San Diego Police Oversight Group Set to Dismiss 22 Death Cases Without Investigation

The group tasked with investigating in-custody deaths and complaints against county law enforcement is on the cusp of dismissing 22 death cases without any investigation at all.

The Citizens’ Law Enforcement Review Board staff is recommending the dismissal of 22 investigations involving people who’ve died in county detention facilities or while being taken into custody. It appears to be the first time that the board, created in 1990, has failed to issue findings in a death case. The board is set to make the final decision on whether to dismiss the cases on Nov. 14.

To justify the dismissals, CLERB is citing a section of the California Public Safety Officers Bill of Rights, which governs how law enforcement agencies handle investigations into alleged police misconduct. Under the law, “no public safety officer shall be subjected to punitive action” if an investigation isn’t completed within a year.

Many of the cases being dismissed involve serious allegations brought to light by civil lawsuits and media reports, including that law enforcement officials ignored repeated suicide threats from mentally ill jail inmates and a juvenile detainee, and used excessive force during arrests.

A number of experts said the rule being used to justify the dismissals shouldn’t apply to CLERB, and similar groups in the state that exist to monitor law enforcement don’t interpret the rule that way.

Anthony Finnell, executive director of Oakland’s Citizens’ Police Review Board, said his board issues decisions “even if we miss the … deadline.”

Barbara Attard, who served as San Jose’s independent police auditor and now heads police practices consultancy Accountability Associates, described what CLERB’s doing as “a mess.”

“To just wholesale close cases, I’ve never seen an agency do that,” she said.

Mike Gennaco, former lead attorney of Los Angeles’ Office of Independent Review, said the law doesn’t prohibit investigations, which should be conducted to potentially identify shortcomings in training or policy. “For that reason, several law enforcement agencies continue forward with investigations even if they are more than a year old,” he said.

County spokeswoman Alex Bell wrote via email that CLERB hired a new executive officer in June — its previous executive officer resigned a year ago amid allegations of mismanagement — and has been reviewing policies and open investigations.

“The 22 cases were identified as appropriate for summary dismissal because of time limitations provided by state law,” she said.

Bell wrote that “it is unfortunate that these cases must be recommended for dismissal,” and that “CLERB would like the opportunity to fully investigate each and every one. However, doing so would violate case law and (the Police Officers’ Bill of Rights). Moving forward, CLERB anticipates meeting the one-year deadline for all investigations.”

The case Bell refers to is a 2002 appellate court ruling, Caloca v. County of San Diego. In the case, several San Diego County Sheriff’s deputies sued the county over CLERB misconduct findings. At the time, their names were part of CLERB’s public reports, and the court found that issuing those reports constituted punitive action. But subsequent case law now makes it illegal for oversight boards in California to release the names of officers they’re investigating.

John Crew, former director of the ACLU’s Police Practices Project, said the Police Officers’ Bill of Rights offers a number of exceptions to the one-year rule, like for complicated cases involving multiple deputies and witnesses, or if civil litigation’s been filed that names a specific officer or officers.

Crew, who helped write the exceptions when he was with the ACLU, said dismissing so many cases undermines the “learn from our mistakes” purpose of law enforcement oversight. The county is currently facing at least six lawsuits involving jail deaths and, since March 2015, has paid more than $6 million in settlements.

“Not sure how it helps the county in litigation for an agency like CLERB to claim it legally must dismiss cases like this,” Crew said, “where what they learn in the investigation could help prevent future deaths.”

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Attorneys for some of the families whose loved ones died in the cases being dismissed say officials are forgoing the chance to seriously examine what went wrong and whether policies or practices could be implemented to prevent further deaths.

