Several months after a law-enforcement officer shoots a civilian, the San Diego County District Attorney issues a brief letter to the sheriff or chief of police—depending on where the shooting occurred—summarizing the DA's investigation of the shooting. Under former DA Paul Pfingst, those letters were posted on the DA's website. Current DA Bonnie Dumanis, elected in 2002, took the letters offline shortly after. Despite speculation that she did this at the request of the police and sheriff's unions—both of whom supported her run for DA—Dumanis insisted she pulled the letters because they contained names of witnesses. Suggestions that the names be redacted and the letters put back online didn't change things.
On June 22, CityBeat asked the DA's office for copies of summary letters dating back to 2000. No problem, said Dumanis' director of communications, Gail Stewart, that very same day. A week later, DA spokesperson Paul Levikow informed us the letters were no longer available to the public.
A Union-Tribune article from January 2004, however, quotes Dumanis saying that although the letters were no longer online, they were still available by request. CityBeat forwarded that article to Levikow. That was on July 7. On July 8, Stewart told us, again, that she'd get the letters to us as soon as possible. July 9 would be ideal, we told her. By July 13 we hadn't received a response, so we again contacted Levikow, who said Stewart had “passed [him] the baton” and he was working on it.
On July 15, Levikow responded to an e-mail reminder by saying he'd forwarded CityBeat's request to the DA's Appellate Division. That's nonsense, we told him—we put in our request more than three weeks ago. Why wasn't it forwarded to the Appellate Division then? To that question we received no answer. Stewart and Levikow, notably, are both former reporters.
(Note: Late Monday afternoon, shortly before press time, CityBeat received a phone call from the DA's records division informing us we could pick up copies of the letters.)
When it comes to officer-involved shootings, California has some of the most stringent laws governing release of information. Internal-affairs reports are off-limits and anything considered part of a police officer's personnel file is exempt from disclosure. Other investigatory materials can stay under wraps, thanks to a 1993 state Supreme Court case that said, open or closed, it's up to a law-enforcement agency whether or not information is released. But as for the summary letters CityBeat requested from the DA, the California Public Records Act, the law governing the release of government information, says that once a document is publicly accessible, only a court order can change that. The fact that the summary letters were once available online means they should promptly be made available to anyone—a newspaper, a victim's family, even you—who asks for them.
Tim Redmond, executive editor of the San Francisco Bay Guardian and chair of the Association of Alternative Newsweeklies' First Amendment Committee, has spent more than two decades challenging public agencies to release information. The Bay Guardian has repeatedly challenged the San Francisco Police Department for access to information, such as in 2001 when the SFPD refused to release 911 tapes from a contested shooting of a mentally ill man. (CityBeat requested 911 tapes from the April 4 shooting of 25-year-old Jacob Faust in San Diego and was told by a Sheriff's Department attorney that the tapes would not be made available.)
“Records of officer-involved shootings are records of life-and-death decisions by people working on the taxpayer's dime,” Redmond said. Those records “should always be made public as soon as an investigation is complete.”
Janice Jordan, who heads the San Diego chapter of the national organization, CopWatch, agrees.
“Unfortunately, it always comes down to the police officer's word against the private citizen,” she said, “and in a Cops, CSI, Law and Order and The Shield frenzy climate, police officers have somehow been given carte blanche and are allowed to live and act above the law.”
San Diego (both city and county) is known for the tight grip police and sheriffs unions have on the region's two law-enforcement oversight boards—independent entities charged with investigating and reviewing citizen complaints and officer-involved shootings. Lawsuits have stopped the city's Citizens Review Board on Police Practices (CRB) from issuing case-specific reports, threatened the county's Citizens Law Enforcement Review Board from releasing findings from its own investigations and closed to the public city and county Civil Service Commission disciplinary hearings involving police officers.
In an interview, CRB Executive Director Scott Fulkerson said he couldn't even refer by name to specific cases his board has reviewed.
All the review boards can do, for now, is release annual reports in which a year's worth of work is boiled down to statistics and a list of policy recommendations. Annual reports put out by the county's law-enforcement review board used to be rich with information, tracking trends and detailing disciplinary actions taken against officers in cases involving misconduct.
Mike Gennaco, a former U.S. Attorney specializing in civil-rights cases, is familiar with San Diego's predicament. Gennaco now works for the L.A. Office of Independent Review (OIR), a private law firm that contracts with the L.A. County Sheriff to provide department oversight. The OIR operates with significantly greater resources than either San Diego review board and without anything impeding how they report their findings. For each incident his office investigates, Gennaco said, they issue a “transparency piece.” This week they'll be releasing a report on the May 9 shooting in a Compton neighborhood, where 10 deputies fired at a moving car. The report will be available online at www.laoir.com.
