HomeMy WebLinkAboutStaff Report 475-09TO: HONORABLE CITY COUNCIL
FROM: CITY MANAGER DEPARTMENT: CITY MANAGER
DATE: DECEMBER 14, 2009 CMR: 475:09
REPORT TYPE: Informational
SUBJECT: Transmittal of Independent Police Auditor Semi-Annual Report for the
Period January -June 2009
Consistent with Council direction, the City Manager is transmitting the semi-annual report from
the Independent Police Auditor for the period between January -June 2009 at the Council
meeting immediately following receipt of the report. The City Manager received the report on
December 9, 2009.
ATTACHMENTS
Attachment A: Independent Police Auditor Semi-Annual Report for the Period January -June
2009
SUBMITTED BY:
CMR: 475:09
December 14, 2009
KEENE
Page 1 of 1
Attachment A
POLICE AUDITOR'S INTERIM
REPORT
Presented to the Honorable City Council
City of Palo Alto
December 9,2009
Prep ared by Michael Gennaco
& Robert Miller
OIR Group
323-890-5425
www.laoir.com
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Palo Alto Independent Police Auditor
Interim Report for 2009
I. The Third Year
This report is the first of two reports covering the third year of the Independent
Police Auditor's work with the Palo Alto Police Department. It reports on investigations
initiated and complaints that have been considered since the publication of the second
year Final Report and provides updated information regarding investigations that had not
yet been fully resolved at the time the Final Report was released. Additionally this
Report updates the work the Auditor and the Police Department have engaged in with
regard to systemic issues.
This report also covers the Auditor's review of all applications of the Taser by
P APD personnel in the course of detention and arrest of suspects. This complies with the
mandate of the Palo Alto City Council that the IPA expand its purview to include Taser-
related incidents.
II. Taser Incidents
Since the introduction of the Taser as standard equipment for all Palo Alto PD
patrol officers in late 2007, Department members have applied or attempted to apply the
Taser to six persons in separate incidents. We revisit the third incident and review the
fourth, fifth and sixth incidents below.
This year, the Department has upgraded the documentation of Taser incidents,
providing a more thorough and well structured evaluation. We believe this will enhance
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the Department's ability to evaluate and improve the utility of this still relatively new
tool.
Taser Use of Force #3 -Incident 08-8631
Officers, called to the scene of a man acting suspiciously near a car, observed a
man alone in a parked car smoking rock cocaine from a glass pipe. They knocked on the
closed windows of the car and ordered the man to get out. He locked the doors,
continued to smoke the glass pip~, refused to get out, and appeared to search for
something in and under the car seats. The officers broke a window and used a Taser to
extract the man. We have reviewed the case materials and Taser video, but have not
concluded our discussions with P APD managers regarding this matter. Considering that,
as detailed below, the Department has now had six Taser deployments since Council
authorized the purchase ofa Taser for every PAPD officer and in light of the recent
appointment of a new Chief of Police, we believe it is appropriate to take stock of all of
the incidents to determine whether the current policy and training regime is optimal.
Accordingly, we will be conferring with the new Chief on Taser-related issues and will
report the results of those discussions as well as our conclusions regarding the Taser use
in this case in our next report.
Taser Use of Force #4 -Incident 09-2309
Officers were called to the scene of a disturbance outside a nightclub where two
groups of young men were antagonizing one another. They observed that one of the men
appeared to be particularly intoxicated and was taunting and threatening to fight the other
group. When three officers forcibly took the man off of an extemallanding down a
stairway to handcuff him on the ground, friends of the man yelled at the officers and
approached them. One of the men in the group kept approaching the officers and yelling
at them to stop arresting his friend and would not respond to the order to stay back even
when one of the officers pushed him away repeatedly with his hands. Another officer,
who was still struggling to place handcuffs on the first man pointed his Taser at the friend
and informed him that he would fire it if the friend did not back off. Then the officer
fired the Taser but missed. The friend was later arrested, but did not receive any injury
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from the Taser.
