ACLU Calls on CA Attorney General to Intervene in Vista and Steve Foley Shootings

February 7, 2007

The Honorable Edmund G. (“Jerry”) Brown
The Attorney General
State of California
1300 I Street, Suite 1740
Sacramento, CA 95814

Re: Request for Attorney General Investigation

Dear Attorney General Brown:

Your intervention is required to insure the proper administration of justice in San Diego County with respect to the investigation and prosecution of police misconduct, particularly against African American and Latino residents.

This request is made on behalf of two coalitions in San Diego County—the Coalition For Justice and El Grupo—that represent numerous community, faith, and advocacy groups (listed below) who are concerned about police practices and apparent racial bias in light of incidents over the past 24 months.

Here are the underlying facts that concern us and why the investigations that have taken place are problematic and inadequate.

In the city of Vista, which contracts for policing services with the San Diego County Sheriff’s Department, there have been, in the past two years, six deputy-involved shootings in which the victims were young, Latino, male, and unarmed. All shooting deputies were white. At least two of the deputies have been involved in multiple shooting incidents. In one five-day period last year there were three unrelated fatal shootings by deputies of Latino males. One of the persons shot was likely mentally ill and was killed for throwing a dumbbell at a deputy. Two others were shot while running away. All were unarmed. One carried a multipurpose tool similar to a Leatherman.

Vista is a semi-rural community with approximately 95,000 residents, approximately forty-four percent of whom are Latino. Despite this large Latino population, at the time of the shootings, there were no Latino or Spanish-speaking deputies assigned to the patrol function at the sheriff’s station serving Vista. During the same time period, there were only five fatal shootings in all of the other five sheriff’s stations throughout San Diego County.

The District Attorney’s Office reviewed the cases and determined that there was no evidence of criminal conduct by the involved deputies in five of the six shooting incidents. The sixth has yet to receive a finding. It will be no surprise if all of the shootings are deemed lawful. Of approximately 148 officer-involved shootings over the past ten years, the District Attorney’s office has found only two worthy of prosecution.

Another disturbing and revealing incident involves the shooting of San Diego Chargers’ linebacker Steve Foley and how it was handled by law enforcement and the District Attorney’s Office. On Sunday morning, September 3, 2006, an off-duty Coronado police officer driving in San Diego chased Foley and his companion 30 miles to Foley’s home suspecting Foley of driving under the influence. The off-duty officer, dressed in civilian clothes and driving his personal vehicle, never showed a badge or other proof he was an officer. At one point, to prove he had a real weapon, the off-duty officer fired a “warning shot” at Foley and his companion. He subsequently shot at Foley at least four times, hitting him three times, and shot at Foley’s companion twice. Foley and his companion were unarmed.

The off-duty officer most likely violated department policies and state law. Yet a spokesman for the Sheriff’s Department, which was charged with investigating the incident, immediately reported to the media a one-sided account based solely on the officer’s version of events. District Attorney Dumanis’ office submitted a search warrant affidavit—not in Steve Foley’s case, but in that of his companion’s—on September 13, 2006, which speculated that Steve Foley might be using steroids. “While there is no specific evidence that Steve Foley was using performance enhancing drugs or other controlled substances,” the affidavit admitted, a search of his blood was nonetheless justified by past “crimes” and by the common knowledge that some professional athletes use steroids, which cause erratic behavior. The term “crimes” was inaccurate and misleading. Foley was arrested but never charged in the prior instances cited. The affidavit then went needlessly out of its way to describe, “This [behavior] has been given names like ‘roid rage’ for the uncontrollable outbursts and violence experienced by some steroid users.” Predictably, the term “roid rage” was picked up by the media, was prominently reported in the San Diego Union-Tribune , and received national media coverage.

One local criminal law expert told the Union-Tribune that, while toxicology tests are not uncommon for commonly used drugs, steroid test results were unlikely to be relevant in a criminal case against Foley. Rather, they could be used to discredit Foley as a witness in the case against his companion or to defend a civil lawsuit by Foley against the Coronado police officer.

Although the District Attorney’s office observes and reviews the investigations of officer-involved shootings, we believe an outside law enforcement or prosecuting agency is needed to investigate the Steve Foley incident and all officer-involved shootings by the San Diego County Sheriff’s Department in the past two years. For several reasons, we believe the San Diego County District Attorney’s office is not the right agency to review, observe, or make a determination about criminal liability in these matters without an independent, prosecutorial agency conducting an investigation.

