A critical piece of Palo Alto history that should not be forgotten

The criminal case against Palo Alto officers Craig Lee and Michael Kan

May 3, 2005

Dear Mr. George Kennedy & Ms. Karyn Sinunu:

I am writing to you to request that your office retry the criminal case against Palo Alto police officers Michael Kan and Craig Lee. I would like to make some observations and comments regarding the recently completed trial in this matter wherein the jury ultimately hung 8 to 4 for guilty. I would then like to comment on the importance of this case being retried. I hope you will consider all of my comments in the constructive manner in which they are intended.

Comments re the recently completed trial of Defendants Kan & Lee

First I think it is important to acknowledge the fine work performed during the course of all of the proceedings in this matter by Deputy District Attorney Peter Waite. Not only was his preparation and presentation of the case outstanding, but it was apparent that his confidence in the strength of the case grew as the matter proceeded. No doubt the case was not tried without some mistakes and at least one questionable judgment call, but, given all of the many pressures and roles being balanced, it was an outstanding job. By the time the case went to the jury it was my observation/opinion that Mr. Waite had out performed the very talented attorneys for the defendants. (I sat through the entire PX and trial in this matter.)

From the perspective of a former public defender and trial lawyer it was clear to me that Mr. Waite and his investigative team (Sgt. Mike Denson and Sgt. Ron Watson from the PAPD) left few stones unturned in an effort to assure that the prosecution in this matter was both professionally managed and aggressively pursued.

I had no sense during the trial of this matter, despite the obvious political pressures and ramifications for the entire prosecution team, that at anytime that the prosecution team treated this case lightly or in any fashion differently than any other serious felony matter. Finally, Mr. Waite, in an example that more public servants should model, made himself available to members of the public who had endless questions for and observations to share with him.

During the jury selection process in this case Mr. Waite’s questions and the nature of the responses by prospective jurors re the role of race, racial profiling, the right of citizens to be free of undue and unwarranted harassment by the police etc., were both fascinating and instructive re the current public mood towards law enforcement. Had the voir dire process been taped it would have made a provocative documentary on the current status of the relationship between law enforcement and the community. As indicted by the responses during voir dire, as it currently stands, the relationship appears tenuous at best.

There were numerous jurors who expressed just barely restrained anger re the recent killing of Bic Cau Tran by San Jose police officer Chad Marshall and similarly deep concern re other recent high profile killings by members of the SJPD.

What came across strongest from the jury selection process is that both the depth and width of anger and concern over misconduct by law enforcement in this county is much greater than reflected by the mainstream media in Santa Clara County. Whereas the conventional wisdom has been that police cases are hard to successfully prosecute in this county the current dynamically shifting demographics, combined with a well informed citizenry re police misconduct issues, may well have changed the landscape permanently. Given the above, it would appear that police prosecutions are much more like to be successful in this county now and in the future.

During the course of the jury selection the defense exercised a peremptory challenge against the one black female who made it into the jury box. Given the quality of her responses to the questions posed by attorneys for both sides it was clear that this prospective juror was totally free of bias for either side.

Despite the fact that Mr. Waite made an appropriate Batson/Wheeler objection that the defense, specifically attorney Harry Stern, had exercised the challenge in a in a racially discriminatory fashion the judge, Andrea Bryan, declined to ask defense council for a showing of specific bias (to establish a race–neutral reasons for the strike) or to find a prima facie case for requiring a response by the defense. The judge should have reseated the juror in the presence of the entire panel as a clear message to the defense that the racist removal of a fair minded juror would not be tolerated. (Case law clearly supports the notion that one race based peremptory challenge is sufficient to trigger the remedies contemplated by Batson/Wheeler and its descendants.)

Given that only three African-Americans were in the initial jury panel of approximately 160 perspective jurors called for in this case, there is little doubt that the discriminatory strike of the one black female to make it into the jury box denied the people a jury made up of a cross-section of the community and thus a fair trial.

The following quotes serve as a reminder of the impact of a discriminatory challenge based on race in the context of this case: … “The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community.” Batson V. Kentucky, 476 U.S, at 77 (1986).

“The need for public confidence is especially high in cases involving race-related crimes. In such cases, emotions in the affected community will inevitably be heated and volatile. Public confidence in the integrity of the criminal justice system is essential for preserving community peace in trials involving race related crimes.” (Citations omitted). Finally, as to Judge Bryan’s role in denying the community a fair trial the following is pertinent: “Be it at the hands of the state or the defense, if a court allows the juror to be excluded because of group bias, it is a willing participant in a scheme that could only undermine the very foundation of our system of justice—our citizens’ ” (citations omitted).