We have reviewed the use of force reports and interviews, the supervisor's
evaluation and the Taser videotape and have discussed this use of force with the
Department. It is clear from these materials that there was a large group of belligerent
and intoxicated men taunting the officers, rendering any arrest potentially difficult and
dangerous. We conclude that this was an appropriate deployment of the Taser and that
the attempted firing of the weapon at the suspect to stop him from interfering with the
arrest complied with the Department's current Taser use policy. The fact that the Taser
missed its target demonstrates the need for continued training in order to ensure officer
proficiency as well as the limitations of the tool apd the need for officers to be ready to
deploy other force options, if necessary. That said, we acknowledge the dilemma of the
officer who deployed the Taser against one suspect while still struggling to handcuff
another suspect. The mere fact that the officer missed the target does not necessarily
demonstrate bad judgment or insufficient training. Rather, it emphasizes the utility of
tactical debriefing after such incidents and the yearly Taser training required by the
Department.
Taser Use of Force #5 -Incident 09-3180
A construction worker was threatened and chased by two 16-year old juveniles of
average build swinging plastic pipes. Officers were called to the scene and made contact
with two juveniles walking away from the area who matched the detailed descriptions of
the suspects. When a sergeant attempted to stop one of the juveniles from fleeing, he
fought with the sergeant who was joined by another supervisor, who wrestled the first
juvenile to the ground. The sergeant attempted to fire a Taser at the juvenile but the
Taser cartridge malfunctioned. The sergeant then used the Taser in "stun-drive mode,"
applying the front of the Taser handle unit directly to the body of the struggling juvenile
suspect for five seconds. The second juvenile suspect joined the fray and began fighting
with the supervisors and an officer who came to assist. During that struggle, the sergeant
also applied the Taser in stun drive mode to the body of the second juvenile suspect for
four seconds. Neither application of the Taser in stun-drive mode appeared to have much
effect on either of the two juveniles. A third juvenile had attempted to interfere but was
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headed off by another officer. The first two juvenile suspects were handcuffed and taken
. to Stanford hospital and medically cleared in accordance with Department Taser use
procedure.
The initial unsuccessful attempt to fire the Taser at the first juvenile suspect
conformed to the P APD Taser use policy as an appropriate attempt to subdue a violently
non-compliant suspect so that he could be handcuffed. The stun-drives were likewise
allowable uses of the Taser during hand-to-hand contact as a simple pain compliance
device. It is important to note that the Department's current Taser policy allows for the
use of the Taser on older juveniles such as the arrestees in this case and that the involved
officers could not have confirmed that the two were juveniles at all until they were
booked. Data indicate that the Taser was fully charged during the incident, but was not
decisive during the struggle with the youths and left no signs of injury. This may be due
to the clothing worn by the juveniles or the transitory nature of the contact during the
struggle. This should be an occasion for tactical debriefing but does not implicate the
Department's policy guidelines for these uses of the weapon.
Taser Use of Force #6 -Incident 09-2926
During a struggle with a combative drunk driving suspect, an officer applied the
Taser twice to the body of the suspect in the stun-drive mode.
The Department has recently completed its use of force documentation package
on this incident but the Auditor has not yet had an opportunity to review it. We will
report on the incident after reviewing the documentation.
III. Complaints, Cases and Issues
1. Complaint of Improper Detention for 72-hour Evaluation #C 2008-019
Synopsis: After having an argument with his grown son, a father called the
Police Department and explained that his son had threatened to kill himself, referred to a
suicide note, was behaving strangely and had stopped taking his psychotropic medication.
Officers contacted the son on the sidewalk and after questioning him, interviewing the
father and conferring with one another, decided to take him to a nearby hospital for a 72-
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hour mental health evaluation by medical staff. A few days later, the son filed a
complaint that the officers had searched, handcuffed and detained him illegally.