First, the District Attorney’s office’s conduct, as detailed above, in the Steve Foley matter suggests a bias in favor of the off-duty officer and law enforcement officers in general in officer-involved shootings.

Second, the close relationship between county law enforcement officers and the District Attorney’s office, particularly its investigative staff, encourages bias in the reviews and investigations of officer-involved shootings. Many of the District Attorney’s investigators are former deputies or law enforcement officers from the County’s various law enforcement agencies. We recognize it is common for there to be political, professional, and personal connections between a district attorney’s office and a county’s law enforcement agencies. Nonetheless, the relationship in San Diego County, especially between the District Attorney’s office and the Sheriff’s Department, appears particularly close, and there seems to be no effort to insulate District Attorney investigators who are tasked with investigating the possible criminal activity of their law enforcement colleagues.

Third, the inability or unwillingness of the District Attorney, the chief law enforcement official in the County, to play any role in observing or commenting on problematic patterns by law enforcement suggests a higher authority is needed. In a departure from the practice of prior district attorneys, District Attorney Dumanis will not comment on possible non-criminal misconduct by the police or problematic patterns. She believes it is unethical and inappropriate to make such comments. The District Attorney does not take a narrow view of her role when it comes to commenting on the unarmed persons who were shot. With respect to the three young Latino men killed by Sheriff’s deputies in Vista in a five-day period—all of whom were unarmed, unless you count a multi-purpose tool, two of whom were fleeing, and the third who was likely mentally ill and threw dumbbells—the District Attorney said at a press conference, “The suspects probably would be alive today had they complied with deputies[’ orders] to surrender.”

To the credit of the Sheriff’s Department and the County Board of Supervisors, an external agency has been engaged to conduct an independent audit of the department’s use of force policies and procedures. But that review, which is ongoing, does not examine criminal liability of the deputies involved in the shootings, broader system issues, questions of racial bias, or the relationship between the District Attorney and the Sheriff’s Department. The external audit is important, but it will not suffice.

We also commend the Sheriff, the District Attorney, and their staffs for going out of their way to hear our concerns and discuss their procedures. Quite significantly, District Attorney Dumanis endorsed our call to have another prosecuting agency investigate officer-involved shootings. These commendable actions demonstrate that public officials and law enforcement in San Diego County value public confidence in law enforcement.

Nonetheless, at this time, that public confidence remains low, particularly in communities of color. Such a state of relations, which dialogue and transparency will help but will not repair, is bad for both law enforcement and the community.

Therefore, we urge you to help San Diego County by opening independent investigations of each of these incidents in order to make an unbiased determination of criminal liability based on factual evidence. In the process, we urge you not to disregard problematic patterns or avoid comment on ways investigation systems or the oversight process of the District Attorney’s office could be improved. We urge that your review include public input so that you hear from the community what is really happening and not what is on paper. Under your prosecutorial powers, mandate to investigate official misconduct, or your parens patriae authority , you are entitled to conduct such an examination.

We are happy to make ourselves available to discuss this request in further detail.

Thank you in advance for your immediate attention to this request.

Sincerely,

Rev. Arthur L. Cribbs, Jr. Co-Founder
Coalition For Justice

Bill Flores, Spokesperson
El Grupo

Coalition for Justice Members:
Earl B. Gilliam Bar Association
ACLU of San Diego & Imperial Counties
Black Men United
Christian Fellowship Congregational Church
El Grupo
First Unitarian Universalist Church of San Diego
Justice Overcoming Boundaries (JOB)
Martin Luther King Democratic Club
NAACP of San Diego
New Creation Community Church
Prince Chapel African Methodist Episcopal Church
St. Paul United Methodist Church
United Church of Christ
Urban League of San Diego

El Grupo Members:
La Raza Lawyers Association
California Rural Legal Assistance Foundation
Carlsbad Community Enhancement Foundation
Chicano Federation of San Diego County
Coalition For Justice
Coalition for Justice, Peace and Dignity
Fair Housing Council of San Diego
San Diego – Imperial Counties Labor Council
The Mabuhay Alliance
NAACP of North San Diego County
League of United Latin American Citizens (LULAC)

Cc: Gary Schons, Deputy State Attorney General, San Diego Region