In addition to the failure of Judge Andrea Bryan to perform her constitutional responsibility to ensure the selection of a fair jury in this matter it was apparent that the court allowed the atmosphere surrounding the trial to favor the defense. Not only did the court appear to bend over backwards to rule in favor of the defense on issues where you would normally not expect such favorable rulings, but the court personnel, including the bailiffs, routinely acted with favoritism to members of law enforcement. This included providing preferential seating in the courtroom to members of law enforcement, to allowing outbursts by law enforcement spectators to go unpunished while, at the same time, closely monitoring the conduct of non-law enforcement citizens in the courtroom to the point of a constitutional chill on access.

Despite all of the efforts by the court and its personnel to tamper with the jury selection, evidentiary rulings, deny equal access to the courtroom to the public versus members of law enforcement, all in a thinly veiled attempt to direct a verdict of acquittal, 8 members of the community still rendered a verdict of guilty refusing, in the greatest tradition of independent jurors, to buckle under the weight of the intimidating atmosphere allowed to exist by Judge Andrea Bryan. All of this speaks volumes re the strength of the evidence in this case and the fine job done by the prosecution team.

Despite the fact that only 8 of the 12 jurors in this case voted for guilty the verdict was still one of historic proportions in Santa Clara County. I know of no other case in recent Santa Clara County history where 8 jurors have voted to convict police officers for the beating of an African-American citizen. This result calls out for a retrial.

Conclusion re why case should be retried.

Community sentiment: I have enclosed an editorial from the Palo Alto Daily News, Accused officers should be retried, April 20, 2005, outlining some of the reasons why this case should be retried and encouraging your office to do so, both in the interest of the Palo Alto Police Department and the Community at large.

Given the statements attributed to Karyn Sinunu in the San Jose Mercury News (enclosed), (April 19, 2005), that the district attorney usually retries hung juries and given that in this case 8 citizens voted for guilty under the difficult conditions described in the first section of this letter, failure to do so in this case would feed into the perception that there is two standards of justice in this community, one for the ordinary citizen and one for police officers.

Given comments in a recent article in The Recorder, April 27, 2005, that there will be a chase for endorsements by police and law enforcement groups by the presumed candidates for District Attorney in 2006, and given Ms. Sinunu’s apparent intent to run for this position, failure to retry this case might well be seen as decision based on political expediency rather than the merits of retying this case.

It is clear that this case would likely not have come to light but for the courageous act of a few “whistle blowing” members of the PAPD willing to break down the traditional “code of silence” that so perniciously permeates much of law enforcement in this community. By the jury’s verdict in this case the community has spoken: it is time, once and for all, to send the message that the so-called “code of silence” will not longer be tolerated by those we entrust with the awesome power of the badge. Failure to retry this case would discourage officers in the future to speak out against rogue officers in their ranks and, as result, put the public at risk of more unwarranted beatings and deaths.

Given all of the above, the strength of the evidence presented in the first trial, the resources and efforts expended by the prosecution, the strong likelihood of a conviction beyond a reasonable doubt at a second trial, the efforts of the trial judge to sabotage the prosecution’s case in the first trial, and the strong public support for a retrial in this matter it is my request that you exercise your prosecutorial discretion in favor of a retrial in this case.

Post Script:

This letter requesting a retrial of Kan & Lee was originally sent out on May 3, 2005. Ultimately the DA declined to retry the case against officers Kan & Lee. In a miscarriage of justice Kan & Lee were allowed to plead guilty to one count each of disturbing the peace, as an infraction, with a maximum punishment of a $250 fine.

Palo Palo firefighters get hosed down

The Daily News
Diana Diamond The Daily News

Good grief, Diana Diamond of the Daily News is having a conniption over Palo Alto firefighters’ new work schedule.

Diamond objects to the two 24-hour working days on duty followed by four 24-hour days off duty schedule being implemented in the Palo Alto Fire Department. Diamond complains that firefighters lounge around most of the time while on duty and therefore don’t deserve nor justify so much time off.

However if you look more closely at the overall situation you will find that Diamond’s rationale is not logical and therefore is more about envy of a group of people who have created an niche industry that pays them what the market will bear than it does with exploiting tax payers.

