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Audit scrutinizes complaint against Palo Alto officer over 'race card' comment

Officer allegedly joked about arresting a victim advocate during investigation of sexual assault

A Palo Alto Police Department vehicle heads down Hamilton Avenue on September 11, 2019. Photo by Veronica Weber.

Palo Alto's independent police auditor took issue with the Police Department's response to a complaint about an officer who reportedly joked about arresting a victim advocate during an investigation of sexual assault and then accused her of playing the "race card," according to a new report from the auditor.

The incident is one of more than a dozen that the auditor, OIR Group, details in its latest report, which covers all incidents the firm completed reviewing in the first six months of this year. This includes eight complaints against Palo Alto officers, seven of which came from the public and one that was initiated internally.

One of the incidents that led to a complaint involved an officer who was in the emergency room with two victim advocates when the senior advocate began explaining her duties, which included counseling services. At some point, the officer took her and her colleague, a trainee advocate, aside to complain about the client. He told them that the client had three prior reports with no corroborating evidence and that she had mental health issues, the report states. He also suggested that the alleged victim "was wasting everyone's time with her allegations," as well as law enforcement money and the time of the advocates and attending nurses, the report states.

After the senior advocate reportedly told the officer that her role is to support the client, not to determine the credibility of allegations, the officer continued to express his grievance, according to the audit. And when she told the officer that she doesn't have a solution, he reportedly pulled out handcuffs and said, "Well since you're useless to me, I guess I'm going to arrest you."

The victim advocate said she told the officer that his comment was not funny and "not cool," according to the report. When the officer didn't respond, she said, "I don't know if you can tell, but I'm black. You can't joke like that with me."

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The complainant said the officer replied, "Oh, so you're gonna pull the race card?" the report states. The complainant said she told the officer, "Unfortunately, that's the reality of the world I live in" and explained to him that he cannot think that what's going on in the media is not going to affect people.

According to her account, which the trainee corroborated, she then added, "Yes I'm going to pull it because it's the truth for me, it's my truth." The officer stopped talking to her and walked away.

The Palo Alto Police Department investigated the complaint and reportedly provided counseling to the officer, who admitted that he had exercised bad judgment in making the comment about arresting the advocate, which he said was intended as a joke. He also said he walked away after the "race card" comment in an attempt to de-escalate.

But in responding to the complaint, the department's reviewer found that the evidence "did not establish any type of discourteous, disrespectful or discriminatory treatment by the officer" and exonerated the officer, concluding that his actions were consistent with the Department's policy and procedures, according to the audit. According to OIR Group, the reviewer determined that the officer misread the situation and failed to factor in the victim advocate's race or "perceived personal beliefs" before making what the complaint describes as an "ill-timed attempt at humor."

According to the auditor, however, the reviewer focused only on the joke about the arrest and not on the "race card" comment. And while the department found that the officer did not violate its policy on discourteous conduct, it did not consider whether he ran afoul of another policy, which deems it a violation to commit acts that "bring discredit to (PAPD)."

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"As PAPD acknowledges, the way in which the officer comported himself during the encounter was not in the best tradition of 21st century policing," the audit states. "PAPD should have considered whether the officer's behavior amounted to a violation of this policy."

The audit also noted that when the department notified the victim advocate about the officer's exoneration, it did not mention any of its findings about the officer's "sub-optimal performance," including his failure to apologize, potentially leaving her with the impression that the department had no issues with how the officer comported himself during the encounter. The audit described the department's failure to apologize to the woman and limiting its letter to a "very limited and technical response" as a "lost opportunity."

In his response, Police Chief Andrew Binder agreed with the audit's recommendation that responses to complainants should include "an apology for the negative interaction with our employees."

The only incident that was initiated by the department itself involved a 71-year-old homeless woman who said she was assaulted by a man and asked that the man be prosecuted. An officer who responded told her that she should call back if, or when, the man returned.

Later in the day, the woman was involved in another incident that included allegations of physical and sexual assault, according to the audit. A detective responding to this case saw that there was an earlier call involving the woman but that the officer didn't file a report or make a referral to Adult Protective Services, as required by department policy. The department determined that a violation had occurred and followed up with a training bulletin and briefings, according to the audit.

Of the eight investigations, that was the only one in which a complaint against an officer was sustained.

