The City Where Investigations of Police Take So Long, Officers Kill Again Before Reviews Are Done

by Laurence Du Sault, Open Vallejo

Around dinner time on Feb. 13, 2018, Ronell Foster was riding his bike on a wide road that runs through the historic downtown of Vallejo, California. The 33-year-old did not own a car, and cycled nearly everywhere he went around his hometown, often flanked by his teenage son and 5-year-old daughter.

But that night, Foster was riding alone, swerving in and out of traffic lanes without a bike light, and caught the attention of officer Ryan McMahon, who pursued Foster in his car. Foster hit the brakes, and McMahon ordered him to “come over and sit in front of my car,” according to the officer’s deposition in a civil rights lawsuit filed by Foster’s family.

“Stop messing with me,” Foster responded before taking off on his bike in the opposite direction, McMahon recalled in his deposition testimony. The officer got back in his car and chased him down.

Foster soon fell from his bike and ran away. When McMahon continued the chase on foot, Vallejo policy required him to notify the department by radio. But that’s not what he did. Instead, he left his patrol car and followed Foster toward a dark walkway between two houses.

As they ran, McMahon tased the African-American man in the back without a warning, although officers are required to give one unless it puts them in danger. The officer later said he did so in part because he saw Foster grabbing his pants, causing him to think Foster had a firearm. Foster, who was unarmed, kept running but fell. As he tried to get up, McMahon pushed him, causing Foster to fall down a small flight of cement stairs, the officer testified in the lawsuit. McMahon then straddled his back.

Body camera footage shows Foster lying on the pavement without fighting back when McMahon, standing next to him, fired his Taser once more. Then the officer struck Foster in the head and body with a 13-inch metal flashlight, Foster’s family alleged in court records. As McMahon swung to hit again, Foster caught the flashlight and tried to get up.

While some facts of the case are disputed, what happened next is not: McMahon shot Foster seven times. Autopsy records show he hit Foster once in the head, four times in the back and twice on the left side of his body, killing him.

“It’s all good,” McMahon said as backup arrived minutes later. “He’s down. He’s down.”

A diverse waterfront city of 125,000 located in the San Francisco Bay Area, Vallejo has garnered national attention in recent years for its rate of police killings, which far outpaces those of all but two California cities, San Bernardino and South Gate, according to a 2019 NBC Bay Area report. Eight families of people killed by police over the last decade have filed civil suits against Vallejo, which has paid out more than $8.3 million in settlements so far, with three cases ongoing. (The single largest settlement, $5.7 million, went to the Foster family.) In July 2020, Open Vallejo exposed a tradition in which officers bent their badges to mark their fatal shootings.

Now, Open Vallejo and ProPublica have looked at what happens inside the department after those killings occur, examining more than 15,000 pages of police, forensic, and court files related to the city’s 17 fatal police shootings since 2011. Based on records that emerged after dozens of public records requests and two lawsuits filed by Open Vallejo, the news organizations found a pattern of delayed and incomplete investigations, with dire consequences.

In the Foster case, when top department leadership ultimately reviewed reports and evidence more than a year and a half after Foster was killed, it found McMahon had violated department policies — both by pursuing Foster on foot without notifying the department and without backup and by failing to turn on his body camera before using deadly force. (While McMahon only turned on his body camera after he fired, the camera is designed to automatically capture 30 seconds of pre-activation footage.)

“Officer McMahon failed to recognize his safety and the safety of the suspect Ronnell Foster outweighed apprehension for a minor traffic/pedestrian violation,” then-police chief Joseph Allio wrote in a memorandum. Allio ordered that McMahon “attend a 1 to 3-day course on officer safety and tactics focusing on critical incidents.”

But by the time that training was ordered, the officer had been involved in the killing of another African-American man.

According to our first-of-its-kind review of Vallejo’s investigations of police killings, six of the department’s 17 fatal shootings between 2011 and 2020 involved an officer using deadly force while still under investigation for a prior killing. In three of those cases, including McMahon’s, department officials noted officers’ initial mistakes in their reports, but not until after their second killing. In all three, the investigation into the second killing also revealed significant tactical errors, like not considering the use of nonlethal weapons. In one case, officials identified the same mistake in two killings involving the same officer.

