Gennaco Faults Officers for Approach, Use of Profanity and Putting Out Inaccurate Press Release
It has been just a few weeks short of a year since the April 22, 2017, Picnic Day incident and, while many will be unhappy that they will not have the opportunity to read the report by McGregor Scott, the 23-page report from Interim Auditor Michael Gennaco on the review of the Picnic Day 2017 incident investigation pulls no punches in its criticism of how the incident was handled from start to finish.
The interim auditor issues forth ten recommendations based on the report, and Chief Darren Pytel acknowledges a number of failures on the part of his department and himself (here).
Findings and Synopsis of Report
The findings are that there is a violation of plainclothes policy relating to officer identification, sustained by two officers; a violation of policy prohibiting use of rude language, also sustained for two officers; and a violation of policy on press releases, sustained against DPD.
However, they do not sustain a violation on the use of force or biased-based profiling.
As the Vanguard and others have maintained, Mr. Gennaco argues that “the ‘plan’ the involved officers had initially devised to clear the crowd was inherently problematic, and it largely set the stage for what happened next.”
He argues that “while it is fair to say that the aggressive response of some members of the crowd towards the van occupants was also problematic – and formed the basis for subsequent criminal charges – a more thoughtful approach by the involved officers in addressing the blockage of the roadway would likely have limited (or) averted the resulting clash.”
He notes a number of alternatives, arguing “the poorly devised strategy only served to antagonize. It caused a hostile initial reaction by some crowd members that was both unfortunate and unsurprising: instead of officers, the van’s occupants were as or more likely to be perceived as obnoxious civilians interrupting a festive event without justification. The use of profanity by one of the involved officers would only have escalated this impression and response.”
He adds, “When one of the involved officers observed what he asserted to be an aggressive move by one of the crowd members, their earlier decisions had precipitated a conflict situation with no good options.”
Mr. Gennaco continues: “The regrettable result was a melee in which plain clothes officers found themselves at a significant disadvantage, especially given that two of them did not have clearly displayed identification nor chose to don tactical vests.”
Mr. Gennaco notes that two days after the incident DPD issued a press release “that attempted to justify the actions of the officers.” He writes, “Almost immediately, though, questions were raised about the accuracy of information contained in the media release. As described below, these challenges were justified: a good deal of the information in the release was inaccurate or eventually not able to be proven.”
He faults the department for failing to correct the inaccuracies in the initial account and failing to include in public communication “any concern about officer performance or move to correct the inaccurate information put out in the initial press release.”
The interim auditor went so far as to criticize the failure of the city leadership to inform the public to the extent to which the investigative report would be made available to public. He writes, “As a result, when there was a change in City leadership and it was finally clarified that the outside investigative report would not and could not be released, this news added to public frustration about the case.”
The first two recommendations, therefore, are that “DPD should refrain from releasing information in defense of officers’ actions until the information has been verified and vetted.”
Second, “When it is learned that the performance of officers in a critical incident was not consistent with Departmental expectations, DPD should acknowledge this, and should correct any inaccurate information it has previously shared.”
The interim auditor writes, “Because the press release contained information that was clearly inaccurate or had not yet been established by the investigation, it helped to foment public distrust in the Department’s ability to fairly evaluate and report on the incident.”
He identifies a number of clear inaccuracies in the press release.
“One officer was wearing police attire with visible badge and the other two were wearing plainclothes, although they had clearly displayed badges on their chests and visible police weapons.”
The above statement is inaccurate in the following ways:
- At least one officer did not have a clearly displayed badge on his chest, at least not during the initial stage of the encounter.
- None of the officers had visibly displayed police weapons.
“Before the officers could act, the unmarked police vehicle was surrounded by a large hostile group and several subjects began to yell threats at the police officers in the car.”
The above statement is inaccurate/incomplete as follows:
- It is more accurate to say that the unmarked police vehicle drew very close to the crowd. While a few individuals may have moved to the front of the van, it is inaccurate to describe the group as surrounding the van.
- The press release fails to acknowledge that the “threats” that certain members of the crowd yelled were “f*** you” and “what’s up” and occurred after the van drove close to the crowd. The press release also fails to note that the passenger officer replied to these remarks by ordering the crowd to “hey, get out of the road” and “get out of the f***ing road.”
“One subject quickly moved to simulate he was pulling a gun on the officers.”
The above statement is imprecise as follows:
- Various DPD witnesses, civilian witnesses, and DPD personnel who viewed video of the incident described the action of this individual as:
- Lowering hands
- Reaching quickly in pocket for gun or phone
- Dropped hands as if to clear his clothes out of the way
- Left hand began to raise his shirt, and his right hand immediately went beneath his shirt, at his waist line, as if he had a gun.
Mr. Gennaco writes, “No witness described the action as the person ‘simulating’ the ‘pulling’ of a gun.”
