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Representing the City of Fullerton in court, attorney Kim Barlow argued that city staff said they had tried “very hard” to protect files uploaded to a city Dropbox account, with no password protection, that later turned up on the FFFF blog.

Matthew Leslie

On Thursday, March 12 in Santa Ana Orange County Superior Court Judge James L. Crandall rejected a motion to dismiss the City of Fullerton’s lawsuit against bloggers from the Friends for Fullerton’s Future (FFFF) blog over alleged illegal downloading of files from a city Dropbox folder. Judge Crandall also issued a preliminary injunction prohibiting the blog from publishing any more of the files in question. A similar injunction, issued last year by a different judge, was later thrown out by the 4th District Court of Appeal.

During the same session, the court also denied the FFFF blog’s motion to dismiss the City of Fullerton’s civil case, which names bloggers Joshua Ferguson and David Curlee as defendants. FFFF counsel considers the case to be a “SLAPP,” or Strategic Lawsuit Against Public Participation. Judge Crandall allowed the case to move forward because it appeared to him that there was illegal activity involved in the accessing of the city files, and that the city could prevail in the case.

The city contends that Mr. Ferguson was sent a link to specific files in a city Dropbox folder, but that FFFF bloggers illegally accessed and downloaded other files also found there, including files containing private information about city employees. Last year the blog published stories about the city’s questionable handling of the drunk driving incident involving now former City Manager Joe Felz and one about what appeared to be a deliberate attempt by the city to circumvent new police reporting laws.

The case has raised concerns about restricting 1st Amendment guarantees of free speech by intimidating reporters by suing them and by filing for injunctions against publishing materials that might be embarrassing to municipalities. Courts have generally held that prohibiting news organizations from publishing information constitutes prior restraint.

Despite acknowledging that  some of the documents were “of significant public interest,” Judge Crandall reasoned in his Tentative Ruling that the injunction would not constitute prior restraint because it would be a “content-neutral restriction on defendants based not on their speech, but on their own prior unlawful conduct,” evidently finding credibility in the city’s contention that its civil case is based on the theft of city materials, in the form of its files, and not an attempt to silence critics. “We are trying to get our property back,” argued City of Fullerton’s counsel Kim Barlow, insisting that she wouldn’t be there if the case was about free speech.

During the evidentiary hearing to determine whether or not to allow the case to move forward, FFFF attorney Kelly Aviles argued that accessing files in the city’s Dropbox folders without authorization did not constitute an illegal act, and that, in any case, the city had no proof that the bloggers named in the lawsuit were responsible for downloading the files because the IP addresses detected were anonymous and could not be tied to either Mr. Ferguson or Mr. Curlee.

Ms. Aviles also argued that, although the city claims that the files were private, they posted them to the Dropbox account without any barriers to their access, noting that user folders set up on Dropbox are, by default, private, but that city staff had chosen to make them public by proactively removing any barriers to access. Ms. Barlow, in turn,  cited the 2017 Equifax file breach that exposed private information about millions of people, arguing that inadequate security on a website did not mean that accessing information there did not constitute criminal activity.

Judge Crandall likened the situation to theft from a house whose front door had been left open, but Ms. Aviles countered that routine application of theft laws did not apply the same way to the press. Earlier in the hearing, Ms. Aviles differentiated between files found on a city computer and those found in folders hosted by Dropbox, which exists on the inherently public medium of the internet, reasoning that the files found on the internet are public, whether their location has been specifically advertised or not. Because no password was required to access them, FFFF’s attorney contends that the files were not private, despite the city claiming that they were. (At one point Judge Crandall expressed frustration with internet passwords, relating his trouble using them to access his own court files, and stated that he calls his grandson when he has trouble doing so).

Ultimately, Judge Crandall refused to grant a stay to the preliminary injunction and denied FFFF’s anti-SLAPP motion, allowing his published Tentative Ruling to stand. He set a trial date in January, 2021. Ms. Aviles indicated of behalf of Mr. Ferguson and Mr. Curlee that she would appeal the judge’s rulings before that time.

The car driven by Miss Williams. From the OC Register.

Matthew Leslie

On July 5, the eighth anniversary of Kelly Thomas being beaten braindead by officers of the Fullerton Police Department, another of the department’s officers shot a seventeen year old teenager to death on the 91 freeway in neighboring Anaheim. There are terrible similarities between the aftermaths of each killing, including frustration on the part of the deceased’s family and the public over a lack of basic information being released by law enforcement agencies involved.

