Modesto Police Department opens book on how it polices its officers

March 16, 2019

First in a series.

The Modesto Police Department since 2013 has fired five police officers who it claimed were dishonest, including one who allegedly made false reports in DUI arrests to another who allegedly defrauded the federal government out of nearly $10,000.

The department released internal affairs investigations and other records to The Modesto Bee on Thursday under the provisions of Senate Bill 1421. The new state law, which took effect Jan. 1, makes public records that once had been out of reach to the general public.

SB 1421 requires that records be released when there has been a sustained finding that a peace or custodial officer sexually assaulted a member of the public or was dishonest, including making false statements and concealing or destroying evidence. The law also makes public investigations of officers firing a firearm at someone or when the use of force results in death or great bodily injury.

Modesto police also released records related to 52 instances dating to 2003 in which officers discharged firearms at someone or their use of force resulted in death or greatly bodily injury. The Police Department normally destroys records after five years and could not say why it had records on these types of incidents that dated beyond five years.

The department had no records related to sustained findings of sexual assaults.

The Bee is not releasing the names of the five officers who were fired over allegations that included dishonesty. The newspaper also filed California Public Records Acts requests with every other law enforcement agency in Stanislaus County for SB 1421 records.

The following account is based on the documents released by the Police Department and an interview with Police Chief Galen Carroll.

One of the officers joined Modesto police in January 2012 and soon became recognized for his high number of DUI arrests, including an honor from Mothers Against Drunk Driving. But the officer became the subject of an internal affairs investigation regarding those arrests after a citizen complaint in December 2013 and a complaint from a fellow officer in January 2014.

Internal affairs looked at 30 to 40 of the officer’s DUI arrests it considered problematic over six months and found serious problems with nine of them, which formed the basis for the decision to fire him.

Those problems included the officer’s body camera footage not supporting what he wrote in his reports, including writing that he observed signs of intoxication when none was present on the footage, and relying on an “odor of alcohol” for conducting field sobriety tests, but the suspects’ blood alcohol levels turned out to 0.00 percent. Internal affairs concluded the officer’s conduct was “often rude, belittling, abrupt and arrogant.”

The officer “stopped drivers without reasonable suspicion, based on nothing more than the fact they were leaving the parking lot of a bar. He mocked the drivers he pulled over, … recorded evidence of impairment that did not objectively exist, and arrested them without probable cause.

“In his zeal for DUI enforcement, (the officer) ignored the real and severe consequences that his lack of fairness had on the people he wrongly arrested. … His attitude and actions brought discredit to the department and harm to the community at large.”

The officer was fired in 2014 and appealed that decision to arbitration. The arbitration hearing officer reduced the police officer’s punishment to a 90-day suspension and disciplinary probation for one year after being reinstated to his job.

The hearing officer wrote the city “has proven by a preponderance of the evidence that the (officer) engaged in poor performance. The nine reports at issue here, at a minimum, demonstrated the (officer’s) ‘ … sloppiness and inattention to duty that renders the (DUI) reports useless for their intended purpose’” and was troubled by the officer’s “penchant for treating suspects in a condescending manner.”

But the hearing officer wrote the city had not met the “clear and convincing evidence” standard that the officer had “engaged in intentional acts of dishonesty.” He also wrote the city bore some responsibility by focusing on the quantity of the officer’s DUI arrests and not the quality of those arrests and that there was a chance the officer’s performance could be improved through training.

Carroll said the officer no longer is with the Police Department or in law enforcement. The former officer did not respond to a request for comment made through a family member.

Another officer was dismissed from his job in 2013 after a sergeant reported an incident in which the officer spoke to him about “his great dislike” for two officers, one who was then retired, who had talked about him behind his back.

The sergeant reported to internal affairs that while talking about the retired officer, the officer removed and opened a folding knife with a 3- or 4-inch blade. “He held the knife with the tip of the blade almost touching his carotid artery,” the sergeant told an IA investigator. The officer for five to seven seconds “began twisting the knife back and forth simulating stabbing the knife into his neck.”

The sergeant said it was clear the officer was angry and hated the retired officer. The records say the officer told internal affairs several times when questioned that he could not remember or recall pulling out the folding knife or holding it to his throat. An IA investigator did not find that credible.

Records also show several other instances in which the officer was suspected of being dishonest. For instance, the same sergeant who reported the knife incident, reported the officer said he drove roughly the speed limit as he pursued a fleeing motorcyclist primarily on Orangeburg Avenue through a residential neighborhood.

