Opinion: Pasadena PD – An Ostrich Hiding from Looking at the McDade Shooting?

Quickly reading the OIR Report on the Pasadena Police Departments’ shooting of Kendrec McDade suggests the PD acted irrationally like an ostrich sticking its head in the sand to avoid an unwelcome sight. The Office of Independent Review Group (“OIR”) Report repeatedly describes the PD refusing to ask the questions the Report’s authors told the PD needed to be asked and answered. Was the PD’s refusing to ask these questions irrational, or was it rational for the PD to not even ask these probing questions?

In our previous two Op-Eds, we opined that the City of Pasadena (meaning collectively its Police Chief, its City Manager, and/or its City Attorney) was rational (1) in failing to give specific feedback to the shooting Officers about their multiple policy violations and tactical mistakes and (2) in stalling to prevent release of the OIR Report until after the settlement of Kendrec McDade’s mother’s wrongful death lawsuit. The City’s rational purpose was to avoid paying McDade’s mother millions more than the $1 million it paid her. In this Op-Ed, we further develop our opinion that seemingly irrational behavior by the City that has been disclosed by the OIR Report is in fact rational behavior to limit McDade’s mother’s recovery. (We are not yet discussing the issue of whether that rational behavior is also reprehensible behavior.)

The PD’s rejection of the OIR Group’s recommendation to conduct an administrative investigation

The OIR Report at pages 23-28 criticizes the PD for not conducting an “administrative investigation.” By “administrative investigation,” the OIR Report means fact-finding after completion of the initial criminal investigation, including specifically reinterviewing the two Officers who shot and killed McDade and interviewing or reinterviewing two civilian witnesses. The OIR Report contends that the criminal investigation focused on whether the Officers committed a crime by shooting McDade without justification – which, under the law, means that they committed no crime if they feared for the lives or safety of themselves or others at the time they fired their shots. The OIR Report contends that, because of that specific focus of the criminal investigation, criminal investigators do not focus on whether the Officers failed to follow policy or whether policy and training need to be revised – including not focusing on the 10 tactical mistakes the Officers made that preceded the shooting and which put them into the position where they may have feared for their life. Because of the differing focuses of a criminal investigation assessing culpability for a penal offense versus an administrative investigation assessing policy, tactical, disciplinary, and training issues, post-criminal-investigation fact-finding is needed via an administrative investigation. Repeatedly throughout the OIR Report, it cites questions its authors say needed to be asked, and repeatedly says that the PD refused to ask those questions.

The OIR Report reflects that the PD apparently disagrees that it did not do an “administrative investigation,” but its rationale is redacted in the overly-redacted OIR Report that has been released. Perhaps the as-yet unreleased unredactions ordered by the Court of Appeals will disclose the rationale for the City’s disagreement. Because the City Attorney has repeatedly misrepresented that an “administrative review” that conducts no further investigation but rather repackages an earlier investigation is itself an “administrative investigation” – i.e., orwellian language that a non-investigation is an investigation –, we suspect that the City’s rationale is that an administrative review is an investigation. But putting aside the semantic argument, it’s clear that the OIR Group recommended that the PD reinterview the Officers and interview or reinterview 2 civilian witnesses, that the OIR Group recommended a large number of specific questions to be asked those 4 persons which focused on tactical and policy issues that were not asked in the criminal investigation, and that the PD refused to interview or reinterview those 4 persons and refused to ask them the questions that the OIR Group requested they be asked.

Why would the City resist post-criminal-investigation fact-finding?

While the City’s behavior in resisting what the OIR Report means by an “administrative investigation” may look like the irrational ostrich-like behavior of sticking its hand in the sand to avoid an unpleasant sight, our opinion is that the behavior is rational because it furthered the City’s objectives in opposing McDade’s mother’s wrongful death lawsuit. The City’s narrative in that lawsuit was that the Officers’ shooting was in policy and that no discipline, counseling, nor feedback about tactical mistakes and policy violations were required. The City knew its narrative was false and knew its falsity would be exposed by asking the questions the OIR Group wanted asked. So the City just hunkered down, ignored the OIR Group’s requests, and refused to ask the questions. It sacrificed an administrative investigation and an honest administrative review for the sake of minimizing its liability to McDade’s mother. It was just one more part of its rational behavior to delay, deny, and deceive in the service of its litigation position. And there is more of that rational behavior which we will explore in our next Op-Ed.

 

Dale Gronemeier and Skip Hickambottom are local civil rights attorneys who represent Kendrec McDade’s mother and Pasadena police oversight organizations and activists in the still-0ngoing Public Records lawsuit seeking the maximum legally-permissible release of the full OIR Report.