Commentary: Incident Shows Us that Once the Well is Poisoned, It Is Hard to Restore Faith in the System

Chief Darren Pytel issued an apology

When the Westergaards first approached me two years ago, they were very frustrated, not only with the result of the police investigation into the very serious collision in which Deb Westergaard suffered very serious injuries, but they felt that the investigation was flawed and that the police were biased against them.

Over two years after the April 28, 2016, collision we finally have answers.  Here I will focus mainly on the flaws of the police investigation, because I believe they very heavily contributed to the distrust that the Westergaards have in the findings of the main investigation into fault.

The very thorough 23-page report by Interim Auditor Michael Gennaco shows many lessons that should be learned – lessons that show what could have been avoided through common sense.  Would the Westergaards have accepted a somewhat counter-intuitive investigation conclusion that went against them, had the police done their due diligence and treated them with the respect they deserved from the start?  It is hard to know.

But the lesson here screams the fact that, without doing that due diligence, faith in the process has been undermined.  My experience is that people will accept adverse findings if they believe the process was fair and reasonable.

I will add one further point here – the city needs to reconsider that crossing on F Street – a crossing that kids and bicyclists use.  The problem that I have with the finding of fault here is that, while it may be true that Deb Westergaard only gave the driver about two to three seconds to react to her presence in the crosswalk, the driver was traveling above the speed limit by most determinations – whether it was 5 or 10 mph above remains a matter of some dispute and he was traveling 30-31 (in a posted 25 zone) when he struck her, admitting also that he was looking over his right shoulder to merge.

Consider that if he had been looking forward the whole time and traveling the speed limit, would he have seen the pedestrian before she entered the roadway, anticipated her entry, and been better prepared to react?  Too much speculation perhaps, but when assessing fault here, it would seem that fault should be more evenly shared.

Remember, Mr. Gennaco did not rule that Ms. Westergaard was at fault, only that he didn’t have enough to overturn the judgment of the DPD – which conclusion he found reasonable, even with the flaws in their investigation.

What I found interesting is that the complaints made by the Westergaards – for the most part – were upheld by the police.  She complained that the supervisor failed to interview her and get her statement.  She complained that the supervisor made comments to her that were inappropriate, such as marathon runners being risk takers.  The police failed to properly document interviews.

Mr. Gennaco concluded the following.  First, because of the failure to interview her, “the spouse and pedestrian rightly concluded that DPD had made a determination of ‘fault’ without providing the pedestrian the full opportunity to set out her version of the incident. It understandably raised skepticism about the thoroughness of the initial DPD investigation.”

Furthermore, regarding the “risk-taker” comment, Mr. Gennaco concludes that “the comment was best left unsaid as it created the impression that the supervisor had already adjudged the pedestrian as a ‘risk-taker’ simply because she had indicated that she was a marathon runner and prior to the supervisor collecting the facts in the re-investigation.”

Finally, after pointing out that the supervisor challenged her account, Mr. Gennaco writes that “the supervisor should not have used the opportunity to try to persuade or challenge her that her account was incorrect. At that point, the supervisor’s role was to simply collect the account of the pedestrian that the initial officer had failed to effectively do.”

This is actually very familiar to me, as back in 2005, when the Halema Buzayan incident happened, one of the complaints was that the Professional Standards sergeant used a citizen’s complaint filed by the family as pretext to attempt to once again interrogate the suspect and convince her to confess to a crime, when the sergeant’s role was simply to take a statement as to Ms. Buzayan’s complaint about the conduct of the officer.

These three things combined, I think, to convince the Westergaards they were simply not going to get a fair investigation by the Davis Police Department.

Several people have pointed out to me that the city has gone out of its way to rectify the situation.  Clearly that was the right thing to do, but the problem is that the well was already long since poisoned.

For example, there was a follow up meeting with the police chief and he “apologized for the statements of the supervisor.”  That was clearly the right thing to do.

Writes Mr. Gennaco: “The Chief had also offered a ‘restorative justice’ session where the couple’s concerns about the investigation could be discussed with the investigating officer and supervisor.”

