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Fresno's Police Auditor positions for post-Swearengin era

Byline1

Fresno’s police auditor has expanded his mission to include politics.

The Mayor and city manager apparently approve of the change.

Ashley Swearengin is dumping a public safety mess into the lap of her successor.

This is the takeaway from the third quarter report by police auditor Rick Rasmussen, who heads the city’s Office of Independent Review (OIR).

Rasmussen has produced seven pages of memorable narrative – make that passionate, heartfelt, even emotional narrative. He’s been police auditor for four years. He has never before written in such a voice.

Whether it’s wise for a police auditor to take such liberties is a question we’ll tackle in a bit.

Dylan Noble is at the heart of Rasmussen’s narrative. The 19-year-old was fatally shot by Fresno police in June.

“This matter has generated the single most public interest and the most direct contact with OIR to date,” Rasmussen wrote. “The FPD was unable to complete their review of the matter within this quarter, as recommended in the previous Quarterly Report. Therefore, the results of FPD’s Internal Review and the results of the OIR audit, which is not completed as it was only available for review since last week, will not appear in this report. Those results will appear in the next Quarterly Report, if one is produced.”

If one is produced?

What would inspire a professionally-trained police auditor to publicly cast such doubt on the integrity of his employer? Of course there will be a fourth-quarter report. City law requires it. The author of that fourth-quarter report? That’s another issue.

Rasmussen wrote at length in the third-quarter report about the cops’ use of body cameras.

“As previously discussed in earlier Quarterly Reports, officers continue to fail to activate their body cameras, in accordance with FPD policy,” Rasmussen wrote. “The cameras are an effective tool in determining most facts in any given interaction, but only if they are activated.

“Additionally, cameras have been in place for over 2 years and come at a great expense to the citizens of Fresno, an even greater expense if they are not used. As has been shown multiple times, the availability of recordings of an incident can and has allowed all investigative inquiries to arrive at sound findings. OIR believes that the time span for ‘re-training’ or reprimands has lapsed in those cases wherein officers fail to activate their cameras, without a compelling reason.”

Police leaders at the highest levels need to be more aggressive in dealing with officers who fail to activate their body cameras, Rasmussen wrote. Uncooperative officers need to have their Internal Affairs records examined. The severity of punishment for first-time and repeat offenders needs to be reviewed.

“In many cases, photographs of the suspect are routinely made, revealing any and all injuries that they suffered,” Rasmussen wrote. “However, photographs are rarely made of the officers taken on the day in question to record their condition and other tools they had available to them when they chose/were forced to use force on the suspect who was, in most cases, reported to be non-compliant and perhaps even physically resistant.”

Rasmussen noted that “in at least one reviewed case, the fact that both officers failed to activate their cameras did give pause.” Rasmussen added that he has asked the police to give him data on department training “on the use of force/pain compliance, as the officers in the above referenced case allege they were doing when they struck him in the face inadvertently.”

The identity of “him” or the nature of this case is not clear by my reading of Rasmussen’s report. But Rasmussen leaves the reader with the distinct impression that the incident with “him” was chaotic and violent.

“Generally,” Rasmussen wrote, “the use of fists (is) a poor option not only to gain compliance but as it relates to possible officer injuries when they have access to a baton, Taser or OC (pepper) spray, not to mention various control holds, such as an arm bar, etc.”

Rasmussen acknowledged that the officers in this case might have had their hands full with “him,” and therefore not in a position to use more sedate methods to restore order.

Still, Rasmussen wrote, he “did not note any discussion about other options during their interviews, and why they did not use them, if available. Again, without the body camera footage, which both officers had failed to activate or officer photos, OIR is left speculating on what tools they had available.”

Every officer involved in a “use of force” incident should be photographed, Rasmussen wrote.

The Office of Independent Review was created by City Council action in spring 2009, soon after Swearengin took office. Eddie Aubrey in late 2009 was named the city’s first police auditor.