Diamond points out that each fireman will be working 10 days a month while getting 20 days off under the new schedule. This would amount to working 120 days a year while getting 240 days off.* Diamond compares this to most workers in the private sector that work 5 days a week with 2 days off; or working 260 days a year with 104 days off. *

The problem with Diamond’s logic is she is comparing days to days and not hours to hours. Most professionals work 40 hours a week; or 40 hours every 7 days. Minus two weeks vacation per year that equates to 2,000 hours a year. Firemen are working 48 hours every 6 days. Minus two weeks of vacation per year that equates to 2,784 hours a year.

One could argue how much pay and benefits firemen should receive for their services but that is not the argument here. The argument is over what firemen are being paid to do. First and foremost firemen are being paid to be highly skilled in fire suppression and emergency responsiveness for individual and community needs.

Secondarily firemen are being paid to be available when needed; being paid to be “on-call.” Palo Alto is paying firemen to be on call 24 hours a day 365 days a year. For each 24 hour day fireman slot the city is paying for 8,760 hours of service per year.

Every day for every fireman slot there are three 8 hour shifts that need to be filled. These shifts could be divvied up between three different firemen or between two firemen working one 12 hour shift each or one fireman working one 24 hour shift. Regardless of how the hours are split up between firemen the 24 hours of service from a highly trained fireman is being paid for.

Ultimately Diamond’s complaint is not about firemen being overly compensated for their services but in how firemen are divvying up the hours of service they provide to the people of Palo Alto. What should it matter to Diamond if three different people are working three different shifts in 24 hours or if one person is working the three shifts the same 24 hours of service?

If Palo Alto thought that it was being exploited by the Fireman’s Union collectively bargaining to obtain unreasonable compensation than Palo Alto could just as easily out source all medical emergencies to a private paramedic/emergency medical service provider the same way the city has out sourced the street sweepers while rolling back the fire department’s personnel to a few full time employees and enlist the services of hundreds of Palo Alto residents into a primarily volunteer fire department.

And If that be the case are you Diana Diamond willing to put in 10 hours a month training and cleaning fire equipment in addition to getting up at 2:00am in the morning at a moments notice when your phone rings to help put out a fire on the other side of town knowing full well you will have to get to your own full-time job by 9:00am?

(* Numbers not exact and not including holiday’s or vacation time; rounding off for simplicity.)

Community Thinking on Vehicle Habitation Solutions vs Outright Ban

People of Palo Alto demonstrated their solution-oriented forward thinking at last night’s meeting on Palo Alto’s proposed legislation regarding car dwellers.

Stanford Lutheran Church was filled with vehicle dwellers and home dwellers who expressed personal fears for safety, for their children’s well being; concerns about safety, sanitation, human rights, fairness; and possible solutions to create safety and community for all Palo Altans, whether homeless or housed.

The proposed legislation was viewed from many angles: without it, police have little they can do in cases of disturbance. But if disturbance is created by a handful of individuals, is restricting the rights of the many the elegant choice? Or is it the slippery slope?

If the legislation passes, how will it fare when taken to the courts – compare the proposed crime of simply living in a car with more familiar news stories of crimes, such as burglary. Living in cars is an economic break point, to criminalize this is to criminalize a choice rendered by poverty. There begins the slippery slope.

The idea that Palo Alto could become a magnet for homeless car dwellers without strict legislation was posed, then re-framed as a regional problem that should be addressed as such.

Problem with threats

Cubberley has opened the gym to car dwellers, which has brought a surge of car dwellers in recent weeks. One parent expressed concern for his children, who feel so uncomfortable about the car dwellers at Cubberley, that they go out of their way on a daily basis to avoid the car dwellers.

In other neighborhoods, some homeowners have experienced or continue to experience certain car dwellers as a threat to safety for themselves, their children, and/or their property.

Several parents outlined concerns that specific behavior of specific car dwellers are affecting their children – that the children are frightened and avoid them at all costs. Many people expressed sympathy for their ongoing daily experience –in some cases for two years, in others for a decade.

One woman’s house was vandalized after she asked a car dweller who was drinking from her outdoor spigot not to use her water. This brave woman underscored the issue as a regional problem. She urged Palo Alto to put pressure on other cities to respond in accord.

The sometimes concurrent and very pregnant problem of mental illness was shuffled around until one woman told about her son who had been diagnosed with a mental illness. Authorities had advised her that he should not live with his parents.

And through his process, her family learned that Redwood City has the capabilities to deal with his mental illness issues in conjunction with his homelessness. She referred back to the worry about becoming a magnet, and pointed out that perhaps it is Redwood City that will be the magnet, not Palo Alto.

