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How California Law Shields Violent Police Officers

Is a police officer's right to privacy more important than the right of the community to know who's policing them--and whether they have a record of brutality?
 
 
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This story was produced with the support of the Investigative Fund of the Nation Institute and the Investigative Reporting Program at UC-Berkeley.

March 21, 2009, was one of the bloodiest days in the history of the Oakland Police Department and California law enforcement.

It began with a trifle: Two traffic officers, Sergeant Mark Dunakin and Officer John Hege, pulled over 26-year-old parolee Lovelle Mixon for running a traffic light. After Dunakin radioed in Mixon’s driver’s license and learned it was fake, both officers approached the car with the intent of making an arrest. Mixon leaned out of his window and, according to a Board of Inquiry report, “methodically shot each officer twice.” As the officers lay wounded on the sidewalk, Mixon crawled out of the window of his car, stood over them and shot each in the back.

Over the next two hours, roughly 200 officers from several police agencies tore through East Oakland on a manhunt. The magnitude of the response and the absence of OPD brass from the field for 90 minutes would prove critical in shaping the remarkable carnage that followed—three more people killed and two seriously wounded. The lack of senior personnel led to a situation where, as the Board of Inquiry put it, “many responders self-assign[ed] their own activity.” At a moment when OPD’s response needed to be orderly and focused, officers operated without supervision and on their own initiative. One of those officers was Sgt. Patrick Gonzales.

Gonzales would emerge from the day’s dramatic violence as a department hero; some colleagues nicknamed him “Audie Murphy,” the most decorated American soldier of World War II. But to many in the black and Latino neighborhoods Gonzales polices today, he has long been known as something else: a loose cannon. During Gonzales’ 13-year career he has shot four suspects, three fatally. “He’s left a trail of victims in his wake,” says Cathy King, the mother of one of Gonzales’ shooting victims, “but he’s [considered] a valued member of the police department.”

Multiple lawsuits alleging wrongful death, excessive force, illegal searches and racial profiling incidents involving Gonzales have resulted in $3.6 million paid by the city in settlement money. Law enforcement experts say he fits the profile of the “bad apple” minority in OPD that is responsible for most of the allegations of brutality that plague its relationship with the city’s communities of color. And the Board of Inquiry report on the bloody events of March 21, 2009, places significant blame for the carnage on Gonzales’ decisions.

Yet, Gonzales has been consistently promoted and deployed into sensitive situations throughout his career, and without public outcry. That’s because few know about either his record or his promotions. His extensive personnel file is today off-limits to the public, thanks to a dramatic rollback in the transparency of law enforcement records following a California Supreme Court ruling five years ago. The 2006 decision, in Copley Press v. Superior Court of San Diego, effectively classified all records of individual law enforcement officers, even those employed by contractors.

The arc of Gonzales’ career, from a patrol officer in the Eastlake neighborhood to a sergeant on the SWAT team at the heart of one of OPD’s darkest days, tells the story of a department’s broken accountability system, now pushed behind a wall of secrecy.

‘A Huge Backtrack in Oversight’

Copley was the climax of a decades-long battle between California law enforcement unions and civil liberties advocates.

In 1974, the California Supreme Court granted defendants access to police employment files under certain circumstances. That prompted police departments to start shredding records, until, in 1977, police associations and unions won the Peace Officers’ Bill of Rights, which along with key sections of California’s penal code exempted all personnel information from laws allowing residents to access public records. In response, jurisdictions around the state created independent review boards to investigate complaints of police misconduct. These boards became the primary vehicle for communities to hold both individual officers and departments accountable for their interactions with residents.

In 2003, Copley Press, which published the San Diego Union Tribune, sued the county to gain access to an appeals hearing for a sheriff’s deputy facing termination. The suit wound its way up to the state Supreme Court, which rejected the publisher’s demands. Subsequent interpretations of the ruling by cities across the state led to the wholesale redaction of identifying information for police misconduct complaints filed with watchdog agencies. According to the ruling, an officer’s disciplinary information may not be released by either the department or an independent review body, citing a police officer’s right to privacy.

“They’ve been relentless over the past 25 years to create a tool for law enforcement agencies to work without public scrutiny,” Tom Newton, executive director of the California Newspaper Publishers Association, says of police unions. “With Copley, they hit the jackpot.”