The Anaheim Police Department, who is investigating the shooting, declined to identify the dead teen, citing her age, but the initial press release from APD referred to her as a “suspect,” despite not specifying anywhere what crime she was suspected of committing. (Fullerton Police are conducting an internal investigation. Bob Dunn, recently appointed Chief of the FPD, spent seventeen years with the Anaheim Police Department).

The teen has since been identified by her family as Hannah Williams. According to news accounts, her baffled family are demanding answers about her death, describing her as a happy young person who enrolled in online college classes and worked as a lifeguard at Knott’s Berry Farm.

Media reports from the OC Register and LA Times referred to eyewitnesses who gave conflicting accounts of the teenager either raising what appeared to be a gun while exiting her vehicle or holding a cell phone.  Four days after the shooting the OC District Attorney’s office released a statement focusing primarily on a replica gun reportedly found at the scene. The press release went so far as to show side by side an image of the realistic looking gun next to an image of a Baretta handgun to emphasize the similarity between the two, but declined to specify where exactly the replica gun was found.

CBS news reported that the “The gun was found in the vehicle next to Williams, according to the Orange County District Attorney Todd Spitzer,” a confusing statement given the reports of eyewitnesses. The decision to emphasize the assumed danger faced by the officer was grossly reminiscent of the Fullerton Police Department’s efforts to portray Kelly Thomas as a dangerous criminal by releasing an old mugshot of him shortly after his brutal beating.

One of the critical reforms adopted by the FPD following the killing of Kelly Thomas was the wearing of body cameras by officers. Dashboard cameras were already standard. Like the Kelly Thomas case, authorities are refusing to release any recordings of the “encounter,” as it has been described in press releases, or even to confirm whether or not any such recordings exist.

One marked difference between the two cases is the timing of statements by the involved officers. At least following the Kelly Thomas case, reports were written by officers shortly after the beating, albeit after the controversial practice of allowing the officers to view footage of it–a decision made by Dan Hughes, later appointed Chief of FPD. Shockingly, the unidentified FPD officer who shot Miss Williams has reportedly not yet given an official statement about it.

The family, who complain that news media are being given more information about their daughter’s killing than they are, and the general public shouldn’t be in the dark about basic facts of this tragic death. It is almost impossible to imagine that authorities would not have released body footage already if an officer had been shot by a “civilian.” And, if the officer did not have his/her body cam activated, or the dash cam was not operable or had been somehow damaged in what is reported to have been a collision between the vehicles, why is that information not available? How long are we expected to wait for these answers? There are good reasons for efforts to establish a Fullerton Police Commission.

Release the tape.

 

Fullerton Police Chief (for the moment) David Hendricks

Matthew Leslie

UPDATE: The Special Meeting is NOT about Chief Hendricks. It’s about someone connected to the Kelly Thomas case, presumably the since fired FPD officer Jay Cicinelli, who wants his job back, since our incompetent District Attorney, Tony Ruckaukus, couldn’t get him convicted for helping to beat the poor homeless man brain dead.

The more direct reference to the subject of the Closed Session meeting can be found in City Manager Ken Domer’s weekly report at this link:

https://www.cityoffullerton.com/civicax/filebank/blobdload.aspx?BlobID=26046

Why the Closed Session Agenda itself does not include this single explanatory line is unclear.

The Fullerton City will meet in closed session on Thursday Nov. 1, 4:00 p.m. to consider a single agenda item:

PUBLIC EMPLOYEE DISCIPLINE / DISMISSAL / RELEASE Per Government Code Section 54957.1(a)(5)

https://fullerton.legistar.com/View.ashx?M=A&ID=645546&GUID=F57ECBE9-141E-4D01-B222-E1132D464F1B

I believe the Council only officially hires two positions, the City Manager and Chief of Police, and only one of those people has been on leave for two months pending a criminal investigation. Chief David Hendricks, who seemed to have been doing some beneficial housecleaning at the Fullerton Police Departmental during his seven month tenure, appears to himself be headed for the door.

The Chief has been on paid leave while under investigation for a reported off-duty physical altercation with emergency medical personnel called to treat his wife during an August 24 concert in Irvine.

The Council has tried hiring a police Chief from within the ranks and from outside of the city for its last two appointments. Our most recent former Chief Dan Hughes seems to have let the former City Manger off the hook for a drunken car accident, and now it looks like Chief Hendricks is going to be fired for an off-duty fight.

Here’s a suggestion: form a Civilian Police Commission and let them lead the search for a new Chief of Police this time around.

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