School District Routinely Abused Access To Law Enforcement Database; Suspended Whistleblower Who Exposed It

from the like-any-other-criminal-enterprise,-the-government-hates-snitches dept

Give enough people access to sensitive information and abuse is inevitable. We've covered multiple incidents of law enforcement database misuse by police officers. Some have used their access to track former spouses. Others use it to harvest info on potential partners, supplementing the minimal personal data supplied by internet dating sites.

But it's not just law enforcement officers abusing this access. It's also abused by public employees who have been granted access to these databases. Jose Gaspar of Bakersfield.com details the apparent routine misuse of database access by school administrators.

Kern High School District administrators and other employees misused a criminal database to investigate students, and while sheriff’s officials recommended criminal charges against two, no one was prosecuted, according to documents obtained this past week.

The chief of police for the school district (Joe Lopeteguy) suspected unauthorized use of access of the CLETS (California Law Enforcement Telecommunications System) database so he asked the Kern County Sheriff's Office to investigate. The office confirmed Chief Lopeteguy's suspicions.

The report says KHSD police accessed CLETS to get information about a special education student for unknown reasons; an employee who’d filed a workers’ compensation claim with the district; and about 30 student athletes.

What tipped Chief Lopeteguy off was a request sent to him by the athletics director asking him to run a student's plates. Lopeteguy told the requester he wouldn't because such a search would be illegal. Apparently, this was the first time the athletics director had been told "no."

Shortly after, the chief reportedly said, he received an email from his boss, KHSD Director of Pupil Personnel Otis Jennings, wondering what was going on.

The message from Jennings read, “This is something we've done in the past through the chief for purposes of the district.”

The former school police chief (Mike Collier) admitted to approving these (apparently illegal) search requests in the past. Both the athletic director and personnel director had submitted multiple database search requests, often without informing Collier of their plans. The district's police dispatcher -- who ultimately controlled database access -- confirmed this.

[The dispatcher] told investigators that [athletics director] Greene would come in with a list of licenses to run, but she would only run requests under Collier's order and with him providing his CLETS identification number. According to the report, Stonecipher also said Jennings would make CLETS requests and she would direct him to Collier.

Collier apparently approved the 246 database searches performed using his credentials during the 2014-15 school year, even though a majority of them were for information school staff wasn't allowed to obtain via the law enforcement database.

Investigators tried to speak to Collier about his search history but he lawyered up and refused to cooperate. The other administrators named in the investigation also refused to speak to the Sheriff's Office.

Not that their refusal to cooperate ultimately matters. The Sheriff's Office recommended bringing charges against Collier and Jennings for their access violations, but the District Attorney decided not to prosecute. The only person being punished for this abuse is the man who reported it: Chief Lopeteguy.

During the investigation, on May 13, KHSD placed Lopeteguy on administrative leave. Lopeteguy told investigators the district was accusing him of misusing CLETS and of incompetence.

Lopeteguy was reinstated two months later but claims -- via a $2.3 million lawsuit against the district -- that he's still being harassed by district staff, who have gone so far as to attempt to have the Sheriff's Office investigate him for abuse of the CLETS database.

Here we see the government acting in two of its standard roles: the routine abuser of access to information citizens are required to provide it with, and as the punisher of whistleblowers who expose this abuse. Neither of these actions serve the public in any way, shape or form, making a mockery of the term "public servant."

Filed Under: bakersfield, database, law enforcement, students
Companies: kern high school

Kern County Coroner Declares David Silva's Death To Be 'Accidental,' Heart Disease-Related

from the nine-men,-three-batons,-one-attack-dog-all-unrelated dept

Kern County Sheriff Donny Youngblood held a press conference last Thursday to declare his department's innocence in the death of David Silva. This claim is based on the coroner's report prepared by the Kern County Coroner's office, which reports to the Sheriff's Office. David Silva's death has been declared "accidental," with the official cause of death listed as "cardiac hypertension."

This disease can be a rather sudden killer (onset-to-death can be as little as two years), but the "contributing factors" listed on the coroner's report make no mention of the heavy physical strain put on Silva's body by the restraint efforts of nine law enforcement officers and a police dog. Here's what the report says contributed to Silva's death: "Acute intoxication, chronic alcoholism, severe abdominal obesity, chronic hypertension, acute pulmonary-cardiovascular strain." "Acute pulmonary cardiovascular strain" sounds like a naturally-occurring health event, but it's nothing more than severe strain on the heart and lungs -- something that might occur when an already out of shape person is restrained (within policy) by several men and a police dog while being intermittently beaten (within policy).