Recommendation: California law confers the authority and the obligation on
police officers to make an initial decision in the field as to whether a person by reason of
mental infirmity is unable to care for himself or is a danger to himself or to others, and to
detain that person and refer them to a medical facility for a 72-hour evaluation. It is
important to note that peace officers only make a provisional decision to detain. Medical
professionals are entrusted to make the final decision regarding the involuntary
commitment for 72-hours. In this case, the officers appear to have made a cautious but
reasonable and compassionate decision based on the father's statements, the agitated state
of the son, and the son's history of episodes of extreme mental distress, some of them
resulting in prior 72-hour commitments effectuated by the Police Department. The
Auditor reviewed the interviews and MA V tapes and the investigator's report. We
conclude that the complaint was adequately investigated and agree with the Department's
conclusion that the actions of the involved police officers were reasonable and
professional. We do note, however, that the investigation into the allegations was not
initiated until three months after the complainant filed a written complaint with the Police
Department. We have brought this fact to the attention of the Department.
Resolution/Corrective Action: The complainant was notified of the results of the
investigation by letter.
2. Complaint of Excessive Force and Discourtesy #C 2008-020
Synopsis: Police Officers responded to a call from the Veteran's Administration
Police requesting help with the arrest of a patient who had an outstanding warrant. At the
VA hospital, officers handcuffed the patient and took him into custody. During transport
to jail, the patient said he was in distress. Officers took him to Stanford Hospital. The
patient filed a complaint alleging that he was punched in the side during the arrest,
handled roughly, and not provided a wheelchair immediately. The patient further alleged
that officers directed profanity at him and accused the patient of faking injury.
Recommendation: The Auditor reviewed the interviews and MAV video of this
incident, the documentation of the arrest and the complaint investigation reports. The
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evidence indicates that, at the time of the arrest, the Police Department had information
that the suspect was a former police officer, was known to hospital staff to be "extremely
uncooperative," and had a contagious skin infection. Additionally, hospital doctors had
determined that the patient could be safely released from the hospital and incarcerated.
The handcuffing and arrest were accomplished abruptly with no initial warning or
explanation to the patient. The circumstances known by the police at the time of the
arrest support a departure from standard courtesy in light of the need to minimize the
time and force in dealing with the arrestee. The excessive force allegation is
unsupported by the evidence. Indeed, one of the complainant's physicians stated that he
was watching the arrest proceedings closely and saw no punches or other injurious
actions by the officers. The evidence did, however, support the allegation of the use of
profanity by one of the officers. The auditor concurs with the Department's "sustained"
finding of a violation of the P APD policy against discourteous or disrespectful treatment
of the public by that officer.
Resolution/Corrective Action: One officer received discipline for the sustained
violation of the policy against discourteous or disrespectful treatment.
3. nUl #IA 2009-002
Synopsis: An off duty officer was arrested for driving under the influence of
alcohol by another law enforcement agency after the officer was involved in a single
vehicle roll-over collision. The officer was convicted of driving under the influence and
sentenced by the criminal court. Following the resolution of the criminal case, the
Department completed an internal affairs investigation. The Auditor has not yet
reviewed the investigation file and will report on it after review. The officer was placed
on desk duty during the pendency of the criminal case and the administrative
. investigation.
Recommendation: The internal affairs investigation has been completed by the
Department. The Auditor has not yet been provided the file. We will report fully on this
matter after reviewing the documentation.
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4. Complaint of Unnecessary Search and Discourtesy #C 2009-001
Synopsis: An officer pulled a motorist over because she had a non-functioning
taillight. When the motorist could not produce a driver's license, the officer discovered
that the motorist's driver's license had been suspended. The officer informed the
motorist that he would need to have the car towed and performed a cursory pat down
search of the woman before allowing her to remove personal items from the car. The
motorist later complained to the Department that the officer had been officious,
discourteous and that the pat down was intrusive and unnecessary.