One solution offered to families who routinely experience threat (verbal abuse, urinating in public) from a car dweller, is to get a temporary restraining order followed by a permanent injunction.

Several people spoke about parking regulations enforcement.  The idea was raised of no overnight parking without a permit, as is done in Menlo Park. Again, this refers back to the solution in Eugene, in which registration with the city helps keep track of who is where…to ensure safety for everyone.

One vehicle dweller pointed out that he takes care to avoid residential areas. He does not want to trespass, nor violate any sense of neighborhood serenity. He maintains a low profile and takes care of his surroundings.

College Terrace has experienced vehicle dwelling as a problem for ten years. Residential permits were an effective solution for the portion of the neighborhood to which it applies. But problems continue for the mixed use section. One resident expressed that many neighbors are fearful of the people living in vans. In fact, she was chased by someone while walking home after grocery shopping.

There is apparently another contingent of vans in that area that will likely face change, as it became clear multiple vans owned by one individual is cleverly “gaming the system” using the vans as personal storage facilities.

More than one person referred to a solution crafted in Eugene, Oregon for a similar issue. There, car dwellers receive a needs assessment, register with the city program, and are delegated to selected sites that can be easily policed for everyone’s safety. Each site has a limit of three car dwellers.

Problems with sanitation

An idea that drew applause sketched a non-residential location –perhaps near bay lands- where facilities could be built to with showers and toilets dedicated to car dwellers. Car dwellers initiated the applause.

One car dweller shared that he always cleans up the area around where he parks. He want a clean environment for himself and others. The concept of contributing to the community rang through as a shared ideal from car dwellers and house dwellers alike.

The opportunity for creating solution through this crisis was the ever present theme. People shared from personal experience. The knife-edge of need that spurs the decision to relinquish housing for vehicle may have become more visible tonight. Emphasis was on solution, fairness, and respect of others.

How to balance rights of homeowners, renters and vehicle dwellers?  The watchword is compassion.

Rebuttal To Jay Thorwaldson “It’s long past time to ban ‘vehicle dwelling'”

Van Dwelling

Just as Hearst fomented lies to the American people in order to garner support for a war with Spain and as journalists essentially published articles written by government staff in support of the war with Iraq, so too does the Palo Alto Weekly foment baseless arguments fanning the flames of hate and prejudices in order to seek an Unconstitutional ordinance taking away the right of some citizens to freely enjoy the public roads as all other citizens do.

Mr. Thorwaldson claims that he is not advocating driving specific residents out of Palo Alto, yet what Mr. Thorwaldson is asking the City to do, would do just that.  A person, whether by choice or other circumstance, (lost job due to the economy), finds him or herself without a cabin that has a foundation, yet he or she has a vehicle to sleep in. Should he or she sleep on the sidewalk, or should he or she sleep in his or her vehicle?

The person has a vehicle.  It is 50 degrees in January and it is raining.  The person has a choice, he or she can sleep in his or her vehicle or sleep outside exposed to the elements.  Mr. Thorwaldson and those who support his position want to pass an ordinance that would force people to sleep out in the elements rather in their vehicles.  Mr. Thorwaldson’s ordinance would force people out into the cold and rain or risk having the authorities seize their vehicles and property should they seek refuge inside their vehicles.

The result of Mr. Thorwaldson’s ordinance would result in the Unconstitutional seizure of citizens’ vehicles simply because they lack the financial resources to avoid doing so.  Mr. Thorwaldson wants to outlaw citizens because they are poor.

Mr. Thorwaldson claims that the rational for outlawing the existence some residents is that it is a quality of life issue.  Others also argue that it is a health and safety issue.  That is an interesting position, for the only difference in many of the vehicles that Mr. Thorwaldson and those like him are referring to and Abraham Lincoln’s log cabin is that the vehicles, (cabins), that Mr. Thorwaldson wants to outlaw have wheels whereas Lincoln’s cabin did not.  In fact, many of the vehicles that Mr. Thorwaldson refers to have many more amenities than Lincoln’s log cabin.

Is sleeping on the ground out in the rain a better quality of life than sleeping warm and dry in one’s mobile cabin?  Mr. Thorwaldson is correct in that the issue is about quality of life, the ordinance that Mr. Thorwaldson would like to see enacted would lower the quality of life and actually have a greater likely hood of causing health problems by forcing residents out of their abodes and into the elements.

Quality of life isn’t just about material possessions, quality of life also has to do with a person’s character and integrity and whether or not that person’s character possesses compassion and understanding coupled with wisdom and logic.  Anyone who would rather force fellow human beings out into the elements rather than allow them to take refuge in their own abode has diminished their own quality of life.

