My View: Audit Report Reveals Problems with Davis Policing

The city of Davis efforts at police oversight really began in 2005 and 2006, resulting in the creation of the Police Ombudsman.  This occurred nearly a full decade before a national debate on policing started in 2014 over incidents in Ferguson and Staten Island, NY.

Even with the passage of the use of force changes in California this year (finally), California is well behind other states in issues of transparency.  For years we have wanted to see a public accounting of police incidents – and the city deserves a lot of credit for finding a way to make the 47-page Police Audit Semi-Annual Report available to the public and online.

The Auditor definitely presents an overall more rosy picture of the DPD then I would.  In his introduction, he makes two critical point.  He finds, “DPD is not plagued with widespread issues of officer misconduct. In fact, of the six cases reviewed, none of them resulted in a finding of a formal policy violation.”

While he has concern about the “customer service” area, he does not find fault with the specific actions of police officers.

My view is a bit different.  First, I think to a large extent we are simply scratching the surface right now of complaints and problems.  Following the Picnic Day incident, we have noted the presence of a number of officers who have represented an ongoing problem.  That number was somewhere between 6 and 10 – a fairly high percentage for a small department.

By some fortune, it seems some but not all of those officers have departed.

A secondary concern that we have expressed has been the problematic nature of some of the warrant servings and raids that accompany those warrant servings.  We still do not have good data with respect to numbers.  This was definitely of concern with the acquisition of the armored vehicle.

In this light, the two issues raised by the police audit report that are of most concern are the raid on the wrong house – that resulted in an innocent man being taken from his home in the middle of the night at gunpoint, based on faulty GPS information.  The second was the arrest of Sander Findlay on kidnapping charges that resulted in 20 months in custody as his public defender had to prove him innocent.

Most alarming in that case was the fact that, but for the vigilant defense by Deputy Public Defender John Sage, this man could have been incarcerated far longer.  Michael Gennaco said both privately and publicly that the key failures here were not just DPD – but his purview, of course, is limited to DPD.

In both cases, a judge signed off on the key portions of the warrant.  The warrant was signed by a judge.  It was lawful.  The identification process was defended by a Deputy DA and allowed to stand by a judge.  That points to a deeper problem with the system.

As Mr. Gennaco pointed out at Thursday’s Police Accountability Commission meeting, he did not believe that the defendant was held in custody on the basis of the identification.  That points to much deeper problems with the system here, because, in the end, Mr. Findlay was proven innocent – the interlocking device in his car had GPS placing him with his cell phone at Lake Berryessa.  Based on that information, acquired by the public defender, the DA was forced to reluctantly drop charges.

Mr. Gennaco publicly praised the work of the public defender – John Sage.

Nevertheless, the identification process, done by an experienced Davis Police sergeant – it would appear from the transcript we have to be Sgt. Mike Munoz – was problematic. Given that the young victim, 12 years old at the time, only saw the man through the mask, Sgt. Munoz constructed a line up by placing paper over the six individuals’ faces to reveal only the eyes.

How the victim would be able to identify the “correct” individual in the first place leads one to wonder exactly what kinds of non-verbal cues and conscious and subconscious “suggestibility” the police officer was conveying.

Mr. Gennaco correctly notes that the new law will prevent this – requiring both the double-blind process as well as the video recording to allow him to better assess what went wrong.

The IPA in his report then writes that he “was concerned about the advisability of even conducting an identification procedure considering the limited opportunity the victim had to view the perpetrator and the fact that he was wearing a mask that covered his nose and mouth. In short, the juvenile victim had scant identifying information upon which to base her identification.”

But, as he points out, the Deputy DA in this case defended the identification and Judge Samuel McAdam, despite Mr. Sage challenging it in court, upheld it.

In fact, the judge went so far as to point out that “picking him out of a photo lineup, which when I reviewed the photo lineup, was compelling to the Court.”

Judge McAdam in his ruling noted: “The six people, when they had their lower half of their face covered, it was difficult to distinguish features.  It is clear from the child’s testimony as relayed by the police officer that she got a very good look and sounds like it was a child of some maturity, that she was able to provide such detail, and the Court was impressed with that testimony as it came through the officer.”