The news organizations also found that the department consistently failed to properly complete essential investigative tasks and took more than a year on average to close its administrative investigations of fatal shootings — methods that experts say are at odds with best practices promoted by the U.S. Department of Justice and used by police agencies around the country.

“This isn’t accepted practice. This isn’t even basement standard practice,” said Louis Dekmar, the police chief in LaGrange, Georgia, since 1995, and a former civil rights police monitor for the U.S. Department of Justice. “Any agency that takes that long is saying that this isn’t a priority.”

Officials in the Foster case mishandled a crucial piece of evidence, police records show, then took months to request that the crime lab analyze it for fingerprints. Nineteen months passed between the killing and the submission of investigative findings to the police chief. Only then was the chief able to fully assess the case and consider discipline for that shooting. McMahon later testified that he feared for his life and that Foster, holding the flashlight, faced him “in a boxer type stance.” But body camera footage does not support the officer’s claim that Foster was facing him, and an expert for Foster’s family who reviewed enhanced footage and other forensic evidence concluded that Foster had immediately turned away. McMahon remained on the job, and was later fired over his involvement in the killing of another man, during which, a department investigation found, he endangered a fellow officer by shooting from behind him. He did not respond to requests for comment for this story.

In a March phone call, Shawny Williams, Vallejo’s police chief since November 2019, agreed to an interview but declined to schedule it; after we shared our findings with the department in writing, he provided a statement that pointed to recent administrative changes, like implementing a yearly crisis intervention training and requiring officers to use de-escalation tactics when possible before engaging with a suspect. Williams also noted proposed reforms to how the department investigates its fatal shootings — some of which mirror recommendations first made to the department by a law enforcement consultant two years ago. Among them: a deadline for officials to produce their findings once all the evidence has been gathered.

Williams declined to answer questions about any specific cases.

“While I cannot comment on critical incidents which occurred prior to my arrival, or on ongoing matters, I can confirm that overall, the VPD continues the process of implementing police reforms,” the chief wrote. “All the above changes are designed to create enhanced internal accountability and will provide a more transparent process for our department and the community.”

“A Remarkable Amount of Incompetence”

While there is no universal timeline for internal investigations, guidelines developed for the Department of Justice by a group of local police officials say departments should, at minimum, complete their probes before any statute of limitations on officer discipline expires (one year, in California, with some exceptions). “It is preferable,” the group wrote, “to conclude investigations within 180 days.”

But in some of the DOJ’s own reviews of police departments across the country, it has pushed for even shorter deadlines when it comes to investigating an officer’s use of force, including fatal shootings.

In 2012, for example, the Justice Department mandated that the East Haven Police Department in Connecticut complete deadly force investigations within 60 days and forward a report to the chief, who has 45 days to complete the review. And in 2014, the DOJ required a similar deadline in Albuquerque for reviews of serious uses of force.

But in Vallejo, Open Vallejo and ProPublica found that the police department has taken an average of 20 months to review fatal shootings, from the time of a police killing to the date a chief signed off on the investigation.

A number of mistakes drove delays in Vallejo and undermined the integrity of investigations. One core problem: Some witnesses to killings reported long delays before officers took their statements.

That’s what happened in 2012, after Jaime Alvarado and his wife, Rocio Alvarado, said they witnessed Vallejo police shoot their neighbor Jeremiah Moore, a young man whose mother said he was on the autism spectrum.

Police had responded to 911 calls about loud noises coming from Moore’s home, including the sound of glass breaking. Although officers and an intoxicated witness later claimed Moore had been armed with a .22-caliber rifle, Jaime Alvarado said Moore was naked and unarmed, with his hands up and shaking from fright, when he was shot and killed by a Vallejo officer. (A forensic analysis could not find Moore’s fingerprints on the rifle, which was recovered in his home, while a later one found small traces of his blood on it.)

Alvarado said he tried to approach a Vallejo officer a few hours after he saw the killing through his second-floor window, but was told that “we don’t have time to talk” and to “get inside the house.” No one from the department tried to contact him after that, he said.

“They would not pay attention to me,” Alvarado told Open Vallejo and ProPublica.

According to Alvarado, detectives didn’t take his statement until several months later, after an attorney hired by Moore’s family to sue the city facilitated the interview. Yet there is no record of that interview in Vallejo’s case file, and the department ultimately cleared the officer in the killing. Neither the Moore family attorney nor the police department responded to questions about Alvarado’s account. The Moore family’s lawsuit was settled in 2016 for $250,000.

