Archives for category: City Attorney

Council-Chamber-Post-Verdict

The Fullerton City Council moved item twelve, an update from Chief Hughes about the trial of two former officers acquitted of charges in the death of Kelly Thomas, to the beginning of its meeting agenda tonight. Of the fifty or so members of the public who spoke about the item, nearly a dozen expressed support for civilian oversight of the Fullerton Police Department. Following public comments of the issue, Councilman Bruce Whitaker reminded the audience that he did support a public police commission, and voted against the proposal to hire the Office of Independent Review to provide a lesser model of oversight through outside audits by Michael Gennaco’s OIR.

Councilwoman Jan Flory claimed that the subject was dealt with on two different occasions, and even cited a study session held at the new community center as an example of the council’s consideration of different models of oversight. Readers will recall that the Police Oversight Proposal Committee (POPC) was limited to less than ten minutes to present a model of public oversight following lengthy presentations by the chief of police and Michael Gennaco. Almost no discussion of the proposal took place at that time. There has never been a real public discussion of police oversight by the Fullerton City Council.

Readers will also recall that Ms. Flory was supported by the Fullerton Police Officers Association in the 2012 elections. The FPOA spent tens of thousands of dollars to ensure that they elected a candidate who would privilege their priorities over the interests of the public.

Ms. Flory claimed that the POPC proposal was in conflict with state legislation that protects police officers, and that the council was advised by lawyers that they should not adopt a civilian police commission.

Of course, The Peace Officers Bill of Rights does severely limit the public’s access to information about police misconduct, making real oversight somewhat complicated. But such civilian oversight is certainly not impossible, and is vital to a community where people can be beaten in the streets by the police and be found guilty of nothing by a jury.

Councilwoman Flory ought to take the public’s demands for civilian oversight more seriously. If she thinks state law is standing In the way of it, we will expect her leadership in efforts to change that law. We request that she contact our state legislators on behalf of the people of Fullerton to reform POBR.

Police-Council-Door

City-Hall

Who directed a Fullerton attorney to try to block the District Attorney’s access to police records in a murder case?

Late last month Orange County’s District Attorney filed a motion to review the personnel records  of ex-Fullerton Police Officers Manual Ramos and Jay Cicinelli, currently on trial in the death of Kelly Thomas. The DA is seeking to undermine the credibility of a defense witness, FPD Cpl. Stephen Rubio, who earlier testified that neither of the men acted outside of department policy the night that Thomas was severely beaten and never regained consciousness. Prosecutors in the case will only have access to the parts of the records involving the officers’ interactions with Kelly Thomas on July 5, 2011.

Presiding Judge William Froeberg ruled for the prosecution on December 27, to allow the DA’s team to see the records. These records will presumably show that both officers were fired for their actions, casting doubt on Cpl. Rubio’s testimony in court that neither man violated department policy by first threatening, then beating Kelly Thomas.

An appeal to that ruling was almost immediately filed by Greg Palmer, an attorney representing the City of Fullerton. On Dec. 31 The 4th District Court of Appeal ruled against Fullerton. The Fullerton Police Department will now be required to turn over records relating to the investigation and termination of the officers.

California law makes it so difficult to release state employee personnel information that the jury may ultimately not have access to the records in question. Even Mr. Palmer’s acknowledgement that both officers had been fired was unusual. Although the judge must still decide whether or not the information in the otherwise confidential files can be used in court, the court’s denial of the City of Fullerton’s appeal represents a victory for the prosecution in the case.

Residents of our city should be asking who directed Attorney Greg Palmer to file the appeal of behalf of the City of Fullerton to prevent the release of the records. The matter was never brought before the City Council. The city has a responsibility to not release employee personnel  records, but they do not have an obligation to file an appeal against a court order to release them. Under this extraordinary circumstance of a criminal trial of two ex-police officers charged in the death of a man, shouldn’t the City Council have had the opportunity to provide some direction?

Filing the appeal opens the city to accusations that it is interceding in a criminal court case on the side of the defendants in an effort to minimize a potentially large payout in a separate civil suit filed by Ron Thomas over the death of his son. If the former officers are not found guilty, Mr. Thomas will have less of a case against the city. Are we, as a city, so cynical that we would act to reduce our possible future financial liability instead of seeing justice done in a fair and open court process?

Or was money even the issue at all? Instead, are we seeing the influence of the Fullerton Police Department extend so far that it can dictate the city’s legal actions on behalf of it’s accused, albeit cast out, brethren in blue? What is the city’s motive here, and who unilaterally set this action in motion?

baxter-protest-webStephan Baxter

I contend that we should cite “illegal actions,” rather than the condition of homelessness.