Of the judge’s assessment, the auditor notes: “So that’s most compelling piece of evidence that the Court heard to support these two crimes.”

What is troubling here is that she clearly got the identification wrong.  It was 2017 – after we had over a decade’s worth of evidence talking about the unreliability of such eyewitness testimony, particularly from a young witness who had an obstructed view – and yet, despite that research, the judge not only accepted the ID, he found it compelling.

This case is probably a poster-child case for why we need AB 923, which requires double-blind identification processes as well as recording.  But why we need a state law here is troubling, when common sense should have suggested that this was a bad identification.  And yet, a judge who is supposed to be the gatekeeper ignored the research to the contrary and allowed an innocent man to languish in custody for 20 months.

The raid is also troubling.  As we described it yesterday, there was a murder suspect, GPS information placed him at a Davis residence, 20 officers served the warrant at one in the morning, they ripped up his place, didn’t find the guy, turns out he was 70 miles away and this guy was completely innocent.

The report focuses on the city’s denial of a claim to reimburse the resident for damages and the auditor’s efforts to get the city to do the right thing.

But this again is troubling – we have noted over the last few years a lot of bad raids in Davis or using Davis officials to do them.

The commissioners were concerned with what went wrong with the GPS.

The process here is still troubling.

The auditor concludes that the Davis PD had “a legal right to execute the search and arrest warrant it had appropriately obtained.”  He further noted, “In attempting to apprehend the suspect in a serious crime, the Department relied on investigative information provided by another agency.”

He adds, “That information had also been vetted by the District Attorney’s Office and authorized by the reviewing judge prior to the search operation. Moreover, because of the dangerousness of the suspect being sought, Davis PD needed to conduct a significant operation in order to safely execute the warrant. As a result, it was both appropriate and reasonable to order the male resident out of his home at gunpoint, briefly handcuff him for officer safety purposes, and keep him out of the residence until the search for the suspect was completed.”

Vetted by the DA’s office.  Approved by a judge.  This clearly calls a lot of this process into some question, especially when technology serves as the basis for these raids.

Understand these raids are damaging to people.  They disrupt lives.  They cause trauma.  They cause humiliation.  And as we have noted at times they lead to unnecessary injuries and deaths.

What we see time and time again – not just here – is that bad information leads to tragedy.  And in this case, the guy was fairly fortunate that he woke up and was apprehended quickly without incident with himself or his dog.

Michael Gennaco was supportive of a more aggressive after-action assessment by the department.  They seemed to simply take the stance of, oh well, the city was going to deny the action and they were going to move on.

“What went wrong here?” he asked.  “Can we rely on GPS?”

Mr. Gennacco points out that the city could clearly defend a denial of the claim, but argued that a “balancing of the broader equities in this case suggested a different result.”

He said, “Most obviously, this is because the residents were being asked to absorb the consequences of an operation that was flawed at the most basic level: namely, the assumption about the suspect’s presence.”

Once again, both of these cases shine troubling light on the DA’s office and the judges.  Both signed off on these flawed incidents and neither have made any public showing for the mistakes that were made.

—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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14 Comments

  1. Alan Miller

    to a large extent we are simply scratching the surface right now of complaints and problems.

    And you know what’s under the surface:  a dark underbelly, that’s what.

    Following the Picnic Day incident, we have noted the presence of a number of officers who have represented an ongoing problem.  That number was somewhere between 6 and 10 – a fairly high percentage for a small department.

    So the Vanguard is tracking bad officers by name?  Based on your network of citizens with police encounters?

    By some fortune, it seems some but not all of those officers have departed.

    And what fortune do you postulate?  Good fortune, or weeding out of problem officers?

    1. David Greenwald

      “So the Vanguard is tracking bad officers by name?  Based on your network of citizens with police encounters?“

      * Court Watch is a big one

      * Citizen complaints

      * Pitchess Motions

      * Community members with police encounters

  2. Alan Miller

     

    The commissioners were concerned with what went wrong with the GPS.

