Fresno police reviewer Eddie Aubrey of the Office of Independent Review (OIR) issued his first report in October 2010, almost a year after being hired, and a year and a half after the position was reluctantly put in place by the Fresno City Council. That first report discussed a number of issues, probably the most important being how officer-involved shootings are investigated.
In February 2010, says Aubrey, the Fresno County district attorney announced that her office would no longer respond to officer-involved shootings in the City of Fresno, “citing the creation of the Office of Independent Review and economic budget concerns creating staffing shortages.” During the roughly 30 years prior to the announcement, staff from the District Attorney’s Office would respond to the scene of all shootings causing fatalities or injuries to conduct an independent criminal investigation.
According to Aubrey, he is now part of a multi-agency, multi-departmental team that responds to officer-involved shootings. When an incident occurs, Fresno Police Department homicide detectives and Internal Affairs, along with the City Attorney’s Office and other agencies such as the Fresno County Coroner’s Office (in the case of fatalities) and the California Department of Justice, are called to the scene. The OIR is notified and he can also respond to the scene. Until February 2010, the District Attorney Office’s staff also came to the scene.
Aubrey asserts that he does not (and cannot) conduct a separate criminal investigation. He sits in, along with the city attorney and Internal Affairs investigators, observing the interviews of the involved officers and witnesses via closed-circuit television. A homicide investigation might continue for months. Previously, when it was completed, it was sent to the District Attorney’s Office for review. Meanwhile, Internal Affairs completes its administrative inquiry, which focuses on whether department policies and procedures were followed.
At the conclusion of the district attorney’s review, the office would, said Aubrey, issue a closing letter, which was a legal
determination whether there had been any violation of California criminal law by the officers. The district attorney is no longer reviewing completed investigations and providing a closing letter. The district attorney’s investigation was important to reassure the community that an independent agency was looking at these incidents in a criminal context.
Some might argue that the legal standard for the use of deadly force in California is set at a low bar. The Penal Code allows officers to use deadly force if they believe their life or the life of another person is in imminent peril. It is safe to say that legal standard is wide open to abuse. Unless physical evidence clearly disproves it, it is virtually impossible to prove that the officer’s version of events is a lie.
As the debate about how officer-involved shootings are investigated and who does the investigating begins, there is a shadowy group of hooligans lurking in the background. They believe in perpetual war against the police and vandalized the local peace officers memorial and the Fresno Police Officers Association office in 2010. Some call these acts vandalism; others might call them something else.
This group, now calling itself “The Resistance,” attacked the law offices of Marshall Hodgkins in early January. In a posting on the Central Valley Indymedia Web site, a spokesperson wrote: “Recently Hodgkins has been representing Sgt. (Michael) Manfredi and also officer (Sean) Plymale regarding an excessive force case from 2006. The case is currently being looked at by State lawyers who are attempting to force Plymale to testify against Manfredi. Hodgkins is fighting this very hard and has boasted that he is an ‘obstacle’ in this case. The Resistance sees him as an obstacle to justice, and as they say in the streets, NO JUSTICE! NO PEACE!”
In its statement on Indymedia, The Resistance stated that “the whole damn system is broken and lawyers like Hodgkins make it so that cops know that they can harass, brutalize, and murder at will because they will get away with it with the help of savvy lawyers. It is time for the people to rise up and say ENOUGH! Let’s clean out the pig sty and all the vermin which aid these dirty cops. 2011 must be a year of action as we take our communities back from these occupying forces.”
The fact that these hooligans are operating raises questions as to whether the OIR has any value, let alone effectiveness, and to who it is beholden—the citizens or the police department. As I am out and about in the community, I continue to hear that the office simply rubber stamps whatever the police department does and should be abolished.