The "acute intoxication" is also questionable as Silva's BAC was .095, not much higher than the legal limit in many states (.08). Of course, the coroner's office could be folding Silva's drug intake into the "intoxication" level as he had amphetamines, methamphetamine and Klonopin in his system as well.

The autopsy almost makes it sound as if David Silva might have passed away that night, with or without receiving special attention from Kern County deputies. I suppose there's a slim chance he might have expired of natural causes while passed out on someone's doorstep, but it's much more likely that he was pushed towards an early grave by the amount of force used against him.

Sheriff Youngblood seems to feel the autopsy clears his department of any wrongdoing. This likely explains the release of the report mere days after he informed the media it could take up to a month before the toxicology work was completed.

This also explains why he went on the attack during his press conference. He blamed the media for skewing the story, playing on peoples' emotions and placing his deputies in danger. He also stated his office would no longer be releasing names of officers involved in incidents like these.

According to Youngblood, everything about Silva's "arrest" was handled in accordance with department policy. According to the Sheriff, only three deputies used batons (and then hit Silva only in approved areas -- i.e., not the head). The coroner's report mentions "signs of blunt force trauma" to the left side of Silva's head, which could possibly be explained by the kicking witnessed by onlookers. Whatever hit Silva's head (or whatever Silva's head hit), it was non-lethal -- no skull fractures or brain injury.

Because Silva failed to die from anything directly related to the beating/"hobbling" (Silva was restrained with a "hobble," or "hogtied" for all intents and purposes), Youngblood feels the responding officers did no wrong. Everything that occurred that night was compliant with policy. The closest the coroner's report comes to implicating law enforcement in Silva's death is this sentence:

Death is from the sequelae of severe chronic cardiovascular disease exacerbated by the effects of acute intoxication together with the sequelae of properly employed restraint procedures.

(How do we know the restraint procedures were properly employed? Because deputies told the coroner and investigating officers that they were. Nothing listed in the report points to improperly employed restraint or excessive force. But the question remains: if nine officers "properly employ" restraint procedures, does the combined force become "excessive?" Or is it fine as long as it's a "properly employed" nine-on-one "restraint?")

If all of this is above board, it doesn't explain the deputies' pressing need to "secure" citizens' cell phone recordings, which was performed without a warrant in one case, and in the other, took the form of a nine-hour "house arrest" to ensure the footage didn't make its way to the news before the warrant arrived.

Youngblood attacked this narrative as well, stating it was actually "only" five hours of detainment. If this is truly the case, Youngblood should release the warrant and compare it with cell phone records. Allegedly, his deputies contacted the witnesses with the cell phones they were interested in obtaining sometime between 2 and 3 am, but the warrant didn't show up until nearly noon.

He also made this disingenuous statement:

Anyone there was free to leave at any time. No one was held hostage. [One of the witnesses] just couldn’t take the phone that had the evidence. Once he gave the phone and were in the process of getting a search warrant, he left. The second [phone], we obtained a search warrant, we waited two hours and 11 minutes to get that search warrant and to seize that phone.

"Free to leave" is "free to leave." It doesn't come with strings attached.

Youngblood stated he would release all video his department has in its possession. (However, it appears the California Highway Patrol isn't interested in parting with its dash-cam footage of the incident.) As far as Sheriff Youngblood is concerned, this report, combined with the footage publicly available, clears the officers of wrongdoing. The deputies involved will be returning to work (apparently, they were still on paid administrative leave despite reports otherwise).

But it's not over yet. The District Attorney's office has announced it will be performing its own investigation and the FBI has yet to deliver its report. In addition, the attorney for David Silva's family has announced that the law firm's "experts" will be performing their own investigation as well.

The Kern County Sheriff's Office is no stranger to this sort of controversy.

The Silva episode follows several high-profile brutality cases involving the Kern County Sheriff's Office in recent years.