The years-long debate leading up to the council’s decision was red-hot. Events of the past seven years have done nothing to lower the temperature.

The tension is between opposing ideals.

The police have authority granted by the society they serve to use necessary force to maintain order. That charge includes a legal monopoly on the use of deadly force. That’s immense power in the hands of a relatively small number of people.

Who watches over those who watch over us?

Some people believe oversight of the police should be done by citizens unrestrained by politics or the messiness of elected government. Some people believe that oversight should come from elected officials answerable at the polls to The People.

Fresno’s police auditor is a creature of the latter belief. Rasmussen answers to City Manager Bruce Rudd. Rudd, in turn, answers to Swearengin.

For this reason, the council in 2009 created a police auditor whose duties were strictly observational and advisory. The police auditor wouldn’t investigate citizen complaints and personally resolve disputes. The police auditor would ensure that the police followed policy and procedure (there’s a ton of both) when doing their own investigation of citizen complaints.

That charge leaves plenty of room for a police auditor with grit and courage to be a dynamic and beneficial force in the Fresno Police Department. Rick Rasmussen has grit and courage to spare. He consistently and effectively walks that narrow line between the two ideals.

The police auditor’s review of police policies is one thing. That’s authorized in the 2009 documents creating the Office of Independent Review. The pursuit of political policies? That’s a definite no-no. I remember council members and Swearengin in 2009 promising the residents of Fresno that the politics of public safety would remain exclusively in the Council Chamber and the Mayor’s Office.

Rasmussen’s comments in the third-quarter report about the Dylan Noble investigation and his long (and rather repetitive) review of camera policy leads to eight policy recommendations. It’s here that Rasmussen in several instances exceeds his legal authority and travels down a political path.

The first recommendation isn’t so much political as it is patronizing and harmful to officer-citizen trust.

“The sanctity of human life should be at the heart of everything FPD does,” Rasmussen wrote. “The current vision and mission statements are excellent. OIR recommends that the mission statement, policies, and training curricula should emphasize the sanctity of all human life – the police officers, the general public and criminal suspects – further emphasizing the importance of treating all persons with dignity and respect. This will enhance officer’s safety, while giving the most honorable service which will increase the trust of the public under very difficult circumstances.”

Is “sanctity” – something holy, something of the ultimate importance and inviolability – the right word in this context? I’m talking about maintaining public order in a rough-and-tumble city of 520,000 people. I say no. The law of human beings is at the heart of everything FPD does.

More importantly, does Rasmussen have proof that the sworn officers of the Fresno Police Department fail to properly value life? If so, he doesn’t present it. Instead, Rasmussen by implication creates a straw man – FPD doesn’t properly value life – and then righteously disposes of that straw man with a mini-sermon on sanctity.

The cops have plenty of critics. Those critics will love Rasmussen Recommendation No. 1.

Other recommendations advance the notion that Fresno police officers are too violent. Rasmussen recommends that “de-escalation” become a formal department policy. (Doesn’t de-escalation, like the tango, take two?) He recommends that the department prohibit the use of deadly force against people who pose a danger only to themselves. (What does that mean in a real world where events often unfold in unpredictable fashion? I sense a political answer here.) He recommends that Fresno cops be mandated to intervene when they see another officer about to use, or is using, excessive force. (Wouldn’t such a mandate be an assumed and sanctified part of the officer’s oath?)

But it’s Rasmussen Recommendation No. 3 that grabbed my attention.

“3.) FPD officer’s use of force must meet the test of proportionality. In assessing whether a response is proportional, officers must ask themselves, ‘How would the general public view the actions taken?’ Would they think it was appropriate to the situation and to the severity of the threat posed to the officer or to the public? This does not jeopardize officer safety and OIR believes this increases the safety of officers, physically and professionally.”

