Interim Auditor Faults Police Handling of Westergaard Incident, Insufficient Evidence to Overrule Conclusion of Fault

Interim Independent Police Auditor Mike Gennaco in April

On April 28, jogger Deb Westergaard was struck by a vehicle as she crossed F Street at the marked crosswalk south of Covell Boulevard, resulting in serious injury.  Much to her chagrin, the Davis Police Department, in conducting an accident report, concluded that she was at fault.  Ms. Westergaard has publicly disputed that determination, as well as raising concerns about the way in which the investigation was conducted.

The matter eventually was forwarded to the Michael Gennaco, the city’s Interim Independent Police Auditor (IIPA), for an independent review.

The report is mixed, with the auditor concluding the “at-fault” determination “regarding the accident itself to have been reasonable.”  However, the report “identifies concerns about some aspects of the initial and follow-up investigation and makes attendant recommendations.”

The driver, as interviewed at the scene, “indicated that he was driving approximately 30-35 miles per hour. The driver said that as he approached the crosswalk, he looked in his rear-view mirror briefly. The driver stated that when he redirected his focus towards the front of the vehicle, he saw a female running through the crosswalk. The driver said he slammed on his brakes but struck the female with the front driver’s side bumper of his vehicle.”

However, the police supervisor “calculated that the truck was traveling at approximately 29 miles per hour at the point of impact.”  After reviewing the incident, the “supervisor concluded that a review of the evidence indicated that the pedestrian failed to ensure the roadway was safe prior to entering it.”

He added, “The supervisor opined that the pedestrian had not re-checked the traffic when she entered the roadway and failed to notice that the truck was so close as to be a danger.”

One of the complaints offered by Ms. Westergaard was that the supervisor who interviewed her was rude and dismissive of her statement.

The investigator indicated that, during a follow up meeting with Chief Darren Pytel, “he had apologized for the statements of the supervisor. 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, the Westergaards “rejected that offer because it could not lead to a changed result in the ‘at-fault’ determination.”

The auditor and the Westergaards agreed to the idea of an outside expert review, and a retired police officer with 35 years experience was selected for that review.

In reviewing the incident, the expert found that the skid mark was made by a right front tire, not the right rear tire as determined by the DPD supervisor.  He estimated that the truck was traveling at least 30-31 mph on the roadway.  “The investigator found that the truck was potentially traveling faster but that at impact its speed was no more than 30-31 mph.”

He also agreed with DPD’s determination “that the pedestrian was at fault,” as he found “that the collision occurred within 2-3 seconds of the pedestrian entering the roadway. He concluded that once the pedestrian entered the street, she did not provide the driver sufficient time to perceive her and react.”

However, that is only part of the story here.  As noted, “the spouse complainant and the injured pedestrian raised numerous concerns about the thoroughness and objectivity of the Davis PD accident investigation and the determination that the pedestrian was ‘at fault.'”

Here the IIPA faults the police.  For instance, the supervisor failed to interview the pedestrian in this case.  Writes the IIPA: “The failure to interview the pedestrian in this case directly was particularly concerning, not only because the officer had told the spouse that he would do so but also because he did not contact the couple when he decided it was no longer necessary.”

Furthermore, “The spouse said in his complaint that when he protested about the result to the officer and attempted to provide further information about his wife’s version of events, the officer accused him of trying to change her story. Instead of making such accusations against a person who had never claimed to be at the scene, the officer should have recognized the heightened importance of interviewing the pedestrian as he had originally agreed to do.”

The IIPA: “As a result of this failure, 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.”

The IIPA notes that there were “flaws in the original investigation.”  However, he concludes: “As a result of the fortuitous appearance of another uninvolved witness and the follow-up investigation and calculations by the supervisor, the initial defects in the investigation were significantly ameliorated.”

The IIPA faults the performance of the supervisor.  Here he notes that the pedestrian alleges that the supervisor was rude and dismissive.  The pedestrian noted the supervisor told her that “marathon runners were risk-takers.”  Writes the IIPA: “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.”

The IIPA points out that during his collection of a statement the supervisor had made statements to the pedestrian about the speed of the vehicle as well as reports that she failed to stop prior to entering the roadway.

“The information conveyed to the pedestrian by the supervisor about the speed of the vehicle appeared at best to be an effort to persuade her that she was wrong about the estimated speed of the vehicle and to explain why she might have miscalculated,” the IIPA writes. “The statement about other witnesses was an apparent effort to challenge the pedestrian’s account of the event.”

Writes the IIPA: “[T]he 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.”

Such an immediate challenge gives the impression that “the supervisor had already determined that the account of the witness was incorrect.”

Instead, he writes, “Any presentation of conflicting evidence to a complainant should be deferred until the investigation is concluded and a final determination has been reached.”

