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, August 05, 2009

Heads we settle; Tails we don't go to trial

***UPDATE*** Blogger experienced a DDOS attack today similar to those impacting Twitter, Live Journal, You Tube and Face Book. So far, the theory is that one Georgian (the country) blogger was the target of all these attacks, not the sites themselves and that it originated in Russia. Blogger flashed a strange error message for those accessing its blogs saying it had received too many automated messages from your network or you had to check for viruses or spyware on your computer. The message was put up to keep the site from crashing. Consquently, accessing this and other blogspot blogs could be hit or miss for a while.

Chief William Bratton of the Los Angeles Police Department shocked the city by announcing that he will be resigning this autumn.

(excerpt, Los Angeles Times)

Standing beside Mayor Antonio Villaraigosa and John Mack, the head of the civilian board that oversees the LAPD, at a packed City Hall press conference, Bratton claimed he had accomplished what he set out to do as chief, but said it was difficult nonetheless to move on.

"There is never a good time to leave, but there is a right time," Bratton said. "It is the right time."

Bratton's decision took the city's political and police leadership by surprise. As Bratton flew back to Los Angeles on Tuesday night after finalizing the terms of his new job in New York, aides to his boss, Mayor Antonio Villaraigosa, said the mayor knew nothing of the planned departure.

Bratton informed the mayor of his decision to resign late Tuesday night, shortly after Villaraigosa returned on a flight from Iceland, where he had been vacationing for the last week. Villaraigosa did not provide any details of the conversation Wednesday, but a source familiar with the situation said Bratton was steadfast in his decision to leave.

A week ago, Bratton scheduled a meeting with the mayor for today, but did not specify what he wanted to discuss.

"With Chief Bratton at the helm, the Los Angeles Police Department transformed itself into a beacon of progress and professionalism, a department seen as a partner, not an adversary, no longer bound by the misdeeds of the past," Villaraigosa said.

Who will replace Bratton? And will it be an outsider or someone with an inside track?
Stay tuned for what will no doubt be a pretty interesting couple of months or so as the city struggles to find his replacement so soon after the department was released from its eight-year federal consent decree by a judge.

The library will be closing...earlier in Riverside

Expect to see a reduction of hours the libraries in Riverside will be open in the weeks ahead. Every library will be opening one hour later and close one hour sooner and on some days, branches will be locking their doors to city residents as part of the latest budget cuts.

The proposal to do this will be heading off to the city council for a vote (and hopefully a discussion) later this month.

(excerpt, Press Enterprise)

"The hours are more a product of our current economic situation," said Leonard Hernandez, who was interim library director for about six months before he was named to the job permanently July 27.

"We're making adjustments to, how do we efficiently provide service and how do we provide as close to the same level of service as we have now," Hernandez said.

The proposed changes still are being revised and likely will be presented to the council sometime in August, said Nancy Melendez, president of the library's board of trustees. The trustees give the final approval.

A draft proposal that the board discussed in July suggested operating every library but the Marcy and Casa Blanca branches from 11 a.m. to 7 p.m. Monday through Thursday, a two- or three-hour reduction for most locations.

Friday and Saturday hours would remain the same for all locations except Marcy, which would operate from 10 a.m. to 6 p.m. Tuesday through Saturday.

The Casa Blanca branch would close Mondays, while the Orange Terrace branch would be closed Sundays. The La Sierra branch would add Sunday hours.

The new computer-centered Arlanza branch would be staffed six days a week once it opens, which should happen in about a year.

With the massive layoffs of part-time employees and a lengthy delay to the renovation of the downtown library, it's not been the best of years for this long-time cultural institution in the City of the Arts and Innovation. Maybe next year.

Public Records Access Fees Make for Lines and Paralegals Setting up Office at Riverside Courthouse


If you charge them, they will come

Not too long ago, the Riverside County Superior Court made cuts to its services and raised its fees in response to budget cuts in Sacramento. One of those changes was to eliminate the free service of being able to view and print court documents from civil cases online. To access those cases, you now have to pay a minimum charge of $7.50 to view even a one-page document and after 10 pages, you have to pay $0.07 up to a maximum charge of $40. Other counties like Los Angeles (which charges $4.75 per party search and Orange County offers you limited information online for free) have adopted the policy of charging people to access their public records online.