“We identified a lot of training deficits, supervisory issues and [recommended] policy,” Gennaco said. The report also details disciplinary actions taken against 13 officers in that case—OIR reports don't identify officers by name. “We try to walk the public through that shooting,” Gennaco said. “It's a 50-page report that provides, I think, a definitive answer.
“It's too bad your police boards down there can't do similar things anymore,” he said.
When an officer-involved shooting occurs, three investigations begin almost simultaneously: a homicide investigation (to determine whether an officer broke the law), an internal-affairs investigation (to determine whether the officer was following department procedure) and an investigation by the DA's office. Prop G, passed by San Diego voters in 1988, created a citizens review board charged with reviewing all three investigations—in sum, thousands of pages of documents, forensic evidence, tapes and photographs. Based on that information, the CRB determines whether the investigations are thorough and, ultimately, whether the shooting was justified. They also look at whether the officer followed correct procedure and if there's anything to be learned from the shooting that could affect policy or training. If the board disagrees with law-enforcement findings, it can demand an independent investigation by agencies ranging from the city attorney's office to the U.S. Department of Justice, depending on how dissonant police findings are to its own.
By law, though, the standard for review, said Fulkerson, is whether a shooting is justified or not—there's no gray area.
“It makes no difference... if we find that a shooting was preventable,” he said. “All shootings, at some level, are preventable. The law gives officers the right to shoot if they feel their life or safety or the lives and safety of others are in jeopardy.
“That said, we always look at the issue of was the shooting preventable, and to that end, we regularly have discussions and make recommendations about policy, procedure and training.”
The one report the CRB did manage to release was its 1999 review of the shooting of former NFL football player Demetrius Dubose on July 24 of that year. That shooting generated enough outrage that DA Paul Pfingst posted online his office's report in its entirety—368 pages. Making that information public, said Fulkerson, helped calm the public.
“People went, ‘Oh, that's what happened.' But we were immediately sued, and the courts, all the way up through the appellate court, said, no, you can't do that.”
Shortly after the CRB released the Dubose report, the San Diego Police Officers Association (POA) sued to make sure that the next shooting the board reviewed—that of mentally ill, tree-branch wielding transient William Miller in February 2002 in Point Loma—didn't include a publicly issued report. POA attorney Everett Bobbitt argued that such reports violated a section of the California Penal Code that says an officer's personnel file is private and no portion of it can be released to the public without a court order. It would be impossible, he said, for a CRB report not to include information gleaned from documents considered to be personnel records. One argument for keeping this information from the public is cop safety—threats of retaliation against officers. Open-records proponents point out that names and any other identifying information can be easily redacted from these reports.
Issues of privacy aside, the POA wasn't happy, either, with what the CRB had to say about the Dubose shooting. Though the board agreed that the officers were justified in their actions, the report noted that they could have done things differently, like not handcuff Dubose who, until that point, had been cooperating with officers. When they tried to handcuff him, 240-pound Dubose, according to witnesses, grabbed one officer's nunchakus and began swinging them at the cops. He also, said witnesses, threw one officer to the ground. That's when he was shot 12 times—five of those shots in the back.
Current POA President Bill Nemec said the CRB lacks the expertise, both then and now, to publicly comment on what an officer should or shouldn't have done. It's a common argument applied to citizen-review boards.
“There were comments that the CRB was making about tactics, about training,” he said. “They were going through and evaluating how the officers were behaving and conducted themselves without having an understanding of the experience of the officers or the training of the officers. To be able to say, ‘I know what took place from reading a report' without having that training and experience makes it difficult for a person to really speak with any authority.”
But Fulkerson, whose board goes through at least 160 hours of training each year, believes the CRB does have the capability to issue responsible public reports. He understands, though, that it's the union's job to protect its members, but, he said, “I think they kind of shoot themselves in the foot that way.”
While critics argue that a culture of police secrecy indicates they have something to hide, Fulkerson disagrees. “We do not have a bunch of cowboys out there that just think, ‘I'm going to go out and shoot somebody tonight,'” he said.
“I think we need to give the public more information because the public, I don't think, has a clear idea just how much time and effort and rigor is put into these investigations, and when they finish with an investigation, if there's a family that's upset and unhappy, they're not going to get any information that's going to make them feel less upset and unhappy.”