I am offended to the core that a city which two years ago made national news with up to six on-duty officers, employed and trained our own Police Department, murdering a local unarmed homeless man named Kelly Thomas, recently voted down a proposed homeless shelter, and is now making news again for actively enforcing a no camping city ordinance and criminalizing homelessness in the process.

My position is that until the city of Fullerton has a homeless shelter or can otherwise provide shelter to those they cite for being homeless, we cannot in good conscience enforce a 1992 municipal code which targets the condition of homelessness.  The homeless do learn to be resourceful, but none that I know of – and I know a good many of them – have mastered the act of vaporizing.  Being homeless somewhere else is not the answer.  Specifically to the mental ill who live in our streets, if homelessness is a crime, the guilt lies not with the homeless, it lies with us.

I believe that parks, transportation centers and all public space should be safe for families and their children.  I am not of the opinion that we should grant amnesty to the homeless.  The police should treat the homeless very much like every other segment of our population:  ticket, seek services for, and if warranted arrest, any person that is breaking the law or disturbing the peace if the do not comply.  If they are drunk in public, address the act of public drunkenness.  If they are assaulting a passersby, selling drugs, doing any of the things that some are being accused of, address the acts that they are committing, not the condition of homelessness they find themselves in.

Go to downtown Fullerton on a Friday night and see who is actually getting in fights and urinating in the streets.  It’s not the homeless, it’s the bar crowd.  Yet college students are not being picked up at random and cited for their student status. Our policy should not be to cite homeless people in the vicinity where someone has called in a general complaint about “the homeless”. That is what is exactly what happened to two decent people who are friends and that is why some of us spoke at city council on August 20. They were cited not for what they did, but for their inability to afford an apartment or motel room, and that is offensive. I love Fullerton but I hate this policy.

With the murder trial of two of the six officers accused in the death of Kelly Thomas scheduled for October 18th, and a third not far behind, Fullerton was on a path of healing and we were making great progress in becoming a more loving, accepting and creative community, but if after all that has been accomplished in the last two years, we now react by making the condition of homelessness illegal, and good people living on the margins are criminalized, we have made things worse not better, and this realization should call us to action.

One of the ways which we can resolve this issue is to have the council exercise its right to remove the city ordinance from the books with a majority vote.  To that end I had breakfast Monday morning with one member of the city council, who agreed that the enforcement of the no camping ordinance, in a city that thus far has not provided any viable alternative for those sleeping outdoors, is counterproductive and not a real solution.  This council member indicated that, if my claims regarding the recent citations referenced in this video are true, they will share my concern that the citations are not targeting those who cause problems. This council member will do more homework on the subject and, once verified, said that they will help us in our goal of ending this practice by reaching out to others on the council. Once I have a clear statement of our objectives and our plan, I will ask them and others if I can publicly state that we have their support.  There may be some who support our objectives but are not comfortable supporting the means by which we get there, and I do not want to put anyone in a position where they must refute a statement we make.  For now I am not disclosing this council person’s name.

Later that day I met with the Mayor Bruce Whitaker and the City Attorney Dick Jones (“The Other Dick Jones”, not to be confused with the recalled council member) for over an hour.  I thank Mayor Whittaker for getting me this meeting with the attorney and for the time they both carved out of their busy afternoon to meet with me.  I was there to find out as much as possible regarding this “unlawful camping” citation and who holds power to dismiss or otherwise not enforce it.  Here is the code.

First Impressions: I was very grateful for the meeting but if condescension was a virtue, our city attorney would be the Great Jehovah. It was with substantial effort and through the gnashing of teeth, that the following information was provided to me:

  • The city attorney or his staff review all the municipal cases the FPD sends to them and they decide if they would like to prosecute or not. The city attorney plans to review each of the recent camping violations himself if they make it to his desk.
  • The FPD may cite individuals and then decide not to take it further themselves. e.g. none of the no honking tickets issued by FPD last year to cars showings support at KT Protest ever made it to his desk. For lack of a better description they were torn up before his department could get involved.
  • Chief Dan Hughes has the power to do the same with the recent citations. If my claims are true the city attorney agreed that Dale and Julia (the subjects of our comments to the city council on August 20) clearly are not good examples of “the homeless problem.”
  • While it is true that the citation is defined as a misdemeanor, and that fines can potentially be over $2,000, the city attorney does not believe the judge, especially the homeless judge in Santa Ana, would impose the maximum fine.  Dick Jones had pre-selected five examples in the last year where fines were $40.00 and below or were paid through community service.  He could not tell me if there were other examples where the fines were much higher.  I requested that he get back to me on that.
  • In response to a question Dick Jones said that in his role as city attorney he could advise the Chief of Police that it is in the city’s best interest, in terms of legal exposure and liability, to not enforce the no camping ordinance. He, however, has no plans to do so, and I failed to convince him that increased contacts with the homeless to enforce this code could result in more lawsuits and more settlements.
  • The city attorney believes that these citation are business as usual and that they have been issued all along.  He said that he does not characterize the recent citations of a change in policy, or out of the ordinary.
  • He believes that these citations are a last resort and issued only when citizens call to complain about the homeless, and that only those who refuse to comply with “self help” (too convoluted to explain here but anything from “moving along” to agreeing to be admitted to a hospital, would fall under self help) are issued tickets.
  • Neither Mayor Bruce Whitaker or City Attorney Dick Jones have any recollection of then acting Chief Hughes making a statement in regard to not enforcing this code until a homeless shelter is in place in Fullerton. I may be wrong about that, so if anyone can find a clip or story where Dan Hughes makes this claim please forward it to me. Dick Jones stated that even if the chief made such a claim he is under no legal obligation to keep it.
  • Both the mayor and the Other Dick Jones feel that I need to meet with the Chief of Police and address the enforcement with him. They did not want to help facilitate this meeting so I will reach out to Dan Hughes.
  • No one hugged at the meeting’s conclusion!

My personal impressions after spending an hour with the mayor and city attorney (these are not facts):

  • It was not a pleasant meeting, and the unpleasantness could have only been avoided if I had agreed with everything they were telling me and if I did not ask any follow up questions.
  • Although we have had a good relationship over the last few years, especially regarding the recall and the overreaching practices of FPD (Justice for Kelly. etc.) I do not believe that the mayor will support us here.  There is nothing I would rather do than retract that statement and thank him for his help, as Bruce Whittaker is often the only member of the city council to show up at protest in response to an incident of police abuse and he was vocal regarding Kelly Thomas.  My presumption is that as an advocate for small government he must not be comfortable with idea of tax dollars and city government providing a shelter. He stated that he prefers that charities do these things (not verbatim), not government. I do not, however, conclude by this that he lacks compassion for the homeless, he has shown a lot of compassion to Kelly’s family as they were mourning their son.  Again I hope I am wrong about this. I hope that he comes to understand that a municipal code targeting the CONDITION of homelessness rather than a particular ILLEGAL ACTION of a homeless person, is a far greater violation of Libertarian principals and personal responsibility than providing housing to those most in need is.
  • There is a great fear among city leaders that Fullerton is becoming a destination point for the homeless and both The mayor and The city attorney believe that the removal of this municipal code when made public will translate to an even larger homeless population.  My impression is that they believe that cracking down on the homeless, regardless of its fair application (they may have convinced themselves that only the worst of the worst get these tickets) is preferable to attracting more homeless tourists (my word not theirs) and them getting more complaints from citizens and The Chamber of Commerce.
  • There is a huge gap between how they both believe the city ordinance is being applied and how it is actually being applied.  I believe that the mayor will look into the claims I was making during our meeting, I would like to believe that the city attorney will do the same. If he does, the recent tickets that we were speaking about should be dismissed if we believe what he said during the meeting.  “If they are not causing a problem they would not be ticketed.”  Time served should be given in regard to Dale not signing his ticket.
  • The onslaught of homeless hypotheticals and analogies given to me during or meeting as justification for the no camping code, was soul-crushing (this is fact). AS of today I have been given nothing by anyone in city government which would make me believe that planned isolated 1-day camp-ins by a group of us, in protest of the criminalizing of homelessness in a city with no shelter, should not move forward.  I will, however, continue to reach out to leaders as my preference is that this goes away without us having to do so.  I will also continue to build the framework to pull this off successfully.

Eventually the hypocrisy of ticketing the homeless for being homeless in a city that offers no recourse other than to be homeless somewhere else, and the blanket punishment of a segment of our population without regard of any individual’s actions will resonate with both conservative and liberal residents.  This practice goes against all the basic principles that we as Americans have come to believe in and this will trump any inconvenience the homeless may cause them.  The ideals of personal responsibility and a collective presumption of innocents, ideals that I believe the mayor, the city attorney and the chief of police believe in as well, are assaulted by the enforcement of the no camping code in Fullerton.  If empathy were equally applied to all residents of Fullerton they would reach the same conclusion.

If we can get this message out we win this thing and we can continue forward with Fullerton’s slow transformation to becoming a more loving, accepting and creative community to live and work in.  If I must violate the camping ordinance myself in order to get that message out I will, and I hope some of you will consider joining me once all other efforts are exhausted.  I prefer we do this without camping, I don’t camp!

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