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JUNE 2018
BY MAUREEN HOOD I N S I D E
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N E I G H B O R H O O D 1
An Incendiary Tragedy WHITHER THE RULE OF LAW IN TIMES OF PROTEST? SACRAMENTO IN TIMES OF PROTEST AND CIVIL DISOBEDIENCE Publisher’s Note: In the May 2018 edition of Inside Publications, the article that ran in the Inside City Hall column space had substantial editorial changes made that were not approved by the writer. We regret the oversight. The full unedited article is below. Editor deletions are in in Gold, Green. while Editor additions are in Green
by the officers’ rapidly moving flash lights and a roving spotlight from the helicopter above. The episode was captured on the body cams of both officers, as well as the video recorder on the police helicopter. Both the police department and the sheriff’s department released all of the video recordings in just three days, much faster than the 30-day video release he death of Stephon Clark requirement the City Council imposed was pure tragedy. The facts last year as a package of police are well known: a late night call to 911 on March 18 reported that reforms adopted in the aftermath of the much criticized police slaying of someone was breaking car windows Joseph Mann, a mental ill man who on a street in Meadowview. A was wielding a knife on the streets of sheriff’s helicopter was dispatched North Sacramento on June 16, 2016. to the area, spotted the suspect and The sheriff’s department’s prompt reported by radio that he had a “tool release of the helicopter’s video of the bar.” Two SPD officers then chased the suspect until they cornered him in Clark shooting came as a surprise as it has been the practice of the sheriff’s a backyard where the police believed department not to publicly release he was trying to enter a home video in officer-involved shootings. through a sliding glass door. According to a private autopsy The officers, one white and one black, rounded the corner of the house ordered by the Clark family, 8 of the 20 shots struck Mr. Clark, one into the backyard and spotted the striking him in the neck and likely suspect near the house. They briefly spinning him around, resulting in retreated back around the corner of the remaining bullets striking him the house, before quickly reentering in the back. (The county’s official the backyard and yelling “Hands up! autopsy report and toxicology screen Gun!,” followed immediately by the officers firing 10 shots each (emptying had not been released as of our print deadline.) their clips) in the direction of Mr. Clark. The officers said they saw him threatening them with a gun. The IMMEDIATELY AFTER THE backyard was very dark, lit up only
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CP By Craig Powell Inside City Hall
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SHOOTING
The officers waited an excruciatingly long time before approaching and examining the supine and nonresponsive Mr. Clark, and waited even longer to call for emergency medical response. When the officers finally turned over Mr.
Clark, they found his cell phone lying underneath him, but no gun. Six minutes after the shooting, the officers turned off the mics to their audio recorders for reasons so far unknown, but raising suspicions that they were working out their versions of the shooting. But it’s perhaps just as likely that the officers muted their mics because they were overcome with grief over having mistakenly taken the life of an unarmed man. The police department has not disclosed what the officers say they said during the time their mics were muted. On April 8, three weeks after the shooting, police chief Daniel Hahn ordered his officers to never mute their body mics until the conclusion of an incident and its investigation, except under narrowly defined circumstances, such as receiving the permission of a superior officer. Officers muting their mics must now record why they’re muting their mics before they do so. Mr. Clark, just 22 years old, already had a string of criminal convictions on his adult record, including robbery and battery of a cohabitant. He was a graduate of Sacramento High School, where he played cornerback and wide receiver. He was the father of two children. The home he was trying to enter belonged to his grandparents. These are all interesting facts, but none of them are relevant to the question of whether the police shooting of Clark was lawful or appropriate. The police didn’t know of Clark’s criminal record, nor did they know that the home he was trying to enter belonged to his grandparents. If the officers assumed anything, they likely assumed he was likely trying to
gain entry into a stranger’s home to evade capture by the police who were pursuing him. Since the audio recordings didn’t capture any statements by the officers that identified themselves as cops, some believe that Clark may not have even been aware of the fact that he was being pursued by the police. That is possible, but it’s hard to give the view much credence given the multicop nature of the pursuit and the continuous presence of a helicopter hovering directly above Clark shining its spotlight directly down upon him as he fled his pursuers. Nevertheless, to eliminate even a shadow of doubt in the mind of a suspect over who it is that’s pursuing him, it seems to me that officers should always loudly, and if possible, repeatedly identify themselves as cops to the persons they’re pursuing - except when a stealthy pursuit and capture is warranted by the particular facts, such as in a hostage situation.