However, Mr. Westergaard rejected that offer “because it could not lead to a changed result in the ‘at-fault’ determination.”

In fairness, part of the problem is that the Westergaards saw and continue to see the flawed investigation as leading to that ‘at-fault’ determination.  And, to this day, they continue to believe that, even with a review of the investigation, the finding of Mr. Genacco was simply that there was not enough evidence to overturn their judgment.  This is the equivalent in football of a “call stands” determination rather than the “ruling on the field is confirmed.”

The city and chief have continued to attempt to rectify the situation after the fact.

In a September 25, 2018, letter to Ms. Westergaard, Chief Pytel writes: “I am very sorry we’ve never had the opportunity to meet and discuss the collision and our investigative protocols. When I met with your husband, I tried to convey how sorry I was that you were involved in the collision, how horrible it must have been to have been injured so badly, and how upsetting I’m sure it was to experience additional frustration and disappointment with our investigation of the collision.

“It is never our intent to create conflict or make a situation worse because of an investigation we conduct. I apologize to you for being left feeling the way you did.”

He concluded, “We do strive for a display of good manners and professional communication. That didn’t occur here and I do apologize to you for that as well.”

Likewise, City Manager Mike Webb added, “It is imperative that we exemplify professionalism at all times. That didn’t occur here and I do apologize to you for that. On behalf of the City, I appreciate you bringing your concerns forward and for participating in this important process. I  believe both the City and the community have benefited as a result.”

There are several points I want to get across to the readers here.  First of all, Ms. Westergaard was correct when she complained both of her treatment and the inadequate investigation.  Second, the police clearly made initial missteps in how it was handled.  Third, to their credit, I think both the chief and the City Hall recognized that there were clear failures that were made.  They attempted to rectify them, both through policy changes as well apologies.

Something everyone reading this should bear in mind – most of the time, you will see pro-forma acknowledgment of sustained complaints.  The Westergaards actually received a genuine apology from the city leadership.

But, in the end, there are some things that really cannot be remedied.  The Westergaards lost trust in the system when they felt mistreated, when they felt insulted and disrespected during a time of tremendous hardship (I think Chief Pytel’s letter captured this quite well), and as a result even good faith efforts to get things right may not ever be enough here.

—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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40 thoughts on “Commentary: Incident Shows Us that Once the Well is Poisoned, It Is Hard to Restore Faith in the System”

  1. Tia Will

    I am not familiar with the details of the intersection in question. But there is a much bigger issue here the city has kept on the back burner for years. After presenting my personal concerns about the safety of several intersections on OED to the Bicycle and Safety Commission, the very helpful city liaison to the commission pointed out to me some major problems.

    1. The city is understaffed in the area of traffic safety despite efforts to hire up

    2. There is a huge backlog of safety concerns ( upwards of 100) that the city has been unable to address due in part to the understaffing and partly because of finances.

    3. Some of these concerns are difficult to ameliorate due to state laws governing specific roadway configurations and some due to relationships to other related factors such as parking.

    I have great empathy for the Westergaard’s situation in particular.  I feel that traffic control and safety is  critical for the city to consistently address placing safety concerns above the “nice to have’s” which sometimes seem to take priority in city planning.

    1. Matt Williams

      I drove home from the Senior Center last night at 10:00 pm after the DPAC meeting, and on the drive through town and out Second Street I saw a dozen bicycles, and over half of them did not have any light … all of them begging to be sideswiped by a passing car whose driver could not see them until it was too late.  One wonders whether the understaffing of traffic safety is part of the reason why the absence of bicycle lights is not being enforced.

  2. Jim Hoch

    The transition lane from Covell-W to F Street South is one of the most dangerous in Davis. This is the one on front of the Art Center. It is compounded by the fact there is no sidewalk on the south side of Covell in this stretch so people are often walking in the street.

    A stop sign would help immensely.

