Several takeaways from Palo Alto’s latest Independent Police Auditor’s report to be officially submitted to City Council on January 11, 2016. Michael Gennaco is the Police Auditor for the City of Palo Alto as identified in the contract with the City of Palo Alto.
According to Mr. Gennaco’s contract he is to investigate all taser uses by the Palo Alto Police and should possess the requisite expertise to do so. In Mr. Gennaco’s report to the City Council he states that a taser will not work unless both probes strike the subject. In the Bryan v. McPherson case the Ninth Circuit Court of Appeals found that one taser probe is sufficient to cause complete loss of muscular control in order to incapacitate a person.
Pursuant to the contract the Auditor is to submit a bi-annual report of all citizens’ complaints made and internal investigations initiated directly to the City Council and City Manager.
The latest report is for the second half of the year 2014. Mr. Gennaco has not submitted one report for the year 2015. In fact the last report to be submitted to the City Council was October 2014, fourteen months ago.
Additionally Mr. Gennaco is to formally meet with the City Council when submitting a report. Based upon the history of submitted reports it appears there has not been one instance in which Mr. Gennaco has presented a report in person. This supposition has not been verified at this time and will be updated upon any new information provided by Mr. Gennaco.
Under section 3 of the Scope of Services contained in the contract, the Auditor, Mr. Gennaco, is required to provide a draft of his report to the City Attorney’s Office and the Police Chief 14 days prior to the report’s final submission. The Auditor must consider suggestions from the City Attorney and the Police Chief regarding the information in the report.
Given this influence by the very people the Auditor is to be auditing in addition to the actual title given to him in the contract, “Consultant”; it is evident that the Police Auditor is neither independent nor an auditor.
This conclusion is substantiated by the refusal of City Attorney Molly Stump to release the latest report to the public upon it being presented to her. It is not so much Molly Stump’s refusal but Mr. Gennaco’s failure to provide a report directly to City Council that demonstrates his lack of independence.
In 2009 one of Mr. Gennaco’s reports was six to seven months late lost in the possession of City Manager James Keene. After being grilled by the City Council and the public during the November 2, 2009 City Council Meeting, Mr. Keene assured the City Council that the reports would not be late in the future.
Pursuant to Mr. Gennaco’s contract with the City, he is required to review each citizen complaint and internal affairs investigation to determine thoroughness, objectively and appropriateness of disposition within (10) working days. Furthermore Mr. Gennaco must track each case through its conclusion to insure that each investigation is completed in a timely manner
Tyler Harney was arrested by personnel of the Palo Alto Police in August of 2013. Mr. Harney suffered a severe injury to his shoulder that he claims was an unjustified use of force. Whether Mr. Harney filed a complaint with the Police Auditor or not is not known, what is known is that in July 2014 Mr. Harney filed a federal lawsuit against the Palo Alto Police and the officers involved.
As required by his contract with the city, this alone would necessitate an investigation to be conducted by Mr. Gennaco.
From the date of the incident in 2013 through the filing of the lawsuit in July 2014 to the presently submitted auditor’s report Mr. Gennaco has not presented any report to the City Council regarding the Tyler Harney case.
This becomes even more alarming given that the two “dash cam” recording devices, [Mobile-Audio-Visual, (MAV), system], present at the Harney incident malfunctioned and did not record the altercation. One did not record anything and the other failed to record audio.
This is interesting for there was an altercation in 2008 between a few Palo Alto police officers and a citizen in which one of the officer’s MAV microphones failed to record the incident. Palo Alto Police Officer Manuel Temores testified during a court hearing that his MAV microphone ran out of battery power even though the battery holds a charge that will power the microphone for ten continuous hours and that the battery was charged when he went on duty that day.
SIDE BAR: [This is the same case in which the Santa Clara County Crime Lab verified that 4 seconds of video footage from a taser video had been removed from a taser recording. There are several other pieces of evidence including a report from forensic expert Gregg Stutchman establishing that significantly more editing and falsifying of the recordings occurred as well as the deliberate destruction of exculpatory evidence.]
In Mr. Gennaco’s latest report to the city council he found that another officer’s MAV microphone failed to record an incident in which the suspect sustained an unexplained head injury.
The report states that: “the officer reported he had attempted to activate his MAV recording system while he was initially walking toward the disturbance but did not know if it had activated.”
Mr. Gennaco determined that the microphone had not been activated. There is nothing in Mr. Gennaco’s report detailing what would indicate to the officer that he had turned on the MAV microphone when in fact he had not. Is there an indicator light on the activator/microphone?
If officers cannot determine if their MAV microphones are recording even though they believe they have been activated is a problem that needs to be addressed yet Mr. Gennaco fails to do so in his report.
Three separate incidents of use of force in which the MAV microphones failed.
Adding fuel to this pattern of MAV malfunctions was another incident in which a Palo Alto police patrol car was involved in an accident. The MAV system did not record this collision even though the MAV begins recording when the patrol car’s lights are activated which was the case during this crash.
Four separate incidents that the MAV systems failed to record are known of, how many incidents not known is anybody’s guess. This is a serious pattern that has not been investigated by Mr. Gennaco.
The City’s experts and Harney’s experts are in a dispute over the evidence presented by the Palo Alto Police. The Independent Police Auditor should be providing objective and unbiased clarity to the City Council regarding this dispute yet has not done so.
If the Palo Alto Police Auditor is not going to uphold his contract terms by investigating citizens’ complaints that rise to a federal lawsuit then what’s the point in having an auditor?