September 14, 2015

Justice for victims of questionable police shootings has been the focus of an intense national dialogue that is slowly bringing greater scrutiny and transparency to police departments across the country. Richmond is ahead of the curve as a national role model for community policing, a pioneer in alternative crime reduction programs and a regional leader for social justice.

However, for the family of Richard “Pedie” Perez, the unarmed young man killed by Richmond police on September 14, 2014, that justice may never come. The Richmond City Attorney has unlawfully blocked independent review of the Perez shooting by the Richmond Police Commission, a civilian oversight board that itself suffers from an inability to fulfill its purpose.

The Richmond Police Commission (RPC) was founded in 1984 in the wake of abuses by a group of cops known as the “Richmond Cowboys.” The Commission consists of nine unpaid residents appointed by the Mayor and is assisted by its own Confidential Investigator and Appeals Officer (CIAO). The CIAO, who is appointed by the City Council and answers only to the Council and RPC, conducts independent investigations which include collecting evidence and interviewing witnesses and police officers.

Per the RPC ordinance, citizens have 45 days following an incident to file a complaint alleging racial abuse and unnecessary or excessive force. This is an extraordinarily short timeframe to file a complaint to a board that most residents have never heard of or believe is associated with the Police Department. Fortunately the statute contains a saving clause, allowing the CIAO to accept and investigate late complaints if “the complainant establishes to the Investigative Officer's satisfaction that the failure to file the complaint within the required time limit was due to mistake or excusable neglect.” 

Mistake or excusable neglect — such as not knowing the Police Commission existed? According to their numerous public statements, that’s precisely what happened with the Perez family. They did not file a complaint with the RPC until March 2015, six months after the death of their son. And that’s where our system of independent civilian oversight broke down, beginning with the City Attorney’s unlawful subversion of the Police Commission’s authority.

The City Attorney represents the Police Department. He has neither the incentive to sustain nor the authority to deny Police Commission complaints from citizens, actions that clearly fall under the powers and duties of the Commission. And yet on June 3, 2015, the City Attorney denied the Perez complaint and opined that an independent investigation was unnecessary:

“I am writing in response to your recent Citizens' Complaints filed with the Richmond Police Commission concerning the fatal Officer Involved Shooting on September 14, 2014. Richmond Municipal Code Section 3.54.080(b)(3) provides that no complaint may be accepted, investigated or heard if it is not filed within forty-five (45) days of the incident. Moreover, this incident has already been investigated both by the District Attorney and by a neutral investigator retained by the City. Additionally, this matter is the subject of active litigation by attorney John Burris. Even if these complaints were timely, and they are not, I am doubtful that a third investigation, in addition to Mr. Burris's efforts, would add any value.”

This edict is not only out of order, it’s absolutely reprehensible for the City Attorney to suggest that investigations into police shootings by the District Attorney and police department render independent citizen review unnecessary, especially in a city that established a board specifically for that purpose. DA’s are prosecutors and, not surprisingly, have generally positive relationships with cops. No sane person believes a complaint against a police officer would receive an objective review unless every fragment of doubt was removed. 

Following the denial letter several Commissioners attempted to agendize the Perez complaint for discussion but were warned by the City Attorney not to discuss the case publicly, citing ongoing litigation and restricted speech of city officials:

“Absolutely NOT a discussion item…Federal court litigation pre-empts ALL city officials discussing incident in city meetings or otherwise in public (Chief, City Manager, Council, Police Commission)”

This is yet another unlawful decree by the City Attorney since Commissioners are not city employees and because the very purpose of the board is to represent citizen interests, not those of the City of Richmond (see Marez v. Bassett which specifically protects the First Amendment rights of non-employee committee members). If the City Attorney had his way, the Police Commission would be powerless to discuss any complaint that involved a lawsuit! 

Unfortunately for the Perez family, the Police Commission itself has also proved to be an impediment to justice. At the July 2015 RPC meeting the CIAO was asked why he had not interviewed the Perez family to determine if their late submittal was due to “mistake or excusable neglect.” His response, despite an ordinance which clearly provides citizens this avenue of relief and makes him responsible for this adjudication, was that the RPC Operations Manual didn’t specifically tell him how to proceed and there were no written criteria. Furthermore, in violation of this same manual, the CIAO failed to notify the Commission that the complaint was ever received and instead collaborated solely with the City Attorney. 

This behavior is hardly the “fair, objective, and ethical manner” in which the CIAO is charged with assisting the Commission and complainants. More importantly, there is precedent for the Commission accepting late complaints. Several years ago a previous CIAO presented a late submittal to the Commission and the board voted to accept it and proceed with the investigation. As a sitting Commissioner I’ve informed the City Attorney of my desire to review all past case files to determine how many other late complaints were investigated — they are currently reviewing my request. Why the most recent CIAO, a former police chief-turned-investigator, chose not act in the interests of the public will remain a topic of speculation; he resigned in August.

The Police Commission must overcome many more challenges if it is to provide justice to the Perez family and other citizen complainants, and operate effectively outside the influence of the City Attorney’s office. I urge our City Council to take decisive action on the following:

• Direct the Police Commission to investigate all pending late complaints involving use-of-force or racial abuse.
• Immediately hire a new, independent, full-time CIAO and include the Commission in the interview process. The CIAO, not the City Attorney, should be managing the day-to-day operations of the Commission.
• Rewrite ordinance 3.54.080 to clarify acceptance of late complaint submittals, reinforce the CIAO’s duty to the RPC and City Council, and consider removing antiquated sections no longer applicable under current State law.
• Require the Police Department to inform any citizen involved in a significant use-of-force incident about the Police Commission and its purpose.
• Provide the Commission with a full-time secretary instead of overloading an administrative aide who already has a full time job in another department. Currently emails are not being answered, investigative reports are incomplete, and minutes are no longer being recorded properly or posted to the City website. 
• Provide a larger budget for RPC outreach materials to raise public awareness.

I don’t know what happened that night one year ago at Uncle Sam’s Liquors but as a Police Commissioner I have questions, and the Perez family deserves answers. Has all witness testimony been recorded and cross-examined? Did an intoxicated Pedie Perez really try to grab the officer’s gun or was he (still wrongly) just grappling with him? Is there clear and convincing evidence that excessive or unnecessary force was used against Perez? I’ve participated in RPD “Force Options” training and have witnessed the remarkable restraint and training our patrol officers possess as they consistently deploy less-lethal options to control assailants. Did Officer Jensen, who shot and killed Pedie, carry his Taser, mace, or nightstick that night, in accordance with the RPD Policy Manual? If so, why didn’t he use them instead of his sidearm? 

Ultimately it comes down to this: a young, unarmed resident has died in what began as a minor altercation with a police officer. The family has asked the Police Commission to investigate while the City Attorney is attempting to block them. Who do you think is right? What is justice in Richmond?

Felix Hunziker is a Richmond Police Commissioner and Past Chair. These opinions are his own and do not represent an official position of the Richmond Police Commission.