    1. Alan Miller

      R — those are the two funniest things you have ever written 🙂

      (You didn’t insult anyone personally or refer even obliquely to the injured party in your jokes — that was just choice humor.)

  3. Rik Keller

    Isn’t the larger point that the initial investigation was handled so poorly and made such a bad determination, that of course a subsequent follow-up would not find evidence that overturned the “ruling on the field”?

    This analysis from July 2017 still seems applicable:

    “I’ll say more on this at some point but I met with the Westergaards last summer and encouraged them to file a complaint and meet with both the chief and the police auditor.

    There are two separate points here that I think need to be made.
    As I understand it, the police made a legal determination that is counterintuitive.  The vehicle code gives the pedestrian the right of way.  The driver was speeding and distracted.  The police nevertheless ruled that Ms. Westergaard entered the street and gave the driver no chance to respond.  I’ve posted the photo of the crosswalk and looked at the scene and the ruling makes little sense.
    The second aspect of this just as important – the administrative handling of this appears to be insensitive, overly legalistic and did not take into account the sensitive nature of this incident.”
    https://www.davisvanguard.org/2017/07/davis-woman-relates-experience-davis-police-following-getting-hit-vehicle

    1. Ken A

      Rik (and the Westergaards) may want to read the section of the vehicle code that says:  “No pedestrian may suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard.”…

    2. Mark West

      “The vehicle code gives the pedestrian the right of way.”

      Yes, it does, but it also says that you need to make sure that your path is clear and safe before entering the intersection or roadway. Any vehicle that is already in the intersection or crossing, or is unable to stop safely in advance of the intersection or crossing is expected to proceed through first before you may assert your ‘right-of-way.’;

      1. Rik Keller

        How much advance warning from the flashing yellow lights did the driver have that a pedestrian was entering the crosswalk? Certainly significantly much more time than the 2-3 seconds the police are saying she was in the crosswalk before she got hit.

        1. Craig Ross

          Wouldn’t that depend on when she hit the button and when she entered the intersection?  David’ point in the article that a more attentive driver would have seen her on the sidewalk and anticipated a possible move into the street seems correct on its surface.  I would question the finding that she was solely to blame.

        2. Mark West

          “How much advance warning from the flashing yellow lights did the driver have that a pedestrian was entering the crosswalk? Certainly significantly much more time than the 2-3 seconds the police are saying she was in the crosswalk before she got hit.”

          Without having been there, none of us really know how much warning the driver had. I can say though that I drove through this crossing this morning, heading south on F, and witnessed a pedestrian walking towards the crossing from the east while reading a book. Without breaking stride he pushed the button and immediately stepped into the street without turning his head to view the traffic, or even taking his eyes off of his book. Fortunately for him, the drivers approaching the crossing had seen him and anticipating his poor decision were already slowing to a stop before the light was activated. Had that not been the case he would likely have been hit.

      2. Ron

        Mark:  “Any vehicle that is already in the intersection or crossing, or is unable to stop safely in advance of the intersection or crossing is expected to proceed through first before you may assert your ‘right-of-way.’;

        Regardless of the police report, I’ve learned to not “assert” my right-of-way (especially as a pedestrian), regardless of whether or not I actually have it. I’d rather sacrifice my right-of-way, than life, limb, or possible confrontations with a stranger/driver on the street.

        I have noticed that in Oregon, drivers seem more courteous toward pedestrians (and generally seem to be less rushed). (I believe that the law might require the crosswalk to be totally clear, before a driver can proceed.)

  4. Ken A

    I can’t believe that David is doing another day on this story.  The reason that the police are having a hard time with this is that when you run in front of a truck you need to take responsibility not fight the police for years.  There are some people (many with kids in Davis schools) that can never admit that their kid made a mistake and if their kid runs in to a wall they are trying to blame the school (for not padding the wall or training playground supervisors to catch kids running in to walls), the city (for allowing a school building to be built near a playground) and the police for not sending everyone in the department to the school to take a report and “investigate” the incident for years bringing in outside “experts”.  The guy was not driving a jet powered car so there was plenty of time to see him coming even if he was driving at double the speed limit.  We are doomed as a society if every time someone does something stupid like running in front of a truck or running in to a wall we fight the government for years trying to blame someone else…

    P.S. It is over 140 yards from Covell to the crosswalk (longer than entire grass area at the UCD football stadium)  so there is plenty of time to see a car coming if you look…

    1. David Greenwald

      You’ve only been reading this site for what, 10 years?  As you know, on big stories, I do an article and then a commentary.  So yesterday was the article, today was the commentary with my opinion of the story.