    Any of us with a cell phone know the problems with GPS.  I mean, you try to go to the 7-11 and end up at Dominoes Pizza a few doors down.  That’s cool, as I can see the 7-11.  But in a residential neighborhood, with granny flats, “B” entrances, basements flats, odd layouts, missing address numbers, etc. . . . yeah, might want to a little pre-raid recon.

  3. Alan Miller

    Mr. Findlay was proven innocent – the interlocking device in his car had GPS placing him with his cell phone at Lake Berryessa.

    Note to self:  when kidnapping people, have a friend drive my car and cell phone to Lake Berryessa.

  4. Bill Marshall

    Once again, both of these cases shine troubling light on the DA’s office and the judges.  Both signed off on these flawed incidents and neither have made any public showing for the mistakes that were made.

    Vetted by the DA’s office.  Approved by a judge.  This clearly calls a lot of this process into some question, especially when technology serves as the basis for these raids.

    That points to much deeper problems with the system here – 

    This case is probably a posterchild case for why we need AB 923 which requires double-blind identification processes as well as recording.  But why we need a state law here is troubling,

    Yet, the headline is re:  DPD.  Who is the ‘target’, and what are your proposed ‘remedies’?

    Nevertheless, the identification process, done by an experienced Davis Police Sargent – it would appear from the transcript we have to be Sgt. **** ***** (no ‘doxing’, right? Unless you are accusing him of a criminal or civil “crime”)  – was problematic. Given that the young victim, 12 years old at the time, only saw the man through the mask, Sgt. ***** constructed a line up by placing paper over the six individuals face to reveal only the eyes.

    Yeah, bad judgement, error, potentially malicious… what do you propose as a ‘remedy’?  Other than attacking him in ‘public’ on this blog?  If he erred, particularly if malicious, he should be subject to Administrative, Criminal, or Civil actions… do you support those?  As it stands, it appears you wish to try him here, then stand back and want others to convict and cry out for punishment… and your ‘hands’ will be ‘clean’… nice…

    If the Sgt. erred, used bad judgement, acted maliciously, the appropriate actions, admin. and legal, are appropriate… no problem with that… am not justifying what occurred… but please have the moral, professional courage to say what you think is appropriate, instead of wringing, then washing your hands… (wrong order, by the way)

     

  5. Alan Miller

    Sure am curious how the innocent person got fingered as the perp.  I don’t know if that will ever come out, or maybe there was already on article on it . . . but there must need to be a lot of evidence to point to someone, and how was there evidence when the person wasn’t there?  A fascinating and troubling case.

  6. Alan Miller

    What troubles me is that a case could get that far and the person incarcerated that long when the person was clearly not there (unless he drove another car after leaving his cell phone in his car at Lake Berryessa).  And having served on a jury, the jury pool seems to be made up by a majority of conservative simpletons who believe everything a police officer says, balanced by a couple of liberal wackos who believe the police are lying, plus Alan Miller.  At least that was my jury, and it was a sh*t-show.  But given the vast majority was ‘believe the police and let’s all go home tonight and not come back tomorrow’, one or two different jurors and people can be convicted because (1) All 12 took the police word as gospel, and (2) All 12 wanted to go home and have jury duty over with was more important that justice on the person accused.

    1. Bill Marshall

      Alan… different experiences as to outcome, but similar experience as to juries… would not have used some of the adjectives/nouns you used, but some truth even in those… I analyzed testimony, was skeptical as to testimony, but there indeed were some who opined that “if they were innocent, they would not being tried”… morons… the downside of ‘the system’… there were some who initially opine, police and system is evil, and resisted looking at facts… also morons.

      It is what it is.

      Dad served on several juries… he advised me, if I was accused of something, and was innocent, I should demand a ‘bench trial’… if I was guilty, should demand a jury trial… much wisdom.

      Which gets us to another important concept… one can do wrong, but nowhere near the extent of the charges… am helping another through that… they did a stupid, and it is ‘wrong’, but the charges are disproportionate…

      1. Alan Miller

        … would not have used some of the adjectives/nouns you used, but some truth even in those…

        Yeah, neither would I.  But those derogatory words were well deserved by the particular individuals on the jury I served on.  Picture a jury pool picked from the people you see in line at the DMV.

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