It was one of three investigations among the 17 killings in which Vallejo detectives interviewed one or more eyewitnesses months later or did not interview them at all, despite a county policy that states department officials are responsible for “immediately” securing crime scenes, including identifying and sequestering witnesses in order to obtain their statements. In each of these cases, the witnesses’ accounts directly contradicted claims by police that the victims had been armed.

But it was not the only type of delay. In 11 of the 17 cases, investigators did not meet a 30-day goal set by the county to complete their reports. Detectives often took even longer to request analysis on important evidence, such as bullets fired by officers, fingerprinting, DNA samples and weapons allegedly carried by the victims. In six investigations, Vallejo sent requests for evidence testing to a crime lab half a year or more following the killings. In most of those cases, the delayed analyses appear to have hampered the investigations or led to cases being closed by investigators before some forensic reports could be included.

In Foster’s case, detectives didn’t seek fingerprint testing of the flashlight that McMahon claimed Foster used as a weapon until eight months after the killing. When they finally made a request, the lab could not find Foster’s fingerprints. Experts say long delays can cause biological evidence to degrade.

“The consequences of delayed resolutions of investigations are severe,” the Justice Department wrote in its investigation of the Chicago Police Department in 2017, triggered after a white officer fatally shot Black teenager Laquan McDonald. “Memories fade, evidence is lost, and investigators may not be able to locate those crucial witnesses needed to determine whether misconduct has occurred.”

For years, the Solano County district attorney based their decisions about whether to charge Vallejo police officers primarily on evidence gathered by Vallejo officials. This made some of the detectives’ missteps especially meaningful. For example, in three of the killings from 2012, prosecutors cleared officers before all the evidence in the case had been analyzed by forensic experts.

“Either there is a remarkable amount of incompetence or it’s malicious,” said Seth Stoughton, a professor at the University of South Carolina School of Law and former Florida police officer, about the Vallejo Police Department. “Neither should be acceptable.” Stoughton testified as a national police standards expert for the prosecution in the trial of former Minneapolis police officer Derek Chauvin, who was convicted of the murder of George Floyd.

Williams, the Vallejo police chief, declined to answer specific questions about the numerous delays.

Solano County’s current district attorney, Krishna Abrams, who took office shortly after the officer involved in the Moore shooting was cleared, also declined to comment on the findings of this investigation.

However, Abrams wrote in a statement that her office has continued to make it a priority to use best practices for investigating officer-involved fatal incidents. She pointed to rule changes from 2020 that require that future investigations of Vallejo killings involve criminal investigators from other departments in the county. She did not comment, however, on another rule change made that year that removed a 30-day target for detectives to complete their reports.

While Investigations Drag, Officers Kill Again

As Vallejo’s investigations dragged on, sometimes for years, officers who had killed patrolled the city’s streets, their mistakes unaddressed. In three cases, department officials flagged officers’ actions only after they were involved in another killing, police records show.

Officer Sean Kenney killed Anton Barrett in May 2012. Kenney was still under investigation for that shooting when, on the morning of Sept. 2, 2012, he and his partner, Dustin Joseph, pulled up in front of the home of a man named Mario Romero. Romero, who identified as Black, Indigenous and Latino, was sitting in his parked Ford Thunderbird with his brother-in-law, police and court records show. The two white officers claimed that the young men seemed shocked to see them approaching and that Romero’s car was encroaching on the sidewalk, according to the officers’ depositions in a civil rights lawsuit filed by Romero’s family. Kenney also claimed that a similar vehicle had been involved in a shooting the prior month.

Within seconds and without exchanging a word, Kenney and Joseph exited their vehicle and started firing, according to Joseph’s deposition. Then, Kenney jumped on the hood of the Thunderbird, according to court and police records.

The officers fired 31 rounds in total, striking Romero, a father of one, 30 times in the face, neck, forearms, chest and left side of his body. His brother-in-law was hit once in the pelvis and survived. Officers pulled both men from the car after the shooting.

Joseph told detectives that Romero had briefly gotten out of the car and grabbed the butt of a gun in his waistband, though officials never found a firearm. Kenney claimed he recovered a pellet gun wedged between the rear portion of the driver’s seat and the center console. Two weeks after the incident, the officers were sent back to patrol. While police experts said many departments don’t prohibit this, they also said that having officers with open deadly force investigations go out on patrol can be dangerous for officers and community members alike.