THE AFTERMATH: PROTESTS, CIVIL DISOBEDIENCE AND THE RULE OF LAW In the days and weeks following the death of Clark, Sacramento was convulsed with angry and sometime unruly, even ugly protests, primarily in Downtown Sacramento. But for the most part, the marches were peaceful. For several afternoons protestors effectively ruled the streets of Downtown; police did nothing to keep protestors from blocking the streets. In fact, the police frequently moved ahead of the protestors to shut down intersections in the path of the
crowd, inconveniencing a significant number of drivers. On the first night of marches, protesters invaded the ramps of I-5 at I and J Streets and shutdown all freeway traffic for a mile in urning hundreds each direction, turning of drivers into unwilling captives of the protestors. Legally, their actions likely constituted false imprisonment, punishable as a misdemeanor in California by up to a year in the county jail. California Penal Code Section 236 defines false imprisonment as the intentional and unlawful restraint, confinement or detention of someone against their will. Shutting down freeways is a popular protest strategy of Black Lives Matter, the global activist movement that campaigns against violence and systemic racism toward black people. Blocking freeways certainly draws greater public attention to BLM grievances as media outlets flock to cover roadway and freeway blockages. The Sacramento Bee by now has published dozens articles on the street protests and blockages. But drawing attention to a cause is quite different from getting people to sympathize with your cause, particularly for those you keep captive in their automobiles - or prevent from attending basketball games at the Golden 1 Center. Protestors unlawfully blocked ticketholders from attending two Kings games on successive nights. The blockages stopped only when the Kings owners agreed to help fund the education of Clark’s two children, a resolution that has a whiff of extortion about it. It’s also a potentially dangerous precedent that may end up encouraging future disruptive protests. Black Lives Matter protestors have been arrested and prosecuted in other California cities for blocking freeways, but local police are, by and large, loathe to arrest otherwise peaceful protestors, rightly concerned that arrests could inflame an already combustible situation. A retired Sacramento policeman with experience in dealing with a number of protests told me that in dealing with protestors, “You have to decide what hill you’re willing to die on.
Yes, they’re violating the law, but we have to use our best judgment in the moment. Will arrests turn a largely peaceful protest into a potential uncontrollable one that could put the safety of people in greater danger?” Following the shutdown of I-5 on the first evening of protests, the CHP the next night deployed a phalanx of officers at the base of I-5 ramps at I and J streets. Protestors that night declined to cross the CHP lines and freeway traffic was unaffected. Street blockages from protests, on the other hand, continued periodically for weeks following the shooting.
“You have to decide what hill you’re willing to die on. Yes, they’re violating the law, but we have to use our best judgment in the moment." CITY HALL MELTDOWN The scene at the March 28 meeting of the Sacramento city council was a stunning and chaotic spectacle… and a low water mark for order, decorum and safety at a city council meeting. In anticipation of a large crowd of protestors, metal detectors were set up at two locations: one at its regular location just outside the council chambers and a second one just outside the courtyard entrance to city hall. When the crowds surged the exterior doors to city hall, the undermanned squad of police officers on duty largely retreated into city hall, leaving the outside metal detector unattended. It was reportedly destroyed by protestors. The meeting itself was disrupted when Stephon Clark’s grief stricken brother, Stevante Clark, charged through the council chambers, climbed up onto the council’s dais, and sat directly in front of the mayor while addressing the packed council
chambers. When the mayor tried to speak, Stevante told our stupefied mayor to, “shut the f*#k up!” No officer intervened. When protestors outside the chambers continued to bang loudly on the windows of the council chambers, the mayor adjourned the council meeting and abruptly left the chambers with his council colleagues. Stevante subsequently apologized to the mayor for his behavior and sought psychiatric mental-health help in dealing with the death of his brother. A few days later, the mayor promised that “never again” would he allow a council meeting to be so disrupted. True to his word, at a council meeting on April 10, the mayor did not hesitate to have the police eject the first protestor who sought to disrupt the meeting. No further disruptions ensued.