Anyone who would rather force fellow human beings out of their own abode into abodes paid for with money out of your wallet, (socialism), lacks economic wisdom and logic.  Why spend money on housing people in abodes when it is unnecessary to do so.

In actuality, Mr. Thorwaldson’s proposed ordinance would force citizens to pay for the housing of other citizens through the criminal justice industry, (jail), or the poverty industry, (shelter), simply because he doesn’t want to look at the citizens that his proposed ordinance would effect.

Mr. Thorwaldson’s ordinance has everything to do with physical appearance and very little to do with content of character, yet if Mr. Thorwaldson’s ordinance targeted people because of the color of their skin, black, or people’s religious nationality, Jewish, I have to believe that Mr. Thorwaldson would be summarily rebuked by the community.

Any person who gives money to help economically challenged people in other nations, “Whole Foods’ Feed 100 Program” yet turns around and oppresses economically challenged people in their own community contradicts the integrity of their value to be compassionate to their fellow human being.

If Lincoln were alive today and Mr. Thorwaldson and those like him were to have their way, they would outlaw the existence of one of America’s greatest Presidents.  Yet perhaps Mr. Thorwaldson and those who view life from the same perspective would want to outlaw the 16th President of the United States of America just as the Southern Confederacy would have done, for Mr. Thorwaldson’s ordinance isn’t about judging people’s character but it is about judging and penalizing people based upon their physical appearance.

When Mr. Thorwaldson brings up the fact that the City has been looking at the issue of people sleeping in their vehicles as far back as two decades, Mr. Thorwaldson essentially acknowledges that the issue is not a problem, for if it truly were a problem about health and safety the City would have taken action a long time ago.  There are already laws against disturbing the peace and littering and those laws are enforced upon all citizens whether they happen to be sleeping in a small metal box or a large wooden one.

In the end it is quite clear that the City cannot pass an ordinance against sitting in one’s vehicle on a public street, because then all citizens would be in violation of the ordinance.

The City cannot pass an ordinance about what kinds of belongings people can place in their vehicles, for again, all citizens would be in violation of the ordinance for there is nothing inside the vehicles of those who sleep in them that is not common to what all citizens bring home from various stores and while going camping or skiing or vacationing themselves.

At the core of any ordinance that the City would enact would be whether or not a person closed his or her eyes.  A citizen can sit in his/her car at 3:00 in morning or 3:00 in the afternoon, but as soon as that citizen closes his or her eyes, that citizen would be in violation of any proposed “vehicle-sleeping” ordinance.  Since it is not unlawful to park one’s vehicle on the public street and sit in one’s vehicle on a public street, the ordinance would actually prohibit sleeping.

Mr. Thorwaldson claims that he doesn’t intend to drive economically challenged residents out of Palo Alto, yet it is quite clear what his proposed ordinance would accomplish should it ever be enacted, it would deny people sleep and then take away their vehicles and property for attempting to do so simply because they sleep in a mobile dwelling as apposed to a dwelling that has a fixed foundation.

Just as Prop 8 denied equal protection of the law to a small minority of California Citizens according to Chief U.S. District Judge Vaughn Walker, Governor Arnold Schwarzenegger and Attorney General Jerry Brown, any municipality that would pass an ordinance that would deny people sleep under the threat of having their property seized for doing so is a violation of their right to equal protection of the law and blatantly contrary to the rights secured to all citizens by the United States and California Constitutions.

On its face Mr. Thorwaldson’s ordinance would deny American Citizens freedom.  Mr. Thorwaldson wants to deny some American Citizens the freedom to exist in society simply because they do not possess the financial resources and material possessions that would be required to avoid violating Mr. Thorwaldson’s ordinance.

“Law is often but the tyrant’s will, and always so when it violates the right of an individual.”

Thomas Jefferson

Fortunately the majority of Americans do not believe as Mr. Thorwaldson does.  Unfortunately, a small minority of Americans enacts the laws, which affect all Americans.

“Injustice fights with two weapons, force and fraud..  A common form of injustice is chicanery, that is, an over-subtle, in fact a fraudulent construction of the law.”

Cicero – On Moral Duties

If it were not for their parents, or some kind of support system, 20,000,000 adults between that ages of 18 to 34 would be living in their cars due to the current economic recession.

