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

Sunday, January 03, 2010

The Price of Silence: $175,000 and counting

Sometime in October, the Riverside City Council voted behind closed doors to settle a racial profiling lawsuit filed by Los Angeles Police Department Sgt. Wayne Guillary for the sum of $175,000. That's a lot smaller than the original amount declared by Guillary in his original claims for damages. The settlement's not surprising given that the discussions of settling this irksome case had been ongoing for a while which naturally led to the silence of all the parties involved including Chief Russ Leach (who had worked with Guillary in the LAPD) who showed up in Dan Bernstein's Press Enterprise columns denouncing his former co-employee.

Guillary's part of a "class" of Black officers including members of the Oscar Joel Bryant Foundation in the LAPD which is essential an association of African-American police officers within this agency. Its current president, Ronnie Cato wrote this letter on the foundation's Web site. Around 2000, a number of Black officers including Guillary sued the police department over racial discrimination and the Los Angeles City Council settled a number of these lawsuits in its closed sessions within several years of their filing dates for usually in the six figure range.


While racial insensitivity continues to be the primary barrier affecting African American employees on this Department, it is not the only issue confronting us at this time.

We must work together to expose the obvious double standards in the area of discipline, recruitment, pay grade advancement, promotions, selections to coveted positions and selections to specialized units.

These are just a few of the areas in which African American employees have experienced double standards on the LAPD. We must not forget about the other areas less likely to be detected because of the way they are crafted behind the scene.

OJB promotes and advocates the best interest for African American employees on the Department. We cannot achieve our full potential, in the battle to promote fairness and equality for our members, without the full support of our membership.

Every minority group of employees has an organization representing their interest, we as African American employees will continue to be left out of the main stream, unless we fully recognize the value of unity.

Ronnie Cato, President

So clearly, there's a lot going on in the LAPD about 60 miles to the west of Riverside.

In November 2008, this blog broke the story of what Guillary alleged had happened to him in the front yard of his own home in one of Riverside's toniest neighborhoods, and it was written here about a month before other media outlets wrote about it. This was after Guillary had stood up at a community meeting held by the FBI's multicultural task force to address community concerns about the agency's practices. People were stunned by his account of being approached by Officer Carlos Vazquez at his home while he spoke with a woman who was going door to door selling bibles in his neighborhood. He said that the officer had accused him of trespassing and asked him to take it to a nearby park. He responded back and at some point, Vazquez pulled out a taser and then ultimately his firearm and forced Guillary to lie down on the hot pavement until he could pull out an identification card proving he was an off-duty police sergeant which must have made some difference because ultimately he was never arrested or charged with trespassing or even resisting arrest or obstruction of a police officer. And Guillary had told people at the forum that yes, he believed that badge he waved saved him from arrest or worse.

The police department denied anything inappropriate happened beginning within 48 hours of when I wrote my first blog posting on the alleged incident. They and City Attorney Gregory Priamos would keep denying it, all the way through the announcement of a settlement.

But this blog posting isn't really about the alleged incident of racial profiling and excessive force detailed by Guillary who also alleged that the department had retaliated against him for going public with it by reporting the incident to his supervisor at his own agency.

It's about what that settlement was really paying for. The city will claim that it paid out to avoid paying the tremendous legal fees that it would have spent defending itself all the way up to its ultimate "victory" at trial. However, there's a serious flaw with that line of thinking and that is that if the city takes a lawsuit to trial against its will, meaning the other party refuse to settle or go away, then it has the right to seek and probably collect its attorney fees if it wins the case at trial or even if Guillary or any other plaintiff wins but receives a verdict that is a dollar amount that is lower than the highest settlement offer. In fact the city attorney's office is so cognizant of this tool at its disposal that in other lawsuits filed against it, it has sent letters to plaintiffs or taken action to threaten to seek these attorney's fees if the other party doesn't drop their legal action. And it's not just the city attorney's office that engages in this behavior, it might also be the plaintiffs' own attorneys who send them letters warning them if they don't drop it or settle, the city will take them for legal fees.