THE ROAD FORWARD If the March 28 council meeting was the council’s low water mark, the April 10 meeting was perhaps its high water mark so far this year. The council asked Hahn to address 11 questions on the minds of council members, all of which mirrored public concerns with the shooting death of Stephon Clark. They ranged included from questions on protocols for chasing suspects, to protocols for de-escalation of confrontations with suspects, the intensity of officer training programs, protocols for using less lethal force, rules on providing emergency life-saving medical care to injured suspects, protocols for officers identifying themselves as cops and rules for muting audio mics. `Hahn answered all of the questions candidly and thoroughly. He then catalogued the extensive and impressive number of police reforms that have been implemented by the city council and his department in the aftermath of the police slaying of Joseph Mann nearly two years ago. The tragic subtext of his comments, however, was that these reforms did nothing to prevent the tragic death of an unarmed Stephon Clark at the hands of the Sacramento police. Some council members couldn’t restrain themselves from sometimes
deploying overheated, loaded rhetoric to describe the state of Sacramento today. Angelique Ashby, who represents North Natomas, claimed that the root of the problem was “long-term systemic oppression,” while Steven Hansen, representing Land Park and Midtown, said “we need to fix the institutional racism.” The council expressed almost universal support for a return to neighborhood or community oriented policing to restore community trust and allow officers to gain greater familiarity with the communities and cultures in which they work. There was also an acknowledgement by the police chief that the number of police officer positions currently authorized, at 745, is 55 officers below the number of cops employed by the city eight years ago, when the head count stood at over 800 officers. But even back when SPD employed 800 officers, Sacramento was substantially under policed with fewer police officers per capita that all other U.S. cities of comparable size. The most impactful comments, I think, came from the council’s oldest councilmember, Larry Carr, an African-American and former career intelligence officer with the U.S. Army, who represents Valley Hi and Meadowview, where Clark lost his life. Carr said, “There’s not a black person I know who doesn’t have a ‘story,’ meaning a story of an unjust encounter with the police. He also said he also “doesn’t know a parent who hasn’t had the ‘talk’ with their children,” referring to the “talk” black parents have with their children about their need to be vigilant about not putting themselves in a position of being unjustly harmed by the biased perceptions of the police on account of their race. Sobering and consciousness-raising comments from perhaps the council’s most respected member. Craig Powell is a retired attorney, businessman, community activist and president of Eye on Sacramento, a civic watchdog and policy group. He can be reach at craig@ eyeonsacramento.org or (916) 7183030.
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Clark Shooting Update CONFLICTING AUTOPSIES AND THE POLITICAL IMPACT
By Craig Powell
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n March 30, the Clark family released the results of a private autopsy of Stephon Clark. The autopsy was performed by well-known pathologist Dr. Bennet Omalu, who gained notoriety from his dogged efforts to bring his groundbreaking research on football concussion injuries to the attention of the NFL. Omalu found that Clark was shot a total of eight times, first from the side, and six times in the back. On May 1, the county’s official autopsy report was released. Its findings contradict the findings of the Clark family’s private autopsy. The county report, reviewed by three county pathologists and one outside pathologist, found that Clark was shot a total of seven times, first from the front in his left leg and then three times in the back. What’s the significance of Clark’s posture at the time of his shooting? If Clark was shot while facing toward the officers, as the county autopsy report found, he was in a posture that would be more likely construed by police on the scene as offensive than if he was standing sideways to the police, as Omalu had concluded. The county’s autopsy included a toxicology report, which found that Clark had an exotic mix of psychoactive drugs in his system at the time of his death, including cocaine, codeine, Vicodin, marijuana and Xanax. He also had a reported blood alcohol level of .08 percent, enough to merit a DUI conviction under California law but not enough
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to be falling-down drunk. But in concert with the other drugs in his system, it’s quite possible that he was in a state of high intoxication at the time of his death. Like most facts in the Clark case, there is intense debate over the significance of the toxicology findings. Black Lives Matter chapter lead Sonia Lewis was quoted in The Sacramento Bee as saying, “In the middle of the night, in the dark, they could not tell he had drugs in his system. It’s irrelevant.” But Tim Davis, president of the Sacramento Police Officers Association, told The Bee that “Clark was under the influence of several drugs and alcohol at the time of his encounter with the police.” No one will likely ever know what role, if any, Clark’s intoxication played in impairing his judgment or his capacity to respond to shouted police commands to raise his arms. Meanwhile, Stephon’s older brother, Stevante Clark, has been having a very public unraveling following his brother’s death. After commandeering a Sacramento City Council meeting and telling Mayor Darrell Steinberg to “shut the f--- up,” Stevante apologized to the mayor. On April 1, he was voluntarily admitted to a mental health facility for a two-day stay following bizarre, disruptive behavior at a local motel. On April 19, Stevante was arrested by the Sacramento police on a felony assault with a deadly weapon charge and for allegedly making a death threat against one his roommates, who had taken out a domestic violence restraining order against
him. The charges were reduced to misdemeanors at his arraignment and he was released on his own recognizance on April 23.