The auditors generally concurred with most of the department's determinations pertaining to complaints against officers, often deeming the internal review to be fair and reasonable. One such complaint involved a man who complained that an officer inappropriately arrested his girlfriend for domestic violence and resisting arrest following an argument. Officers determined that she had scratched the man and a neighbor reportedly told the police that he saw her punch him several times. The woman also reportedly kicked an officer in the leg as she was taken to a patrol car. The audit concurred with the department's finding that the investigation was proper.

Another incident involved a complaint from a man who was arrested for lewd behavior and who claimed that an officer chewed tobacco and ate a burrito in his presence. The complainant disputed accusations that he was trying to gratify himself sexually while following juvenile females and claimed that the officer's behavior was "disrespectful and a form of bullying." The officer was exonerated for the burrito after the department's review, though supervisors sustained the complaint about the chewing tobacco, which is prohibited under department policy.

The department also dismissed as "unfounded" a complaint from a man who was arrested on domestic violence charges against his wife. A week after the arrest, the man claimed that an officer had "mocked and discriminated against him because of his accent and Muslim heritage." Footage from the officer's body-worn camera showed that the investigation was reasonable and that there was no evidence of racial or religious discrimination, according to the audit.

OIR Group also looked into seven instances in which officers used force, including one in which two officers simultaneously deployed a Taser and a PepperBall launcher at a man who was reportedly spitting and throwing a stool at officers. The man, who was diagnosed with schizophrenia, had reportedly thrown a trash can at his father earlier that day and had choked his mother the previous day. Responders from the Mobile Crisis Response Team, a county program that deploys clinicians to calls involving mental health crises, also had arrived earlier in the week but had not been able to assist, according to the report.

The auditor largely concurred with the department's findings that the use of force was appropriate. Its report noted, however, that the officers in the Taser case had developed a plan to only use the PepperBall but then deviated from the plan by firing both weapons independently. The audit suggested that the department's review should have included some consideration of why officers diverted from their initial tactical plan.

In another incident, officers confronted a man who was uttering irrational statements in the middle of a busy street, the report states. He reportedly advised officers to shoot him and did not comply with instructions. An officer grabbed the man by his arm and pulled him to the ground, according to the report. After officers walked him to the bench, he started screaming and attempted to get up. Paramedics were called to treat the man and injected him with a sedative, according to the report.

The auditors agreed that use of force was appropriate, but noted that the documentation makes no reference to whether the Mobile Crisis Response Team was contacted. The audit recommends that the department should document in mental health calls whether a clinician was contacted and, if not, why not. It also recommends that the department develop protocols with mental health agencies so that clinicians are able to review body-work camera footage and provide feedback on ways to improve that response.

Auditors also learned about two other incidents in which officers pointed their weapons, though OIR Group is still reviewing these cases and will discuss them in a future report.

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Gennady Sheyner
 
Gennady Sheyner covers the City Hall beat in Palo Alto as well as regional politics, with a special focus on housing and transportation. Before joining the Palo Alto Weekly/PaloAltoOnline.com in 2008, he covered breaking news and local politics for the Waterbury Republican-American, a daily newspaper in Connecticut. Read more >>

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Audit scrutinizes complaint against Palo Alto officer over 'race card' comment

Officer allegedly joked about arresting a victim advocate during investigation of sexual assault

by / Palo Alto Weekly

Uploaded: Wed, Sep 21, 2022, 8:45 am

Palo Alto's independent police auditor took issue with the Police Department's response to a complaint about an officer who reportedly joked about arresting a victim advocate during an investigation of sexual assault and then accused her of playing the "race card," according to a new report from the auditor.

The incident is one of more than a dozen that the auditor, OIR Group, details in its latest report, which covers all incidents the firm completed reviewing in the first six months of this year. This includes eight complaints against Palo Alto officers, seven of which came from the public and one that was initiated internally.

One of the incidents that led to a complaint involved an officer who was in the emergency room with two victim advocates when the senior advocate began explaining her duties, which included counseling services. At some point, the officer took her and her colleague, a trainee advocate, aside to complain about the client. He told them that the client had three prior reports with no corroborating evidence and that she had mental health issues, the report states. He also suggested that the alleged victim "was wasting everyone's time with her allegations," as well as law enforcement money and the time of the advocates and attending nurses, the report states.

After the senior advocate reportedly told the officer that her role is to support the client, not to determine the credibility of allegations, the officer continued to express his grievance, according to the audit. And when she told the officer that she doesn't have a solution, he reportedly pulled out handcuffs and said, "Well since you're useless to me, I guess I'm going to arrest you."

