Calif. City Releases Police Auditor's Report

A highly anticipated auditor's report released Monday outlines several areas of improvement for the Fresno Police Department, including revamping Internal Affairs investigations and putting video cameras on officers and in patrol cars.

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The 74-page report by former auditor Eddie Aubrey was submitted six months ago but only released now. The delay, City Manager Mark Scott wrote in a memo accompanying the report, was because he had "questions of clarification" and found "errors" that included "typos, inconsistencies, misleading charts" that he hoped Aubrey would correct.

On Monday, Scott released the report as Aubrey submitted it. On Wednesday, he said, he will release a copy of the report with his edits and suggestions to show the public there was no effort to alter any of Aubrey's findings or recommendations -- just a desire to make it more reader-friendly.

For all the drama and delay -- which Scott himself admits led people to become suspicious of what the report actually said -- some city officials said the report itself is rather tame and lacking in fireworks.

"There is no smoking gun," Fresno City Council Member Lee Brand said. "There are some criticisms, but nothing really [bad]."

Still, the report's release comes amid a wrongful death trial in federal court where San Francisco attorney Arturo Gonzalez is claiming Fresno police have engaged in a pattern of unjustified shootings.

Gonzalez -- who is representing the family of Steven Anthony Vargas, who was shot and killed by Fresno police Sgt. Mike Palomino -- already is seeking to admit parts of the report as evidence.

Many people who have been closely monitoring Aubrey's Office of Independent Review and the pending report said Monday they haven't had a chance to read it.

That includes Jacky Parks, president of the Fresno Police Officers Association, and even Gonzalez himself. He received a copy of the report on Friday, but said he still hasn't been able to give it a close read.

Others, such as Fresno Mayor Ashley Swearengin and police Chief Jerry Dyer, did not return calls seeking comment.

Parks said the FPOA "didn't anticipate any smoking gun or anything that is in the context of the vocal minority that is hell bent on having the [police auditor]."

Among other things, the report -- which covers the entire 2010 year -- recommends the department:

Review all Internal Affairs investigations completed by patrol sergeants in 2010.

Provide "in-depth" Internal Affairs training to all sergeants and management-level staff above that rank.

Conduct additional "review, analysis and training" on using deadly force on "dangerous violent fleeing felons."

Call training staff immediately to the scenes of officer-involved shootings.

Install in-car and/or on-person video cameras.

The report singled out officer-involved shootings, saying they are "a great concern." It credits the Police Department with improving tracking and accountability of investigations, but noted that as of Dec. 31, 2010, 27 of 40 officer-involved shootings or in-custody death cases remained open.

But the report also noted that some issues in the investigations are beyond the control of the department. One is waiting for a "closing letter" from the Fresno County District Attorney's Office before officially closing an investigation.

The report also was critical of the department's "Early Alert" system, which was established in 2008 and is supposed to "develop a positive, confidential, and nondisciplinary means of intervention" for officers "with potential performance problems," according to Aubrey's report.

But a database that tracks individual employees and can alert superiors to the need to intervene lacks "consistent staff management." The program also has gone through multiple staffing changes since its inception.

Scott noted that a needed software update -- which Aubrey also recommended -- related to the program is currently under way.

Another part of the report calls out an FPOA legal representative for offering "a monologue of opinions and arguments" during an Internal Affairs interview. It recommends the department "review, enforce and follow protocols concerning the appropriate conduct" by the FPOA's legal representative.

Parks was unapologetic.

"Our job is to provide representation to the member, and you are not providing representation if you sit there silent," he said.

Parts of the report that caught Gonzalez's eye involved reviews of individual incidents in which officers used their guns.

One talked of an officer who "removed his handgun and moved in front of his vehicle to an open area that did not provide any cover or concealment." The report said the department should review "tactical considerations of purposefully exposing oneself from behind cover."

Another involved an officer shooting at a fleeing suspect. The report said the use of deadly force "clearly falls within the law," but that additional analysis and training should be considered when a suspect is fleeing and not an immediate danger to an officer.

In his effort to prove a pattern of unjustified shootings by Fresno police, Gonzalez has cited cases in which officers allegedly set up a dangerous situation by exposing themselves to a suspect and also shooting at those who are fleeing a scene.

He also cited several instances in Aubrey's report that talk of a need for additional training for officers.

Gonzalez said what he and his expert witness -- a former Los Angeles County sheriff's deputy -- have been arguing in court is exactly what is in Aubrey's report. "Now it is like they sat down together and wrote it," he said.

U.S. District Judge Anthony W. Ishii told Gonzalez to submit pages of the report he wants as evidence. Attorney James Weakley, who is representing the city, Palomino and police Chief Jerry Dyer in the trial, opposes the request.

Ishii will hear arguments on the matter this morning.

City Council Member Brand's biggest criticism was that it took so long to release the report, nearly six months after Aubrey lost his job when the position was suspended because of the city's budget crisis. Releasing the report sooner "would have avoided a lot of embarrassment for the city," Brand said.

Both Brand and Scott acknowledge that Aubrey's report contains some valuable information and recommendations.

Said Scott: "I think the best thing is that [Aubrey] actually was able to document a lot of internal affairs audits -- the investigations of audits -- which the public wants us to do."

Both Scott and Brand also like the idea of video cameras.

"But how are we going to pay for it?" Brand asked.

Scott also expressed concern that such equipment must always work, or it could backfire on the city in a court battle.

The report isn't all negative.

One entire section lists department accomplishments. Among them are the Criminal Justice Regional Training Center, an Internal Affairs Bureau training course that trains sergeants how to properly conduct investigations, and "Operation Cease Fire," which notifies gang members that continued criminal activity must stop or federal criminal charges will result.

And even Parks -- the FPOA president -- acknowledged that parts of the report he has heard about can be a positive.

"That would be a big red flag if we were perfect," he said. "You can't tell me we don't make mistakes. Everybody has room for improvement."

The reporter can be reached at [email protected] or (559) 441-6320.

Copyright 2011 - The Fresno Bee, Calif.