Recommendation: The complaint investigation was conducted promptly and
thoroughly. The Auditor reviewed the original officer's citation, the investigator's
interviews and report, the investigator's supervisor's evaluation, and the MAV videotapes
in this case. We concluded that the officer maintained a professional demeanor during
the incident. The pat down search, while not always employed in these circumstances,
constituted a justifiable precaution to employ with a somewhat uncooperative motorist
and was minimally intrusive. We note that the P APD does not have a policy that
specifies that a pat down must or should be done by an officer of the same sex.
Resolution/Corrective Action: The complainant was notified of the results of
the investigation by letter.
5. Complaint of Improper Detention and Discourtesy #C 2009-002
Synopsis: Several officers responded to a report of a fight in progress at an
intersection. The suspected instigator was no longer there, but was described as a
Hispanic male wearing a white top and in the company of two other males. Shortly
afterwards, officers spotted three young Hispanic males, one of whom wore a white
jacket. Officers ordered the men to the ground and handcuffed them. After conferring
with the victims, the officers concluded the three young men were not suspects and
released them. At least some of the officers pointed their guns at the three men during
the incident. Two of the three later contacted the Auditor and explained his
dissatisfaction with the officers, whom he believed had been excessively aggressive in
pointing guns at them and handcuffing them and had made jocular remarks about having
a good story to tell once they were released. With the complainant's permission, we
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forwarded these allegations on to the Department and recommended a formal complaint
investigation.
Recommendation: The Auditor reviewed the reports and MA V videos of this
incident as well as the thorough internal investigation in response to the complaint. We
concluded that the officers acted reasonably in stopping the young men and handcuffing
them as possible suspects of a recent nearby physical assault. We agree with the
Department's "exonerated" finding regarding this action. The manner of effectuating the
detention, however, raised significant questions. We agree with the Department's
administrative "sustained" finding against one of the officers that drawing a weapon
immediately was unreasonable and that physically engaging one of the men and taking·
him to the ground, then straddling the subjects and pointing a gun at their backs was an
unreasonable escalation of the situation and potentially impaired officer safety. We also
agree that handcuffs were used in an appropriate and reasonable manner under the
circumstances. Additionally, the Department found that the remarks made by officers to
the effect that the young men would have a good story to tell did not violate the
discourtesy policy. We agree with the finding, but suggest to the Department that this
plausible attempt to diffuse ill feeling while explaining to the young men why they had
been detained and were being released was a miscalculated joke at best and had the
opposite effect on the men.
As a sidebar, we found that, in the course of interviewing the complainant and his
companions, Department investigators effectively fleshed out the full extent of the
allegations and accepted witness allegations as viable complaints as well. That said,
investigators also asked the complainants' about their preferences with regard to the level
of internal investigation appropriate to the allegations. It is laudable to seek frank input
from complaining parties, but this exchange can place citizens who know little about
investigative protocols in an awkward position. Moreover, investigative triage decisions
should arise from the character and extent of the evidence, not from the views of
complainants. We have urged the Department to reframe these discussions so that
complainants are told what the investigative process may entail but not asked to state a
preference as to the level ofthe investigation.
Resolution/Corrective Action: One officer received discipline for sustained
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violations of the Department's policies against excessive conduct and unsafe working
practices. Additionally, he was also ordered to attend 40 hours of defensive tactics
training and restricted from special assignments for six months. The Department is
currently arranging to meet with the complainants to explain the results of the
investigation. The Department has agreed to consider our recommendation as to
questioning complainants about their preferred type of investigation.
6. Complaint of Improper Arrest #C 2009-003
Synopsis: A man was arrested for being drunk in public. He complained to the
Auditor that he was simply taking the garbage out next to his residence. The complainant
agreed to authorize us to forward his complaint on to the Police Department for an
investigation.