They include:

• Heron Moriarty, a father of three who’d been diagnosed with serious mental illness, was arrested after he ran his car into three vehicles during what his family said was a psychotic episode. He was placed in solitary confinement in the Vista Detention Facility on May 30, 2016. A day later, he strangled himself with a T-shirt. His family is suing the Sheriff’s Department, arguing that staff ignored multiple phone calls, faxes and emails from his wife to the jail, asking that he be placed in a safety cell as well as deputies ignoring Moriarty’s own threats to kill himself. Danielle Pena, one of the attorneys handling the case, said she filed a complaint with CLERB on March 15, 2017, and received a response two days later, assuring her that CLERB had already opened an investigation and that it would “be conducted and concluded as soon as possible.”
• Kristopher Nesmith, a 21-year-old Marine stationed at Camp Pendleton, hanged himself in the Vista Detention Facility in March 2014. He’d been arrested for multiple assaults in late 2013. His family, which is suing the county, said he struggled with PTSD after nearly being shot in the head during a training exercise. According to the lawsuit, deputies saw that Nesmith was fashioning a noose in his jail cell and had affixed one end to an overhead light, but did nothing to stop him.
• According to the Union-Tribune, Simon Hubble walked out of a sober-living home on May 27, 2015, and went to his parents’ house in Alpine, threatening suicide. The report says the deputies who responded to the parents’ 911 call knew Hubble’s history of mental illness and suicide attempts. When Hubble began walking toward them with a screwdriver, deputies Tasered him twice. One deputy, who’d backed into a dirt road embankment, feared “he’d fall and be attacked” and shot Hubble three times, twice in the chest.
• The oldest case being dismissed involves 70-year-old Russell Hartsaw, who was beaten to death in July 2011 in the George Bailey Detention Facility by a 6-foot-4, 215-pound gang member nicknamed “Evil.” Hartsaw, who was frail, mentally ill and gay, was supposed to be kept in protective custody, a housing status reserved for inmates who could be targets in a jail’s general population.
• In June 2013, Hugo Barragan’s grandmother told the Union-Tribune that she watched while Sheriff’s deputies punched, kicked and Tasered her grandson — and, according to the U-T, a “police dog chewed his ear off” — in her living room. Barragan had ended up at her house after deputies tried to pull him over for erratic driving. He died at the scene from cardiac arrest after deputies placed his arms and legs in restraints.
• Sixteen-year-old Rosemary Summers committed suicide in the Girls Rehabilitation Facility in Kearny Mesa in 2013. A lawsuit filed by her family argues that the probation officers who staff GRF failed to take Summers’ multiple suicide threats seriously. The evening of Sept. 23, 2013, she covered the door window of her room with a piece of paper and secured the door shut with a bed sheet. Only after another ward urged an officer to check on Summers was she found hanging from a ceiling vent by a sheet she’d turned into a noose. In late 2015, the county settled the lawsuit for $1 million. Brody McBride, one of the attorneys for Summers’ family, said an independent review could have highlighted the need for policy changes. “No question that CLERB failed Rosemary,” he said.
• Ruben Nunez, a patient at a psychiatric facility in San Bernardino, was transferred to San Diego’s Central Jail on Aug. 8, 2015, for a court hearing. The facility had sent paperwork to the jail ahead of Nunez’s arrival, cautioning staff to monitor his water intake — among his diagnoses was psychogenic polydipsia, a mental illness that causes sufferers to drink water uncontrollably. Nunez wasn’t monitored and died from water intoxication five days later. His parents have filed a lawsuit. “CLERB exists to investigate and make transparent improper conduct and violation of civil rights,” said Julia Yoo, the attorney representing the Nunez family. “Its decision to arbitrarily refuse to investigate incidents of serious potential wrongdoing based on its imposition of some ill-defined administrate statute of limitations is wrong.”

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Since 2013, CLERB has faced a growing backlog of death cases. The board started 2017 with 46 open cases — more than any in its history. That number grew to 59 by the end of last month.

Nick Mitchell, who heads Denver’s Office of Independent Monitor, questioned whether the county is giving CLERB the resources it needs to conduct thorough investigations.

“If the budget of the San Diego CLERB does not permit it to fulfill this essential function, then its budget must be increased to enable that work,” he said.

Sue Quinn, who served as CLERB’s first special investigator and, from 1995 to 1997 as its executive officer, said it’s “shameful” that CLERB hadn’t been making death investigations a priority.

“It chose to allow the most serious cases to languish unexamined,” she said.

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Originally posted at Voice of San Diego.