It would take detectives another eight weeks to interview Romero’s three sisters, eyewitnesses in the case who contradicted the officers’ accounts. They said they never saw Romero with a firearm and that their brother remained inside the car during the incident.

Before those interviews happened, though, Kenney had killed again.

On Oct. 21, 2012, the day after Romero’s funeral, Kenney fatally shot Jeremiah Moore, the young man who Alvarado said was unarmed. It was Kenney’s third deadly incident that year.

The next year, on March 20, 2013, Joseph and two others were involved in the fatal shooting of 42-year-old William Heinze, who had barricaded himself in a house with a firearm during a mental health crisis. It was Joseph’s second deadly incident in just over six months.

In 2014, with investigations into those two killings pending, Joseph received a departmental Life-Saving Medal for a separate event and was promoted to corporal. Kenney, with three open deadly force investigations, was awarded the Medal of Valor for his role in the Moore shooting, according to Kenney’s deposition.

Roughly two years after the Romero shooting, the department’s Critical Incident Review Board finally issued findings in the administrative probe. The panel is supposed to evaluate whether officers’ use of force was justified.

In October 2014, it flagged the officers’ tactics during the incident. The board found that Kenney placed himself in a “tactically disadvantageous position with a potentially armed subject” when he jumped on the hood of Romero’s car, and noted officers could have waited at their car for backup, records show. Nevertheless, officials noted, “The board felt that the officers relied upon their past training to successfully endure this dangerous and rapidly evolving incident.”

It still recommended additional training, without specifying whether the training was intended for the two officers or the department as a whole. The board then failed to forward its own completed report to supervisors for nearly a year. During that time, the city settled the lawsuit for $2 million.

Yet another year would pass before then-Vallejo Police Chief Andrew Bidou assessed the case for disciplinary, training and policy considerations. Bidou approved the board’s findings, but he did not take further action in the case, the files show. By then, criminal accountability had been ruled out, too. The district attorney had declined to file charges three years earlier. His report noted that Vallejo investigators had interviewed Romero’s sisters long after the incident; the prosecutor suggested that the delay made their statements less credible than the officers’ accounts. He was also missing forensic analyses that would later show that the DNA and fingerprints taken from the pellet gun could not be matched to Romero.

“If that investigation had been run properly, Kenney would have been off the street and he wouldn’t have killed my son,” asserted Lisa Moore, the mother of Jeremiah Moore, Kenney’s third shooting victim, about Vallejo’s handling of the case. “Four years, that’s a long time to figure out ‘Oh, we messed up. What did we do wrong so that this doesn’t happen again?’”

Kenney retired from the Vallejo Police Department in 2018, after the board cleared him in the Moore shooting. He declined to comment for this story. As for Joseph, the Vallejo board ultimately flagged officers’ tactics during his second deadly incident, and recommended training. Joseph, who did not respond to requests for comment, left Vallejo in 2019 to join the nearby Fairfield Police Department, where Fairfield officials said he is currently on leave.

“With This Delay There Is No Justice”

The review board’s actions in the Romero case were not an anomaly.

Made up of two to six ranked officers from within the Vallejo PD, the Critical Incident Review Board reviews an investigation, identifies whether officers violated any policies and makes recommendations to the chief, according to the department’s policy manuals. Our analysis of the 17 cases found those reviews were consistently delayed. In 11 cases, the panel sent its report up the chain of command more than one year after the incident. And in six of those cases, the board sat on its findings for months before forwarding them, delaying the review of the chief of police, who makes the final decision on discipline, according to the analysis by Open Vallejo and ProPublica. In two cases from 2011 and 2012, the department was unable to show that a final administrative review was completed.

The news organizations’ analysis found that the board often cleared officers even when it noted problems with how they had handled a shooting. In fact, the CIRB never determined that any officers had violated department policies, according to the department’s records. Often, it recommended training. But in at least a few of those cases, there is no evidence in training and investigative files that the involved officers completed it.

In two cases in which the chief considered potential discipline, he opened yet another investigation because the board’s probe was insufficient, creating additional delays. All these delays by both the CIRB and the chief matter in part because California law gives departments only one year to impose discipline once officials learn of an incident, though that timeline is paused during a criminal investigation. (That timeframe expired in one of the 17 killings that we reviewed.)