Recommendation: The complaint investigation was recently completed by the
Department. The Auditor has not yet been provided the file.
7. Complaint of Off Duty Misconduct and Conflict ofInterest #C 2009-004
Synopsis: A tenant at an apartment complex complained that a Department
supervisor worked there in a private capacity as a security officer and employed
trespassing and intimidating tactics. He also objected to a possible conflict of interest
with the supervisor's Departmental responsibilities.
Recommendation: The Department has not yet completed its investigation of
this matter. We note with approval that, in order to pursue this lengthy investigation in a
timely manner, the Department contracted with an experienced police investigator
outside the Department. The Auditor will continue to monitor the progress of this
investigation.
8. Complaint of Off Duty Discourtesy #C 2009-005
Synopsis: A citizen complained that an off duty officer bumped her and uttered
harsh words after a minor boating accident. The complaint investigation was recently
completed by the Department. The Auditor has not yet been provided the file.
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9. Complaint ofInadequate Service #C 2009-006
Synopsis: A dispatcher received a call from a domestic violence victim, declined
to send an officer and requested that the victim call back when the spouse, who had fled
the scene, returned. The chief of a neighboring police department filed a complaint
regarding the failure to dispatch an officer.
Recommendation: This case investigation has been completed, but the Auditor
has not yet been provided the case file or reviewed the incident.
10. Complaint ofInadequate Service #C No number
Synopsis: A vehicle making a right tum collided with a bike rider in a crosswalk.
The traffic officer who responded to the incident found the juvenile bicyclist at fault for
riding on the sidewalk and in the crosswalk against traffic and issued the juvenile a
citation. The father of the cyclist complained that this was an erroneous interpretation of
the facts and the law and that the motorist should have been cited instead. Department
supervisors and traffic specialists as well as the Chief of Police have met with the father
to explain the Department's evaluation of the traffic accident. A second police agency
has also reviewed the incident and made a similar evaluation.
Recommendation: The Department has reviewed the collision investigation but
has not yet initiated a complaint investigation after being informed by a representative of
the complainant that he will make no further statements. The auditor will monitor this
situation.
11. Complaint of Abuse of Process #C No number
Synopsis: A citizen complained that officers have improperly assisted in the
enforcement of a restraining order against her instigated by her brother.
Recommendation: An investigator has been assigned to this complaint, but the
investigation is still pending.
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IV. Cases Pending from Prior Report
12. Complaint of False Statements and Omissions in Arrest Report #C-2006-010
Synopsis: A civil litigant was charged with felony vandalism against the
opposing party when P APD investigators concluded that he had scratched the other
party's car with a metal object after losing in civil court. The prosecution of the
vandalism case has been delayed by procedural writs that continue to work their way up
to higher courts of appeal. The vandalism defendant has complained to the Department
that the officer who investigated the vandalism made biased statements and omitted
evidence in his report.
Recommendation: The Auditor recommended that the department hold any
investigation of the complaint until after the resolution of the criminal case. Any other
course of action would be disruptive to the court proceedings. The Department agreed.
Resolution: At the Auditor's request, the Department has determined that the
criminal case has concluded and awaits sentencing and it is now appropriate to proceed
with the complaint investigation.
13. Complaint of Mistaken Forfeiture of Car #C -2007-010
Synopsis: A car was stolen and used in a crime. While P APD conducted the
initial arrest of the suspect, the vehicle was eventually transferred to the custody of the
police department in a neighboring jurisdiction where the crime had occurred. When the
owner tried to claim the car, she found that it had been sold as abandoned property in a
lien sale. The complainant alleged that she was not provided sufficient notice regarding
the selling of her vehicle.
Recommendation: PAPD conducted an investigation of this matter and the
Police Chief has come to an appropriate conclusion. While both the other police agency
and the complainant shared some responsibility for the failure to care for the
complainant's property, the complainant was, after all, an innocent victim of the original
car theft. Because P APD bears partial responsibility for the loss, corrective action
should be taken.
