When I first read the police account on April 24 of last year, I immediately questioned the veracity of the press release. Some of it was gut feeling and intuition. But some of it was that the scenario didn’t seem plausible.
The description was that they saw a large crowd, pulled close to the group to take action, then, “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.”
As we began to know more about what happened, I got a chance to see some video myself and I asked the Chief if he was certain about the initial report. He said, “We have clear video.” He called the reported attack “violent, unwarranted and illegal.”
For a long time, based on that statement, I believed that the police had to have video we hadn’t seen before. Around the time of the preliminary hearing, I learned that was untrue.
As more and more information came out, especially the video, there was a clear discrepancy between a number of the statements in the press release and the video.
By June, activists like Will Kelly were calling on the city to retract the statement. In a June 17 op-ed in the Vanguard, “The statement, entitled ‘Two Davis Police Officers Assaulted by Picnic Day Crowd,’ contains several false and misleading claims that have a direct bearing on the ongoing trial. The statement fails to provide any evidence or sources and since its release it has been directly contradicted by publicly available video evidence and multiple witness statements.”
It turns out the untrained and inexperienced activists were completely correct in many respects here. The report that we were allowed to see by Interim Auditor Mike Gennaco bears that out, as he reaches a similar conclusion to Mr. Kelly.
Mr. Gennaco writes that “even after concerns about the veracity of statements in the press release had been raised within days by the public and media, there was never a retraction, clarification, or apology provided regarding the inaccurate and misleading statements. As of the writing of this report, there has yet to be a public acknowledgement regarding the inaccuracies contained in the initial release.”
He writes, “DPD should formally retract the initial press release relating to the Picnic Day incident and apologize to its public for the inaccuracies contained therein.”
Some are going to wonder why we should focus on this part of the report. To me there are two things that happened – the first being the conduct of the officers, much of which is shielded by state law, but some of which is laid out in Mr. Gennaco’s report, namely that they mishandled the situation from the beginning.
But the second part is just as serious and it represents a fundamental institutional failure by the department. The public gets limited information on such incidents, by design of both the legal system and the police oversight system. What the public does get needs to be unequivocally accurate.
The problem here is that the press release acted in a way to attempt “to justify the actions of the officers.”
That was then backed up with the fact that Chief Pytel himself went around the community, often repeating these claims to various stakeholders as he appeared to attempt to do damage control.
As Mr. Gennaco writes, “a good deal of the information in the release was inaccurate or eventually not able to be proven.” He adds, “The damage to the Department’s credibility had already been done regardless, and contributed to concerns about DPD’s ability to investigate the case objectively.”
One issue that the interim auditor does not get into here is the fact that the department first hired former Sacramento Sheriff John McGinness to do the investigation. But for the investigative work of the Vanguard, he might have stayed in place and yet, amazingly, his reaction in a Sacramento Bee article was he’d seen “nothing that seems improper” in how police handled the Picnic Day situation.
That is certainly not what McGregor Scott and Mike Gennaco found.
The report from the interim auditor, meanwhile, focuses heavily on the inaccuracies in the press release, and I am going to focus on the most important ones that frame this issue.
The press release states, “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.”
However, Mr. Gennaco writes that one and probably two officers did not have clearly displayed badges on their chests and none of them had visibly displayed police weapons, and, in fact, at least one officer left his weapon inside the van.
This is critical, because part of the question was whether the police officers were identifiable as police officers to the crowd. The answer would appear to be no.
Next, “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.”
This is also critical, because the scene is very different. While the police vehicle did draw close to the crowd, and “a few individuals may have moved to the front of the van, it is inaccurate to describe the group as surrounding the van.”
To me this is one of the more egregious descriptions in the entire press release, because it creates a level of threat.
But perhaps just as important, we finally learn that the “threats” yelled from the crowd weren’t really threats at all. Mr. Gennaco writes, “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.’”
What is really interesting here is that Attorney Mark Reichel maintained that the first thing the cops did was yell “get the (expletive) off the road,” and the report backs this up.
The question about the simulation of a gun is still a puzzle. I’ve watched the video a number of times, there is some movement, but it’s not clear that it’s a simulation of a weapon and even the witnesses who come forward are giving conflicting statements. There is ammunition found, but not a weapon. Some believe that means the defendant discarded it, but one would think a gun would have been found if discarded near the scene.
Then there is the fact that they describe the “officer was struck with a bottle on the side of his head.”
Mr. Gennaco writes, “The above statement contained information that had 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.
Next, “The surrounding crowd was hostile and presented a serious threat to the officers, who were easily identifiable by their displayed badges and attire.”
Here again, the crowd never surrounded the officers and most of the crowd was not hostile or engaged with the officers, as “many can be described as onlookers.” Moreover, “Two of the officers were not easily identifiable by their displayed badges and attire, at least not at the beginning of the encounter.”
Further, “One [officer] suffered injuries to his eye and face and the other was treated for a bleeding head wound caused by a bottle.”
Mr. Gennaco writes that “neither 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.”
To me this description of being hit with a bottle – proven now to be inaccurate – was critical in shaping the early public view of this incident. But for the inadvertent dash cam video from a passerby, we might not know what really happened here and that is a scary prospect.
Still, I don’t think Chief Pytel, who writes a response to the report, goes far enough when he says 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.”
To me, we need to understand why information was released to the public – even after the video was available to the police – that was inaccurate, and why it was allowed to remain in the public space uncorrected.
It would be one thing if this was merely the chief getting inaccurate information from his men in the field. But in this case, even after video was available, he was putting out provably inaccurate information and using it to justify the actions of his police officers.
We need more than a retraction, we need an explanation and assurances that this will not happen again.
—David Greenwald reporting