A few blocks away from the CRB offices, the county's police review board is in the same boat. Unlike the CRB, the Citizens Law Enforcement Review Board, or CLERB, has its own investigators and conducts its own investigations independent of the Sheriff's Office. Unlike the CRB, CLERB, in the past, held public hearings and released detailed, case-specific reports from its inception in 1992 until 2002 when, says Executive Director John Parker, the board was threatened with a lawsuit by the deputy sheriffs union, which was represented, like the POA, by Everett Bobbitt. That lawsuit, which would have had the same basis as the one against the CRB (personnel files are private) never happened. However, Copley Press—the parent company of the Union-Tribune—has a case pending before the state Supreme Court seeking to clarify what's considered police officer personnel information. The outcome of that case could determine whether CLERB can go back to releasing the breadth of information it had in the past without the threat of litigation.
One attorney CityBeat interviewed said that the case could also open the door to the CRB again releasing case-specific reports like it did for the Dubose shooting. Bobbitt, however, said he's confident the court will rule in favor of law enforcement.
Even if the court rules against Copley Press, Parker said CLERB will take its chances. Its reports are the product of its own investigations and therefore don't directly involve officer personnel records, he said. (Bobbitt, however, argues that since those reports involve disciplinary recommendations, they do, ultimately, find their way into an officer's personnel file.)
“If it doesn't go that way,” Parker said, “I think we assess what we're doing and look at whether we want to just take an action that will ultimately result in a legal action by the Deputy Sheriffs Association.” Right now, said Parker, his board is fulfilling only part of the job it was charged with.
“There was certainly more public discussion,” when CLERB released reports, Parker said. “The public knew what was going on and-whether they agreed with us or not-there was some public discourse. There is none of that now. My review board operates on, ‘You're going to have to trust me.' You're not going to see what we're doing, which is exactly what the [Sheriff's] department's internal process is.”
Former CLERB Executive Director Sue Quinn, who went on to serve as president of the National Association of Citizen Oversight of Law Enforcement, or NACOLE, said that while citizen review boards weren't intended to be conduits of information, transparency is key to effective law-enforcement oversight.
“Like law-enforcement agencies, oversight agencies, whether they're boards, auditors or monitors, are conducting the public's business-and the public has the right to know the public's business,” she said.
When CLERB was able to issue full reports, she noted, it generated media attention. Media attention, in turn, generates public and political interest-necessary components to good law-enforcement oversight.
“The review boards in any city are only as timid or not timid as the leadership of the community wants them to be,” Quinn said. “It's not that Everett Bobbitt is as fantastic an attorney that he can keep things shut down. It's that there is not significant arguments being made to change the case law either by the city or the county. Anybody can say, ‘Here is what I think the law is.' Neither the city nor the county are challenging that interpretation.”
For now the only way the family of an officer-involved-shooting victim can access law-enforcement records is if they hire a private attorney. San Diego attorney Mike Marrinan has represented families in nearly a dozen such cases. Sometimes, he said, a family will back off from a lawsuit once they see the full investigation.
“I have had [the police department] give it to me because I've told them, ‘Look, I'm going to get it anyway and your choice is let me look at the file, let me show it to the family and we can decide whether or not we want to file a case, or if you won't give it to me, you're forcing me to file a case-now what do you want to do?'”
Reticence to hand over information breeds public distrust, he said.
“Let's say there was a controversy over a particular shooting,” Marrinan said. “There's a witness who says, ‘I saw the whole thing and they shot him in the back three times.' And you give the family the investigation and they find out he wasn't shot in the back. If [law enforcement is] playing it straight and telling us the truth, what are they afraid of? I've had a couple of cases like that.”
But, he added, “I've had more cases where the information the police are telling is not the truth, and you get the investigation and you realize it's a lot different than the public face they're putting on it.”
One of those cases involved an officer who said he kicked open a bedroom door to find a man pointing a gun at him. Autopsy reports—one piece of information always available to the public through the County Medical Examiner—showed that the man was shot in the back. “The police had the guy sitting facing them. So clearly they were not telling the truth about that,” Marrinan said.
As far as getting information without the aid of an attorney, Marrinan said the DA should make public her office's full investigation in every case, like what former DA Pfingst did for the Dubose shooting, regardless of whether the public demands it.
“To the family whose loved one is dead, the case is as important as any other shooting case. Just because the rest of the public doesn't want the information doesn't mean that part of the public isn't entitled to it. I mean, they work for us, these cops. We give them guns, we spend all this money training them and now they've killed someone. Why don't we have a right to know?”
CityBeat asked DA spokesperson Levikow whether his boss would, upon request, release her office's full report on an officer-involved shooting-something we'd especially like to see in Jacob Faust's case, a story we covered in detail in our May 18 issue. We pointed out to Levikow that even Everett Bobbitt, the police union lawyer, told us there's nothing stopping the DA from doing so.
At press time, however, Levikow hadn't yet responded.