Editorial: It’s long past time to ban ‘vehicle dwelling’

Palo Alto needs to separate, prioritize issues to protect neighborhoods from intrusions, old vans and clutter, or worse

Email Comments:

August 10, 2010

To the Honorable City Council of Palo Alto, City Manager Jim Keene and City Attorney Gary Baum,

My vehicle, license plate 1lmr274, has been tagged with another tow warning.  I do not have a problem with the placing of the 72 hour notice for violating Municipal Code 10.36.30, however the warning also states that I am violating California Vehicle Codes 22523(a) and 22523(b) which means that my vehicle is subject to immediate tow without any further warning.  As I have previously informed you, my vehicle is not abandoned.

Since my vehicle is not abandoned, your seizure of my vehicle would be a violation of the law and Constitution.  Please inform the Police Department to not cite me for violating California Vehicle Codes 22523(a) and 22523(b).  Officer “03840” informed me that my vehicle was reported as being abandoned.  Whoever made the report with the police department made a false report.

I will be in the Police Department tomorrow or the next day seeking a copy of the report in order to find out who made the false police report.

Should the police department cite me in the future for violating California Vehicle Codes 22523(a) and 22523(b) I will consider it not just an Unconstitutional threat to seize my vehicle, but the actual seizure of my vehicle since I would not be able to leave my vehicle unattended for five minutes without the possibility of the police department seizing it and as such I would essentially be confined to to my vehicle indefinitely in order to ensure that the police department would not impound my vehicle.

Tony Ciampi

P.O. Box 1681
Palo Alto, Ca 94302
650-468-3561

Response to alleged phone call to PA police by editor Jay Thorwaldson Editor Palo Alto Weekly

August 10, 2010

Hi all —

FYI, I did not call in any parked vehicle. I don’t even know where it was parked. I don’t mind the (somewhat immature) name calling, but for someone who professes to value the truth it would be nice if more of it were showing in the posts, not surmises/beliefs/speculations.

Best regards,

-jay

Jay Thorwaldson
Editor
Palo Alto Weekly

August 11, 2010 (Aram James)

I think you can skip Judge Judy– the court of pubic opinion already has Jay’s number. Remember his unsupported attacks on those in the community who opposed Tasers? As my dad often said about folks like Jay …”some people prefer not to be disturbed by the facts.” Jay suffers from a serious case of this syndrome.

Best regards,

Aram

Originally Published on: Aug 10, 2010 @ 12:06

City of Palo Alto Quietly Lifts Ban on Critical Email Addresses

Palo Alto City Blocked Email

In a sting of stunning reversals of Palo Alto’s city attorney Donald Larkin who has made it a long time practice of “blocking”and “filtering” email messages sent to government employees without the benefit of “Due Process” of law, newly appointed chief legal attorney Molly Stumps has quietly instructed the city’s IT Department to undue city attorney Donald Larkin’s unconstitutional doing’s.

In fact Mr. Larkin teamed up with current police chief Dennis Burns and attorney Michael Genanco, Independent Police Auditor contracted with the city of Palo Alto in ordering and approving the blocking of ALL critical email addresses.

One such email directive was intercepted from Chief Burns last year where he requested the IT department to block the email addresses of Palo Alto police critic and attorney Aram B. James and the current editor of Palo Alto Free Press.

PAPD Chief Dennis Burns

“Hi Glenn

Can you block the email addresses listed below from reaching the City email address of Sandra Brown, Bob Beacom, Mark Venable, Patty Lum and Bob Bonilla? The comments have become inappropriate and the employees should not have to be submitted to this nonsense.

Thanks, Dennis [Palo Alto Police Chief]
abjpd1@juno.com
public.records.request.tracking@gmail.com”

In response to Chief Burns and city attorney Donald Larkin’s actions, attorney and former public defender Aram B. James wrote the following:

3/2/2010

Hi Dennis,

I had nothing to do with the e-mails sent by Mark Petersen Perez to the below parties and am requesting that you immediately rescind your request to Glenn Loo that my e-mails (should I decide to send one) to Sandra Brown, Bob Beacom, Mark Venable, Patty Lum and Bob Bonilla be blocked.

I have sent no e-mails in the last few days ( or longer) to any of the above parties. If you have a specific e-mail in mind that I have sent, to the above parties, that you contend is some how not consistent with my First Amendment right to communicate with my local public officials and or is some how in violation of some other legal principal –please copy me with that e-mail and I will be happy to discuss the particular e-mail with you and the city attorney’s office.