In a two-year long investigation involving several California police departments with varying transparency policies, Colorlines.com and the Investigative Fund of the Nation Institute found that the Copley ruling had its greatest impact on cities like Oakland, where community activism and federal intervention had prompted the department to provide unique levels of transparency about individual officers. In cities like Fresno, on the other hand, where departments had long invoked the 1977 law to shield files, Copley simply gave further legal justification to keep records secret until they’re pried loose by litigation.

“It’s a huge backtrack in oversight, ” says former ACLU-Northern California police practices expert Mark Schlosberg. “In the long term, [Copley] is going to be really detrimental.”

The bloody climax of the hunt for Lovelle Mixon offers a window into that long term. OPD found Mixon hiding at his sister’s apartment. When members of the SWAT team arrived, they cobbled together an impromptu entry team, led by Gonzales. Snipers and hostage negotiators had not made it to the scene, Mixon’s location had not been confirmed and, critically, medical support was not yet on site. But the on-site commander sent Gonzales and his team into the apartment anyway.

The team burst through the door and lobbed several “flash-bang” stun grenades. The grenades had an unexpected effect: the plaster walls of the apartment caught fire, kicking up a fog of plaster and smoke that obscured the officers’ vision. Mixon opened fire from behind this screen, killing Sgt. Ervin Romans and hitting Gonzales in the shoulder. One stun grenade struck Mixon’s 16-year-old sister Reynette Mixon on the leg, melting her pajama pants to her body.

Lovelle Mixon fatally shot another officer, Sgt. Dan Sakai, and again hit Gonzales before Gonzales finally shot and killed him. By that point, it had become the deadliest day for Golden State law enforcement since 1970.

The loss of four officers in two separate encounters with a single suspect prompted OPD to commission an independent analysis of what went wrong. The findings were excoriating, listing a host of tactical errors. A large portion of the report, however, centered on the actions of Gonzales’ ad hoc Entry Team. Among the multiple shortcomings identified, the team did not need to confront Mixon, who was “contained within the apartment confines and not an at-large threat in the community.”

Gonzales didn’t order the entry, but he led it and, according to the report, made a bad situation worse. The report stressed that the team “was completely unprepared for this level of resistance and should have been withdrawn to safety where careful assessment could be made.” But that was hardly Gonzales’ style.

Gonzales took an extended medical leave after the Mixon debacle, but has returned to duty as a robbery detective, where he still serves today. He was part of the department-wide deployment on Nov. 5, 2010, to contain protests over the light sentence ex-BART police officer Johannes Mehserle received for killing Oscar Grant. He was photographed that night in riot gear with a shotgun in hand.

Roger Clark, a police practices expert and former major crimes investigator for the Los Angeles sheriff, says the actions of Gonzales’ ad hoc Entry Team in the Mixon manhunt demonstrate how the lack of accountability in OPD can have fatal results.

“The indicator that they still have problems is the Mixon incident,” Clark said. “There is a lack of discipline and a failure to work as a team, because they know there’s no sanctions for it.”

A Few Dangerous Apples

Oakland is one of the cities where Copley has had the most significant impact on independent civilian oversight. The Citizens’ Police Review Board was founded in 1980, after extended grassroots campaigning, to conduct open, independent investigations of citizen complaints. Although the board is underfunded, understaffed and handles far fewer complaints than Internal Affairs, prior to Copley its hearings and investigations were open to the public and offered a window into police behavior. Patrick Caceres, the current CPRB director, said Copley now bars him from releasing even past complaints about individual officers, as well as annual reports that once included identifying information.Before Copley, people attending CPRB hearings could obtain the entire investigative packet for each complaint (see supporting documents for an example). The documents included un-redacted police reports, maps, medical records, photographs and written statements—as well as the name of the police officer accused of wrongdoing. Today, CPRB hearings are still open and the reports and findings are readily available, but the complaint packets are no longer available to the public; only the name of the complainant and the case number are public.

Unlike some California police departments, Oakland Police will still release the names of officers involved in shooting incidents. “We try to release information as best we can given the restrictions,” Internal Affairs Captain Paul Figueroa explained. “Even with Copley, information can be given out that informs the public and protects the rights of police officers.” But watchdogs say the most crucial information—that of misconduct before shootings happen—is concealed.

