Palo Alto's police auditor, who is charged with investigating use of force cases, Taser deployments and complaints against officers, was asked by the city not to release its completed report in spring 2019 so that city officials would have time to devise a policy that shields from the public cases that involve internal personnel complaints, including a case in which a police supervisor allegedly used a racial slur against another officer, a new report indicates.

According to the report from the auditing firm OIR Group, the firm issued in April 2019 a report that considered four different cases that were subject to investigations by the city's Human Resources Department. While the report doesn't mention any names, it describes an incident that occurred a few years prior and that had come to light again in 2017.

That investigation, according to the report, involved an "allegation of racially inappropriate language by a supervisor," an apparent reference to an incident from 2014 in which Capt. Zach Perron allegedly used a racial slur in discussing an incident in which another officer, Marcus Barbour (who has since left the department) jumped into a creek and rescued a suspect. The Daily Post first reported on the Perron incident in 2017, and Barbour had confirmed to the Weekly the accuracy of that account.

The new report from auditors Michael Gennaco and Stephen Connolly of OIR Group states that the firm learned about the incident in September 2018 from an "outside source." When OIR inquired with the city about the case, city staff informed the auditor that because the matter had been treated as a Human Resources Department issue, it was viewed as "falling outside the parameters of our auditing responsibilities." As a result, the auditor was not alerted about the case or provided an opportunity to review it, the report states.

The firm then asked the police chief to investigate that incident, as well as three other human resources-initiated investigations that had been completed in 2017. In April 2019, the firm prepared a "draft semi-annual report" that incorporated its relevant findings and recommendations from those cases as well as the department's usual investigations, the new OIR report states.

Once they received the April report, city officials revisited the question of whether personnel issues that were investigated through Human Resources were (and should be) included as part of the auditor's standard review protocols. They also reportedly asked the auditor not to publicize their report, to which OIR agreed.

"Per the request of those city officials, we held our draft report in abeyance pending further direction on this matter and received no additional direction in the months preceding the October 2019 expiration of our current contract," the report states.

Then, last December, the council approved a three-year extension with OIR Group that explicitly states that complaints and investigations of "internal personnel or Human Resources matters" are no longer within the auditors' scope. This includes investigations of officers relating to "assignments, evaluations, promotions, demotions and similar issues, and allegations of harassment, discrimination and retaliation."

Because of the new policy, neither the Perron incident nor the other cases that involved Human Resources were published by OIR Group in the new audit. These cases were only mentioned in passing as an explanation for why the firm, which typically releases a report every six months, had not issued any since October 2018.

The question of why there hadn't been more reports came up during the council's Dec. 16 discussion of the police auditor contract. When Councilman Tom DuBois (who has since become vice mayor) asked about the delay, Police Chief Robert Jonsen and City Attorney Molly Stump both attributed the hold ups to the regular back-and-forth that takes place between the auditor and City Hall.

Jonsen noted at that meeting that the police auditor typically bundles the cases in six-month increments and then analyzes these incidents in a report. In this case, the city submitted additional cases to them for review and had to wait longer.

"How long it takes to get through those — it's up to them," Jonsen said, when asked about the delay.

Stump noted that her office also reviews the reports to make sure they don't disclose details that may identify the people being investigated.

City Manager Ed Shikada also claimed at that meeting that the new scope does not substantively change the nature of police audits. He also argued that accountability in the Police Department is best served by having Human Resources investigate internal personnel issues, the same way the city handles such issues in other departments.

"Contrary to some reports on this item, the recommended contract makes no changes to the types of reports under the contract that has taken place for years," City Manager Ed Shikada said at the Dec. 16 meeting, just before the council voted to change the scope.

The new report from OIR Group belies that claim and suggests that the report would in fact have been significantly different without the Dec. 16 policy changes. That's because the draft April 2019 report reportedly included the Perron incident, as well as three other cases. The report that the city released on Thursday, which relies on the new policy, does not discuss the cases or weigh in on whether the department had appropriately investigated them.

Consistent with the Dec. 16 policy, the city also released on Thursday the city manager's "supplemental report" listing matters that had been investigated by Human Resources in the first half of 2018. The list includes two cases: An allegation of "discrimination, harassment and retaliation" that was deemed "unsupported," and an allegation that an officer used "inappropriate language with a colleague." That allegation was "supported," which means the investigation disclosed evidence "sufficient to prove the allegation by a preponderance of evidence." The supplemental report does not offer any further details about these incidents.

When asked last week whether the delay in the police report and the new auditor's policy is tied to the 2014 incident, Jonsen told the Weekly that his focus was to close an existing loophole and to clarify the process. He also stressed that he believes incidents that have "nexus to the public" should go to the OIR Group for review. By contrast, those that have to do with employee conflicts over a promotion or an evaluation should not go through that kind of process, he said.

The Perron incident was investigated seven years ago, long before Jonsen joined the city. The incident, he said, had already been investigated and handled previously.

"A comment like that made today, under my command, would not be tolerated. Period," Jonsen said.

