Last week, the ACLU sent a letter to Superintendent Winfred Roberson alleging that on the morning of May 12, 2011, a Davis High Student, Alana de Hinojosa “was pulled out of her class at Davis High in front of her teacher and all her classmates, and escorted by a school staff member to the office of the head campus supervisor. There, Ms. de Hinojosa was questioned by a sworn officer of the Davis Police Department, Officer Ellsworth, the High School’s vice-principal, and another school staff member about her newspaper article.”
Ms. de Hinojosa spoke to the Vanguard late last week. In her account she described the Davis police officer, Officer Ellsworth, as threatening her with legal and other consequences should she not turn over the names of individuals she interviewed when she wrote an article on graffiti artists and taggers.
She also described a school district individual – supposedly acting in loco parentis (in the place of the parent) with a stated policy of having a staff member appear at interviews with police as an advocate, but who acted more as co-conspirator than advocate.
To be fair, both the Davis Police Department and school district deny the charges made by the ACLU. Superintendent Roberson disagrees with the ACLU’s letter and called their report “one-sided.”
Lt. Paul Doroshov of the Davis Police Department told the Vanguard, “Davis Police Officers are trained to preserve and protect student rights…and always follow the law. Such was the case with regard to the situation the ALCU commented on.”
He added, “The alleged facts as cited by the ACLU statement, which relies on only one side of the story, differ significantly from the facts as we understand them to be.”
On April 27, 2011, an article in the Davis High HUB entitled “Art or Vandalism,” was written under the byline of Alana de Hinojosa, Editor-in-Chief. The article featured actual photos of what some considered gang taggings.
Ms. de Hinojosa described herself as a fan of graffiti. “I think that there are a lot of graffiti artists who are I believe are true artists and I think they have a message.”
“I think that graffiti has a story to tell and I don’t think there are many people that are open to that or believe that,” she said.
She said that she did not expect any issues, however she is glad she did not do what she originally intended, which was to go out with these individuals on their excursion and report on her observations.
“I talked to my advisor, she advised that I not do that,” Ms. De Hinojosa said. “I’m very happy that I did not.”
“Other than that, I knew I had done nothing wrong,” she said. She thought that if she did not disclose any names, that no one would get into trouble. She presented both sides of the story.
“I didn’t expect there’d be any trouble at all and even when I was pulled out of class and asked why I was being pulled out of class, I wasn’t told,” she said.
She was pulled out of class by a campus supervisor but he refused to tell her why she was being pulled out of class.
“I was told to go to the head campus supervisor’s office,” she said. “I went there, that woman was there and I asked her and she said that I would have to wait. And she didn’t tell me why I was in that room.”
She waited in the room for ten minutes when finally the Vice Principle, Campus Supervisor and SRO (Student Resource Officer) walked into the room.
“I still did not know what was happening until that officer pulled out a copy of my article and put it on the desk right in front of me,” Ms. De Hinojosa described.
She continued, “He said, ‘This is a very serious matter, you need to comply with what I ask you to do. If you don’t, there will be very serious consequences.’ And then he began asking me a lot of questions.”
This was not a friendly conversation. From the start, the officer was threatening her with very serious consequences should she not comply.
“He was doing his job. I understand that this officer was simply doing his job and I get that,” she said. “But he coerced me, he intimidated me and he lied to me.”
“I said I was sorry. I [had] explained to these individuals that I would not give out their names. I gave them my word. I won’t go against my word,” she explained. “I know that I’m a student journalist and that I have First Amendment rights. I’m not going to disclose these people’s names.”
“As soon as I said that, he began telling me that I would be liable in court, that the court would easily force me to give their names and that I would have a felony charge on my name,” she said.
At no point did she think to ask for an attorney. Instead, “As he was telling me these things, I just continued to apologize and say I’m sorry I can’t help you, but that wasn’t good enough. He continued to work me and continued to intimidate and threaten me.”