Merrick Bobb, one of the nation’s foremost experts on police reform, said most officers rarely fire their weapons, and the ones that do have a greater propensity to use force on suspects. “There are correlations between officer-involved shootings and other use of force incidents in the life of an officer,” Bobb said.

The use of deadly force has been at the heart of tensions between police and Oakland’s communities of color for decades. In 1968, OPD officers famously shot and killed 17-year-old Black Panther Bobby Hutton as he was surrendering following a shootout. Things have been hostile ever since. OPD has been under the oversight of U.S. District Court Judge Thelton Henderson since 2003, after a rookie officer exposed the “Riders,” a self-styled posse of rogue cops in West Oakland who beat, robbed and framed suspects.

But records obtained through a California Public Records Act request support Bobb’s analysis: A small cadre of Oakland police officers are responsible for a disproportionate amount of controversial use of force incidents. Sixteen officers currently in the Oakland Police Department are responsible for 40 of its shootings from 2000 to 2010—or, nearly half of the total 85 shootings. Misconduct allegations filed with the CPRB against these officers would have been public records before the Copley ruling; they are now confidential.

Policing researchers have found that this pattern recurs: a relatively small band of cops accounting for large amounts of violence. It was among the primary findings of the independent investigation following Los Angeles’ 1992 rioting in response to police violence. And watchdogs argue that the pattern suggests deadly violence could be prevented by closely tracking officers with recurring misconduct complaints—something the department has done poorly when left to its own devices.

Only one officer involved in Oakland’s shooting incidents, Hector Jimenez, was disciplined for shooting incidents between 2004 and 2008, the most recent years for which records are available. He was fired and then rehired earlier this year after an arbitration judge ruled he had been improperly terminated. Jimenez was responsible for two fatal shootings within seven months of one another—killing an unarmed 20-year-old, Andrew Moppin-Buckskin on New Years Eve 2007 and, months later, Mack “Jody” Woodfox. Both men were fleeing traffic stops. Both families filed suit; Woodfox’s family won a $650,000 settlement, while a judge ruled in favor of the city in Moppin-Buckskin’s case. When Jimenez was terminated in 2009, prior to the arbitration ruling, it was the first time OPD had disciplined an officer for any shooting since 2003, according to an Internal Affairs report.

Without CPRB records, lawsuits are the only remaining way for records of shooters to become public. As a result, accountability activists say, it is now extremely difficult to keep tabs on officer conduct. Rachel Jackson, an organizer of the Bay Area protests of Oscar Grant’s killing, says the indictment on murder charges of ex-BART Officer Johannes Mehserle, following widespread public outcry, is proof of the point: “If there’s street heat, they’ll do something.”

A Long, Unseen Rap Sheet

Early instances of Patrick Gonzales’ conduct are available through archived CPRB records and civil lawsuits filed against the city by his alleged victims. The review board records are still available only because they were archived by the American Civil Liberties Union of Northern California and People United for a Better Life in Oakland.

Gonzales joined the Oakland Police Department in the late 1990s, and from the start showed signs of trouble. Within two years, he found himself in the spotlight for accusations of brutality during a car stop. On May 2, 2000, Gonzales and his partner Chris Sansone stopped 18-year-old Andre Dante Piazza and his cousin George Moore as they left a liquor store. This was not Piazza’s first contact with Gonzales; Piazza claims that he had been stopped by the officer “15 to 20 times” in the weeks between Feb. 28 to May 2.

According to a CPRB complaint filed by Piazza, Gonzales strip-searched him publicly, pulling down his pants and conducting a cavity search on a busy street. When Gonzales lifted and felt around under Piazza’s testicles, the teenager taunted Gonzales, saying the search made him “feel like you’re fruity.”

Gonzales allegedly responded to the taunt with force. He grabbed Piazza by the face, according to the complaint, and squeezed his mouth open to look for contraband. When Piazza told Gonzales his rights were being violated, Gonzales slapped him across the face. When Moore asked Gonzales why he’d struck Piazza, Moore and other witnesses report, Gonzales said he “shouldn’t be talking so much shit.” Gonzales and Sansone then left the scene. Both officers denied Piazza’s allegations, and the CPRB voted not to sustain his complaint.