Perhaps the courts really hoped that by doing this, they were going to make serious money from online users but one outcome of tacking fees on theses services was that it caused more people to travel to the main courthouses in both halves of the county to access documents for free there and only have to pay $0.50 per page for copies. Which makes sense economically if you're interested in getting copies of documents that are not lengthy records.

People come to the basement of the old courthouse in Riverside to access records for free for all kinds of reasons. They search for probate records for deceased relatives, restraining orders in domestic violence cases or documents in criminal cases, small claims cases and traffic citations. And whereas the basement which holds seven computers, a couple of microfiche machines and an office used to be empty when civil documents were available for free online, now the people are starting to come back and line up just as they did before the courts offered online services.

Only now, it's several years later since the last time they came all the way from Perris and Moreno Valley even Murrieta and Menifee to access court records. The civil courts have slashed their administrative and clerical support to the bare bones and consequently, there's less employees to assist people than the last time they crowded the computer room.

In the room, there are seven computers. Two of them are reserved for attorneys and paralegals and there's currently a bit of a brouhaha among different parties at the courthouse to return access to them to the general public. So far that hasn't happened and the only thing that the public can access from them are forms for court actions like temporary restraining orders for example.

But with the people coming back, they are needed so that people don't have to wait as long. Besides them, five computers line the wall but not all five are available to the public. Because there are about four paralegals who come many days when the courthouse opens in the morning and they set up shop with their laptops and calculators and papers and pretty much spend the whole day using those three or four computers. Occasionally, they ask someone waiting if they only need computers for a short period of time and will allow them to do so but for the most part, you have to wait until they're done. Which doesn't leave someone who came a long way to get a copy of a probate document much time to do anything but try to beat the clock to get what they came for.

They joke about using them all day even as people wait in line hoping that they'll get a chance to look up their documents before the room closes at 4 p.m. On one day, they left at 3:30 p.m. but not before telling the clerk that they'd be back the next day at 8 a.m. to spend another day access records. The clerks laughed with them.

So a lot of the time, this leaves one computer, maybe two for the rest of the county. Which is not a lot and can make for long waiting times for everyone else. The polite thing to do is if people are waiting to use the computers is perhaps just to use them for a briefer period of time.

So far things have been fairly calm between the general public waiting and the paralegals who have set up shop in the courthouse basement but the summer's still young.

Heads We Settle; Tails We Don't Go to Trial

Occasionally, if you're lucky, you can still view records at the courthouse when the paralegals either are off elsewhere (and it's a great field with a great future even in a problematic economy but maybe the courts need to give them a bulk discount plan for internet records) and it's a bit more quiet.

And in the lawsuit filed by three current and former code enforcement officers against the City of Riverside, there was recently a protection order issued by a Riverside County Superior Court judge to seal the records that will be submitted by the city as evidence in the ongoing litigation. Records to be sealed include the performance evaluations involving former Code Enforcement Division Supervisor Mark Salazar (who allegedly was escorted out of City Hall at the end of his job stint). Also listed were a complaint and investigation involving an employee, Jana Cook and an EEOC complaint, investigation and settlement by employee, Anthony Bell.

But then it's not exactly as if the City of Riverside and the EEOC are strangers. Far from it, they are intimately intertwined in the city's troubled labor history to the extent that Black Public Works employees used to refer (and maybe they still do) to the city as the "plantation" complete with plantation politics.

Speaking of racial harassment complaints involving Riverside County, allegedly at least five or six grievances filed are being handled by one out of county attorney alone. But then that's not that surprising considering that it's been said that it's very rare for a Black man or woman to reach the management level or even just below that and receive a pension in Riverside. And some like Pedro Payne, Jim Smith and Tranda Drumwright (who was allegedly told by a current assistant city manager who once supervised her that she wasn't "management material") are either fired after filing complaints including with the state or "resign".