The victim advocate said she told the officer that his comment was not funny and "not cool," according to the report. When the officer didn't respond, she said, "I don't know if you can tell, but I'm black. You can't joke like that with me."

The complainant said the officer replied, "Oh, so you're gonna pull the race card?" the report states. The complainant said she told the officer, "Unfortunately, that's the reality of the world I live in" and explained to him that he cannot think that what's going on in the media is not going to affect people.

According to her account, which the trainee corroborated, she then added, "Yes I'm going to pull it because it's the truth for me, it's my truth." The officer stopped talking to her and walked away.

The Palo Alto Police Department investigated the complaint and reportedly provided counseling to the officer, who admitted that he had exercised bad judgment in making the comment about arresting the advocate, which he said was intended as a joke. He also said he walked away after the "race card" comment in an attempt to de-escalate.

But in responding to the complaint, the department's reviewer found that the evidence "did not establish any type of discourteous, disrespectful or discriminatory treatment by the officer" and exonerated the officer, concluding that his actions were consistent with the Department's policy and procedures, according to the audit. According to OIR Group, the reviewer determined that the officer misread the situation and failed to factor in the victim advocate's race or "perceived personal beliefs" before making what the complaint describes as an "ill-timed attempt at humor."

According to the auditor, however, the reviewer focused only on the joke about the arrest and not on the "race card" comment. And while the department found that the officer did not violate its policy on discourteous conduct, it did not consider whether he ran afoul of another policy, which deems it a violation to commit acts that "bring discredit to (PAPD)."

"As PAPD acknowledges, the way in which the officer comported himself during the encounter was not in the best tradition of 21st century policing," the audit states. "PAPD should have considered whether the officer's behavior amounted to a violation of this policy."

The audit also noted that when the department notified the victim advocate about the officer's exoneration, it did not mention any of its findings about the officer's "sub-optimal performance," including his failure to apologize, potentially leaving her with the impression that the department had no issues with how the officer comported himself during the encounter. The audit described the department's failure to apologize to the woman and limiting its letter to a "very limited and technical response" as a "lost opportunity."

In his response, Police Chief Andrew Binder agreed with the audit's recommendation that responses to complainants should include "an apology for the negative interaction with our employees."

The only incident that was initiated by the department itself involved a 71-year-old homeless woman who said she was assaulted by a man and asked that the man be prosecuted. An officer who responded told her that she should call back if, or when, the man returned.

Later in the day, the woman was involved in another incident that included allegations of physical and sexual assault, according to the audit. A detective responding to this case saw that there was an earlier call involving the woman but that the officer didn't file a report or make a referral to Adult Protective Services, as required by department policy. The department determined that a violation had occurred and followed up with a training bulletin and briefings, according to the audit.

Of the eight investigations, that was the only one in which a complaint against an officer was sustained.

The auditors generally concurred with most of the department's determinations pertaining to complaints against officers, often deeming the internal review to be fair and reasonable. One such complaint involved a man who complained that an officer inappropriately arrested his girlfriend for domestic violence and resisting arrest following an argument. Officers determined that she had scratched the man and a neighbor reportedly told the police that he saw her punch him several times. The woman also reportedly kicked an officer in the leg as she was taken to a patrol car. The audit concurred with the department's finding that the investigation was proper.

Another incident involved a complaint from a man who was arrested for lewd behavior and who claimed that an officer chewed tobacco and ate a burrito in his presence. The complainant disputed accusations that he was trying to gratify himself sexually while following juvenile females and claimed that the officer's behavior was "disrespectful and a form of bullying." The officer was exonerated for the burrito after the department's review, though supervisors sustained the complaint about the chewing tobacco, which is prohibited under department policy.

The department also dismissed as "unfounded" a complaint from a man who was arrested on domestic violence charges against his wife. A week after the arrest, the man claimed that an officer had "mocked and discriminated against him because of his accent and Muslim heritage." Footage from the officer's body-worn camera showed that the investigation was reasonable and that there was no evidence of racial or religious discrimination, according to the audit.

OIR Group also looked into seven instances in which officers used force, including one in which two officers simultaneously deployed a Taser and a PepperBall launcher at a man who was reportedly spitting and throwing a stool at officers. The man, who was diagnosed with schizophrenia, had reportedly thrown a trash can at his father earlier that day and had choked his mother the previous day. Responders from the Mobile Crisis Response Team, a county program that deploys clinicians to calls involving mental health crises, also had arrived earlier in the week but had not been able to assist, according to the report.

