Kendrec McDade died three years ago, on March 24, 2012, in a crossfire of police bullets in Pasadena, California. He was 19 years old, a community college student with no criminal record or gang affiliations. He was unarmed. His death has been discussed in many other diaries in the context of police killings of African Americans, first by
Dr Squid on March 30, 2012.
There are three disturbing aspects to Mr. McDade's tragic death: First, the facts surrounding his death; second, the response to his death by Pasadena officials; and third, how his death fits into a larger pattern of police mismanagement and misconduct in Pasadena, a fairly progressive city in the bluest of blue states. I want to talk about his death and the City's response here, and leave the larger pattern to another diary next week.
Remember, "privilege" means "private law." The private law here is the one that protects the police in California.
Kendrec McDade's Death
First of all, we can't know exactly what happened. Mr. McDade is dead. There's no video of the shooting; the single known witness could hear but not see what happened; and many critical details of the officers' statements cannot be confirmed. They might be true; they might not.
At a little before 11:00 PM on March 24, 2012, a 911 caller told the Pasadena police that he was robbed at gunpoint of a laptop and a backpack by two young black men. This was not true. The juvenile with Mr. McDade stole the caller's backpack from his car. There was no weapon and no confrontation.
According to their depositions, two officers, Matthew Griffin and Jeffrey Newlen, responded immediately in one patrol car, and saw Mr. McDade and his friend, who matched the caller's description, a few blocks from the scene. Mr. McDade and his friend split up and ran in different directions. The police drove after Mr. McDade. They did not activate their emergency lights or their siren, which would have automatically activated their dash camera. Nor did they turn it on manually. They did not use their loudspeaker to tell Mr. McDade to stop. They pursued him silently through the street, into a dark twisting alley (Can you imagine this utterly silent pursuit in the dark? Was Mr. McDade terrified?). Mr. Griffin, driving with his gun in his right hand, ran into something in the alley. Mr. Newlen got out of the car and ran after Mr. McDade. Mr. Griffin backed the car out and drove around to try and intercept Mr. McDade. Neither called for backup or broadcast that they were chasing a suspect believed to be armed.
Mr. McDade turned up Sunset, the street where his father lived. He had been a high school cornerback and was a fast runner. Mr. Newlen kept running after him; Mr. Griffin caught up and drove past him in order to "box him in." Both officers claimed Mr. McDade kept his right hand at his waistband, as though he had a weapon there (or was holding up loose pants, of course).
Mr. McDade ran toward the police car (Mr. Griffin said Mr. McDade turned in order to do so, which seems unlikely). Mr. Griffin thought Mr. McDade was about to shoot him, though he did not see a weapon. He said nothing; but he shot Mr. McDade at close range, hitting him four times.
Mr. Newlen, running toward the car, heard the shots and concluded that Mr. McDade was shooting at his partner. He shot at Mr. McDade, hitting him three times. Just before this, Mr. Newlen said he called, "Police! Stop!" once. This is disputed by the only witness, who was down the block. He heard nothing until the shots and thought the incident was "a drug deal gone bad," because it was so quiet. Asked what they'd said to each other after the incident, both officers said they were glad neither had shot the other by accident.
Mr. Griffin got out of his car, leaving it in gear. It hit him and nearly hit Mr. McDade, who was on the ground. The police handcuffed Mr. McDade as he lay bleeding on the ground. He died at the hospital an hour later.
The autopsy revealed that he was shot seven times at close range, four times from the front and three times from the back. Three of the gunshot wounds lacerated arteries. Any one of these would have been fatal.
The police arrested the juvenile who was with Mr. McDade. He was unarmed. They searched for the alleged gun for two days. Then the 911 caller admitted that there had been no gun (as was evident from surveillance tape that showed the theft). The 911 caller was originally charged with involuntary manslaughter and later pleaded guilty to misdemeanor false reporting in June 2013.
The City And Police Response
In the face of community outrage, the City promised transparency at a community meeting:
In addition to Pasadena police criminal and administrative investigations of the shooting, the District Attorney's Office is reviewing McDade's death, and the County of Los Angeles Office of Independent Review has also been asked to investigate, officials said.
"Rest assured that the levels of investigation ensures transparency, it ensures openness," [Pasadena Chief of Police Phillip] Sanchez said.
The City also
asked the FBI to investigate Mr. McDade's death.
So how did all that transparency and openness work out?
The officers were cleared without comment by the City's internal investigations, and by the FBI investigation.
Los Angeles County District Attorney declined to prosecute, taking the officers' statements as true and saying in a concise eight page letter that they acted in self defense and defense of each other. If you saw True Detective, you might be reminded of the scene where Rust and Marty recount for the review board their version of the encounter with a very bad man, while the camera shows what really happened. Not to say that these officers lied; just that without corroboration, it's impossible to say.
But the DA only determines whether there's a basis for filing charges. The Office of Independent Review (which did reviews for the LA County Sheriff's Department, so hardly a center of anti-police radicalism), conducted a fact-finding and critical review of the whole incident. Their report is said to be about 70 pages long. Like the DA's report, it relied on the City's internal administrative review and its criminal investigation. Both of these included statements by the officers. The OIR report was delivered to the City in August 2014, over two years after Kendrec McDade died. Almost a year of that delay was due, according to OIR, to foot dragging by the City.
