In 2006, in the height of police controversies in Davis, I was strongly in favor of some form of civilian review of the police. I worried that the Police Ombudsman (now called Police Auditor) would be subjected to too much internal political pressure.
While there have been some problems over the last ten years, for the most part the police auditor model worked and the police department under the leadership mainly of Landy Black greatly improved its performance.
However, it is not a perfect model. Over the years, many people have been reluctant to come forward to talk to the police auditor. Many with legitimate complaints did not file those complaints. And now, with the police auditor leaving at the end of June, I am very concerned that the auditor will not be permitted to review the recent complaint on Picnic Day.
To me this is a matter of proper public process. I want to see two things come out of the current situation: first a fair and impartial investigation. That means by an entity that is not part of the police department and by an entity that most of the public can objectively believe could be impartial.
That does not mean I am wedded to a given outcome here – only that I want the process to be fair and unencumbered, as much as possible, by political and legal liability considerations.
The second thing that we need is a public report on what happened. There are certainly limitations legally as to what can be released, but if the university could release two reports from the pepper spray incident – one written by Kroll and the other by Cruz Reynoso’s Task Force, certainly the city can release a report with appropriate redactions.
We were hoping to have additional information by the end of the day on Friday. In response to a records request, the city exempted their available video from the Public Records Act.
However, they told the Vanguard, “The City has determined, however, that limited disclosure is necessary at this time to facilitate the City’s investigation of the incident. The City will disclose one of the videos in hopes of identifying additional witnesses to the incident. We will let you know when the video is ready for release.”
That has not been released yet, nor has an expected announcement as to who will conduct the investigation.
From what we now understand, the available video will likely be dash cam video. It is possible that the police have obtained more video from cell phones like the one the Vanguard has seen. There will probably be limited audio available, although, through which we might be able to hear the outset of the incident – which remains in mystery out of the view of the video we witnessed.
I see four main issues that need to be addressed.
The first has to do with officer use of profanity.
On the surface that may seem like a minor issue. We pulled up some research on the issue of profanity (this is from PoliceOne.com) – “Though some departments and training agencies have specific policies regarding use of profanity, many do not explicitly advise officers against it — which could create a poor image, if not an outright liability.”
The article cites those like Dr. George Thompson, who argues that “using profanity in law enforcement situations can ‘set someone off,’ make an officer appear unprofessional and uncontrolled, and have a negative impact on court proceedings. He further argued that intensity and tone of voice, facial expression and body language are the factors that provide emotional and behavioral impact more than a profane word itself.”
Another cite notes that, while the use of profanity “in and of itself, is not likely to be considered a constitutional violation” it may “sometimes be a factor in a court’s evaluation of whether a use of force is ‘reasonable’ under the Fourth Amendment.”
The most frequent sustained police complaint in Davis over the years has been the idea that officers did not act in the professional manner that is expected of them as Davis police.
A second and related issue will be the conduct of officers in civilian clothing. A lot of people have questioned the wisdom of the decision to put plainclothes officers at Picnic Day, when for the most part what you want is a visible police presence.
In this case, having officers in civilian clothing clearly added to the confusion at the scene. The suspects in this case claim they had no idea that these were police officers at the outset, although at some point, apparently, the officers did identify themselves – but not being in uniform clearly contributed to the problem.
There are two other issues that need to be addressed. In the video that I have seen, Angelica is placed in a headlock and is punched by a man who turned out to be an officer. There may be legitimate reasons for an officer to use what is referred to in police jargon as “a distraction blow” (a euphemism for a punch), but there needs to be an explanation as to why that occurred.
From the video, it appears that this conduct is what precipitated one of the suspects to intervene on behalf of the young woman.
Finally, it is unresolved why Elijah Williams, who is seen in the video standing and watching the confrontation, is engaged and allegedly punched from behind by one of the officers.
Again, in order for us to have confidence in these findings, there must be an appearance of actual impartiality by the investigator. It doesn’t make sense why that would not be the police auditor, but if there are reasons for that, then the person named must be beyond any question independent and impartial.
The police account from the start did not make sense. It is difficult to ascertain where the officers “encountered a large group of people in the roadway who were blocking traffic” but what boggles the mind is the claim that when the officers pulled near the group, “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.”
We certainly do not see this on video, we do not know what precipitated the incident, and on its surface the claim at best seems to be contrived and at worst an outright prevarication. The story has holes and we need to fill those holes.
There will be a larger issue beyond this incident and that is what happens with police oversight in Davis.
We would recommend the following: (1) A police auditor who reports to a council subcommittee directly rather than to the city manager. (2) A council subcommittee that would have the ability to ask their own questions and have access to files that civilians would not. (3) A civilian component that could meet in public, take public comment, request reports and updates and provide oversight with some transparency.
—David M. Greenwald reporting