The auditor largely concurred with the department's findings that the use of force was appropriate. Its report noted, however, that the officers in the Taser case had developed a plan to only use the PepperBall but then deviated from the plan by firing both weapons independently. The audit suggested that the department's review should have included some consideration of why officers diverted from their initial tactical plan.

In another incident, officers confronted a man who was uttering irrational statements in the middle of a busy street, the report states. He reportedly advised officers to shoot him and did not comply with instructions. An officer grabbed the man by his arm and pulled him to the ground, according to the report. After officers walked him to the bench, he started screaming and attempted to get up. Paramedics were called to treat the man and injected him with a sedative, according to the report.

The auditors agreed that use of force was appropriate, but noted that the documentation makes no reference to whether the Mobile Crisis Response Team was contacted. The audit recommends that the department should document in mental health calls whether a clinician was contacted and, if not, why not. It also recommends that the department develop protocols with mental health agencies so that clinicians are able to review body-work camera footage and provide feedback on ways to improve that response.

Auditors also learned about two other incidents in which officers pointed their weapons, though OIR Group is still reviewing these cases and will discuss them in a future report.

Comments

peppered
Registered user
Community Center
on Sep 21, 2022 at 10:24 am
peppered, Community Center
Registered user
on Sep 21, 2022 at 10:24 am

This so-called "response" and the auditor's very biased attitude in favor of the officer are completely unacceptable.

That officer needs to be reprimanded, get remedial training and a suspension.
He should be required to go back and offer a personal apology to the victime advocate.


Paly02
Registered user
Crescent Park
on Sep 21, 2022 at 12:57 pm
Paly02, Crescent Park
Registered user
on Sep 21, 2022 at 12:57 pm

Wait, what? An officer threatened to arrest a victim advocate who was just doing her job? What in heaven....


Tony Montoya
Registered user
Midtown
on Sep 21, 2022 at 1:02 pm
Tony Montoya, Midtown
Registered user
on Sep 21, 2022 at 1:02 pm

As much as I hate to admit it, the police auditor was correct in his/her evaluations as the PAPD officers did nothing inflammatory nor harmful to those they encountered.

Levity is not a crime and with the possible exception of the victims advocate, the troubled individuals with whom the PAPD intervened were mentally disturbed and not fully cognizant of the real world anyway.

So how could any of these alleged 'police improprieties' be deemed hurtful or damaging?


MyFeelz
Registered user
another community
on Sep 21, 2022 at 1:05 pm
MyFeelz, another community
Registered user
on Sep 21, 2022 at 1:05 pm

The only thing missing is "the officers said they have (xxx fill in the protected class of your choice) friends and they would never be mean to any (xxx)".

As for the use of force in injecting someone with a sedative, that is completely beyond the pale. I have numerous medication allergies, and most sedatives are among them, and an injection administered by ANYONE needs to be checked against my known drug allergies. Of course this didn't happen to me but what if it did? What if the way they were trying to subdue me sent me into an immediate seizure culminating in rapid onset of asphyxia?

All OIG staff need to be removed from their jobs, let the slate be wiped clean, and start over with people who have a minimum level of cultural competence.

Or are these just more examples of "Well, that's Palo Alto"? Racism and potential bioterrorism against people with suspected mental illness is OK? And their advocates? When, if ever, would a "joke" be appropriate in a situation where advocates are trying to protect civil rights?

As for slinging poo and spitting, the mental health team should have been able to do something to help that individual; the report doesn't said what they did or didn't do, other than fail to help the person.

And the last case, it's not illegal to talk to yourself, out loud, on a busy street. It may be impolite, but it's not a crime warranting multiple officers and EMTs to subdue that voice. He may be annoying but it didn't sound to me like he was a danger to himself or others until the police came on the scene. I hope as soon as the dope wore off, he called a lawyer to file suit against the City.

If the auditors are looking for body-work camera coverage, it doesn't exist. But it does make for a fun time imagining how that faux pas got into publication. I know there are no proofreaders left here in the US, maybe someone could volunteer as tribute to take on the job?