In June 2014, Mr. McDade's parents settled their lawsuits against the City for about a million dollars. But they, several area newspapers, and community members continued to press for release of the OIR report:
The community is demanding that the new report be made public, said Dale Gronemeier attorney for the Pasadena chapter of the NAACP.
"They are waiting for a top to bottom review of what happened by a true independent, who is not seeking to place liability but is seeking to evaluate what happened, what went wrong, what went right," Gronemeier said.
As of
September 2014,
[O]nly three city officials — City Manager Michael Beck, Police Chief Phillip Sanchez and City Attorney Michelle Beal Bagneris — have seen the report. Councilwoman Jacque Robinson, who chairs the council’s Public Safety Committee, told the Weekly her request for a copy was denied. The Public Safety Committee provides oversight on the Pasadena Police Department.
Meanwhile, the police union, on behalf of the two officers, sued to block its release. They argued that under California law, police officers' personnel records enjoy special protection not given to any other public employees.
The City talked out of both sides of its mouth, but eventually, under pressure from the court, indicated it would release a redacted version of the report. Los Angeles County Superior Court Judge James Chalfont ruled that the report must be released in part, but he would redact the portion that relied on the administrative investigation, as proposed by the City of Pasadena. He stayed his order pending appeal.
The police union appealed the order unsealing the report (as redacted ), arguing that the entire report was a personnel record and thus could not be released to the public. California Penal Code 832 provides that police personnel records are extra private and can only be reached under very limited conditions in civil or criminal litigation. The courts have interpreted this to mean that the public has no right to such records. By contrast, the Public Records Act, Government Code 6500, exempts from disclosure the personnel records of non-police public employees where disclosure "would constitute an unwarranted invasion of privacy." "Unwarranted?" Unproblem! A court can rule that the public interest outweighs the individual's right to privacy. But not with police personnel records.
But the union blundered. Its brief filed in the Court of Appeals in support of suppressing the report, included excepts from it, included to demonstrate that it was a personnel record.
The Pasadena Star-News got its hands on the brief and boldly published the quotations from it:
"The statements of Officer Griffin raise the question that if there was so much concern about the vulnerable position the officers were placed in by traveling through the alley way, then why did he decide to do so?" (pg. 36)
"Officer Griffin's decision to unholster his weapon and steer with one hand as they proceed through the narrow passage may have contributed to the cause of the collision." (pg. 36)
"Officer Newlen did not take the time to explain his intentions to his partner at the time he exited the police car." (pg. 38)
"PPD policy expresses a preference that officers stay together during foot pursuits of suspects … Officer Newlen took affirmative steps to separate himself from his partner and go into foot pursuit. Officer Newlen compounded this decision by not communicating his intent to his partner." (pg. 39)
"Neither Officer Griffin nor Officer Newlen had broadcast that they were following a person they believed to be one of the robbery suspects nor their belief that the person was armed. Per the Department's foot pursuit policy, it would have been preferable for Officer Newlen to confirm in a broadcast to fellow officers that he was in pursuit of a suspect he believed to be armed.” (pg. 40)
"Officer Griffin's 'cut off' and 'boxing in' maneuver is troubling." (pg. 43)
"In reviewing numerous deadly force scenarios, OIR Group has been taught by use of force experts that it is critical to maintain distance and cover when dealing with suspects believed to be armed … in this case, both Officer Griffin and officer Newlen attempted in different ways to close the distance on a suspect they perceived as armed without being in a position of cover..." (pg. 44)
"Officer's Griffin's 'failure to place his vehicle in park before exiting his vehicle after the shooting' was a 'potentially disastrous mistake.'" (pg. 47-48)
"OIR Group also reviewed Officer Griffin and Newlens' decision not to respond Code 3 to the felony call. As detailed above, this decision has significant implications because, in Pasadena Police vehicles, activating lights and siren automatically activates the in-car video camera." (pg. 50)
"...yet they repeatedly made tactical decision that were not congruent with principles of officer safety." (pg. 66)
That's the kind of analysis that should be available to the public, not to mention the City Council, no? But California courts have only recently
ruled, in 2014, that a city is required to release even
names of shooter police.
The police union lawyers rushed to court (I assume) when they realized what they'd done and on March 25 they got the brief sealed and the unredacted copies "clawed back" from the LA Times and other papers before they could publish. But at a City Council meeting on March 30, activists got up in public comment and read the excerpts into the record. As of yesterday the Court of Appeals reversed itself and unsealed the brief again. Now the NAACP and the newspapers argue that the release of part of a privileged document releases the whole thing.
So what is a personnel record??? It's very broadly defined.The California Supreme Court only decided last year that a City has to release the names of shooter police.
The blue wall of absolute privilege is a tactic that's used all too often to protect the image of the police. See Shaun King's front page post on April 15 about the killing of Laquan McDonald and today's Washington Post story about police body cameras.
Los Angeles Times called for release of the report on September 10, 2014 and on April 8, 2015. The Pasadena Star-News agreed on December 17, 2014. Will the public ever see it? Will the City Council?
This is Sunset Avenue, where Kendrec McDade was fatally shot
P.S. I have to go to a funeral today, so I won't be able to respond to any comments till late afternoon.