One led to criminal convictions of three deputies and a $6-million civil judgment in the 2005 death of a jail inmate, according to attorneys. Another resulted in a $4.5-million court award for the family of a man who died in 2010 after being struck 33 times with batons and Tasered 29 times, attorneys said.

Even if the KCSO is ultimately cleared of any wrongdoing, this incident should at least prompt law enforcement officials to take a closer look at what their restraint policies allow -- and what sort of harm can actually be done to citizens while still ostensibly "following the rules." A couple of officers restraining someone using proper techniques is probably fine. But nine officers (and an attack dog) properly deploying "non-lethal" weapons and restraint can very easily turn an arrestee into a victim.

Filed Under: bakersfield, david silva, kern county, police brutality

Released Video From Silva Beating Shows His Last Moments; Video Of Actual Beating Still Missing

from the LEO-Video-Editing-Services,-open-for-business-24/7 dept

A pair of the cell phone recordings of the David Silva beating have been released by attorney Daniel Rodriguez. 23ABC News received the videos first, both of which capture the final moments of Silva's life. Unfortunately for those seeking more clarity as to the actions of the nine responding officers, these videos fail to provide much insight into the officers' actions during the previous 30-40 minutes.

Both videos were shot after the batons had stopped (allegedly) swinging. [The videos won't embed so you'll have to click through to view them.] In the first, Silva is surrounded by several members of law enforcement who are obviously still restraining him. You can hear faint orders to "get down" being yelled by the officers, but the most noticeable sounds come from Silva himself, who spends most of the runtime screaming.

The second video shows the efforts of law enforcement and the responding EMS unit to revive Silva. One of the offscreen voices makes a couple of interesting statements. First, he points out that officers "stood around for five minutes" by Silva's unmoving body before attempting resuscitation. The second, echoed by a female voice, lends some credence to the story put forth by several witnesses: "Now, it's a murder scene."

Also of note, at 5:19 a second cell phone, presumably recording, shows up in frame. This would appear to be the other cell phone that was seized by the Sheriff's Department, the one on which the footage is no longer available.

The witnesses claim that both phones had footage of officers striking and kicking Silva, but with both phones now returned to their owners, none of the footage has survived. Both phones made their way from the deputies who seized the phones to the Kern County Sheriff's Office, which then shared the phones with the Bakersfield PD and the FBI. The FBI has apparently analyzed both phones but has yet to release its findings.

Here's where we stand right now, according to Rodriguez:

Rodriguez told ABC23 that "the more incriminating video was one on the other cellphone." He said that video was shot "while the batons were swinging." Rodriguez added the second phone was returned to his client with no video. If a video was erased from that phone, he said, it could not be recovered because of the type of the device.

David Cohn, the attorney for David Silva's family, has his own concerns:

[Cohn] said his clients are concerned that the videos might be erased or destroyed, either accidentally or on purpose. He has not seen them.

"If I'd heard that they'd given them to the FBI, ok," he told The Associated Press on Tuesday. "But the Bakersfield Police Department, whom they work with on a daily basis? It certainly doesn't have the look of impartiality."

Cohn also (obviously) has his concerns about the phone seizures themselves.

Cohn said the Sheriff's Department went "well beyond a reasonable search" in obtaining the videos, making no effort to ask for copies or voluntary cooperation from the witnesses.

"They held these people hostage for several hours pending the serving of a search warrant. I've never heard of that before," he said.

Beyond the deputies' abuse of these witnesses' rights, there's another aspect that may have made these seizures illegal, as posited by ExCop-LawStudent.

The Privacy Protection Act, 42 U.S.C. 2000aa(a) (hereafter PPA), states:

Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication….

This law provides that if a person takes a video of police action and intends to disseminate it to the public, the police can only obtain the video by subpoena, not by a search warrant. In this case neither of the individuals who had their property seized were suspects in the crime being investigated, the death of David Silva at the hands of Kern County Sheriff’s deputies, nor were they being arrested.

The sheriff’s office was aware of the video because the individual that taped the beating called 911.

Further, that individual informed the 911 personnel that she intended to disseminate the video to the public (at 0:46 of the call), saying “I’m sending it to the news.” At this point, the Sheriff’s office was on notice that this was “work product” protected by the Privacy Protection Act, and should have been obtained by subpoena, not by a search warrant. Indeed, the law specifically provides that a warrant can only be used after a subpoena has failed to obtain the material.