These letters were sent out not long after 17 city employees from divisions including Public Works, Streets and Maintenance, the Park and Recreation and yes, even the city attorney's office filed racial discrimination, harassment and retaliation lawsuits against the city. About half of the plaintiffs dropped their participation in the lawsuit feeling harassed by the city's attorneys. And if the city and/or plaintiff attorneys are sending out such letters in cases involving city employees, why would they pull their punches in terms of lawsuits filed by the general public? Oh wait, they didn't because they sued city resident and independent mayoral candidate Ken Stansbury and his property rights organization simply for wanting to circulate a petition on the issue of Eminent Domain being put on the ballot for a public vote. And what did the city threaten this grass roots group of city residents over?

Its own attorneys' fees which were somewhere in the six figure range. That's what the city's attorney told these city residents that they would be facing if they proceeded with their drive to circulate a petition to get Eminent Domain on the ballot for the voters to decide and the city wrapped all of this up in a package with a card which read that it was doing these folks a favor by threatening them with this legal action. So you had better believe that the city can spend a wad of cash threatening to clean city residents of their financial reserves when it has an overriding desire to stop an action which isn't in its favor. And the fact is, that Eminent Domain for private development would probably have been vetoed by the voters in this city and that even if it was done using the democratic process, this couldn't be allowed to happen. So really all this talk about the city not having the money or the might to push its way in a legal venue if it feels like it has to do so for its reasons is pretty much hogwash. The city fights lawsuits or launches counteractive lawsuits when it suits its interests to do so and as for settling lawsuits and getting people to sign confidentiality clauses (as Guillary likely did), it goes that route when it suits its interests as well.

There's also plenty of precedent for the city trying in and probably recouping on its attorneys' fees on what it calls "frivolous" or "meritless" litigation filed against it. Enough so that when it states that it's settling litigation to avoid paying future litigation costs, you have to really take it with a grain of salt. After all, it's a well known fact that civil lawsuits have a difficult time being tried in both federal and state court in Riverside County given the conservative jury pool and even when verdicts are reached by these juries in favor of the plaintiffs, the amount of damages proves to be quite modest. The one exception of course clearly being the $1.64 million verdict reached by a jury in the racism case involving Riverside Police Department Officer Roger Sutton which went to trial in November 2005. But that's pretty much an anomaly in the greater scheme of civil trial action in Riverside County, a county where outside civil attorneys aren't exactly eager to try their cases either and with the civil courts still so deadlocked, settlement talks aren't exactly happening as much either, well except for Riverside of course.

Besides after reading the Press Enterprise's article on the Guillary settlement, it became quickly apparent what exacted the cost of what the city paid to make this latest lawsuit go away, and that's called the price of silence.

It's a price that all the parties agreed to it, that Guillary would not be able to mention a peep about the incident that he alleged happened to him for two years from the date of settlement. That's a bit of a steep price to pay out particularly in these difficult economic times for what the city's called a lie, a fabrication and other similar terms. But where is silence more important? And it's quite possible that the "truth" being silenced by the city has nothing to do with Guillary's allegations or what Vazquez actually did that day in question at all. Any more than the Roger Sutton civil trial was just about Sutton being removed from the canine unit. The minute that management employees and others began testifying in interesting directions (which led to at least one premature retirement party), was the minute the city might have realized that taking the case to trial rather than settling it for a relatively paltry arbitration award of $200,000 might not have been such a great idea.

Actually, the wall of silence goes beyond the parties of the lawsuit, those being Guillary (who's a member of a profession known as one police officer called it, "experts in our isolation") and the city's employees including Leach (who got really quiet once settlement talks started) and even the elected officials on the dais. But their collective silence is voluntary. Not so in the case of Vazquez whose silence one would guess is most involuntary because unlike the case with Guillary or the city, he's not given a choice whether to be silent or not. That's part and parcel of being what's called under the indemnity or legal protection of the city that employs him, but is the city really protecting him? The answer to that is fairly simple because the answer to that question, is no.

