mostly uphill road.

The city and the police department were seemingly in synch about the direction the CPRC was to go, the commissioners' hands were tied and they were merely along for the ride and Lockyer's third invested party, the community was left in the dark during most of the last year or so. Virtually any dialogue that's taken place involving the future of the commission has taken place behind closed doors and has pretty much only involved city employees. Whenever a commissioner, be it Ward or former commissioner, Steve Simpson tried to address some of these issues in a meeting, their requests to place items on the agenda were usually rejected by Priamos' office on a technicality or a statement that such an item was not germaine to the commission.

Not once has the community been involved in any aspect of that process, except for an interview panel during a search process for a new executive manager which was filled last summer. But then how involved can even the commissioners be if they can't even control what appears on their own meeting agendas? They don't really make that decision. City Hall does.


The relationship between the CPRC and the city manager's office with the executive director, manager or whatever you want to call him caught in between the two factions has always been complex, and most likely reflected the views of the majority of the city council that was in place at the time.




Several years ago, the city manager's office incorporated under its umbrella, the city's finance department as seen in this chart. The finance division of the city manager's office oversees among other things, risk management. The timing of the placement of the finance division under the city manager's office and what's been going on with a commission that also is placed under the same office is very interesting. It's especially so, considering the half dozen law suits that were filed in both federal and state court stemming from officer-involved deaths during the past several years.

Factor that in with increased involvement by the city attorney's office beginning in 2006, which provides a striking contrast to the decision of that office to pull a no show at a workshop sponsored by the CPRC in its honor in 2004. While then City Manager George Carvalho, then Asst. City Manager Penny-Culbreth-Graft, Chief Russ Leach and Riverside Police Officers' Association representatives Pat McCarthy and Chris Lanzillo showed up at their designated workshops to espouse on their roles in the process for the commissioners, City Attorney Gregory Priamos stayed in his office, citing confidentiality issues.

Those issues that concerned Priamos enough to stay away must have vaporized since, because Priamos and one of his associates, Susan Wilson have appeared at almost every CPRC meeting since the Brown shooting occurred. But it's not that Priamos' "concerns" disappeared if they ever even existed in the first place, it's just that the crowd giving Priamos his marching orders changed the direction regarding the CPRC. That's really the only possible explanation for the 180 degree turn by Priamos and his office regarding its relationship with the CPRC.

So what of the city council?

A majority of the city council opposed the existence of the CPRC and when Measure II passed, they realized that sitting and waiting for the perfect opportunity to vote it out of the city's ordinance wasn't going to work because now it was entrenched in the city's charter by the city's voters from all the city's wards. It's too painful for several city council members to even hear the words, "Measure II" without acting out about it, so one can only imagine what's going on beneath the surface and elsewhere.

Yet, the city council members who weren't opposed to the CPRC weren't likely to challenge those who opposed it, possibly wary of losing support from those council members that was needed on other issues unrelated to the CPRC.

As for the community, the city government and city manager's office haven't been all that interested in hearing what it has to say about the CPRC and the dynamic that's existed between it and City Hall so it doesn't see the CPRC's current weakened state as being representative.

The evolving role of the city manager's office in the process particularly involving the CPRC's investigations of officer-involved deaths changed when Hudson and then later Asst. City Manager Tom DeSantis was hired and with the changing relationship between the city's risk management division, the city's finance division and Hudson's office. The progression or some might call it regression has unfolded since. What's ironic is that even though the city manager's office is acting apparently on behalf of one of its city departments, the police department, there's been ripples of turmoil there as well during both 2006 and 2007 involving decisions allegedly made by Hudson and DeSantis that have been closely related to issues like the department's promotional process, issues that have nothing to do with the CPRC. Decisions which brought crowds of city employees to the feet of the city council.

Community leaders did try to meet with the city to discuss the events surrounding the commission most notably the abrupt resignation of former executive director, Pedro Payne. But the city manager's office often challenges people to fill the city council chambers and asks, then what.


In one meeting involving the CPRC, community leaders said that Hudson admitted that the CPRC could be putting the city at risk of civic liability but if that's truly his belief then he's wrong. The city puts itself and any of its department at risk of civil liability. The two cases that have caused the CPRC the most consternation and extended discussion have had law suits filed in relation to them either settled or are in the progress of finalizing a settlement, which shows that there are issues to be addressed. In the case of the Lane, the commission had actually issued a finding that Wilson had violated the department's use of force policy which catalyzed him to file a law suit against the CPRC in order to either have the finding annulled or a "name clearing"hearing conducted in order to appeal the finding.

Last year, then Riverside County Superior Court Judge Dallas Holmes denied both requests in a hearing. But as the Brown case has shown, the CPRC can sustain or exonerate an officer for excessive force in an incustody death and the city pays out regardless. The same apparently applies to the police department's own exonerated findings. How this trend continues or whether it even does with future incidents including the two still under investigation by the CPRC and the three which still have pending lawsuits remains to be seen.




Even though the commission voted to exonerate Ellefson of the Brown shooting, they still included a hefty 10 recommendations with their report, which range from purchasing yellow tasers so that officers could more easily recognize them, to hiring more officers, to disengaging from a situation and redeploying from a safe location. What's interesting is that elements of these recommendations are actually included in portions of the department's mental health crisis training, which is good indeed. But much remains to be seen in the weeks and months ahead.





If you're interested in reading the various federal, state and other reform programs involving police departments and any related progress reports, one definitive list of those reports is here.





Three promotions have been announced by the police department, including Lt. John Carpenter's new rank as captain to replace Jim Cannon who retired last autumn.



Los Angeles Times columnist, Steve Lopez addresses the firing of a police officer in connection with a controversial video-taped incident where he hit a man with a flashlight several years ago.