But the lawsuit involving employees Steve Livings, Mary Farfaro and Todd Solomon is so troubling in different ways including the city's decision to apparently banish several of its code enforcement employees to a metal shack amid toxic materials and without proper air conditioning or bathroom facilities in the corporate yard, the scene of some of the city's worst racial harassment and hostile working environment. The history there is so steeped with ugliness including human feces smeared on work vehicles and "KKK" and other racial slurs scribbled on walls as documented by former city employees, Rommel Dunbar and Anthony Joyner that one wonders if placing the employees viewed as trouble makers there was some kind of private joke in a city where allegedly sexist jokes are still told at luncheons involving city employees and some of these developers who do business in this city. If that's true, then that shows that Riverside hasn't progressed on that front much since the 1960s when allegedly elected officials used to hang to wet their whistles after meetings telling racist and sexist jokes at local watering holes.

And if allegations that Salazar sexually harassed employees including lifting the back of a female city employee's skirt and then making a sexual joke are true, then that and the many other allegations of ableism, sexism and retaliation for filing complaints will just mean that the city will irritate its current insurance carrier further by settling yet another case rather than going to trial. Because allegedly the insurance carrier has asked the city to try more cases rather than keep settling them all.

And even before now, one plaintiff who received a high settlement when a family member died in an officer-involved shooting was told by her attorney that the money paid to her was taken out of a city fund including possibly the general fund because the city lost its insurance carrier. She provided that information at a general meeting of the Community Police Review Commission not long after that case was processed by the commission. And others have said that the city is "self-insured" which is just another way of telling the city's residents that they're paying for the settlements. If this is the case, it doesn't give the city much motivation to stop creating the conditions which lead to these lawsuits in the first place if it believes it's got cash to throw away, ironic during a time when it's laying off employees. Implementing a professional work environment in some areas where history has shown that it's been lacking would be a good start. Because every settlement the city signs off on and pays off comes with an agreement between the parties that the city doesn't have to accept or take any responsibility.

City Attorney Gregory Priamos has gotten quite skillful at telling the press that every lawsuit and claim for damages is "frivolous" and the city will fight the allegations vigorously. Oh really? Then why did the lawsuit filed by the Douglas Steven Cloud family become the second highest financial settlement involving a wrongful death lawsuit in recent history less than two years after it was filed? After all, the only way the city would get close to spending that amount of cash on litigation would be if the case went to trial. After all a racial discrimination, harassment and retaliation lawsuit filed against the city in 1997, took nearly seven years to hit the $675,000 mark.

Why did the city get its shirt handed back to it in a racial discrimination, harassment and retaliation lawsuit that went to trial, one it could have settled for $200,000?

But why should the city go to trial? Surely, its insurance carrier that allegedly is irritated that it hasn't has heard of the following two words.

Roger Sutton.

That's why it will be a snowball's day in Hell before the city ever tries a lawsuit under the jury trial system again particularly over any labor issues. And how many reasons are there? About 1.64 million reasons. And the money paid out is only part of it. Trials have a funny way of being hard to control even as parties for both sides appeal to the trial judge to limit the scope of testimony and the allowance of evidence. Sutton's trial twisted and turned away from one officer's removal from a police department division to men of color holding higher ranks in the police department testifying on the witness stand about hostility at the highest levels towards Black and Latino management employees during the 1990s.

It's difficult to estimate how much impact that testimony had on the jury's award but it would be naive to say that it had no effect. The issue that is really known is that when you take a case like this to trial, one with a colorful cast of characters with plenty to say, a list of allegations including some rather shocking ones and the plaintiff's represented by anyone from Morrison and Forrester then there's a tremendous risk that the testimony might take on a direction of its own and head off in the direction least anticipated and certainly least wanted by the city.

And that's what happened in the Sutton trial.

"Jerry's Kids": Term of endearment or insult?