But the sergeant learned the officer had averaged more than 60 mph during part of the pursuit, blew through a stop sign at an estimated 70 mph, and violated the department’s pursuit policy. The sergeant also questioned the officer’s judgment in pursuing a motorcyclist who had failed to yield.

“Very clearly in my mind untruthful,” the sergeant told an IA investigator when asked whether the officer had been untruthful about how fast he had been driving.

Carroll said the former officer is no longer with the department. When contacted by the newspaper, the former officer said the release of his records was illegal and threatened to sue. He declined to comment further.

But he provided this statement to Carroll in 2013 when it was recommended the officer be fired: “I have worked for seven years with the Department, and have never received a suspension for any alleged misconduct. In that same time, I have never been accused of being dishonest. It makes no sense that I would suddenly begin a series of dishonest events (as alleged) and jeopardize my career. I deny each and every allegation made against me.”

The indiscretions of a third officer came to the attention of the Modesto police three years after he was hired, while he was attempting to get a job as an officer at a Bay Area police department.

The officer failed to tell Modesto when it was hiring him in 2012 that he was questioned as a potential witness in a rape investigation the year before by Fremont police. A background investigator for the Bay Area police department contacted Modesto Police Department in 2015 regarding the investigation.

The alleged victim said she was drugged by her boyfriend at the officer’s Fremont home and later raped at another location.

When initially questioned by Fremont detectives, the officer said he knew nothing about the woman being drugged and that the victim “seemed fine when she left” with the suspect, his friend.

Questioned a second time at his home after consenting to a search there, the former officer admitted his friend told him the day after the alleged rape that he had put liquid codeine in the woman’s alcoholic beverage.

While filling out a personal history statement for his background investigation with Modesto police, the officer answered ‘No’ to a question about whether he had ever been “detained for investigation, held on suspicion, questioned, fingerprinted, arrested, indicted, criminally charged or convicted of any misdemeanor or felony offense in this state or in an other legal jurisdiction.”

When asked by a Modesto internal affairs investigator why he didn’t disclose being questioned, the officer said he didn’t think he needed to because he wasn’t arrested or detained and assumed the background investigator would find the information on his own anyway.

A Modesto internal affairs investigator determined the officer “deceitfully omitted” being questioned in the rape investigation.

He said the officer, who was in the process of applying for police jobs at the time of the reported sexual assault, on several occasions expressed concern that “the incident would interfere with his chances to to become a police officer.”

“You’re the guy they question about that bull—- … “ the officer told Fremont detectives. “… well so much for applying here.”

Carroll said the former officer failed to get his job back through arbitration.

The former officer told The Bee on Friday he didn’t understand the question applied to him as a potential witness when he filled out the background investigation and that Modesto police only learned about the incident because he disclosed it as he was applying for positions with other cities.

“I now know more about the process,” he said. “I told the other cities. How am I hiding it if I tell them about it? Now that it’s brought to MPD’s attention, how can you say I’m hiding it? I felt this was unfair and ruined my career.”

The former officer repeated to The Bee that he was never a suspect or charged and was questioned as a witness.

The fourth former officer’s alleged dishonesty occurred during the course of his duties as an Air Force reservist. A little over a year after being hired by Modesto police in 2015, the officer left for a six-month deployment overseas.

Before his deployment, he completed a change of address form for housing reimbursement from the Air Force, saying he lived at a home in the Bay Area rather than in Stanislaus County. Investigators found the home belonged to the officer’s cousin and the officer had never lived there.

Because of the higher cost of Bay Area housing, the officer was overpaid $9,705 for his housing allowance. Internal affairs said the officer admitted he never lived at the Bay Area address but said he intended to at the time.

Air Force investigators notified Modesto police of this last year, as well as a forged doctor’s note the officer used to get out of a military training day. The officer knew he was being investigated by the Air Force but failed to notify his supervisor at Modesto police, according to the internal affairs report.

Several people who worked with the officer in the Air Force wrote letters on his behalf about his solid character. He was fired last year and is attempting to get his job back through arbitration.

“Honesty and integrity are at the core of law enforcement responsibility and authority,” reads the internal affairs report. “(The former officer’s) actions have caused a complete loss of faith in his ability to make ethically correct decisions consistent with community expectations, department policy, and have irreparably damaged his credibility and trust within the department.”