      1. Ken A

        I understand when you go two days in a row on BIG stories, but I thought you might have mentioned the guy shot and KILLED on F Street “this weekend” before going with another story about a lady that ran in front of a truck on F Street about “two years ago”…

        It’s your Blog, but I would cover the shooting before spending a couple days on the DJUSD kid that ran in to the wall at school (or if we should use parcel tax money to pad the walls inside and outside the DJUSD schools to “protect our children”)…

        1. Ron

          David:  Here’s another one, for you.  What about the guys stealing laptops from students in Davis coffee shops?  (And, injuring those who try to interfere?)

          This is why we still need the Enterprise. (You know – for actual news, vs. political commentary.)

        2. David Greenwald

          I agree.  We don’t have the staff to be able to cover everything.  So early on, decided for the most part what we cover is political news and add commentary.  We don’t cover crime.  We do however cover the courts, so when a case goes through the court system, we cover it.

  5. Jeff M

    “The vehicle code gives the pedestrian the right of way.”

    This is what has “poisoned the well”.

    It makes pedestrians entitled idiots.

    Driving in town it is not uncommon for people to step into the crosswalk after the vehicle that had been waiting for previous pedestrians to clear had already entered the intersection.  It is also not uncommon for a vehicle seeing the path clear to be startled by a pedestrian that does not stop nor look because they have grown used to the entitlement of perpetual right of way.

    The problem in Davis is that we have too many people traveling on too few roads that are hyper-dense from too little city expansion.   We in effect injure and kill more pedestrians and bicyclists by making them think they are special and preferred to all the 2+ ton rolling metal vehicles in their midst.

    We should change the ordinance so that pedestrians share the right-of-way with vehicles.  That way they would know to at least stop and look before stepping out in the crosswalk.

    1. Mark West

      “Driving in town it is not uncommon for people to step into the crosswalk after the vehicle that had been waiting for previous pedestrians to clear had already entered the intersection.” [emphasis added]

      This is the crux of the problem that I see regularly. When you have the ‘right-of-way’ you have priority for being the next to enter an intersection or crossing, but that right does not begin until the intersection or crossing is clear of previous traffic. If there is already a vehicle in the intersection, you do not have the right-of-way to cross in front of it. You must wait until the intersection or crossing is clear before proceeding.

    2. Alan Miller

      Actually, pedestrians don’t have the right of way if they reach an intersection that has a car in it that has already entered the intersection.  This is what makes those infernal bulb-outs downtown so egregious — it looks to a pedestrian like a short trip across on an extended sidewalk, and they don’t bother to see if cars are coming, so then the car that is already in the intersection slows or stops in the intersection, slowing everyone.  This didn’t happen before bulb-outs, now it happens constantly downtown!  Tear out the bulb-outs!

      The problem in Davis is that we have too many people traveling on too few roads that are hyper-dense from too little city expansion.

      That statement, on the other hand, is nonsensical.  And I say that as a person who is opposed to Measure R.  Adding people is not going to solve the issue of “too few roads”, whatever that means.  What helps is when the city properly taxes new developments to cover the needed infrastructure to mitigate their creation — and that rarely happens.  That’s why most towns are more congested as they grow.

      1. Jeff M

        I need to explain my point.

        Davis is unique with a population density that exceeds every other comparable city by an order of magnitude.  And most of our retail/entertainment/banking/etc.. is located in the small core area.  The roads are narrow with cars parked on the sides and bike lanes.