Paly02
Registered user
Crescent Park
on Sep 21, 2022 at 1:44 pm
Paly02, Crescent Park
Registered user
on Sep 21, 2022 at 1:44 pm

@MyFeelz, I'm having trouble knowing what "in the middle of a busy street" means. Does that mean in traffic, or on the sidewalk? If it's in traffic, I don't think the reason they came was because he was talking to himself. If he was just on the sidewalk, though, then I agree he should just be left to his own devices.


MyFeelz
Registered user
JLS Middle School
on Sep 21, 2022 at 2:04 pm
MyFeelz, JLS Middle School
Registered user
on Sep 21, 2022 at 2:04 pm

Paly02, the middle wasn't defined. Usually on busy streets, there's a median. He could have been standing on a median. If, as the article states, the man was then brought to the ground by an officer, if he was in fact in the middle of traffic, the police further endangered his life by bringing him to the ground in the middle of a busy street. But it says, "After officers walked him to the bench" ... "the" bench is not on the street, it's on the sidewalk. So I am making an assumption that he was on the sidewalk the whole time. There's not enough information to make an informed decision -- but this is just what the public receives. If the auditor is making an assessment using the exact same information we're getting, we have a bigger problem. Since there was no body-work camera footage, it's anybody's guess.


Wei Zhao
Registered user
Adobe-Meadow
on Sep 22, 2022 at 10:05 am
Wei Zhao, Adobe-Meadow
Registered user
on Sep 22, 2022 at 10:05 am

"...it's not illegal to talk to yourself, out loud, on a busy street."

^ Sometimes people are talking on their cellphones via Bluetooth and ear pods.

"As for slinging poo and spitting, the mental health team should have been able to do something to help that individual;"

^ Slinging poo is not normal human behavior. I once saw this happening but it was at a zoo.


MyFeelz
Registered user
another community
on Sep 24, 2022 at 11:54 am
MyFeelz, another community
Registered user
on Sep 24, 2022 at 11:54 am

@Wei Zhao are you saying we should also make it illegal to talk on the cell phone near a busy street? Hm. And the slinger was not the same person as the loud talker. The slinger had previously been given care by the Mental Health Team, but the article says they couldn't do anything to help him. Which makes me wonder -- ARE WE PAYING FOR THIS? Ineffective agencies that walk away from the people they are supposed to help? How much is it costing us?


Kerry Campbell
Registered user
Palo Alto Hills
on Sep 24, 2022 at 2:10 pm
Kerry Campbell, Palo Alto Hills
Registered user
on Sep 24, 2022 at 2:10 pm

If the State of California were to re-establish its former mental health facilities, the confirmed mentally ill could simply be rounded up in paddy wagons and dropped off at these sanitariums for extended sequestering and observation.

The state could then petition for long-term guardianship and oula...no more mentally ill transients on the streets.


Larry Berg
Registered user
Mountain View
on Sep 24, 2022 at 3:04 pm
Larry Berg, Mountain View
Registered user
on Sep 24, 2022 at 3:04 pm

"As for slinging poo and spitting, the mental health team should have been able to do something to help that individual; the report doesn't said what they did or didn't do, other than fail to help the person.

^ It is very difficult to reason with a person slinging poo.

"And the last case, it's not illegal to talk to yourself, out loud, on a busy street...I hope as soon as the dope wore off, he called a lawyer to file suit against the City."

^People on dope are usually incoherent and IMO have no justification filing suit against the city or PAPD in most instances.

Instead, they should be hauled away for observation and sedated if necessary to protect themselves and others from harm.


Paly02
Registered user
Crescent Park
on Sep 24, 2022 at 7:29 pm
Paly02, Crescent Park
Registered user
on Sep 24, 2022 at 7:29 pm

It was the case a long time ago that we hid people away from the world in facilities but that was rife with abuse was not helpful for the well-being of the people inside. We have learned that it is better to use outpatient care when possible. Unfortunately, no one wants to fund the outpatient care. So, instead of requesting that we lock people up, it is both more effective and more humane to lobby for more funding for mental health outpatient facilities.


Mike Taylor
Registered user
another community
on Sep 25, 2022 at 9:45 am
Mike Taylor, another community
Registered user
on Sep 25, 2022 at 9:45 am

In some ways, American society is getting way too politically correct and overly sensitive about certain remarks made in jest.

Taking offense to nearly everything is counterproductive and the progressives are to blame along with ultra-liberal sociology types who condemn the use of negative stereotypes while categorizing and exalting what they perceive to be positive characteristics.

One cannot have it both ways.


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