A month after the Piazza matter was concluded, Gonzales took part in another incident that landed him back in front of the civilian review board. On the afternoon of Feb. 25, 2001, Sammie Jordan allegedly sold an unspecified amount of marijuana to an undercover officer. Gonzales and another officer responded to the scene. Jordan claimed he was pistol-whipped across the neck by Gonzales and “‘kicked’ approximately 10 to 15 times” by the three officers. Once again, the CPRB did not sustain the complaint, as is most often the case with review board hearings. What’s notable, however, is the emerging pattern of complaints—a flag for a potential shooter, say watchdogs.

Even after racking up CPRB complaints about his use of force, Gonzales kept turning up at the center of events involving questionable violence by OPD. Eventually, the recurring controversies cost the city millions of tax dollars.

In spring 2003, the United States invasion of Iraq sparked nationwide protests, including a shutdown of parts of the Port of Oakland. Hundreds of demonstrators gathered outside a terminal to protest alleged war profiteering by shipping company American President Lines. They were met by a line of OPD officers equipped with riot gear, who ordered the crowd to disperse. When the command was not obeyed, OPD officers opened fire with rubber bullets, tear gas and other less-than-lethal weaponry.

Protesters ran for cover behind nearby trucks waiting to load at the port, so a line of longshoremen were caught in the line of fire as well. A dozen protestors and nine longshoremen on their way to work were injured.

After a formal city investigation foundered, protesters filed a class action lawsuit against OPD. In court documents, Gonzales is identified as one of the officers armed with crowd control weapons. According to the documents, Gonzales and three fellow officers fired “drag-stabilized beanbags” (lead birdshot wrapped in a cloth bag) from 12-gauge shotguns at the crowd. In video footage, Gonzales is shown firing the beanbags from his shotgun directly at protesters. Depositions given by OPD also indicate Gonzales fired rounds at the crowd. The class action led to more than $2 million in payments to injured demonstrators and workers.

But by the time Gonzales was firing lead-filled beanbags into a crowd of protesters, he had already turned up at the center of a more lethal conflict with suspects.

On Gonzales’ fourth year on the job, he was involved in his first shooting incident. On March 27, 2002, alleged Norteno gang members Joshua Russell and Randy Posvar tried to rob an acquaintance with a pump-action shotgun in East Oakland. Gonzales, then 26, arrived on scene with a number of other officers, at which point the 19-year-old Russell pointed his shotgun towards police. Gonzales and Officer Rudy Villegas opened fire, killing Russell. Investigations by OPD’s Homicide and Internal Affairs sections, as well as the Alameda District Attorney, determined that Gonzales’ shooting did not violate criminal code or departmental regulations. Future shootings would present far murkier situations.

Deadly Force

Ameir Rollins, now 22, lives a limited life. His arms and legs have atrophied from years of disuse. He sits in a room on the side of his family’s plaster and stucco-sided home in East Oakland, watching a flat-screen television on the wall of the same small, dimly-lit space he’s lived in since childhood.

Rollins met then-Officer Gonzales on June 5, 2006. Gonzales and Sansone were responding to a shooting call when they spotted 17-year-old Rollins with a sawed-off rifle in his hands. Rollins says he was taking the rifle home from a friend’s house; others from the neighborhood say he was carrying the gun for protection after being shot at a few days earlier. (According to Rollins’ lawyer, gunshot residue tests later proved he had not fired the weapon.) When Gonzales and Sansone spotted the weapon, they ran their patrol car up on the curb in front of Rollins and jumped out with their guns trained on him, according to the young man.

What happened next remains in dispute. In the days after the incident, police told media that Rollins refused to drop the gun. Rollins insists he dropped it and that he was frightened and “ready to go to jail.” What’s certain is Gonzales fired one round at Rollins, which passed through his wrist as he raised his hands and plunged into his neck. Gonzales was four to five feet away when he fired; his partner did not shoot.

“I didn’t even feel it, I just hit the ground” Rollins said. He fell face first on the sidewalk as blood welled up in his mouth. “I thought I was hit in the chest,” he recalled.