        If we had a population density that was more normal, we would be much more spread-out and there would be less humanity all traveling to and from the same places on the same roads.  We would have more roads.  We would have some wider roads and some more traditional timed and lighted cross-walks.

        Two of the busiest pedestrian vs vehicle crossings in the city are at Russel at Sycamore and Russel at Anderson.  The roads are wide.  There are no cars parking on the street.  There are separate bike lanes.  The intersections are timed with lights.  As far as I know it is not a dangerous place for pedestrians because they are not lulled into the subconsciousness belief that they are an entitled superhero that makes autos stop in time when they dart across the road.

        1. Alan Miller

          I doubt but can’t really refute your point on Davis traffic without modeling specific expansion, and consultants charge tens of thousands of dollars for that service (and it would still only be a model, and subject to the unconscious or conscious bias of inputs that please your customer).

          However, I do agree that the lack of awareness by peds that a car that has started into an intersection has the right of way is rather stunning.  We are not readily taught this — and the consequences of having peds believe they have the right of way when they do not can be deadly.  US Society needs to rethink how tha is taught — and I believe Davis needs to jack-hammer those infernal bulb-outs . . .

          . . . AND I really, really question if too many pedestrians see those ped-crossing beacons as solid-steel barriers that stop cars and smash them to protect the ped. Even with my awareness as a ped and biker, I have blown right through those beacons a few times — and I’m a pretty damn safe driver. It freaked me out – but again, us humans blow it sometimes.

    3. Matt Williams

      Jeff, the principles of right of way were in place and working long before there was a Davis, and long before there were automobiles.  The core of those principles is that the the means of locomotion that has more power should yield the right of way to the means of locomotion with less power (e.g. a boat with more sails yields right of wayu to the boat with fewer sails).

      A person walking has less power than a motor vehicle.

      1. Jeff M

        This reminds me of a time when I was stopped to turn right looking left (after having looked right) for the traffic to clear.  I started to go and almost ran over a runner that had come up behind me from the right and started to cross in front of me.

        He flipped me off and yelled at me.  I rolled down my window and yelled “Yeah, I might have been wrong, you might have been dead!”

        I saw the guy at the store a few days later and he came up to me and apologized and told me I had caused him to think more when he is out walking or running.

        I think the principles are ass backwards.  Autos can flatten people into a bloody pancake.  So people should be very careful around them.  And a city should not be giving people a false sense of safety by telling them they can cross whenever and where-ever and that they are… and that they are the kings and queens of all spaces that autos tend to travel on.

        Personally, I would change it so the first there has the right-away.  That way the pedestrian at least has to pay enough attention to stop and check.

        1. Jim Hoch

          ” I rolled down my window and yelled “Yeah, I might have been wrong, you might have been dead!””

          Sounds like an argument in favor of “open carry”

      2. Ken A

        I hope Matt does a little more research on right of way before crossing the tracks taking the shortcut from the Sudwerk Dock to Dunlow on Olive.

        The Amtrak UP trains have a lot more “locomotion” than a person, but if you run in front of them, like most trucks on F Street they won’t stop (and you will probably end up in worse shape than Mrs. Westergaard after impact)…

        1. Matt Williams

          Ken, the shortcut you describe is legally prohibited, so the pedestrian has no standing in any right of way decision.

          The principles of right of way were created on the open seas. The railroad right of way you describe is not “open.”

  6. Todd Edelman

    There are places where it is safer to cross the street than here because design and enforced speeds are lower, and where it is assumed that children – being children – might not always look or be predictable when interacting with heavy vehicles.

    Brett Lee, Lucas Frerichs, Mike Webb and others just visited one of these earlier this month.

    Enjoy your day.

  7. Ron

    There are times when I will purposefully “waive through” cars (e.g., at impacted intersections), because I can see that asserting my right of way will unnecessarily impact overall traffic flow.

    When out in the wilderness (hiking), I also normally get out of the way of mountain bikers, e.g., rather than making them dismount to go around me.  (Even though I probably have the “right of way”.)  When riding a mountain bike, I’ve dismounted to avoid scaring horses on the trail.