Experts said Vallejo’s approach is fundamentally flawed.

“That’s the whole purpose of having a disciplinary process in place: to assess quickly whether or not officers have engaged in misconduct, and if they’re a threat to the public, to get them removed from the department and off the streets,” said Judge LaDoris Hazzard Cordell, a former Superior Court judge for the County of Santa Clara. From 2010 to 2015, Cordell served as the independent police auditor for the city of San Jose, which created the office in 1993 following the beating of Rodney King by the Los Angeles Police Department.

“What is happening in Vallejo is quite the opposite: It’s just delay, delay. And with this delay there is no justice,” Cordell said.

Over and over, the board seemed to miss opportunities to help the department fix practices that contributed to those killings. Despite delays, the CIRB did, in fact, note plenty of problems: officers who didn’t turn on their body cameras, failed to use less lethal options, mismanaged crime scenes or did not wait for backup. But, time and again, the board reports neither called out individual officers for problematic behavior nor recommended policy changes as a result of the failures they repeatedly identified.

The most common problem identified by the CIRB in its reviews of killings was that officers acted without sufficient “cover,” meaning they didn’t properly use structures like cars for protection when confronting civilians, amplifying the risk to themselves and others in already-dangerous situations. When officers don’t take cover, “they put themselves in jeopardy — they create jeopardy,” said Dekmar, the former civil rights police monitor for the U.S. Department of Justice. “That results in a use of force that may have been avoided.” Investigators noted cover issues in six of Vallejo’s 17 killings since 2011.

It first surfaced in the 2012 case of Marshall Tobin, a 43-year-old Black man who was sitting in his car sobbing over his phone when two officers, both under deadly force investigations for prior killings, approached him. Police had received a call about an armed man in a parking lot. After Tobin emerged from his car, officers tased him and then fired at least 11 rounds at him, killing him. The officers told investigators that after he was tased, Tobin had reached for a gun in his waistband. They did not respond to requests for comment for this story.

A year and a half later, the CIRB found in its review that the officers had approached Tobin on foot, “leaving the cover and concealment of the vehicles.” It recommended additional department training in how to use cover, but it did not officially flag the officers’ behavior or find that they had violated a policy. (Two months after that, one of those two officers, from inside his patrol car, shot at a Latino man fleeing a traffic stop — the officer’s third fatal incident in two years. The board approved of the shooting, and the chief cleared him.)

At some point after the Tobin killing, then-police chief Joseph Kreins, who reviewed seven fatal shootings between 2012 and 2014, did add a clause to the policy manual that “encouraged” officers on vehicle pursuits to “remember the importance of cover, concealment, and safe distance.” But in 2015, despite the board’s findings in the Romero and Tobin shootings, the next chief of police, Andrew Bidou, removed it. Neither Kreins nor Bidou responded to requests for comment.

The issue emerged again in 2017, when officers killed Jeffrey Barboa, a father of one who police said was wanted for an armed robbery. Following a high-speed pursuit that ended in a crash, Barboa had approached officers while holding a knife over his head. The officers, standing within 15 feet, did not step back, police records show. As Barboa slowly walked toward the officers, they fired approximately 50 rounds at him, hitting him at least 30 times in the chest, face, neck, arms and legs.

More than 28 months after that shooting, in December 2019, the CIRB found in its report that had the officers taken cover or put more distance between themselves and Barboa, they would have created time to communicate with him and “deploy less-lethal alternatives.” “It is this positioning that likely caused the situation to speed up,” the board wrote.

Nevertheless, the review board responded as it usually did: It identified no policy violation or specific officer at fault and issued a list of training recommendations with no accompanying plan to implement them. There is no evidence in the department’s reports that Vallejo officials took further action in the case.

Originally Published by Open Vallejo and ProPublica.  ProPublica is a Pulitzer Prize-winning investigative newsroom.

About The Author

Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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1 Comment

  1. PhillipColeman

    Ninety days for completion of an officer-involved shooting is more than enough time, except in rare instances with multiple participants or locations.  In smaller departments particularly, the investigative assignment is given as an ancillary task to one person with no deadline for completion.

    A state statute with such a timeline and exception would benefit the credibility of the law enforcement profession and increase positive public perception of its investigative capability.

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