Public Affairs at Travis Air Force Base, where the former officer was stationed, did not return calls seeking comment about the Air Force investigation.

The former officer is appealing his dismissal through arbitration. His attorney emailed this statement on his behalf:

“No final disposition has been made with regard to the validity of the allegations against my client. Notwithstanding the recent changes to the California Penal Code by way of SB 1421, the applicable language makes clear that the records at issue are not to be released until a sustained finding of dishonesty has been made, with sustained defined as following an investigation AND opportunity for administrative appeal. As a result, we take the position that the release of these records is pre-mature and unsupported by the law.”

The fifth former officer committed a minor misstep that only resulted in his termination after he lied about it. He left his patrol vehicle in gear when he stopped and got out of it in west Modesto in 2016 to chase after a suspect fleeing on a bicycle. The car rolled forward, hitting a tree and a resident’s fence, causing damage to the vehicle and fence.

Carroll said plenty of cops have done the same thing in the heat of the moment. That act alone would have resulted in “verbal counseling or at most a documented counseling.” But the former officer told his supervisor he didn’t know how the vehicle was damaged and even asked the suspect, who was later detained, if he’d hit his car.

An internal affairs investigation was started the next day when the resident whose fence was hit went to the Police Department to report the damage. A witnesses said he saw the officer return to his vehicle, look at the damage and then get into the vehicle and drive away. Surveillance video from a nearby Family Dollar General supported the witness statement.

The former officer was on probation at the time of the offense so had no right to arbitration when he lost his job. He could not be reached for comment.

The Modesto Police Department is the first agency in Stanislaus County to release documents under SB 1421.

Carroll said his department doesn’t tolerate dishonesty. “We are harder on guys that break the rules probably than other careers or other fields,” he said. “You lie, you die.”

Carroll said the department — which is allocated 240 officers — has nothing to hide but doesn’t think releasing the records will increase public trust or transparency.

He said he has always been willing to speak to the families of the subjects of deadly use of force about the investigations and review body camera footage of the incidents. “I have still had parents, after speaking with them for hours, sue claiming they wanted transparency,” he said.

When the first public records request under the new law was sent to Modesto police, Carroll said the department, along with city attorneys, waited for decisions in several lawsuits throughout the state which were brought primarily by police unions regarding whether the law is retroactive and applies to incidents before 2019.

“All of the departments that have sued … have lost that lawsuit,” Carroll said. “So you might as well release them. They are going to come out one way or the other.”

He thinks some people will use the information to “further their own agendas (by) painting officers in a bad light” but overall it will show that “the majority of agencies are properly disciplining and removing bad officers from our ranks.”

The Bee filed a California Public Records Act request with every law enforcement agency in the county for records available through SB 1421 for all of last year.

The newspaper limited the scope of its request in the interest of getting records in a timely manner and has filed requests for prior years. This story is based on the newspaper’s records request as well as one filed by the American Civil Liberties Union with Modesto police that sought records for all years.

The Oakdale, Newman and Turlock police departments as well as the district attorney’s office (which employs peace officers as investigators) and Stanislaus State University police said they had no records for 2018 because they had no incidents that met SB 1421 requirements.

The Sheriff’s Department — which also provides police services for Patterson, Hughson, Waterford and Riverbank — and the CHP’s Modesto Area Office said they had records, which they expected to make available beginning in May.

Ceres said it may have records but declined to release them because it was waiting for the courts to resolve whether SB 1421 is retroactive. The Bee also made a separate request under the new law for records related to two fatal officer-involved shootings. Ceres denied that request, claiming the records are part of pending litigation. The city is being sued in both shootings.

But California News Publishers Association general counsel Jim Ewert said the pending litigation exemption only applies to records that are created in anticipation of or for the litigation, such as an attorney memo, and not records that are created independent of the litigation, such as a police report or internal affairs investigation.

Ceres officials have not responded to the CNPA’s position that the pending litigation exemption does not apply to police records related to the two fatal officer-involved shootings.

Ewert and First Amendment Coalition Executive Director Dave Snyder said they were troubled by Ceres’ withholding records while the issue of whether the law is retroactive is being settled elsewhere. Both said the Public Records Act does not allow one agency to withhold records just because other agencies are facing legal challenges over their records.

“This is an inappropriate response,” Snyder said.

Source: Modesto Bee reporter: Kevin Valine


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