"Jerry's kids" may have been a term of endearment as one current management employee testified at Sutton's trial or it might have been viewed as an insult to those who were placed in that category. "Jerry" in this case, wasn't "Jerry Lewis" who helps raise money for Muscular Dystrophy through telethons and other means. It was former Chief Jerry Carroll who didn't testify at the trial. At the time both parties were warring it out in court, he was allegedly in Costa Rica having moved on with his life. The use of "Jerry's Kids" in a way that was demeaning says something about both those who would use a term like that and those who were the targets and would be insulted by it. In both cases, it indicates prejudice against people who are disabled, because to be offended by it, you have to be offended by being compared to in this case, disabled kids. To be able to use it with a demeaning intent, you have to feel that there's something wrong with these children as well.

Exclusionary rule: a rule that provides that otherwise admissible evidence cannot be used in a criminal trial if it was the result of illegal police conduct

(and that's only one of its definitions)

And mentions in depositions of "exclusionary rule" which in this case had nothing to do with illegally conducting searches of people's residences, by men of color in management or at the supervisory level opens up the same cans of worms as well. Because face it, if you have people testifying about racial animus at the higher levels, how is the jury not going to at least consider that the trickle down theory might be the least of what applies in this case at the levels that are being managed or supervised?

After all, the police department's seen only two Black captains and neither of them felt like partying when they closed the doors on that chapter of their lives. In fact, at least one of them was quietly told that he might as well as retire because his current rank was the highest it would ever be. So he ended a rather lengthy career where he had never failed to be promoted the first time he tried, with a retirement but no party.

In the 1990s, the police department had its first Latino deputy chief in Mike Figueroa. Since then, three male Latino officers have ascended up to the upper management positions of the department although initially two of them were asked by the city manager's office to accept a condition of serving "at will" to be promoted. A third who was already a deputy chief knew that his career longevity at the police department depended on him refusing to accept that condition which essentially meant that upper management employees in the department wouldn't have the protections that came with their currently classified positions as captains. And some say that even captains would be placed in a situation of being in the "at will" category.

It was all moot when the city attorney's office came out of the shadows of a controversy and informed both the city manager's office and city council that public safety management positions couldn't be converted to "at will" positions. One wondered why the city attorney didn't pass along that little bit of information earlier in the process, until one remembers that Priamos like his predecessors has two responsibilities. The first is to protect the city council and mayor and the second, is to minimize the risk of civil liability to the city.

Filed one day; Settled the next

Okay, the lawsuit filed by a former probation Riverside Police Department officer who spent about two weeks working in the department before she was fired didn't settle quite this quickly but within two months of the city being served by Kelsy Metzler's attorney, the lawsuit was settled confidentially and quietly behind closed doors. She filed the lawsuit after allegedly being fired by the department not long after she had filed a sexual harassment complaint while attending the Riverside County Ben Clark Training Academy. There, she had alleged that she was sexually harassed by a male student currently working for the Riverside County Sheriff's Department. In her lawsuit, she had alleged that she had been told by two police officers that the department wasn't happy with her for filing the lawsuit and her academy supervisor refused to let her see a copy of her own complaint let alone be updated regarding its progress.

After she was fired inside a room at the police department, she alleged that while trying to apply for other law enforcement positions, she was blackballed and found out that someone was telling them that she slept with the academy's instructors. If she were subjected to an investigation for allegedly doing so, then it would seem that the instructors would also be investigated for inappropriate fraternization with students. And if she were found guilty, it would seem that they would be as well and actually disciplined more severely because of the positions they held and the power differentials that exist between instructors and students in any academic or learning environment. Unless there's some archaic double standard in place.

The interesting thing about her termination from the department was its timing. She was fired when she was going to the police department on the first day of the field training program to get her assignment. Which makes you wonder about the field training program and how it treats female trainees versus male ones in a department with a dismal retention rate of female officers compared to male ones (and "dismal"was the word chosen by the police chief) and over the past year or so I've heard some interesting if rather disturbing things about it. If they're true, then another expensive payday might be down the road for the city if any litigation is ever filed. Because after all, it's not the Internal Affairs Division that's conducting the trial. It's not taking place in the boardroom at City Hall. It's taking place in a public forum, which is the last place the city wants to air its unpleasant business.