In support of this argument, the author cites the infamous case brought against the US by Steve Jackson Games, which had several work products seized by US Secret Service agents via a warrant, despite not being a suspect in the investigation at hand. The end result was $50,000 in damages plus attorney's fees being awarded to the game maker for these illegal seizures.

The video supposedly containing the most damning footage is missing. What we do have available only shows the aftermath of the beating. We're still waiting for much more information to be released. There's been no word back from the FBI on its analysis of the phones. The coroner has yet to release an official cause of death and the sheriff's office has stated this process could take up to four months. Kern County Sheriff Donny Youngblood continues to make concerned noises, but the lack of conclusive video has also prompted a bit more hedging, along with some unfortunate statements.

"I have seen the video," Youngblood said last week. "I cannot speculate whether they acted appropriately or not just by looking at the video."

The sheriff, however, acknowledged that there is a great deal of public concern about the incident and subsequent investigation. "It is not just troubling to the public, it is not just troubling to news media, it is troubling to me," he said. In an interview with The Times, he said the credibility of the department is at stake.

"Baton strikes were used, but what I don't know is how many and where they were on the body and if they caused significant injury that caused death," he said.

Youngblood said the baton is a less lethal weapon, and because of that its use doesn’t usually lead to deputies being placed on leave. But he said the head is not an appropriate place for a baton strike.

"Sometimes in the heat of battle, the baton doesn't go where you want it to go.... If someone has 20 baton strikes to the head, OK, that is easy for us. But when there is a fight or scuffle and a baton strike goes where it should not ... then you have to evaluate,” he said.

The passive voice in this context is bordering on reprehensible. There's a person controlling the baton and that person presumably should have the training to ensure proper "placement" of the weapon. The two deputies seen on the surveillance tape seem to be controlling their batons very well, using both hands to swing and connect with Silva. Nine officers swinging batons at one man are going to run out of "appropriate" real estate on a human body very quickly.

Youngblood seems to be drawing a line between proper baton use and a savage beating, but he's drawing the line in his office's favor. If all officers aimed exclusively and repeatedly for Silva's head, it's an open-and-shut case. But, if Silva struggled, or if blows rained down on other parts of his body as well, it's probably just good (if a bit too aggressive) police work (pending "evaluation").

Youngblood's statement serves two purposes: to define how far officers under his control actually have to go in terms of violence in order to warrant further review or disciplinary action, and to justify the fact that his deputies are still on active duty, despite earlier reporting that they had been placed on paid administrative leave until the investigation was complete.

It is common to place law enforcement officers on paid leave during investigations of arrest-related deaths, but the Californian reported the deputies involved remain on duty.

Youngblood's deputies who allegedly beat a man to death are still on patrol. One hopes that they won't find themselves in any situations in which a baton strike might be used, or go where the deputies "don't want it to go."

Filed Under: bakersfield, beating, david silva, destruction of evidence, evidence, police brutality, video

Police Follow Up Beating A 'Possibly Intoxicated' Man To Death By Seizing Witnesses' Cell Phones

from the keeping-the-peace-at-a-ratio-of-nine-to-one dept

How many law enforcement officers does it take to subdue one intoxicated man? In Bakersfield, CA, it takes nine: seven sheriff's deputies, two CHP officers and a police dog. It also appears that being publicly intoxicated and resisting arrest in Bakersfield is punishable by immediate death in the same county.

At this point, consider everything regarding the beating to be "alleged." After all, we don't have any conclusive evidence of what happened, despite two people filming it (and a handful of eyewitnesses) because law enforcement made sure every recording of the event (except one -- more on that in a bit) was seized as "evidence."

Also, keep in mind that David Silva, the thirty-three year old father of four who was allegedly beaten to death by nine law enforcement officers, was only allegedly intoxicated and violent. Evidence of his crime(s) disappeared along with the footage of multiple cops swinging batons. (I suppose this will be verified when the autopsy results are made public, presumably featuring a full toxicology report.)

Here's an eyewitness account of the beating:

At about midnight, Ruben Ceballos, 19,was awakened by screams and loud banging noises outside his home. He said he ran to the left side of his house to find out who was causing the ruckus.