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Resolution/Corrective Action: The Department agreed to the Auditor's
recommendation to ask the city to contact the complainant to discuss compensation. The
Department reported that the City in tum made such overtures to the vehicle owner but
has received no response.
Table of Complaint and Internal Affairs Investigations
Reviewed by the Auditor
February 2009 through October 2009
Case No. Case/Investigation Allegation Results of Resolution
Type Investigation
C-2008-019 Citizen Complaint Improper detention Unfounded Complainant
for 72-hour informed of results
evaluation
C-2008-020 Citizen Complaint Excessive force Unfounded-Officer received
and discourtesy excessive discipline for
force discourtesy
Founded-
discourtesy
IA-2009-002 Internal Affairs Driving under the COniplete-Pending
Investigation influence -off IPA review
duty pending
C-2009'-OOl Citizen Complaint Unnecessary Unfounded Complainant
search and informed of results
discourtesy
C-2009-002 Citizen Complaint ' Improper detention Founded Officer received
and discourtesy discipline for
excessive conduct
and unsafe working
practices. Meeting to
explain results to
complainants
C-2009-003 Citizen Complaint Improper arrest Pending IPA Pending
review
C-2009-004 ,Citizen Complaint Off duty Pending Pending
misconduct and investigation
conflict of interest
C-2009-005 Citizen Complaint Off duty Pending Pending
discourtesy investigation
C-2009-006 Citizen Complaint Inadequate service Pending IPA Pending
review
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None yet Citizen Complaint Inadequate service Pending Pending
investigation
None yet Citizen Complaint Abuse of process Pending Pending
investigation
Cases Pending from Previous Reports
IC-26()6~()fOTCitiZ"ncomplailltl ~~:~:-:-~~···l~~~ti ·i None
I
I I ve I I investigation I
..--......--......... J .. -........ -. ____ ._ ... __ ... _ ,1 ..._._._. __ ..... ~~~~~;4~ '. I I C-2007-010 Citizen Complaint -! Mistaken forfeiture Founded .. rD~partment asked
I
1':,1 of car I I City to discuss
I compensation with I car owner. City l __________ ~ _____ ~ ____ . _________ . _____ .L ._ __________ . ____ L _________ .:._1!l:gr(!~4·
v. Conclusion
We have noted that, so far this year, there has been some lack of organization in
the Department's prompt response to citizen complaints. Some investigations have taken
longer than usual and there has been some disruption in the devotion of resources to
internal affairs functions. This organizational deficit has impacted on the IPA's work as
well, with notice to the Auditor of new cases being provided outside the expected
timetables and, as noted above, with completed cases taking longer than customary to be
forwarded to the Auditor for review. Of course, for the IP A program to be optimal, real
time notice of new investigations and forwarding of reports is essential. Weare aware
that the Department and the Personnel and Training Division in particular have
experienced several unexpected disruptions this year. Two lieutenants, who performed a
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large part of the Internal Affairs tasks, left in mid year due to illness and retirement.
Additionally, the Department functioned without an Assistant Chief. This, in tum has
placed extra burdens on the remaining command staff in the Department. We will
continue to discuss these issues and work with the new Chief to bring the time lines of
notice, receipt of investigative materials, and effective give and take between the
Department and the IP A more in line with expectations.
That being said, we think it is important to point out, however, that the overall
quality and thoroughness of individual investigations has remained high. We are also
pleased that the Department continues to respond positively to criticism from community
members and shows a firm commitment to self-examination at every level. With the
appointment of a new Chief of Police by the City and significant turnover in the
supervisor ranks of the Department, some temporary disarray is perhaps understandable.
Internal Affairs investigators have also had to meet the challenge of some extremely
involved investigations this year. We have discussed these issues with the Chief and
received assurance that the problem of resources will be addressed in the near future. We
will report on future developments.
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