Schubert is riding a wave of acclaim for her office’s efforts in bringing about the April 24 arrest of Joseph DeAngelo, the suspected East Area Rapist who terrorized, raped and murdered Sacramento-area women in the 1970s. Protests of the Clark shooting have largely migrated from Downtown city streets and Golden 1 Center to regular protests outside the Downtown offices of District Attorney Anne Marie Schubert. Protestors have been demanding that Schubert bring criminal charges against the police officers who shot Clark. Schubert has asked for patience, saying that she has not yet received the full police report on the shooting. On April 20, the DA had cyclone fencing erected around the building to allow people with business at the DA’s office to
enter and leave without being blocked by protestors. On May 6, Black Lives Matter activists protesting the Clark shooting descended on Exposition Boulevard, just outside the High Times marijuana festival at Cal Expo, leading CHP officers to briefly close both the north- and south-bound onramps to Business 80. The Clark shooting has also been reverberating in the current race for Sacramento DA, with liberal challenger and criminal justice reform advocate Noah Phillips running a 30-second TV commercial that features images of mourners at Stephon Clark’s funeral, with Phillips stating, “We need to end racial profiling and police misbehavior and hold the powerful accountable because no one is above the law.” The commercials are being funded by billionaire George Soros’ California Justice & Public Safety PAC. Soros is reportedly funding liberal challengers against incumbent DAs in 10 different states this year, including three in California. Meanwhile, Schubert is riding a wave of acclaim for her office’s efforts in bringing about the April 24 arrest of Joseph DeAngelo, the suspected East Area Rapist who terrorized, raped and murdered Sacramento-area women in the 1970s. Schubert has been endorsed by Democratic Mayor Steinberg and most of the Sacramento City Council, as well as by local law enforcement groups. At the same time, her challenger, Phillips, a Sacramento deputy DA, is facing a charge of prosecutorial misconduct in a pending criminal case for allegedly cutting a secret deal to recommend sentencing leniency to a defendant in exchange for his testimony against his co-defendant. Phillips stands accused of failing to disclose the existence of the leniency deal to legal counsel for the co-conspirator. Phillips vehemently denies the claim. Craig Powell can be reached at craig@eyeonsacramento.org or (916) 718-3030.
A No-Win Situation IS OUR CITY PREPARED FOR A POSSIBLE END TO PROACTIVE POLICING?
As reported by the Sacramento Police Department, the police received emergency calls about a man breaking ny loss of life is tragic, no into cars parked in the 7500 block matter the cause, reason of 29th Street. Responding officers or lack thereof. There’s located a man matching the callers’ no doubt that almost every person descriptions in the front yard of in Sacramento, as well as across a house. When uniformed officers the country, has heard of the fatal getting out of marked patrol cars encounter between two Sacramento ordered him to stop, the man fled into police officers and Stephon Clark on a backyard. the night of March 18. Just for a moment, put yourself in To provide a bit of background the shoes of these two officers. From about my take on this event, I have watching the body camera footage, been a police officer in California listening to the radio recordings and for about five years. I attended the reading the press releases, imagine police academy in Sacramento, the following situation as the events but my career has taken me to the that may have occurred. Central Valley and the Bay Area. I You are responding to reports of a do not work for a Sacramento-area person who’s potentially committed law enforcement agency, nor does at least four felonies: three felony my opinion reflect on the position vandalisms and an attempted firstof my employers. It should also be degree burglary. It is dark, you are noted that the investigation into the Clark shooting is not complete. While unfamiliar with the area the suspect ran into, and your adrenaline is everyone is innocent until proven pumping. The last update from the guilty in a court of law, the facts of helicopter overhead is that the man is the case can lead people to their own armed with a crowbar-like object. conclusions. Fight or flight—more accurately During my career, I have been referred to as acute-stress response— involved in many situations similar kicks in. Auditory exclusion begins to the events leading up to the to affect your hearing. Your heart is shooting of Stephon Clark. I have beating at more than 100 beats per been injured in the line of duty and minute. Your visual acuity, including had to use significant force to defend myself and others. I’ve been attacked color vision, starts to deteriorate and your field of vision starts to narrow. without provocation; I’ve been shot Your fine motor control is lost as at; and I’ve had several people resist your body shunts blood from the my lawful efforts. Many of these extremities to its core as muscles situations required me to use force begin to tense up. to protect myself and carry out my Coming around the corner, you lawful duties. One of the biggest see the suspect standing 30 to 40 feet things I’ve learned? Police use of force away, behind the cover of a picnic is ugly, even if necessary. bench, holding his hands straight By Alex Hastings
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out in front of his body, pointed at you, with an object in his hands. This posture is familiar because it is taught during firearms training at the police academy. The suspect is standing in an isosceles shooting stance. You fall back to the corner of the house and look back, only to see the suspect is advancing toward you, hands still up and object in his hands. At this point, the suspect may be trying to flank you and is quickly removing any benefit of protection the corner of the building provides.