Furthermore, he notes, “Of even greater concern was the supervisor’s alleged statement to the pedestrian and spouse that having to re-investigate the traffic accident was delaying his work investigating two fatal accident investigations. Any supervisor who is conducting a complaint investigation should not voice any comment that the assignment was of less importance than other work. Doing so in this case understandably left the complainants with the impression that he viewed the case as an annoyance. This undermines the sense of professionalism and appropriate objectivity that contribute to public confidence.”

The IIPA also faults the police for failure to record the interview of Witness L when they called via telephone.

Writes the IIPA: “While this issue was not raised by the pedestrian or her spouse, the failure of the supervisor to tape-record any of the statements he collected is not consistent with standard investigative protocols for complaint investigations. As a result, the only record of those interviews is a brief written summary of their substance based on the supervisor’s recollection.

“More significantly, the failure of the supervisor to record the interviews makes it difficult for a reviewer within DPD’s chain of command or an outside reviewer such as the Independent Police Auditor the opportunity to review precisely (what) each witness said.”

The IIPA adds: “It is unfortunate that this best practice was not followed in this case, particularly considering its sensitivity.”

The Interim Independent Police Auditor concludes that “there were flaws in the Davis Police Department’s approach to both the original and subsequent investigations of the traffic collision at the center of this case. However, this is different than saying that the ultimate conclusion of those investigations was mistaken or invalid. Additionally, the independent analysis of the evidence that was obtained as a further layer of review found a sufficient basis to support the ‘at-fault’ finding. Given this evidentiary foundation, it is not our role to substitute our judgment for the agency so long as the ultimate determination was reasonable.”

He later adds: “The Department’s performance in this matter had shortcomings that deserve remediation: however unintentionally, they either produced or exacerbated the different investigative concerns that troubled the pedestrian and her spouse.”

He continues: “In the end, though, to the extent that the ultimate focus of the complaint was a challenge to the ‘at-fault’ finding, there is simply insufficient evidence to support a reversal of DPD’s decision.”

—David M. Greenwald reporting


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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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17 thoughts on “Interim Auditor Faults Police Handling of Westergaard Incident, Insufficient Evidence to Overrule Conclusion of Fault”

  1. Keith O

    He continues: “In the end, though, to the extent that the ultimate focus of the complaint was a challenge to the ‘at-fault’ finding, there is simply insufficient evidence to support a reversal of DPD’s decision.”

    Good, maybe this can finally be put to rest.

  2. PhilColeman

    This is a remarkably thorough analysis and summation of every aspect of this traffic collision and its ancillary procedural issues. Every judgment by the auditor regarding appropriate police procedure standards is accurate. Among these, was the police were rightfully faulted for at least giving the impression of premature judgment by making editorial comments on the injured party’s lifestyle. While anybody else can do this with impunity, the police cannot, and should not.

    The solitary fact that nobody did a follow-up interview of the victim is a major procedural error, warranting formal disciplinary action. Not thoroughly documenting the information given by the independent witness is another instance of inexcusable neglect of duty. Any flawed supervisory review or absence of such review should receive the appropriate disciplinary response as well. Had these basic investigative procedures been performed in a timely manner the City would have saved several thousands of dollars and the Department’s reputation would not have been sullied.

    The injured party persists in the self-analysis that she was not at fault–she was the victim and victim only. The driver, therefore, must be the causal factor.

    The driver was not at fault, the injured party was. She’s been told that numerous times by a host of experienced Vehicle Code authorities. These expert opinions fall on deaf ears and probably will continue to do so with this report. Police procedural errors detected and revealed do not mitigate the fact that the injured party was the cause of the traffic collision. Nobody can run into a lane of vehicle traffic with personal or legal impunity.

     

    1. David Greenwald

      I think while you are mostly correct here, the combination of rude treatment and failure to adhere to best practices contributed to undermining their confidence in the investigation

      1. Rik Keller

        David Greenwald: What has changed in terms of the facts of the case since your wrote this in July 2017?

        “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. David Greenwald

          What changed is last year we had a flawed police investigation (that wasn’t made public) and the appearance of a biased analysis.

          So what we now know is:

          1. The auditor hired an independent investigator

          2. The auditor reviewed the findings

          3. The auditor released a very detailed analysis of the collision that was not previously available.

          For the most part as I noted in today’s commentary, there are still questions and he didn’t release a definitive result, simply concluding there was not enough evidence to overturn the original finding, but to ignore the mounds of new information that we now possess would be silly.

          I have now read three of Michael Gennaco’s reports – the Orange County killing of Kelly Thomas, the Picnic Day report and this.  He is methodical, thorough, and very reasonable.  His findings carry a lot of weight with me in reassessing what happened here.

          With that said, I think if he reviewed the case from scratch rather than audited it, I think he would find fault with both the driver and the Deb Westergaard and would issue a more split decison in that regard.

    2. Matt Williams

      Thank you Phil for sharing your thorough and well expressed thoughts.  You have forgotten more about policing than I will ever know, and I respect your opinion immensely.