Incidentally, there were some anonymous comments in response to one of the Press Enterprise's articles on the recent Guillary settlement where people asked why didn't the publication "expose" Guillary's bad record in the LAPD? The answer to that is that it could no more do that than it could write anything that's in Vazquez' personnel file because both personnel records are protected by the same laws including the Peace Officers' Bill of Rights which was passed in response to abuses by the managements of law enforcement agencies on their officers but in recent years have become a double edged sword in cases like this, where demands are made to reveal information on Guillary's personnel file to *prove* it's his fault when by state law, no agency or city could engage in that practice anymore than anyone could do the same with Vazquez to *prove* it's his fault. But one major difference between the two police officers is who gets to choose to be quiet and who doesn't have that choice and it's clear which is which in this situation.

Who's the city really protecting, through its silence? Because if Vazquez did indeed do his job in a professional manner, then silence by the city isn't protecting him and pushing him to remain silent as a condition of employment and legal indemnity isn't really either. If the city's so certain that his position, its position is the right one, then the best way to protect Vazquez and to best ensure his rights is to take the case to trial in U.S. District Court. To show a little bit of that same level of energy it has shown in other cases where it has gone over city residents in a much more aggressive fashion as happened with Stansbury's organization and Friends of Riverside's Hills for example.

Settling a case is about preserving its own self interests and its view of any potential or perceived risk of civil liability. That's City Attorney Gregory Priamos' second highest mandate behind protecting the city council and mayor from exactly what he couldn't respond when someone asked him that question.

Silence after all, is a ready method of protecting one's self from a host of things including accountability to the public as well as transparency. And that's been the city's pattern and practice in litigation filed against it as an entity or because of the individual departments under its indemnity. And what does the city really have to be silent about to the extent that parties to civil litigation have to sign an agreement (and are willing to, and that goes for all parties) to zip their lips about it for a two year period? Is that the half-life that the city council and city attorney's office has attributed to the collective memory of a city? Is it more about protecting the interests of City Hall, the police department or the city's residents?

Will there ever be a trial date for any of these lawsuits? And it's not surprising if the city's insurance carrier is asking this question as well. That's if the city still has one.

Other settlements (that never saw a trial date):

Donetta Marie Smith: $36,500

Terry Rabb: $75,000

Lee Deante Brown: $300,000

Summer Marie Lane: $390,000

Douglas Steven Cloud: $800,000

Pending claims and lawsuits:

Daxius Gregory: Last settlement offer: $500,000

Kathryn Boesen: Claims for Damages

Michael E. Garcia: Claims for Damages

Marlon Acevedo: Claim for damages/lawsuit

Labor related lawsuits:

RPOA vs the City of Riverside, 2009

Lts. Darryl Hurt and Timothy Bacon vs the City of Riverside, 2008

Interestingly enough, at the site Rate My Cop, Guillary received quite a few "reviews" on his performance at a protest demonstration, based on eye witness accounts and several You Tube videos that aired across the internet. Riverside's probably fortunate that the 33,000 or so people who visited his profile didn't get wind of what allegedly happened on his property last year.

Who Read the "Another Day, Another RPD Arrested" Posting?

The blog postings on the situation involving the arrests in the police department particularly the posting referred to above have attracted quite a few visits including those involving referrals including from all over the country and governmental agencies including the United States Department of Justice, the California State Treasurer's office (which is the current haunt of former State Attorney General Bill Lockyer) and most recently, the California State Department of Justice/State Attorney General's office.

Interesting to see the people dropping on by.

Strategic Plan Meetings?

Speaking of the Riverside Police Department, it's still gathering information through this online survey to develop its upcoming strategic plan to implement, and you have until the end of the month to send it in. Also, you can pick up a hard copy of the same survey at the Orange Street Police Headquarters in downtown Riverside. It's important to fill out your survey and to turn it in.

