Guest Opinion: Can the Pasadena Police Administration Do an Honest Investigation of the Ballew Beating?

Published : Wednesday, January 31, 2018 | 6:29 AM

Can the Pasadena Police Administration Do an Honest Investigation of the Ballew Beating

The November 9 Chris Ballew beating is giving the Pasadena Police Department its widest-ever black eye. For example, a video that shows PD officers Esparza and Lujan mercilessly beating the young black man and which intersperses video of both of us speaking to the City Council about the brutality has now been viewed over two million times. (We played no role in its production or distribution). Another video prepared by John Burton, Ballew’s attorney, has also gone viral.

Ballew’s baton beating follows on the heels of black eyes for the Pasadena PD from its killing three other young Black men – LeRoy Barnes, Kendrec McDade, and Reginald Thomas. In each of those prior instances, the City hired independent reviewers to participate in the internal review. The recommendations of the OIR Group (Office of Independent Review) in the Barnes case was large largely accepted and implemented. However, the OIR Group’s participation in the internal review of the McDade case was prevented by the police administration. After lengthy PD delays that kept the OIR Group report from being completed until McDade’s parent’s civil lawsuit was settled, the OIR Group issued a report that both criticized the PD’s violation of the OIR Group’s exclusion from the internal review and criticized each step of the conduct of the officers who killed McDade. A number of the OIR Group recommendations were doggedly resisted by the police administration. Then, the OIR Group was not rehired for the Thomas killing; the Thomas case review is loping along at a snail’s pace.

While the City hired independent reviewers who evaluated the Department’s conduct in the Barnes, McDade, and Thomas cases, it has not done so for the Ballew beating – despite the fact that the PD’s misconduct in the Ballew case has resulted in universal condemnation from a far larger audience. When the coalition of Pasadena and Altadena organizations protesting the Ballew beating have called for an independent reviewer, the police administration has responded by saying it is being internally reviewed and by ignoring their demand for outside review.

We submit that the public cannot rely on the integrity of a solely-internal review and that the police administration is shooting itself in the foot by refusing to recognize its problems with a solely-internal review.

Liability limitation and reputation protection – the inherent conflicts for a solely internal investigation

An internal investigation of the Ballew shooting is essential, but it is not enough. The PD, like any organization, cannot be a learning organization that avoids repetition of prior mistakes unless it investigates itself. The problem is that the PD’s institutional imperative to honestly review its conduct conflicts with its imperatives to limit its liability and to protect its reputation. Police brutality cases can get high-dollar awards for victims or survivors; the police administration’s imperative to investigate itself gets watered down by its tendency to deny wrong-doing that might lead to higher awards. Police administrators and unions want to protect police reputations; honest self-criticism that gets into the public domain is often hostilely viewed as self-damage to their reputation.

In the McDade case, the police administration first tried to keep the OIR Group away from its internal review. Then, when the OIR Group finally did get to review the PD’s completed internal investigation, the PD stalled on responding to its feedback and thereby delayed finalizing its report until after the wrongful death lawsuit by McDade’s parents was settled. By that exclusion — followed by delay — the devastating adverse conclusions by the OIR Group were kept bottled up and therefore not adding to the settlement price. Even when the OIR Group report was pried loose and publicly disclosed, the police administration and their allies tried to protect the PD’s reputation by attacking the outside reviewers. The imperatives of liability limitation and reputation protection were thus served in the McDade case. Then, in the Thomas case, the refusal to rehire the OIR Group made the point that speaking truth to power led to the OIR Group not being re-employed. Now, the Ballew case is moving forward with a solely-internal review, driving home the lesson that the police administration will refuse to countenance independent review.

The inherent conflict-of-interest between honest self-review vs. liability-limitation and reputation-protection has played out so far in the Ballew case by the police administration demonstrating that it will sacrifice the truth in order to protect the PD against liability or damage to its reputation.

The City Manager and his staff sacrifice truth to limit liability and protect the PD reputation

The record of public statements by the Pasadena police administration – City Manager Steve Mermell, Chief Sanchez who reports to him, and the PD command staff – inspires no confidence that it will engage in honest self-criticism rather than acting dishonestly to limit liability and protect the Pasadena PD’s reputation. Rather, the police administration has put out an inaccurate account and tried to justify the officers’ misconduct.