I did send out a long e-mail re Sandra Brown several days ago (see below, titled: Has Lt. Sandra Brown mislead the people of Palo Alto? You be the judge!) but I believe nothing in that e-mail is in any way beyond the scope of appropriate and protected First Amendment criticism of a member of your department. In fact the letter in question was in direct response to comments Lt. Brown made to the press (Palo Alto Daily Post) back on February 16, 2010.

Okay, Dennis I look forward to your response. I will copy Gary Baum and Don Larkin in on this e-mail.

Sincerely,

Aram James

Attorney Aram B. James stinging critical email which may have caused the indiscriminate blocking of all critical emails.

Re: Has Lt. Sandra Brown misled the people of Palo Alto? You be the judge!

2/24/2010

Hi Mark,

Why would any police department be proud of a DUI convicted officer? And why would that same department allow someone like Lt. Sandra Brown to—(apparently acting in the capacity as the department’s spokesperson-spin-mister) –try to get over on the public by stretching credibility to the breaking point?

As I will argue below: Lt. Brown’s suggestion that when an officer of the PAPD is arrested or convicted of a DUI —that they should be held to a different standard then the rest of us, by being allowed to keep information re their arrest private, is simply untenable on its face.

The truth is, once arrested, any of us, cop, or non-cop– the information and fact of the arrest becomes public record under the California Public Records Act. See: California Government Code & 6254 (f) (1).

Law enforcement agencies must make available to the public the following information about individuals the agency has arrested. In addition to other information mandated to be released– pursuant to the public records act– the following must be released:

The full name and occupation of every individual arrested by the agency.

As such –this officer’s name (the convicted PAPD officer) has no doubt already been published (made public) in the local police blotter and or newspaper –in the town and county where he/she was arrested.

By failing to provide this information the PAPD is simply engaged in a delay tactic–hoping that the press, and or some other entity— is simply unwilling or unable to track down the information that has already been made public.

In other words, the PAPD is playing cat and mouse with the public trust–hoping that the controversy will simple go away–without anyone tracking down the information that has in fact already been made public.

In the Daily Post of February 16, 2010, in an article titled, When a cop gets a DUI, Lt. Sandra Brown made the false and misleading claim that for the PAPD to release the name of the officer would be an unwarranted invasion of his privacy. In fact she is quoted in the piece as follows:

“We all have our right to privacy, we are all human and we all make mistakes, no matter who writes our paycheck,” said Brown.

Lt. Sandra Brown knows this is not the truth. When a member of the PAPD makes an arrest such information becomes public, by way of the department’s police log (police blotter). The information is subsequently reported in the press.

Lt. Brown’s comments, suggest, misleadingly, that somehow police officers are above the law and are entitled to more privacy then other individuals arrested. The truth is quite different –police are entitled to the same level of privacy as any other individual arrested, no more and no less.

Lt. Sandra Brown, yet again, attempts to turn both common sense and the truth on its head with the following comments— attributed to her in the same post article:

Palo Alto Police would not have to attend mandatory alcohol counseling for a drunken driving conviction, and an officer who had been convicted of drunken driving would still be allowed to make drunken driving arrests, as a matter of public safety, said Brown. (Note: in the same article—comments attributed to Lt. Sandra Brown suggest that the DUI convicted officer would not be subject to random checks for alcohol).

So think about the implications of the above comments: we are led to believe by Lt. Brown that it is a matter of public safety that a convicted DUI officer should still be allowed to make drunk driving arrests, while at the same time not being subjected to random drinking tests himself ,or mandatory DUI classes for his conviction. Does this absurd suggestion/proposition by Lt. Brown make you feel safer?

Common sense suggests that absent disclosure of the officer’s name, absent a clean bill of health re this officer having completed mandatory DUI classes, and absent random testing to ensure that the officer is not drinking on the job—it is the officer and the department— that allows him to continue on the job under these conditions– that constitutes the public safety threat—not the other way around.

Lt. Sandra Brown’s suggestion that not allowing this officer to conduct DUI arrests— until he has been subject to all of the above programs and testing –would some how implicate public safety is disingenuous at best—and ,more simply, a blatant attempt to deceive the public Lt. Brown has sworn to serve and protect.

One final bit of irony—this is the same Lt. Sandra Brown who now apparently supervises internal affairs, and oversees citizen complaints filed against fellow members of the PAPD.

Given Lt. Brown’s obvious contempt for both the public trust and the truth –it does not inspire a sense of confidence that citizen complaints will be taken seriously by this department. Its time that the PAPD release the name of the convicted DUI officer, now! Justice, fair play and public safety demand such a result.

