A semi-annual report of Davis’ independent police auditor released this week found room for improvement in the Davis Police Department’s handling of several cases in recent years, though none of the shortcomings rose to a violation of department policy, the document says.
“Considering the individual cases in a broader context, one observation that emerges is that DPD is not plagued with widespread issues of officer misconduct. In fact, of the six cases reviewed, none of them resulted in a finding of a formal policy violation,” the report says. “However, as detailed below, the cases do suggest that in some occasions DPD’s response to concerns about officer performance could have been more timely and robust.”
The 47-page report highlights six misconduct complaints investigated to completion by IPA Michael Gennaro and Stephen Connolly of the Playa del Rey-based OIR Group, hired by the city earlier this year amid community demands for a more robust and transparent police oversight system.
The cases outlined in the IPA’s report stemmed from allegations of officer discourtesy and “overaggressive” traffic enforcement, a property damage claim, and the department’s investigations of an attempted kidnapping, a sexual misconduct matter and a traffic collision in which a pedestrian was seriously injured.
“On several occasions, the complainants’ concerns about the underlying performance issues were matched or even surpassed with their disappointment over DPD’s reaction to their outreach about them,” the report says.
“To the degree that a unifying takeaway can be received by DPD, we recommend that the Department redouble its efforts in the ‘customer service’ arena, and that it considers ways to instill and project a commitment to rigorous public response through its internal review process.”
While this article details a pair of the investigations, the full report can be read here: https://www.cityofdavis.org/home/showdocument?id=14297
ID procedures
The police department’s identification procedures came under the microscope following the Yolo County District Attorney’s dismissal of a 2016 attempted kidnapping case in which a man tried to abduct a 12-year-old girl in Mace Ranch as she walked home from school.
Although the suspect wore a mask that covered his nose and mouth, the girl identified Sander Findlay from a six-person photographic lineup in which a detective covered the lower faces in each picture, according to the IPA report. Findlay’s photo “sort of looks like him,” the girl reportedly said of her assailant.
But the court case unraveled nearly two years later, however, in light of evidence that showed Findlay’s cell phone and vehicle — which was equipped with an ignition interlock device following a DUI conviction — were located roughly an hour away near Lake Berryessa when the kidnap attempt occurred.
“A strong inference would be that Mr. Findlay would be present with his car and his phone at that time,” prosecuting attorney Deanna Hays said in court as she moved to dismiss the case. Despite the photo ID, “the people do not believe that we can support identification beyond a reasonable doubt in front of a jury of 12 people based on our analysis of that evidence.”
Eyewitness identification has been a frequent topic of debate in recent years, the IPA report notes, with criminal justice observers raising concerns about the identification process and its accuracy.
“Research has found that juries tend to ‘overvalue’ eyewitness evidence and has questioned the reliability of victims’ ability to effectively identify their assailants,” the report says. “In addition, criminal justice commentators have long-raised concerns about police procedures in conducting eyewitness identification procedures. One concern has been the conscious or subconscious ‘suggestibility’ conveyed by a detective who knows the subject to the victim or witness.”
Such concerns led to last year’s passage of California Senate Bill 923, which outlines eyewitness procedures for all law-enforcement agencies, including the requirement that investigators who conduct photographic lineups be unaware of the suspect’s identity, and that the procedures are video-recorded.
Neither precaution took place during the Davis investigation, which was consistent law-enforcement practices at the time. Although SB 923 doesn’t take effect until Jan. 1, the report noted that the Davis Police Department had enacted the changes and has been in compliance with the law since May.
“After reviewing the kidnapping case, IPA was concerned about the advisability of even conducting an identification procedure considering the limited opportunity the victim had to view the perpetrator and the fact that he was wearing a mask that covered his nose and mouth,” the report says. “In short, the juvenile victim had scant identifying information upon which to base her identification.”
It continues: “IPA suggested on a going forward basis that DPD’s identification policy be changed requiring that in cases in which the facial features of the perpetrator were significantly obscured that, when practicable, the supervisor of the investigator be consulted before the procedure was undertaken.”
Traffic collision
The IPA report also uncovered deficiencies in the Davis Police Department’s handling of a 2016 traffic collision in which a local woman was struck by a vehicle while running across an F Street crosswalk as part of her training for a marathon.
Deb Westergaard has publicly criticized the subsequent police investigation that found her to be at fault after concluding she had activated the crossing signal but entered the crosswalk without looking for oncoming traffic. In addition to disputing that ruling, she has alleged investigatory flaws including a “rushed” processing of the crash scene and failure to properly interview witnesses to the incident, including Westergaard herself.
A police supervisor later reopened the case and conducted a second round of interviews, reaching the same conclusion that the driver was not at fault for the collision. Westergaard later issued a complaint with the state Department of Justice that the supervisor behaved “rude and dismissive” during his interview of her.
“I know some marathon runners. They’re a bunch of risk-takers,” said the supervisor, who also challenged Westergaard’s estimate of the oncoming vehicle’s speed and complained to her that he was being diverted from investigating two other crashes that had resulted in fatalities, according to the report.
Ultimately, the collision was investigated a third time by an independent accident reconstruction expert, who found several errors in the initial police investigation but “concluded that once the pedestrian entered the street, she did not provide the driver sufficient time to perceive her and react.”
While the report backs the at-fault determination as “reasonable,” it also found “lapses in investigative protocols” for which the IPA recommends several corrective actions, including:
• DPD should develop written protocols and advise its personnel and reviewing supervisors of the need to interview all available parties to a serious accident investigation before reaching a finding.
• DPD should develop written protocols and advise its personnel that when conducting an investigation of this nature, during the initial interview of those raising issues, supervisors should not attempt to persuade them that they were mistaken nor challenge them with contrary evidence.
• DPD should advise its personnel that when assigned to an investigation in which concerns have been raised about the initial DPD determination, supervisors should not make any comments suggesting that the assignment is keeping them from more important tasks.
“The Department’s performance in this matter had shortcomings that deserve remediation: however unintentionally, they either produced or exacerbated the different investigative concerns that troubled the pedestrian and her spouse,” the report says. “In the end, though, to the extent that the ultimate focus of the concern was a challenge to the ‘at-fault’ finding, there is simply insufficient evidence to support a reversal of DPD’s decision.
— Reach Lauren Keene at lkeene@davisenterprise.net or 530-747-8048. Follow her on Twitter at @laurenkeene