It has been just two weeks under a year since the Picnic Day 2017 incident occurred. During that time, the incident has galvanized and, indeed, polarized the community. From the Vanguard’s perspective, reading the press release immediately raised suspicion about the incident. Upon the release of video, it became very clear that what took place was not what was described in that initial press release.
The auditor’s report, while not the same thing as the investigative report by McGregor Scott while he was with Orrick, Herrington & Sutcliffe, does shed light on what took place and largely validates the belief that the officers inappropriately approached the situation, their aggressive approach to clearing the street in plainclothes was in violation of department policy, the use of rude language was confirmed, and, most interestingly, Mike Gennaco’s report hammers the DPD on their release of inaccurate or unconfirmed information in the press release.
However, they do not sustain the use of force violation. Unfortunately, Mr. Gennaco really doesn’t explain that finding in his audit report. He instead focuses on the three sustained findings, and also spends a good deal of time evaluating both the initial investigation as well as the OH&S report.
In a lot of ways, this is a bit of nitpicking on my part to take issue with the lack of a finding on the use of force, but I also believe it illustrates a problem with how police agencies view use of force in general.
Too often, as we watch police incidents that end with fatalities – even ones where the officers end up being cleared of wrongdoing either by the department, by the lack of prosecution, or by a jury verdict – they often will take a situation, mishandle and escalate, and then basically be forced to use deadly force.
In the final instant moment, the use of force may well be justified, but that missed everything that led up to that decision to use the force.
I want to be clear – based on Mr. Gennaco’s report, I think this is a strong finding. The officers on the scene and the department itself made a series of critical errors that they will now have to answer to publicly.
But I do worry that the decision to clear the officers on their use of force – even though I do think they made a solid decision to restrain themselves from the use of deadly force here – is in error.
There is an understanding developing that the ability to use force by the police needs to be revised. I find it interesting to view the nexus between the finding here in Davis and the legislation proposed this week by Assemblymember Shirley Weber that would establish “that a homicide by a peace officer is not justified if the officer’s gross negligence contributed to making the force ‘necessary.’”
That is really what we see here – a mishandled situation that led to the use of force by officers, when proper handling might well have avoided that.
Here Mike Gennaco really hammers the officers, writing 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.”
What is particularly frightening is that apparently, according to Mr. Gennaco, “[t]he involved officers initially decided to clear the roadway the way they did because they were driving a recently acquired undercover van and did not want to ‘burn’ it.”
That decision, perhaps even more than the uncertainty caused by the identity confusion, illustrates why plainclothes officers should not be involved in this sort of activity. It also demonstrates once and for all that they were trying to conceal their identities at the initial point.
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 averted the resulting clash.”
It is important to understand that Mr. Gennaco is not attempting to evaluate the conduct of the crowd members, but rather that of the officers, and he is arguing that the involved officers created a bigger problem with their approach.
He adds that “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.”
And the officers made a number of other mistakes here.
He notes, “As the van approached the crowd spilling over into the number two lane, one of the involved officers appropriately radioed to dispatch to have marked cars respond to assist in clearing the roadway. However, instead of waiting until the patrol units could respond, the involved officers decided to take action.”
A point that we noted previously was that “the decision by officers to position the van so close to the crowd left them with no good tactical options.”
And then there is the use of profanity. He writes that “the (use of profanity) unnecessarily caused potential confusion to crowd members about whether the occupants of the van were police and unnecessarily escalated the situation contrary to DPD’s training emphasis on de-escalation.”
This is a good observation because it illustrates two problems with the profanity. The first and obvious one is that it inflamed and escalated the situation. The second and less obvious one is that, because profanity is unprofessional, it led to further confusion as to who these guys were.
It becomes clear that the officers are trying to hide their identity, the crowd had reason to believe these were “obnoxious civilians” rather than law enforcement officers, and that led to the melee that would take place.
So how do you take issue with the officers escalating and perhaps instigating the situation, and then say their use of force was appropriate? It was appropriate in that they didn’t use excessive or deadly force in the situation. But the fact that they had to use any force at all represents a profound failure on their part to manage the situation.
Mr. Gennaco opines that a better and more thoughtful approach would “likely have limited (or) averted the resulting clash.”
From the report: “Better approaches are easy enough to envision. Either the involved officers could have waited for responding uniformed officers to arrive or they all could have donned their tactical gear which would have more identified themselves as police officers, parked the van a near distance, alighted from the van, clearly announced themselves as police officers, and requested the crowd to move up onto the sidewalk.”
From there, he argues that the strategy “only served to antagonize” and it “caused a hostile initial reaction by some crowd members that was both unfortunate and unsurprising.”
That being the case, in the totality of the situation, how do you justify the use of force?
While I understand the finding – even if Mr. Gennaco doesn’t go into that part of the report – I think, based on the approach to the situation, force was used in a situation in which it should have never been necessary.
—David M. Greenwald reporting