The folks who will suffer the most will be the law-abiding citizens in the minority and lowincome neighborhoods that need police protection the most. What would you, as a reasonable police officer, do? The two officers in this incident, with 14 years of police experience between them, made the decision to open fire. They made the wrong choice, no doubt about it. It was later found that Clark was holding a cellphone in his hands. There is no debate: The officers’ choice was incorrect.
After the shooting, Clark’s family released an autopsy indicating Clark was shot in the back six times. The family attorney announced the autopsy was concrete proof Clark was not a threat to the officers at the time of the shooting. No mention of toxicology was made. A few weeks later, the Sacramento County Coroner released its official report: Clark was shot four times in the front of his body and three times in the back. The Coroner’s report directly contradicts the private autopsy’s conclusions, stating Clark was facing toward the officers when he was initially struck by gunfire. The toxicology report indicated he was possibly under the combined influence of cocaine, cannabis, codeine and other substances. Does all of this make the shooting unjustified? Does it make the shooting a murder? Does it prove these officers were out to kill someone that night? Absolutely not. Their decision to use deadly force to protect themselves is adequately explained by the circumstances surrounding their decision, based on the information available at the time. It is important to understand how police use of force is judged in this country and state. The U.S. Supreme Court decided in the landmark case Graham v. Connor (1989) that the reasonableness of use of force should be judged by the information available to officers on the scene, at the time of the incident, rather than with the benefit of 20/20 hindsight. The state of California enacted several laws, Continued Next Page
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including Penal Code Section 835a, that enable police officers to detain and arrest individuals and use force to do so. The state empowers officers to use force without being deemed aggressors or lose their right to selfdefense. I ask everyone to take a step back from their opinions on institutional racism, the media and Black Lives Matter. Look at this incident from the point of view of these officers at the time of the incident. Keeping in mind only the information available at the time, can you possibly see why they made the choice they made? An outpouring of community support for Clark’s family ensued after the shooting. Organizers held protests and a Sacramento City Council meeting was interrupted by his family. The vocal protestors claimed the police used excessive force. The loud and overwhelming message was that Clark was a good man and a father who did not deserve to die for being a Black man in his own backyard.
Every single one of those protestors and talking heads is correct: Clark did not deserve to die. The police are not judge, jury and executioner. The police are supposed to be keepers of the peace and lead our communities by example. The point being missed by many is Clark was not killed as punishment for his crimes. His death was a direct result of his actions and responsibility does not lie solely with the officers.
It is important to understand how police use of force is judged in this country and state. According to the Federal Bureau of Justice Statistics, there are
approximately 63 million police enforcement contacts per year. This includes traffic stops, subject checks, tickets, arrests, calls for service and a number of other recorded contacts. In reality, the number of actual law enforcement contacts with the citizenry is probably 10 times that, if positive law enforcement contacts are counted. Out of these enforcement contacts, there are approximately 12.9 million arrests. There are anywhere from 400 to 1,000 (depending on sources) people killed during encounters with the police. The truth is the likelihood of a fatal encounter with police is astronomically small. I implore the public to take a step back from the anger and vitriol spreading as a result of this incident. There are reforms that need to be made to better form our government to the people it serves, on all levels. Even if the investigation into the shooting clears the officers of any wrongdoing, this is a tragic and horrible incident and will be a stain on Sacramento for a long time to
come. There is no doubt that the protestors will conclude that justice has not been served and that the system is rigged. But in the event that the officers are convicted criminally or found civilly liable, our city must be prepared for the inevitable pullback of proactive policing. And if this happens, the folks who will suffer the most will be the law-abiding citizens in the minority and low-income neighborhoods that need police protection the most. Imagine yourself being reprimanded or vilified for proactively doing your job. Would that encourage you to continue to ensure the safety and security of your community, at the potential cost of injury or death? This is a question our city residents should ask ourselves before throwing our public servants under the bus. Alex Hastings can be reached at ahastings415@gmail.com.
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