After an hour in the room, Officer Ellsworth finally told Alana de Hinojosa that she could leave and return to class. But only after they confiscated her cell phone, and it would not be returned until an hour after school ended.
“Soon after this incident, I was pulled out again by Officer Ellsworth and this time I was in a room with just him, which I now know is against school board policy,” she said.
She told the Vanguard that Pam Mari had told her, “The district has followed policy because they had school staff personnel in the room with me. According to school policy if a student is being questioned by the police, a staff member needs to be there to support that student.”
The key point is that the staff member is supposed to act as an advocate for students and protect their lives. However, as Alana de Hinojosa describes it, the staff member worked with the officer to get her to give up the information.
“In the first incident, the simple body language told me these staff members were not on my side. They were on the other side of the room, beside where the officer was and they were not only inside the other room facing me but they were saying things that the officer was saying, they were telling me I should help this officer,” she said.
She continued, “I remember that [the staff member was] talking about how upset she gets… how it is a crime and an awful thing to do. They made me feel like an awful person for refusing to comply with what this officer was telling me.”
Worse yet, the second incident had no staff present at all, a clear violation of district policy.
“So, in the second incident it was just me and Officer Ellsworth. It makes me wonder if the staff was even aware that he even pulled me out that second time,” she said.
It was after the second time that she realized that she needed help. The first time had scared and worried her, but she was unsure that its severity required her to reach out for help.
“After I was pulled out the second time and Officer Ellsworth told me that this case has become a full blown investigation and that I would go to court and that I will have a felony charge if I did not provide them the names this time,” she said.
It was this time that she said that she needed her parents and legal counsel to be here with her. She told Officer Ellsworth that she would not talk unless one of those people were present with her.
He told her fine, but “you are eventually going to have to tell me these things, you know that, right?”
“I said I’m sorry I can’t talk to you right now, and I left and that’s when I called the ACLU of Northern California. I spoke to someone on the phone and explained to him what happened,” she continued.
Three hours later Linda Lye of the ACLU, who is serving as her current attorney, would call her back.
Once she called the ACLU and the ACLU sent a short letter to the school district, the efforts of the officers to come after her stopped.
“It just didn’t make sense for the school to comply with what this officer was doing when it didn’t happen on school grounds,” she said, “I have journalism rights protecting me, I have student rights protecting me, and this is also for the convenience of the officer.”
“I think they realized I didn’t do anything worth pursuing after that and I believe at least the police department understood that as well. So nothing happened after that,” she said.
She said that she wants the public to understand that she was an adult at the time that this happened, she was taking AP Government and studying journalism.
“For two years, I knew my rights, I understand that and I understand the school is not required to give me my Miranda rights, my Miranda warnings. But I just feel, I feel very strongly that the school acting as loco parentis shouldn’t have let that happen,” she said.
“I felt like trash in that room,” she added. “I was so stripped down to the very core that I felt so vulnerable, that I had no option. I had actually no options and I wasn’t told that I could leave, or told that I could call my parents.”
In the letter to Superintendent Roberson that the Vanguard obtained, the ACLU wrote, “We have grave concerns about recent incidents in which these students [referring to the photographer in this incident] were removed from class and subjected to prolonged, coercive interrogations, without parental consent or prior notification.”
“Each student was taken to a private office where they were confronted by a uniformed police officer from the Davis Police Department and high level school officials, who used threat and intimidation to pressure the students to provide information about suspected off-campus conduct by other students,” the letter continued.
“Neither student was suspected of any wrongdoing,” they added.
Critically, they pointed out that the activities the students participated in are “protected by the First Amendment and California Constitution,” however, they were “made to feel like criminals for attempting to exercise their constitutional right to remain silent. Indeed, they were not even afforded the rights owed to actual criminal suspects.”