Scrutiny over Taser use

The OIR Group report considers several other cases from the first half of 2018, including an incident in which an officer deployed a Taser at a man who reportedly exited his vehicle during the traffic stop and resisted officers' commands to get him seated in the back seat of the patrol vehicle. At one point, according to the OIR report, the man placed his foot against the door and prevented the officer from closing it. The man did not comply even after the officer told the man that he would be shot with a Taser. The officer then fired the Taser, forcing the man to scream in pain, sit up from the back seat and fall forward from the vehicle and onto the ground.

The report states that the man then "intentionally struck the right side of his face against the ground approximately five times," prompting officers and paramedics to render medical assistance. He was taken to a hospital and was found to have a "small brain bleed," according to the report.

While the department concluded that Taser use was justified in this case, given the man's intoxicated and agitated state and his decision to resist orders, OIR Group had some issues with how the officers handled the arrest. Though the auditors do not dispute the "bottom line" that Taser use was justified, they note that when the man got out of the car, he did so "unaggressively and with his hands raised." The backup officer reportedly escalated the matter by screaming, "Get your ass in the car." The man then repeatedly apologized to the officers and a video of the incident reportedly showed that "there was really no time for the man to comply with the order, as the officers swiftly walked up to the man and grabbed him."

The report also noted that there was no "apparent exigency to bring the man into custody." At the time of the Taser use, he was sitting in the back of the car and making no effort to escape or fight with officers.

"Simply holding the scene static until backup officers arrived could have obviated the need for a Taser deployment," the OIR Group review states.

The report also notes that as the man was being led to a patrol car, he asked, "What did I do?" and "Why are you doing this to me, sir?" The video also showed the female officer calling him an "idiot" and the male officer responding "Get in the goddamned car."

The report notes that once the man stepped out of his car with hands raised, "He was extremely apologetic to the officers."

"Instead of de-escalating the situation and returning the man to the driver's seat, the officers escalated the situation, effectuated an arrest and handcuffed the man," the review states.

While the auditors did not dispute that Taser use may have been justified, they concluded that the field sergeant's analysis of this case lacked rigor and omits discussion of the officers' questionable decision-making, instead focusing "almost exclusively" on factors that support a conclusion that using a Taser was the best weapon of choice.

The officers involved were ultimately advised by the department to undergo training on decision making, including "consideration of alternative detention methods for handcuffed prisoners than use of the Taser."

The OIR Group agreed with this directive, though it stated in its report that the field sergeant's analysis should have gone further in constructively criticizing the officers' actions as well as "expressly discuss(ed) whether there were opportunities for the involved officers to deploy de-escalation techniques."

That incident was one of two that involved Taser use. In the other case, a woman sped away from officers during a traffic stop and led them on a 5 1/2 mile chase. Once the woman stopped, she refused to get out of her car. When the K9 officer who was chasing her went to retrieve his dog to assist with the detention, the woman reportedly ran into the passenger side of the patrol car.

The officer then deployed the dog, causing her to leave the vehicle, shut the dog in the car and attempt to jump on the hood of the car. As the officer grabbed the woman, she kicked the police dog and assailed the officer with her arms and feet before running into two other officers, one of whom fired a Taser at her. In this case, only one probe made contact with the woman and it had no effect on her. However, the police dog (which had suffered a large scratch to his eye from being struck by the woman) ultimately bit her, allowing officers to take her into custody.

In this case, OIR Group found that the reviewing sergeants and lieutenant made a "commendable effort" to identify and document performance issues that could have been improved. The officers should have requested a deputy from Stanford University Department of Public Safety who was involved in the pursuit to also prepare a report. And the officer who deployed the Taser failed to provide a warning to the woman before discharging the Taser, which is required under department policy.

The auditors also concluded that a Taser may not have been the best weapon under the circumstances, given that the woman was running and wearing loose, bulky clothing, which makes an effective deployment less likely. The report also notes that Taser use is heavily discouraged with K9s as part of the tactical response, a conclusion that the lieutenant also reached in the department's review of the incident.

Concern about drinking and driving

In addition to the Taser incidents, the auditor reviewed the case of a reserve officer who was cited for driving under the influence while off duty on a freeway outside of Palo Alto. The officer was pulled over by a California Highway Patrol officer and reportedly screamed, "I'm one of you," at the CHP officer while showing his Police Department identification.

The reserve officer pleaded "no contest" to the charge and negotiated a settlement with the department that included acknowledging wrongdoing and taking responsibility without going through a formal review. The department reached an agreement with the officer without a formal review, having taken into account his long history of "exemplary" service, according to the audit.

The auditors had some reservations about the department's conclusion, noting that settlements typically involve relatively low-level misconduct. In their view, the misconduct was significant, made worse by the officer's initial misrepresentation as to the number of drinks he had consumed and by his insistence of identifying himself as an officer, which the auditors saw as an "improper effect to curry favor."

The auditors noted that the reservist has since been "exemplary in addressing wellness issues and in his willingness to share his experiences constructively within the organization."

"These are both positive developments that have affirmed the department's judgment. But it is nonetheless important for agencies to maintain rigor in these arenas as a matter of both operational effectiveness and risk management," the audit states.