Rollins’ family and friends describe a gruesome scene. Effie Smith, his mother, ran to the scene with one of her daughters. “They had a sheet on him,” she recalled. “All you could see was his tennis shoes.” Police had taken him for dead and covered him from public view after handcuffing him, before medical personnel arrived on the scene. Rollins faded in and out of consciousness, briefly coming to in an ambulance and then passing out.

The bullet wound to his neck rendered him a quadriplegic. His family filed a civil claim in state court and received a $100,000 settlement from the city that mostly went towards covering medical bills.

Still, despite two shootings and multiple use-of-force controversies on Gonzales’ record, his career advanced. After the June 2006 shooting of Rollins, Gonzales was promoted to sergeant and reassigned as the supervisor of a “crime reduction team” in North Oakland, his first posting away from East Oakland. Gonzales’ new unit was tasked with crime suppression and apprehending violent felons. He had also become a firearms instructor for OPD and had been assigned to the department’s SWAT team.

On the afternoon of Sept. 20, 2007, Ameir Rollins was sitting in his bed at Children’s Hospital in North Oakland when he heard sirens and saw police cars and ambulances speeding towards the intersection of 54th St. and Martin Luther King Jr. Way. An angry crowd gathered in the street and milled around for several hours, but Rollins dismissed the event and fell asleep. It wasn’t until the next day that he learned another young black man had been shot by Patrick Gonzales, this time fatally.

“I saw all the police and wondered what was going down,” Rollins recalled. “I didn’t believe it until I watched the news.”

Gary King, Jr., a 20-year-old vacuum salesman and contractor, lived around the corner with his parents and siblings. That afternoon, King and a few of his friends went to East Bay Liquors to buy snacks. As they exited the store, Gonzales drove by in his patrol car.

Gonzales was on the lookout for a suspect in a month-old murder that had taken place several blocks away. Witnesses say he swerved across six lanes of traffic into the liquor store parking lot, where he got out of his car and approached King. The two exchanged words. Gonzales then slapped soda and chips out of King’s hands and grabbed hold of him. King resisted, and witnesses say Gonzales pulled the young man into a headlock by his shoulder-length dreadlocks and punched him repeatedly. Gonzales then Tasered King multiple times, according to a civil suit filed by King’s family.

King broke free of Gonzales and staggered west across MLK Way, holding his sagging pants up and yelling for help. Witnesses say Gonzales then drew his pistol and fired twice. King fell to the sidewalk with two fatal bullet wounds in his back. Gonzales ran over to King’s body and planted his foot on top of it while aiming his pistol at King’s friends, warning them to back up. He then cuffed King’s hands behind his back.

King’s parents, Gary Sr. and Cathy, ran out to the street, where additional OPD officers had been summoned to hold back an increasingly angry crowd. Cathy King tried to get through to her son’s inert body but was stopped by a police officer. She and her husband were not allowed to see their son, who by now was hidden by a clutch of OPD officers and EMTs. The Kings followed the ambulance to Highland Hospital, where doctors told them Gary had died but refused to let them see his corpse.

For Cathy King, being barred from her son’s deathbed was the final insult. “No one should stand in the way of a mother in the final moments of her son’s life,” she said at a February conference on police violence in Oakland.

At a press conference that evening, OPD Homicide Lt. Ersie Joyner said Gonzales had acted appropriately. Later that week, Assistant Chief Howard Jordan described Gonzales’ actions in the following matter: “He fired in defense of his life at an armed and dangerous subject.”

OPD would later claim Gonzales thought King was reaching for a gun in his waistband, and offered as proof a broken revolver they claim was recovered from his body. Michael Haddad, an attorney for the King family, maintains the revolver could have been planted by OPD to justify the shooting. It’s not an outrageous claim: In November 2007, a federal jury ruled OPD had planted an assault rifle in the home of Torry Smith to justify an illegal search. Witnesses say they never saw King with a gun and claim Gonzales overreacted—again.

King’s death sparked protest marches from North Oakland to City Hall. The intersection of 54th St. and Martin Luther King Jr. Way became an impromptu shrine to the dead 20-year-old: flowers and candles were placed around a BART pillar, which was decorated with a mural of a smiling King above a layer of clouds. Although the mural was sandblasted in 2009, the sidewalk still reads “RIP G-Money,” and a stop sign bears angry epithets towards OPD.