But then again, the history of women complaining about different forms of sexism in this department being what it is, it could have a chilling effect on litigation filing. Just ask Christine Keers and that was over 10 years ago.But one thing that you can be certain of, is that if a serious problem exists then some day it's going to rear its head no matter how much people try to prevent that and bite. It might not happen right away but it will happen. If there's sexism in the department for example, the city will wind up paying millions of dollars (and some cases settle for much more paid out in the Sutton case) in litigation because it didn't make it go away. But the department as does the city always has a choice. Deal with it now or pay through the nose down the road.

And that will be the case with most any problem. Deal with it now or pay a lot more later on, either through a $22 million consent decree or hefty settlement or trial payout.

Call it the Sutton rule.

Still, if anyone knew to ask Priamos his assessment of the Metzler lawsuit, no doubt he would have said publicly that it was "frivolous" and that the city intended to vigorously defend itself from the allegations raised in it. But exactly how vigorously did it fight? The case hadn't even reached the judge's decision on the motion of demurrer before it was dismissed with the reason being the case was settled.

And if this case had gone to trial in Riverside County Superior Court years in the future (given how backlogged the civil trials currently are), what would have happened? Would the testimony have as much to do with the original case or would it paint a larger portrait of the police department in terms of how it treats its female officers? Would the city want to find out at trial?

The city apparently provided an answer to that second question fairly quickly.

Captain, who thou art picks you?

Also unlikely to see a trial date that actually results in a trial by jury is the lawsuit that's been filed by two police lieutenants, Tim Bacon and Darryl Hurt which was recently bifurcated, meaning that the issues raised by the plaintiffs will be played out in two different court systems, even though the lawsuit was originally filed in the U.S. District Court. After the debacle involving the Sutton trial, it will also be a snowball's chance in a very hot place before the city allows this case goes to trial no matter how "frivolous" the city attorney's office claims it is and how vigorously the city is fighting it. As we've seen in so many other lawsuits, the first year or so the city spends litigating its problematic lawsuits is all for show. It's like poker, with the bluff being that the city will allow the case to go to trial if the plaintiffs don't drop it and get the judge to charge them with the city's attorney fees. Call them on it in a case with any merit and the city's bluster will collapse like a house of cards and the case will be settled probably within six months to a year.

And if it keeps settling so many cases for much longer, it's likely that the city and any insurance carrier who pays out on civil litigation will part company at some point. Because insurance companies usually don't like being used like ATM machines by their customers.

The wide-sweeping lawsuit which raised allegations of mishandling of promotions by apparently handing them off to City Hall to carry out also highlighted a kind of power struggle taking place over control of the department between the city manager's office and its at-will employee, the police chief. With allegations of two council members threatening the lieutenants that they would be denied promotions for opposing them and city management employees telling them to "be careful" if they voted to sue the city on labor issues, it would be very interesting to see how a presiding judge in either federal or state court would handle the witnesses testifying in this case. But it's unlikely the city would risk a trial which would thrust issues that it prefers to keep behind closed doors out into the public arena in this case especially when considering the much wider scope of prospective witnesses testifying for either side, including current and former council members, city management employees and employees including the police chief from the police department.

If the allegations are true (and they actually make sense considering some observations I've noticed during the past several years), then any trial will probably wind up being open season for disclosure of exactly what relationship exists between City Hall particularly the seventh floor (but a healthy dose of reality from the fifth floor as well) and what appears to be a micromanaged police department. Just like the politics of management from a racial prism were aired out through testimony in the Sutton case, that's what could happen at a trial here as well with several different issues. Subpoenas tend to expand the scope of testimony at trials because after all, even a "hostile" witness can be more forthcoming on the witness stand if it's against their will to be there and talking can't as easily be held against them by irate bosses including those on trial.

What will be fascinating is to see how the management employees at City Hall and the police department testify and also how former Councilman Frank Schiavone and current councilman, Steve Adams fare on the witness stand under cross-examination as well. If you remember, both are alleged to have made statements indicating that they played some role or had some influence of the promotional process. According to the lawsuits, Adams allegedly told one lieutenant who campaigned against him that he would "never fucking get promoted" and Adams is fairly well known for his rather...colorful choice of language.

