Commentary: An Inappropriate Choice to Head the Investigation

Three one-on-one fights

When Davis hired a police ombudsman (now called an auditor) back in 2006, Bob Aaronson was contracted to perform a number of tasks including “review of various completed police department investigations, review of department policies and practices, intake of citizen complaints about the police department as necessary, and investigation of citizen complaints as necessary.”

While Mr. Aaronson has announced that he is not going to renew his contract when it expires at the end of June, he remains under contract until then.

That immediately raises the question as to why the city hired former Sacramento County Sheriff John McGinness.  The need to hire an independent investigator is that community trust depends on the appearance of impartiality – the notion that the case will be evaluated on the basis of facts and evidence rather than with an eye on issues such as liability.

But at the same time, there must be an appearance that the individual involved give the matters a fair hearing.  When I heard that a retired police officer would be the one conducting this review, I was immediately suspicious.  When I heard it was John McGinness, I became utterly alarmed.

Mr. McGinness served just one term as Sacramento Sheriff, from 2006 to 2010.

A 2005 Sacramento Bee article highlighted a serious of complaints in the Sacramento jail, caught on video, depicting potential misconduct under the watch of Mr. McGinness, then the under-sheriff.

While Mr. McGinness at the time declined to comment on the specific incidents, “Sacramento NAACP President Betty Williams, who watched the videotapes earlier, said she was sickened by the violence they depict.”

Mr. McGinness noted in the interview that “deputies are authorized to use force when necessary.” “It is imperative that officers maintain control in the interest of protecting the safety of the inmates, the staff and the public who are being protected from the inmates,” he said.

The Bee reported, “The Sheriff’s Department did not conduct internal investigations in either the Afshar or Constantin cases, though both injured men were transported to the hospital for emergency care.”

Bret Daniels, a former deputy sheriff who ran four times for the post, including against Mr. McGinness, and is currently on the Citrus Heights City Council, posted, “Well, they couldn’t have picked much of a less-qualified person. He has the gift of gab which gives him an audience but really very little practical law enforcement experience.”

Last year, the Bee reported that jurors awarded $3.6 million in damages to four female sheriff’s deputies “who claimed their Sheriff’s Department superiors retaliated against them for speaking out against discrimination and preferential treatment in their ranks – conduct alleged to have occurred largely under [Scott] Jones while he ran the Sacramento County Main Jail as a captain and later when he was elected sheriff.“

The Bee notes, “Jurors also rejected lengthy testimony from a stream of past and present Sheriff’s Department brass under whose watch the alleged bias occurred, including Jones and former Sheriff John McGinness.”

In addition to a number of lawsuits for excessive force under McGinness’ watch as under-sheriff and sheriff, there are his general views on policing that do not appear congruent with the need to maintain objectivity as an independent investigator.

He is frequently used in the media to defend law enforcement against charges of excessive force.

Responding to a lawsuit in 2014 against a deputy accused of excessive force, Mr. McGinness cautioned the public “to not take the video White shot at face value. McGinness himself questions Reyes’ behavior, character and motives.”

“Had the person complied with the lawful directions of the officer, there would have been no force used what-so-ever,” Mr. McGinness said.

As a radio host, he been outspoken against the notion that racial profiling exists.  For example, in a May 4 radio show on the conservative KFBK radio station, he talked about disproportionate vehicle code enforcement in Sacramento – the greater likelihood of being stopped or cited if you are African American.

“That doesn’t tell the whole story,” he explained.  “I don’t see that as empirical data.”

He cited one case of a guy who claimed to have been stopped 30 times in a year on vehicle stops but was only cited two or three times.  He responded, “If you are bringing vehicle code violations to the equation, you should expect that there’s a high degree of probability that you’re going to be stopped.”

He then talked about the Broken Window Theory – the highly controversial theory that by policing low level crimes, you deter larger and more violent crimes.  “Guess what,” he says.  “It seems to have worked.”

Never mind that numerous studies have called this into question, including one from last year that found, “The rate of summonses and arrests for minor quality-of-life crimes like disorderly conduct, public urination and open-container violations had no real impact in driving down felonies over the past six years.”

But Mr. McGinness, on his radio show, argued that this has been part of successful policing in the Sacramento area for years and that he has been part of that effort.

He cited stats which show that, while only 13 percent of the adult population in Sacramento is black, one-third of traffic stops involve black drivers.  He continued that one in four blacks are stopped, but police have stopped only one out of every 17 white adults annually.

He says “there are some undeniable factors that present different scenarios in communities based upon poverty, parental influence, education, and at the center of that is often times racial disparity.”  He says that young black people are less likely to have attendance rates and graduates as their white counterparts, “so should it be completely outside the realm of possibility to suggest that there therefore may be different behaviors displayed on the part of young drivers… maybe not because of ethnicity, but reflect disparity because of living conditions, lifestyles, and options with which they’re saddled.”

We can debate whether Mr. McGinness is correct here, but he is basically making the standard argument that the issue is not racial profiling, it’s higher crime rates that leads young black drivers to come into more frequent conduct with police.

The point here is that Mr. McGinness comes to this investigation with a strong bias toward law enforcement tactics.

Having watched now two videos, what happened is not black and white.  What happened is going to be subject to interpretation.

Police Chief Darren Pytel has argued that there is “clear video evidence” as to what happened.  I don’t see anything that is that clear.

As Rich Rifkin put it in a comment yesterday, and Mr. Rifkin and I have long disagreed on these matters, “I have now watched the dashcam footage five times and I don’t see ‘clear video evidence’ corroborating the officers’ version of events or any ‘suspect’ lifting his shirt to motion that he had a gun.”

He also notes, “If in fact there was ‘clear video evidence,’ there would be no need for an internal affairs investigation or an investigation by former Sacramento Sheriff John McGuinness.”

I would go a step further and argue the reason you bring on someone with Mr. McGinness’ clear political bent to support law enforcement’s version of event is to put a finger on the scale.

To me, there are still a lot of questions as to how the events of this incident unfolded.  But with Mr. McGinness as the investigator, I have little confidence that the outcome will be based on evidence and the facts rather than Mr. McGinness’ rather strong opinions.

There needs to be a clear accounting as to why the officers arrived on the scene in the manner that they did in plain clothing, where their identity was at least ambiguous.

There needs to be discussion about the need for further training on de-escalation techniques.

And there needs to be a clear questioning as to whether a better approach could have avoided this incident all together.

I waited to see who would be named because, while I would have preferred a civilian and professional police investigator like Bob Aaronson, there are a number of law enforcement officials that I know who would have been very good choices.

John McGinness has neither the background nor the experience nor the disposition to be someone whose conclusions we can trust, and therefore he is an extraordinarily poor choice to investigate this matter.

The worst part is we have an independent police auditor under contract precisely for these situations, and Chief Pytel CHOSE not to use him.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. Keith O

    I don’t understand either why we don’t use the guy that we already have under contract if nothing else from a cost standpoint.

    I see the Vanguard used Rifkin’s Enterprise comment quotes.  David, Rifkin has one comment that is very hard hitting and I feel needs to be addressed.  Why didn’t you cite that?

        1. Keith O

          That’s what I felt you might be thinking because I know that you respect Pytel.   But you have to admit Rifkin’s comment does make a point and hit hard.

  2. John Hobbs

    “The worst part is we have an independent police auditor under contract precisely for these situations and Chief Pytel CHOSE not to use him.”

    Disappointing and rather telling about Pytel’s nature.

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