Sincerely,

Aram James

In a follow-up email from famed civil rights attorney Michael Gennaco and head of the Office of Independent Review (OIR)  based in Los Angeles protesting their joint collaboration, Gennaco issues the following email response:

Famed Civil Rights Attorney Michael Gennaco

3/3/10

“Mr. Petersen-Perez:

I acknowledge receipt of your complaint. On its face, your complaint does not indicate a violation of Palo Alto Police Departmental policy. Accordingly, we intend to take no action with regard to your complaint. Feel free to pursue whatever recourse you believe is available to you with the US Department of Justice.

Michael Gennaco”

Apparently, the First Amendment is not recognized in any police manuals maintained by the PAPD and therefore no violation has been committed.

In any event, were extremely pleased with newly appointed Molly Stump’s decision to undo city attorney Donald Larkin’s unconstitutional blocking of email addresses critical of city government.

However, a lingering question remains. Will she open the closed secret door meetings being privately help by police chief Dennis Burns?  Will she continue too promote transparency and open government. That question remains to be seen.

July 6th, 2011 – Up-Date:  City attorney Donald Larkin’s sinister email document reveals PAPD Chief Dennis Burns directive to “Block” critics emails.

From: Larkin, Donald
Sent: Monday, March 08, 2010 5:33 PM
To:abjpd1@juno.com
Subject: RE: Update re order by Chief Dennis Burns blocking my e-mail access to city employees

Aram,

While I am not prepared to discuss the specifics of the e-mail messages you have previously sent, I have tried to respond to your questions regarding the request by the Police Chief to limit your ability to directly e-mail several City employees. My responses to your questions are as follows:

1.  You are now able to e-mail the City Council and higher level (upper management and City Attorneys’ Office) employees.

2.   We do not track whether your e-mail or others are included in “spam” filters or other means of blocking e-mail at the client level.  The Chief has asked that your e-mail to some individuals be blocked, but I do not have any way of knowing whether there are others who are not receiving your e-mail.  Please note that unsolicited e-mail sent indiscriminately to a large group of recipients is frequently identified as spam, and is often caught in the City’s filters.

3.  There is no specific protocol.  Limits on a person’s ability to e-mail individual employees are made at the discretion of the department director and/or other management employees.  While there is no written policy regarding when a department director can limit e-mail access, some of the relevant factors that may be considered are:

a.   Receipt of e-mail from the sender is not necessary for the employee to complete his or her assigned responsibilities.

b.  The sender has sent messages or has forwarded messages by others that violate the City’s anti-harassment policy.  As you know, pursuant to Government Code section 12940(j), the City is required to make reasonable efforts to protect its employees from unlawful harassment by members of the public.  Cutting off e-mail access to specific employees would be considered a reasonable effort to protect an employee from harassment.

c.   The volume of e-mail and attachments received from a single sender, or a group of senders who copy City employees on an e-mail conversation causes the employee to exceed his or her maximum e-mail storage space.

d.   The receipt of e-mail messages from a specific outside sender is disruptive, and hinders the employee from performing his or her assigned tasks.

Please note, except for attorneys (who are required to maintain e-mail by the State Bar), there is no obligation for City employees to maintain direct outside e-mail addresses.  City policy is for departments to provide a single e-mail address for members of the community to send e-mail queries and communications.  For the Police Department that address is pd@cityofpaloalto.org.  This e-mail address is monitored daily, and messages are distributed to the appropriate department contact.

While you have a right to criticize public officials in any medium you wish, the First Amendment does not guarantee you direct access to every City employee.  In fact, as you are no doubt aware (and was just reiterated within the last couple weeks in the case of Hamer v. El Dorado County (2010 WL 670780)) the “First Amendment does not impose any affirmative obligation on the government to respond to the petitions raised by individual citizens, does not guarantee that citizens’ speech will be heard, and does not require that every petition for redress of grievances be successful.”

As the Supreme Court has noted:

However wise or practicable various levels of public participation in various kinds of policy decisions may be, this Court has never held, and nothing in the Constitution suggests it should hold, that government must provide for such participation. In Bi-Metallic the Court rejected due process as a source of an obligation to listen. Nothing in the First Amendment or in this Court’s case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals’ communications on public issues.  Minnesota State Bd. for Community Colleges v. Knight 465 U.S. 271, 104 S.Ct. 1058.

Regards,

Donald Larkin

Assistant City Attorney

City of Palo Alto

(650) 329-2171

donald.larkin@cityofpaloalto.org

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