Guest Opinion | The Pasadena PD’s Latest Ploy to Subvert Independent Review

Last Friday, a 20 year old Latino was shot in the back by a Pasadena Police Department officer.  We don’t know yet whether the shooting was legally permissible or whether it was criminal.  We don’t know whether the police tactics that put the officer in the situation where he shot the young man were best practices or bad tactics.  We do know from the citizen’s cell-phone video that has been published by Pasadena Now and the Star-News a couple of thing – i.e., one of the officers who was involved in the chase appears to have appropriately administered first aid to the young man after she handcuffed him, and the other officer (apparently the one who shot the youth) improperly moved the gun and the ammunition clip before the investigators arrived and the crime scene was photographed.  The investigations of Friday’s shooting haven’t been completed, so there is a lot we don’t know.

But what we do know is that the Pasadena PD is shamefully subverting its commitment made just 4 months ago to have an independent reviewer participate in its administrative review.  When 85% of the Office of Independent Review Group Report on the shooting of the unarmed African-American youth Kendrec McDade was finally made public and considered by the Pasadena City Council on December 7, 2015, the Pasadena PD agreed to the OIR Group’s recommendation #6 that the independent reviewer be present at the administrative review meeting.  Recommendation #6 arose from the PD’s conduct in keeping the OIR Group out of the administrative review meeting on the McDade shooting because the PD didn’t want the questions the OIR Group was asking to be answered; after the OIR Group called the PD on their exclusion and after public outcry over that conduct, the PD responded to Recommendation #6 by agreeing that in the future it would have the independent reviewer in the room for the administrative review hearing.  Now the PD is repudiating that commitment made just 4 months ago.

 

 The different investigations and reviews of an officer-involved shooting

Understanding the PD’s ploy requires understanding the different functions of the public safety interview, the criminal investigation, the administrative review, and the independent reviewer in an officer-involved shooting.

As the shooting scene is being secured after an officer shoots someone, the public safety interview of the shooting officer occurs.  It is a brief interview to make sure there is no unresolved safety issue such as another fleeing suspect, the person shot having a gun, etc.

Once the shooting scene is secured and any safety concerns resolved, the criminal investigation begins.  Its function is to address all potential criminal conduct, which includes whether the officers’ use of force was criminal.  This review of the officer’s conduct is narrow  – essentially just whether he reasonably believed at the moment of the shooting that his safety or the safety of others was in jeopardy.   In the case of a fleeing felon such as the apparent case of the 20-year old Latino shot in the back, if the officer reasonably thought there was danger to his safety or the safety of others, the use of force will be deemed lawful by the District Attorney when the investigation is referred to her.  In the McDade shooting, the OIR Group found that the Pasadena PD did a good job in its criminal investigation.  Despite that commendation, Pasadena Police Chief Phil Sanchez has  farmed out the criminal investigation to the Sheriff’s Department rather than relying on his own officers who previously did a commendable job.

The administrative review is conducted by the PD and is designed to determine whether the pre-shooting tactics, post-shooting conduct, and criminal investigation reflect best practices, are within policy, warrant referral to internal affairs for potential discipline, and/or reflect a need for better training.

Independent review is provided by non-PD professionals such as former prosecutors Mike Gennaco and Rob Miller of the OIR Group who did the McDade Report; independent reviewers bring the voice of outside expertise about best practices to the table by participating in the administrative review.

 The PD exclusion of the OIR Group that led to Recommendation #6

The McDade administrative investigation was faulty because the PD did not want questions posed by the OIR Group to be answered, so the PD just kept the OIR Group out of the administrative review meeting despite the fact that the City’s contract provided for them to participate in that meeting.

The questions that the PD did not want the McDade administrative review to ask were questions about the bad pre-shooting tactics employed by the PD in the McDade shooting.  Those questions were not and would not be asked in the criminal investigation because an officer’s culpability for a shooting depends on his state of mind at the time of the shooting; even if his bad tactics were what recklessly put him in a position where he feared for his safety, the reckless pre-shooting conduct does not make him criminally culpable.

While determining whether there were bad pre-shooting tactics is irrelevant to the criminal investigation, analyzing pre-shooting tactics is a best practice for administrative reviews.  Rather than accepting that officers split-second decision-making justifies bad tactics, progressive police practice seeks to train officers to use tactics that will not put them in positions where they fear for their own safety because of their mistake and unnecessarily use legally-justifiable force.  A learning police organization uses careful examination of  tactics in shootings for teachable moments.

The problem with the McDade administrative review is that the Department sought self-justification in the McDade shooting rather than being a learning organization.  The only way the PD could white-wash its officers’ bad tactics in the McDade shooting was to prevent the OIR Group from getting answers to its questions about tactics, so it just shut the OIR Group out of the meeting.  Ultimately, the PD’s tunnel vision in only looking at the moment of the shooting caught up with it when most of the OIR Report was released with its devastating disclosure that the PD had breached the City’s contract with the OIR Group by keeping them out of the administrative review meeting.  The Report’s Recommendation #6 proposed that the Independent Reviewers participate in future administrative review meetings.  In the public outcry over the damaging Report, the Department reluctantly agreed to Recommendation #6.

The PD’s 180-degree reversal subverting Recommendation #6

What the PD is attempting to do now is worse than what it did in the McDade shooting. The PD is now rushing to complete an administrative review of Friday’s shooting before the City Council can even decide to hire the OIR Group again – or before it can consider alternative forms for independent review such as contracting with an Independent Police Auditor to do what the OIR Group did in the McDade shooting or using some other form of independent review.  By agreeing on December 7, 2015, to the OIR Group Recommendation #6, the PD agreed that it would not again keep the independent reviewer out of the room at the time of the administrative review meeting.  But now the PD is acting not just to keep the independent reviewer out of the room at the time of the administrative review meeting, it is rushing to prevent any independent reviewer from being in the room at any time!

The McDade administrative review meeting from which the OIR Group was excluded occurred 13 months after PD officers shot and killed Kendrec McDade.  Now the PD says that it cannot wait to conduct the administrative review until an outside reviewer is in place – which likely can be done in no more than half the time that it took to hold the McDade administrative review meeting.  The PD’s pell-mell rush to get the administrative review done indicates that it is still smarting from the OIR Group’s criticism of its bad tactics and is hell-bent on repeating its tunnel-vision restriction to looking at the moment of the shooting and ignoring the pre-shooting tactics.  Despite all the Chief’s rhetoric, the PD still  is not a learning organization but rather one hunkering down to avoid learning.

Skip Hickambottom and Dale Gronemeier are local civil rights attorneys who successfully litigated for public release of the OIR Group Report on the McDade shooting.