  3. Ken A

    I’m sad that this lady ran  in front of a truck and got hurt, but now that a second person says she was at fault I’m hoping that she may sit down and think if the cop was “rude” to her because she was first “rude” to him.  Most (but not all) times cops are “rude” to people is because the person is first “rude” to them…

    P.S. 30mph is 44fps (feet per second) and Google Maps says it is 448 feet from Covell to the F Street crosswalk so the truck was visible for ~10 seconds before entering the crosswalk (so anyone hit by a truck in that crosswalk either didn’t look at all or saw the truck and thought they could run in front of the truck and make it across the crosswalk before it hit them)…

    1. Rik Keller

      He estimated that the truck was traveling at least 30-31 mph on the roadway.  “The investigator found that the truck was potentially traveling faster but that at impact its speed was no more than 30-31 mph.””
      So. there were skidmarks of a specific length indicating a drastic reduction in speed before the impact and the speed at impact was provided, but there is no data presented about the calculations done to determine speed before impact? All the investigator says is that the speed before was only “potentially” faster?  This all sounds highly fishy.

    2. Matt Williams

      Ken, thank you for providing the measurement.  The question that immediately went through my mind is how a southbound vehicle starting from the F Street – Covell intersection gets to a speed of 35 MPH prior to that cross walk … especially at 1:15 in the afternoon.  35 MPH is 10 MPH over the speed limit at that point. I suggest it would be an interesting exercise for each of us to look at our speedometer as we approach that crosswalk and note our speed.  i doubt it is going to be anything close to 35 MPH regardless of whether we are northbound or southbound.

      In my personal opinion, at the very least the officer should have issued fault findings for both parties … one for unsafely entering the crosswalk and the other for speeding and/or reckless driving.

      NOTE: the stopping distance for a vehicle traveling 35 MPH is 136 feet, which puts the 448 feet into an interesting context.

      1. Rik Keller

        Matt: I agree with your point about the high acceleration rate that would be required out of that intersection to get to 35 mph or so by the crosswalk. That point does not seem to be covered at all in the investigation.

        Another way to look at the data (and flipping Ken’s formulation on its head) is: how much time did the driver have to see the pedestrian in the crosswalk and react to her?

        And how does the driver claiming they were looking in the rearview mirror absolve them from their primary responsibility of vigilance focused in the direction of travel?

        1. Ken A

          Lets say the guy was in a Corvette race car with race tires and could hold a steady speed of 60mph through the turn to the crosswalk (a stock Chevy truck would roll trying to take that turn at 60mph) the vehicle would still be visible for close to 5 seconds before impact in the crosswalk if the person listened to their Mom and “looked both ways” before crossing the street.  An older lady that can run a 10 minute mile will be traveling at 6mph or 8.8 feet per second and it is 11.3 feet from the edge of the bike lane to the center median (I love the new measure distance feature on Google Maps).  People driving cars look away multiple times every trip to check mirrors, check the time, tune the radio or (sadly more often than not) check texts, but since most (but not all) people look before running out in to the street in front of a moving vehicle we fortunately don’t have many accidents like this.  Just like a guy without a calibrated speedometer who is actually going 66 is guilty of speeding and if he does not have insurance he is guilty of not having insurance but he is not “at fault” if someone runs in front of him or jumps off the Mace overpass in front of his truck…

        2. Matt Williams

          Ken, after all that rhetoric, there did not seem to be a point you were making.  Can you make like a Kentucky Moonshiner and distill it down for me?

          For me, the bottom-line is that there is plenty of blame to go around to cover both parties liberally.  I’m not sure what your bottom-line is.

        3. Mark West

          Many years ago my Dad taught me a simple lesson. As a pedestrian, you alone are responsible for your safety. Never cross a road in front of a moving vehicle unless you are looking at the driver’s eyes and know that 1. the driver sees you, and 2. the vehicle will stop before hitting you. When it comes to ‘right-of-way’ issues, it is better to be alive than right.

           

  4. Ken A

    The bottom line is a lady ran into the street was hit by a truck because:

    1. She didn’t look to see if a truck was coming or

    2. She saw the truck coming but thought she could cross the street before it hit her

    I try and teach my kids to take responsibility when they screw up and it would have been nice if the lady hit by the truck took responsibility for getting hit and didn’t try and blame the guy in the truck or the cops for her painful lesson (we can only hope that she now knows that you should always look both ways before crossing the street and runners are not as fast as trucks)…

  5. Sharla C.

    I drove down 5th street this morning at 25 – 29 MPH and imagined what would happen if a pedestrian stepped in front of me with only 2-3 seconds to stop.  Even at 3-4 seconds, I don’t think there is enough time for me to stop and for a pedestrian to get across clear to the other side of my car to avoid contact with my car.

    I wish she and her husband had taken advantage of the offer to meet with the officer, his supervisor and the Chief to discuss their failings in investigating the accident.  It would have not have changed their option to have the findings of fault investigated, but may have helped with their overall sense of distrust and anger over their treatment after the accident.   I still don’t think it is too late to do that, especially since it has been determined that the officer and supervisor made mistakes.

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