    I also avoid walking two-or-three “abreast” on multi-use paths, since bicyclists or others might have difficulty passing such groups. Nor do I speed past pedestrians at high rates of speed, when biking on such paths or in the wilderness.

    In other words, I try to be observant, and to understand the challenges faced by those using the same intersections, roads, and paths.

    1. Jeff M

      There are times when I will purposefully “waive through” cars (e.g., at impacted intersections), because I can see that asserting my right of way will unnecessarily impact overall traffic flow.

      Me too.  It is just common courtesy which the average Davis entitled pedestrian lacks.

      But there is a problem with this… when I get in a standoff… typically with a Davis gray-hair… that insists I go first while they hold up the 2000 cars behind them.    I find the best way to prevent this is to not make eye contact until they drive though… although they still pause… saddened that they lost the opportunity to virtue signal their giving ways.

      1. Ron

        Its even worse when those same gray-hairs forget to turn their “virtue signals” off for several miles, confusing everyone around them!

        I also avoid eye contact with gray-hairs, and not just while driving. The main problem for me occurs around mirrors.

        Just amusing myself – sorry. 🙂

        1. Alan Miller

          R — those are the two funniest things you have ever written 🙂

          (You didn’t insult anyone personally or refer even obliquely to the injured party in your jokes — that was just choice humor.)

      2. Alan Miller

        Me too.  It is just common courtesy which the average Davis entitled pedestrian lacks.

        Still a bad idea.

         a Davis gray-hair… that insists I go first while they hold up the 2000 cars behind them.    I find the best way to prevent this is to not make eye contact until they drive though… although they still pause… saddened that they lost the opportunity to virtue signal their giving ways.

        Yeah, I do the ‘no eye contact’ thing too.  Tonight (in Sac – same mental condition there) someone sat there for 30 seconds and I had to turn my head away and ignore them until someone else honked at them for them to take their God given right of way.  Again, courtesy can be deadly.  Right of way is to be taken and given as per law, not by, to use JM’s words, ‘virtue signalers’.

    2. Alan Miller

      There are times when I will purposefully “waive through” cars

      This is a really bad idea.  Many people fixate on the one person “being courteous” and assume that is the sum and whole of threats or that the other person somehow has considered all threats.

      Often this is not true.  For instance, I’ve had people motion me to go and not take into account a car proceeding from another direction or a car coming around them in another lane.

      I never wave people on, and I never take anyone’s instructions (unless it is a simple situation and there are clearly not threats — but never in a city).  I take my right of way and give others theirs.  That’s what it is for.  Courtesy can be deadly.

      1. Ron

        Alan:  Point noted.  I’m actually referring to less-clear situations, e.g., in which cars start going through intersections (because they’re focused on the confusing situation around them), and perhaps didn’t notice that I had already stepped off the curb to cross the street (or was just about to do so).

        Even though they would probably stop if I continued, I can sometimes see that it would muck-up everyone’s timing (and leave them stopped in the middle of the intersection), if I did so.

        I personally find it confusing to drive in downtown Davis, with cars, pedestrians, and bicyclists converging on intersections.  And – I definitely understand your point about the “bulb-outs”, although I like them when I’m a pedestrian.

  8. Alan Miller

    R — those are the two funniest things you have ever written 🙂

    (You didn’t insult anyone personally or refer even obliquely to the injured party in your jokes — that was just choice humor.)

    1. Jeff M

      I agree.  The beacons suck.  I have seen too many near misses from cars that don’t see them, don’t pay attention to them… and pedestrians believing a press of the button cuts the electrical current to the Matrix where everyone stops they can happily skip across the road… are almost road kill… literally.

  9. Todd Edelman

    History lesson. 

    [Moderator: Just FYI, the spam filter tends to pull posts that only contain links. A line or two of text can prevent that. What I’m adding now probably will take care of it. But for the future, posts like this are likely to disappear the next time the spam filter sweeps.

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