“While on the ground, the officers were kicked, punched in the head, and one officer was struck with a bottle on the side of his head.”
He writes, “The above statement contained information that was not been proven at the time of the release and was never established.” We learn that “while a person provided a bottle to one of the involved officers and told the officer that he had been hit by that bottle, that witness was never identified and the investigation was unable to prove that the officer had been struck by a bottle during the incident.”
Hence, that conduct was never charged by the district attorney.
“The surrounding crowd was hostile and presented a serious threat to the officers, who were easily identifiable by their displayed badges and attire.”
The above statement is inaccurate/misleading as follows:
- As noted above, the crowd did not “surround” the officers.
- Not everyone in the crowd was hostile; many can be described as onlookers.
- Two of the officers were not easily identifiable by their displayed badges and attire, at least not at the beginning of the encounter.
“One [officer] suffered injuries to his eye and face and the other was treated for a bleeding head wound caused by a bottle.”
He writes, “[N]either at the time of the press release or at any time during the investigation was it able to be proven that the officer was definitively struck with a bottle, let alone that it caused his bleeding head wound.”
Mr. Gennaco recommends, “[A]s belated as it is, DPD should formally retract the initial press release and apologize for the inaccuracies contained therein.”
Chief Pytel’s Statement
Police Chief Darren Pytel noted that by mid-morning Tuesday, April 25, three days after the initial incident and one day after the press release, “the press began contacting the Davis Police Department for additional information regarding the incident and for a response to claims by involved parties/witnesses who reported to the media new and differing accounts of the incident.”
The media reported general claims which were: (1) that the police officers instigated the incident; (2) the officers were unrecognizable as the police because they did not identify themselves and were in plainclothes driving an unmarked police vehicle; (3) there was racial bias involved; (4) the force used in the arrests was excessive; and (5) the preliminary release of information put out by the Police Department on Monday April 24, 2017, at 3:45 p.m. was inaccurate.
He writes, “At that point in time, it was apparent to the Department there were conflicting accounts of the incident.”
Chief Pytel regrets the amount of time that transpired from the beginning of the investigative process and calls “regrettable” the “lack of early and clear communication to the community around timing and expectations.”
He writes, “In this instance, certain decisions and resulting acts by some of the officers involved in the Picnic Day incident did not meet the highest standards of conduct and service we expect from members of the Davis Police Department.”
In particular he identifies the following: “the use of inappropriate language by one of the officers; and that two of the officers while in the van were not initially identifiable as police officers. These factors played a role in the initial confusion regarding whether the officers in the van were the police.
“The actions are regrettable and I apologize for these breaches of Departmental policy and the impact that it had on those involved in the incident and our community.”
He added that “some of the information released to the public following the picnic day incident was determined to be inaccurate, poorly worded and/or not objective, none of which are acceptable.
“The initial press release is retracted in its entirety,” he says. “The release has been removed from the police department website.
He adds, “I apologize that inaccurate/misleading information was released in this incident and not timely corrected by the Office of the Police Chief. Ultimately, it is the responsibility of the Office of the Police Chief to determine that only accurate and pertinent information is released.”
Attorney Mark Reichel, who represented one of those arrested, stated, “As servants of the public, who pay their salaries, the public demands that their employees, like Chief Pytel, conduct themselves in an honest fashion.
“The intentional lies made as a public statement from the Davis Police Department had tragic consequences. Often, the first message heard by the public, especially if an official statement from law enforcement, sets the tone for the public’s reception of future information about an incident. That’s not rocket science.
“Most people still recite what they heard that day from the PIO. Youth of color are a distinct minority in Davis, and nationwide police conduct toward young men of color is something of a national crisis.
“The lies told that day inflamed hatred and racist views in the public eye. It is a stain on that department which will not soon be bleached out. I know the City of Davis can do better, and hope something like this never happens again.”
Mayor Robb Davis said, “I’m thankful for its clarity and its specific recommendations. It is a model for how we can view of the role of an auditor going forward. It deals with many of the expectations I laid out in the aftermath of the incident.”
Councilmember Will Arnold added, “I appreciate the fine work conducted by our Police Auditor, and others, in preparing this thorough report of the Picnic Day incident. I believe it sheds light on a number of important details, and highlights some critical mistakes that were made. I am also appreciative of the many proactive policy steps that have already been taken to ensure an incident like this does not reoccur.
“Finally, I would like to express appreciation for the willingness of our Police Chief to accept personal responsibility for certain aspects of this incident in which he was directly involved, and which were clearly problematic. I am encouraged by the progressive policy direction our Department has taken under Chief Pytel’s leadership, as evidenced by our recently adopted Surveillance Technology Ordinance, and the ongoing police oversight and accountability process. We are very fortunate to have a Police Chief who is willing partner in these processes, and I look forward to our continued positive working relationship.”
The Vanguard will have much more in the coming days.
—David M. Greenwald reporting