I've received comments and questions about the planned meeting of "community leaders" at the Magnolia Police station that's been scheduled for the evening of Wednesday, Jan. 13. Folks, no I don't know how the list of community leaders invited to this meeting was comprised or why certain leaders weren't included on it or even if there are more of these meetings planned besides the one on that date. It's the police department's show and it's the department's choice what to put on the menu and who to invite. Sometimes it's hard to know whether to be flattered or offended by being left off the guest list and what to tell people about whether they should feel one way or the other, but that's a highly personalized decision that must be made by each individual person, designated community leader or not. But rather than look upon it as a slight akin to being left off the invite for a social gala, it should be seen as a wake up call to become more involved in what's going on with the department and its development and implementation of the strategic plan. It doesn't matter really whether you're invited to this meeting or that focus group, what matters is how you choose to become involved in the important issues that grab your attention and how you try to address the concerns that arise during the difficult times.

When you're not invited to the party, that's really the time that you need to be involved especially if you are community leaders but also city residents as well. Everyone has ideas, concerns, skills and insight to put into an important yet expansive process like the one involving the department's strategic plan. When State Attorney General Bill Lockyer said that city residents were partners in community policing, he didn't mean just the leadership.

You'll have to send your inquiries to Leach on how that process was carried out and how the leaders were chosen if you're interested in that process. Hopefully, there will be community forums for the general public, you know the 99.9999% of city residents who aren't designated community leaders. But regardless of whether or not you are branded leadership status or not, everyone has the capacity to be involved in improving their city.

Working through other community organizations and neighborhood watch groups is a great way to facilitate that process and begin to open it up to more people. I hear from people who want more information on the strategic planning process once they discovered that this important process was taking place. It's good that the police department is soliciting public opinion but it needs to continue to broaden its scope in a city with 350,000 people. Public outreach is always a good and important thing and the department's been doing that but it's always helpful to do more of it.

And you don't have to be "invited" to be involved. I for example have yet to be actually invited to any "community" police meeting in 10 years but if you wait for that invitation to come, you'll be waiting until your opportunities to provide public input pass you by. If you care about the issues and what's going on with the police department, including the strategic planning, then don't wait to get your engraved invitation, involve yourself in that process because what's sorely needed is more community input across the board. And in a sense, it's the responsibility of city residents to become more involved with what's going on in a city that doesn't always seem to welcome community participation. After all, this strategic plan part two was dead in the water only several months ago and even when it was somewhat revived, both Leach and his boss, City Manager Brad Hudson had very different ideas regarding how community input should be gathered and implemented.

If the police department freezes its staffing, civilian, sworn and supervisory, then it's important that the city residents don't wait to be invited to go to Magnolia Street Station and discuss something else. People should be contacting their elected officials and going to meetings on these issues which will increase during the next year due to an anticipated budget shortfall in the police department which may approach or reach the double digits in millions of dollars. If the city's being told that the Traffic Division for example is one of the highest priorities (and it's mentioned prominently in both strategic plans), then it should be filling its vacated traffic lieutenant position. The fact, that the department still advertises for a citizen academy that's essentially been disbanded for several years now.

But at any rate, the police department is starting to have meetings on the strategic plan development with "community leaders", maybe helping that the trickle down (or up) phenomenon will assist in getting the community's interests and concerns communicated to the police department through these leaders.

The rest of us city residents will have to wait and see as to how well and effectively these concerns and needs are communicated. Whether leaders will seriously be committed to making productive use of the department's time and facility for the meeting to provide good input even if that means that they risk never being invited to another such meeting again if it turns out that the meeting is more about what the department wants to hear rather than what it needs to hear. Will the "leaders" care more about what this will do to their reputations or that of the city and placing themselves in a good light to the city and the police department?

After all, with all the issues faced by the police department, how many of them have come forward to say in public what more than a few of them are thinking in private?

Is the Press Enterprise picking on Perris?

"They're dropping out like flies...."

Riverside City Hall and its Development Department

Coming soon....

And what will the Human Resources Board do? And what was the Human Resources Department's response?

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