Unfortunately for the city, the prior living arrangements of the police chief and Schiavone won't help its case. If either or both are asked to answer questions about that on the witness stand, then that might just inch the blank check to the jury that much faster because how do you place the appropriate amount of separation between the two when one of them is being accused of influencing promotions in an inappropriate manner and the other one is encharged with making them?

That task might be tough on a jury but it would be much more difficult for the city's attorneys to sell that there's no issue involved at all but if the city goes to the trial, it will have to try. Just like in the Sutton case when they had to try very hard to paint that officer as a long-time loose cannon and disciplinary problem after his attorney methodically displayed 10 years of pretty positive employee evaluations by his supervisors using the court's Elmo projector. When you pit a plaintiff's argument with a strong paper trail against a Teflon defense by the defendant, what do you think is going to happen?

But then a lot of the blame for not recognizing any potential for problems involving conflict of interest would fall on the shoulders of City Attorney Gregory Priamos who it seems really needs to attend some seminar training on exactly on that topic (after he stumbled so badly on the appointment of the regional director of American Medical Response serving on the Community Police Review Commission) including that which could increase the city's civic liability so that he can better perform this function that he has designated for himself on these issues.

Also problematic for the city would be any testimony that City Manager Brad Hudson and Asst. City Manager Tom DeSantis tried to retaliate against any of the Riverside Police Administrators' Association members (in this case its lieutenants ) for how they voted on whether or not to pursue legal action against the city. The sole purpose for obtaining such a list from the bargaining unit would be to find out which lieutenants had been "naughty" and which had been "nice" and to take some sort of action against those who voted to initiate litigation which the RPAA did concerning its health benefits package in 2006.

And allegedly one or both of the city management employees had told the two plaintiffs to "be careful" and they were issuing orders to high-ranking members of the department's management team to engage in retaliatory actions against the plaintiffs. If this is the case, then it would seem that there would be quite a puppet show going on with one department's employees having their strings pulled by the other. And if evidence through testimony and other means was produced in a public trial, it might put both entities in a position where it might be difficult to recover from and not just financially. And if it's true that you have an assistant city manager running around like a little Napoleon manipulating or trying to manipulate the department's management team, that's something that a city would definitely not want a jury (not to mention everyone else) to learn about through a trial.

Complicating the case and potentially embarrassing the city even further is that some of the allegations in the lawsuit opened the door on airing the entire episode that took place several years ago concerning the issuance of gun permits to Hudson and especially DeSantis who didn't even live in Riverside as everyone discovered when a woman in the city he does live in called 911 on him accusing him of brandishing a gun at her.

A complaint apparently was actually filed with the county grand jury against him and the Sheriff's Department (which took the report from the woman and was assigned to investigate it) but like many cases, it dissolved before it went very far.

In rare cases, out-of-city residents can be granted conceal and carry weapon permits by police agencies in another city but that didn't happen with DeSantis. Instead, the permit wound up being issued by the Riverside County Sheriff's Department so likely his case wasn't one that qualified for that exemption. The jury might be like everyone else scratching their heads as to why a mistake was made giving a permit to someone who lived in another city when it should have been caught fairly easily before the permit was even issued.

Instead, it was after the Press Enterprise came around asking questions that the permit for DeSantis was revoked. But it's amazing how many people including Second Amendment advocacy groups will be interested in following the testimony in any trial which addresses the permit issue, given that there was some active discussion of how stringent Riverside's police department usually is with people who aren't working in City Hall to the point where some individuals were considering a class-action lawsuit challenging the process. Also, that's one thorny issue that once it gets talked about on the witness stand, it will be difficult to contain within any narrowly set boundaries that the city might hope will keep it under control.

At any rate, if this case makes it to trial, it certainly will be an interesting endeavor but it's not likely that the city will want to take it that far no matter what its official position is now.

Press Enterprise Columnist Cassie MacDuff has one of the funnest jobs out there. She gets to write on all the political scandals in San Bernardino County that are putting it on the map and she's written some very good ones.

What language is easiest for English speakers to pick up? The answer is here. And it's true that the most important rule about learning a language is "use it or lose it". Although if you learned it once, you can can refresh your skills fairly easily since vocabulary is usually the first to go. At least that's what I hope.

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