Presumably, the PD command staff reviewed the PD’s car-cam video and Lujan’s bodycam video of the beating before Lt. William Grisafe made the statement that Pasadena Now reported the day after the beating that “Ballew refused to comply with their orders and during a scuffle with police, he was able to get the baton of one of the officers. A fight ensued, and he ran.”

The PD’s videos show that the statement is inaccurate in asserting that Ballew ran and that he refused to follow the officers’ orders. The account relayed by Grisafe is misleading by failing to acknowledge that Ballew got the baton only in self-defense after the officers began beating him without justification.

Within a few weeks of the PD’s Ballew beating, the bystander video began being disseminated online; Pasadena Now posted it on December 4. It took time for the incident to sink into public understanding and for the public to begin to react. But the police administration had access to the body-cam and car-cam videos of the incident from the beginning. At the December 4 City Council meeting, the Pasadena NAACP requested release of the PD’s videos. By December 8, the LA District Attorney had determined that there was insufficient evidence to prosecute Ballew for resisting arrest. By the next City Council meeting on January 11, the PD’s video still had not been released, but presumably Mermell and Sanchez had viewed not just the bystander’s videos but also the PD’s videos. Despite the video evidence of aggressive initiation of physical contact by the officers and Ballew’s acquiescence to police commands, Mermell at the January 11 City Council meeting described Chris Ballew’s conduct as “resisting arrest”; when challenged on that label by Ballew’s mother, Mermell put an exclamation point on this untruthful defense of the PD’s police brutality by rejecting her correction and reiterating that Ballew was resisting arrest.

Responding to the public pressure, Mermell has subsequently released the PD’s videos. While Mermell has not retracted his misstatements that Ballew was resisting arrest, in his most recent statement to the City Council’s Public Safety Committee he at least did not continue to assert that falsehood. But in different ways, the police administration continues to try to palm off excuses for Esparza and Lujan. An example is how they have dealt with the officers’ violation of the PD’s policy against extra-territorial arrests. The Ballew incident occurred entirely in Altadena – the officers were 3 blocks into Altadena driving North on Fair Oaks Ave. when they u-turned and followed Ballew into the Mobil station in Altadena. Their Altadena extra-territorial detention, beating, and arrest of Ballew is inconsistent with PD Policy #100.3.1 which says PD officers should not make extra-territorial arrests “except in cases of hot or fresh pursuit, while following up on crimes committed with [sic – within] the City, or while assisting another agency.” When pressed by local media as to the PD’s extra-territorial operation in the Ballew case, the police administration has ducked the officers’ violation of PD policy by citing general state law – i.e., PD Lt. Jason Clawson told Pasadena Now that the State Penal Code allowed extra-territorial arrests (which it does, but that doesn’t mean that PD policy cannot restrict such arrests) and Pasadena Public Information Office Bill Boyer (a Mermell subordinate) used the same evasive ploy to excuse the officer’s conduct when queried by the Star-News. When the PD command’s public line is that the officers could ignore PD policy on extra-territorial arrests, how can the PD possibly institute the disciplinary action against the officers which is warranted by their thumbing their noses at the policy?

The record thus indicates that the primary instinct of the City bureaucracy is to excuse the officer misconduct rather than to deal with it honestly. Only when external forces such as public pressure to release the video and by the pressures from a free press will they speak the truth rather than cover-up misconduct. This record does not support any optimism that a solely-internal investigation will come to truthful conclusions; rather, an internal review is likely to arrive at self-critical honesty only if an independent external reviewer is looking over their shoulder.

The police administration’s insistence on solely internal review will be a self-inflicted wound

A solely-internal investigation of the Ballew beating is not only bad institutional policy but is also likely to be counter-productive for the police administration. The genie is out of the bottle on the Ballew baton beating because of the widespread revulsion of an enormous public that has viewed the videos. The police administration’s track record to date ensures that their internal investigation will be viewed with jaundiced eyes. The police administration is on track for withering doubt about their investigation and are painting themselves into a no-win situation. External reviewers like the OIR Group are experienced former prosecutors or former police administrators whose expertise lead them to give credit where credit is due and blame where blame is due. Further justifications for the officers’ conduct by the police administration will be eaten alive by the worm of doubt and will be seen as self-serving. In the long run, the institution will be better served and the police administration will get less blame if it hires an external reviewer to complement the internal review.

Skip Hickambottom and Dale Gronemeier are Pasadena-area civil rights attorneys. They successfully litigated release of the OIR Group report on the McDade shooting.

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