The ACLU in their letter asked for four changes to school policies: (1) Revise existing policies on police interrogations; (2) Train school personnel about students’ rights with respect to law enforcement officers; (3) Advise students of their rights with respect to law enforcement officers before any on-campus police interrogations; and (4) Prohibit law enforcement personnel from interrogating students on District property without first obtaining parental consent.
Superintendent Roberson responded, “The district has attempted and continues to shape its policies and practices regarding the questioning of students on campus by law enforcement to cooperate with police investigations, maintain and uphold student rights and ensure that the district itself is acting in accord with the law.”
He added, “Public school officials have a duty to cooperate with police investigations.”
Furthermore, he argued that the district already works to provide “ongoing training about students’ rights to personnel that interacts with law enforcement officers.”
In terms of the question about the questioning of students, he offered that it is currently “the district’s policy to stay with the student during the interview unless the student declines or our presence is prohibited on statutory grounds. This is required Protocol for Police Investigations.”
Mr. Roberson added, “District policy requires (BP 5145.11 and BP 5145.12) that parents and/or guardians are notified as soon as possible when a law enforcement officer interviews a student on school premises. However, school personnel are required by law to refrain from willfully resisting, delaying or obstructing law enforcement personnel in the discharge of their official duties.”
“California law has long recognized that law enforcement personnel have the right to question students at school without parental consent,” he added.
Superintendent Roberson further pointed out, “If a student is removed from school grounds by a peace officer, law enforcement is required to notify parents and/or custodians of the student’s removal. In addition, the district’s policy and practice is to also immediately notify parents of the student’s contact with and removal by law enforcement.”
However, the Sacramento Bee talked to a couple of legal experts who questioned the district’s actions.
Gabriel Chin, a UC Davis law professor, told the Bee he deemed the district’s actions as “dubious.”
Hospitals have similar obligations not to hinder investigations, “but that doesn’t mean they pull somebody out of an operation,” he told the paper.
Furthermore, Samantha Buckingham, a professor at Loyola Law School, indicated that students questioned at school by police is not only unusual, but clearly in this case was not justified.
The district has argued that, “Those facts don’t line up with ours.” However, at the same time, they would not go into details.
Alana de Hinojosa proved to be articulate, calm and detailed in her account. The district needs to figure out if district policies were followed. Others have told the Vanguard that for some time the district has been warned that their policies and the protections provided to students are inadequate.
Moreover, there have been concerns about the level of appropriateness it is to have a School Resource Officer. The idea is to have a closer relationship between police and students; however, incidents like this can undermine that level of trust.
In light of that, the Vanguard asked Superintendent Roberson his level of comfort with the role that the Davis Police Department plays on high school campuses.
“We’re fortunate,” Superintendent Roberson explained to the Vanguard, “Davis PD works with the school district and we do have a resource officer at our secondary schools.”
“I am comfortable with the role that the Davis Police Department [plays] and our partnership,” he said. “Our resource officer is exactly that, he is a resource for students as well as our staff there at the site.”
As we noted yesterday, we may never know the truth as to what happened in this incident, and that is a concerning possibility. From what Ms. de Hinojosa described, however, it is concerning that an SRO would be conducting an interview with a student, using those kinds of heavy handed tactics – regardless of whether or not he was legally permitted to do so.
The ACLU remains concerned that actions by the police and school officers were prompted by the lawful exercise of the students’ constitutionally protected right to report on newsworthy issues.
“Relatedly, the use of threats and intimidation during the interrogations interfered with both students’ exercise of their rights – to write newspaper articles, to assist others in doing so, to make documentary films, and to decline to answer questions by law enforcement or other government officials,” Ms. Lye wrote in the letter to the district.
“In this regard, Officer Ellsworth and District personnel violated the Bane Act, which prohibits interference or attempts to interfere ‘with the exercise or enjoyment’ of federal or state rights ‘by threats, intimidation, or coercion,’ ” the letter continued.
“We expect our schools to educate our children, not criminalize them,” said Ms. Lye in the ACLU’s press release.
—David M. Greenwald reporting