Doesn’t every officer-citizen interaction potentially fall under this recommended mandate? The cop may ask a man to stop walking in the middle of the street. That simple request could escalate, step by step, into a use-of-deadly-force incident through not fault of the cop. But in this day and age, the cop would be blamed by much of the general public. Would not the cop at the beginning of this scenario – the admonition of Rick Rasmussen ringing in his ears: “How would the general public view the actions taken?” – be inclined to simply let the man continue walking in the middle of the street?

Near as I can tell, the Rasmussen admonition explains how the Ferguson Effect was born. Ask the residents of Baltimore if “sanctity of life” as a public-safety policy carries much weight in a city in the grips of the Ferguson Effect.

More importantly, determining the exact nature of that vague and ever-changing thing called the “general public view” is a political task. That’s why we have a representative democracy. Yes, sovereign power resides with The People. But figuring out The People’s will is hard. We elect representatives to do that for us. A majority can boot them out of office if they fail.

Police Chief Jerry Dyer certainly recognizes the threats posed by Rasmussen Recommendation No. 3.

“The obvious question is who represents the general public,” Dyer said to me Tuesday evening in a text message. “Is it the north part of Fresno or the south? Is it Texas or California? Fresno or San Francisco? Is the perception based on a video? If so, whose video and from what angle? Or is it based on the totality of the investigation? Investigations are intended to address compliance or violations of policies and laws, whether criminal, civil or administrative. Perception or public opinion is very subjective based on an individual’s biases. If perception becomes the standard, then we will have some very confused officers in terms of what is expected of them.

“Having said that, it is the public at large who we serve, and if that is the desire of the people then laws need to be changed to reflect that.”

I know these quarterly reports from the police auditor get vetted by the city manager and the Mayor before they’re posted on the city’s website. Recall, if you will, the controversy at the end of the Eddie Aubrey era when then-City Manager Mark Scott held up the release of Aubrey’s final report for what was described as “editing” chores.

I mention this not to suggest that the presence of Rasmussen’s politics-soaked recommendations in the report is proof that Swearengin and Rudd agree with both the substance of the recommendations and the precedent they’ve set for future police auditors inclined to test the limits of their authority. I’ve always sensed that administration officials when they pick up their editor’s pencil honor as much as possible the “Independent” part of “Office of Independent Review.” My point is that the lack of comment by Rudd and Swearengin in the City Hall news release announcing the release of Rasmussen’s third-quarter report means they have no qualms with the report’s contents.

Maybe something else is going on here.

Rasmussen surely knows that his recommendations will play well with Fresno’s activists. Many of them despise the police. The activists for years to come will get good PR mileage out of Rasmussen’s “sanctity of life” and “will of the general public” mandates. (I know – officially they’re recommendations, not mandates. But they’re in the public domain now. They’ve become de facto law of the city. If you don’t believe me, ask an activist.)

In other words, the 2016 third quarter Office of Independent Review report, the last one of the Ashley Swearengin era, is sure to build a base of support for Rasmussen. And having local champions when you live in Salt Lake City (as Rasmussen does) and the mayor who hired you is leaving office in 10 weeks can’t hurt your job security.

So, what have we got?

We’ve got the Dylan Noble report coming. We’ve got a police auditor report that paints a critical picture of Fresno cops’ views on the value of human life. We’ve got a police auditor jumping into a policy-making arena once reserved for elected officials. We’ve got anti-cop mania sweeping the nation (and NFL sidelines). We’ve got a Ferguson Effect that, once it metastasizes in a city, is sure to spread death (mostly in minority neighborhoods). We’ve got a police chief trying to fend off partisan (if not demagogic) oversight of his department. We’ve got a city with lots of bad guys and a fair number of voters desperate for safety.

And we’ve got a mayoral election: Lee Brand or Henry R. Perea?

Rusty water in a few North Fresno bathrooms? Child’s play compared to public safety.

George Hostetter
George Hostetter is The Sun’s Fresno Civic contributor – covering the City of Fresno, County of Fresno, and Fresno Council of Governments.

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