In September 2009, the Oakland City Council approved a $1.5 million settlement between the city and the King family for Gary Jr.’s death. The City Attorney’s office said it supported the payment in order to avoid a potentially higher payout if the matter came before a jury. However, Oakland denied all wrongdoing on the part of Gonzales. After a three-day administrative leave that is standard after officer-involved shootings, he returned to duty supervising the North Oakland Crime Reduction Team.

Less than two months later, Gonzales was back at the center of controversy. Officers from the unit he now led pulled over Rahsan Kountz for an allegedly expired registration and gave him the same rough treatment Gonzales had been accused of dishing out to Andre Piazza years before. Kountz was strip searched and arrested for possession of a crack rock and a half-smoked joint. The incident, along with similar encounters by other Oakland residents, resulted in a class-action lawsuit. The case is still outstanding.

Reform Without Accountability

Since the Copley ruling, OPD has struggled to keep the public’s trust through transparency with its investigations of police shootings.

Policy reforms mandated by federal oversight have revamped the department’s investigations of officer-involved shootings and uses of force. The Internal Affairs Division now investigates officer-involved shootings for tactical and policy shortcomings; prior to 2003, shooting incidents were reviewed by the Homicide Division and only for criminal wrongdoing. Internal Affairs also now handles civilian complaints about officer-involved incidents; previously, they would have directed such allegations to Homicide. Training policies have also been improved to help officers make better decisions on when to pull their guns.

The court-modified policies also require more reporting on uses of force—officers now have to report when they point their gun at a suspect—and officers involved in shooting incidents may be placed under extra scrutiny by their supervisor to avoid similar incidents. Past shootings, uses of force and complaints (made to either the CPRB or Internal Affairs) are now looked at when evaluating whether an officer should be disciplined. But the public is no longer able to closely monitor whether all of this is actually happening for any individual officer.

While Internal Affairs’ Figueroa believes federal oversight has pushed OPD in a “progressive” direction in intervening with officers who may be using force improperly, the barriers imposed by Copley on public access to misconduct allegations is hard to get around.

“That, I don’t know how to fix,” Figueroa said. “We’re locked in.” Per current state law, Oakland Police officials cannot discuss the personnel issues of individual officers, including Gonzales. Figueroa said civilians can obtain information about police shootings through civil lawsuits, though those can be costly for both the plaintiff and the city.

And while court monitoring is responsible for sweeping policy changes, the department has been criticized by the presiding federal judge. The court’s most recent report on OPD’s reforms criticized the frequency with which officers aim guns at suspects: approximately 80 times in just three months. Furthermore, Internal Affairs rarely sustains citizen complaints: in 2010, it sustained 116 complaints against OPD officers out of 1,748 filed, or just under 7 percent.

There are also questions about the transparency of investigations of police shootings by other law enforcement agencies. Last November, the Alameda County district attorney’s office did an about-face by refusing to release its own investigative reports on officer-involved shootings. In April 2010, Colorlines obtained eight such investigative reports from the Alameda DA through a public records request.

Former BART officer Johannes Mehserle is the only police officer charged by the Alameda DA for a shooting. The DA’s more common practice regarding police-shooting investigations was demonstrated last year when it declined to prosecute OPD Officers Eriberto Perez-Angeles and Omar Daza-Quiroz for fatally shooting Derrick Jones, a 37-year-old unarmed barber. Jones, who was on parole, fled from his barbershop after officers responded to a domestic violence call. He was shot multiple times by both officers after they saw him remove a metallic object from his pocket; it was a pocket scale. Both officers had been involved in a fatal shooting two years earlier as well.

In March, the Alameda DA announced it would not prosecute; Jones’ relatives have filed a $10 million wrongful death claim. To mollify protesters, Chief Anthony Batts said he had referred the case to the FBI. However, as of July 2011 the FBI would not confirm or deny that they are actively investigating Jones’ death.

And thanks to Copley, any previous civilian complaints about Perez-Angeles and Daza-Quiroz are confidential records. Unless they shoot again or are sued in court, their conduct is off-limits from the public.

Ali Winston has reported on law enforcement, surveillance, immigration, education and civil liberties issues for several publications, including ColorLines.
 
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