"When I got outside I saw two officers beating a man with batons and they were hitting his head so every time they would swing, I could hear the blows to his head," Ceballos said.

Silva was on the ground screaming for help, but officers continued to beat him, Ceballos said.

After several minutes, Ceballos said, Silva stopped screaming and was no longer responsive.

The phones used to record the incident were seized by law enforcement as "evidence." As it's highly doubtful the sheriff's department is looking into charging a dead man with a crime, the only "investigation" possible would be a look into the actions of the officers at the scene. This also means the only criminal activity captured on film would be the officers'. Turning over the only copy of evidence to the perpetrators is generally considered to be a terrible idea. But when you've just witnessed nine law enforcement officers beat a man into unconsciousness (and eventual death), your normal citizen is probably going to think twice before telling another officer, "No."

But the witnesses held out as long as they could. The incident happened around midnight. The two witnesses who had recorded the event (a male whose name hasn't been released and Maria Melendez) were called back to their apartment by the sheriff's department. This was at 3 AM. At that point, the officers demanded they turn over their cell phones. They refused to do so without being served a warrant. The officers then detained them in the apartment, telling them they couldn't leave without turning over their phones.

Three hours later, the male turned over his phone, stating he needed to be to work in a couple of hours. The officers detained Melendez for nearly nine hours. The search warrant finally arrived around noon and Melendez relinquished her phone. The two witnesses were told they could pick up their phones the next day. When the unnamed male went to recover his, he found the timeframe had now changed to "months, even years" before he could get his phone back.

Two bits of evidence have made their way into the public, unimpeded by sheriff's deputies with endless amounts of time to waste and rights to violate. The first is a 911 call reporting the beating made by Salinas Quair, Melendez's daughter. This call alerted law enforcement to the fact that the (alleged) beating had been recorded, triggering the intimidating roundup (and detainment) of these witnesses.

There's a man laying on the floor and your police officers beat the [explicit] out of him and killed him," said the woman. "I have it all on video camera."

The woman continued:

"I am sitting here on the corner of Flower and Palm right now and you have one, two, three, four, five, six, seven, eight Sheriffs. The guy was laying on the floor and eight Sheriff's ran up and started beating him up with sticks. The man is dead laying right here, right now."

The second piece of evidence, a security camera recording, was turned over by an individual who (unsurprisingly) has refused to go on camera or reveal his or her name. Here's KERO TV's (Bakersfield) description of the recordings' contents.

The grainy black and white video appears to show the alleged victim, David Silva, 33, lying on the ground. Another person is then seen walking up to Silva and attempting to pick him up. Both men appear to scuffle, and after a few minutes, Silva is seen being struck with an object.

Other cars are seen arriving at the scene with lights flashing on top of them. Several other men are then seen in the video, also striking Silva more than a dozen times with objects. Silva is then seen being taken into custody.

If you click through and watch the footage, at about 4:05 an officer can be seen taking a two-handed swing with a baton. Shortly thereafter, more officers arrive. One of the first to arrive also takes a two-handed swing with a baton. In all, nine baton-swinging officers showed up. A spokesman for the Kern County Sheriff's Office reassures everyone that the officers felt no need to deploy any of their other weaponry, as well as undercounting the number of respondents.

KCSO Spokesperson Ray Pruitt told 23 ABC it took 5 deputies, 2 CHP officers and a K-9 to subdue Silva.

Pruitt said officers were forced to use their batons to arrest Silva but no tazers, pepper spray or guns were used during the altercation.

His count is off. Here are the names of the Sheriff's Department personnel involved in the incident, as released by the Sheriff's Office.

The office did identify the officers involved in the arrest as Sgt. Douglas Sword and deputies Ryan Greer, Tanner Miller, Jeffrey Kelly, Luis Almanza, Brian Brock and David Stephens.

That's seven from the sheriff's department. The names of the two CHP officers have not been released. That's nine altogether, plus a police dog.

One has to wonder, though, how the officers were "forced" to use their batons. Perhaps some force was needed to subdue Silva, but with nine officers responding (and swinging), you'd think the tide would have turned in law enforcement's favor long before Silva lost consciousness. And how much "resistance" did Silva actually offer, considering the first officer on the scene was responding to a call from Kern Medical Center security who reported Silva as "passed out?"

End result: a man loses his life for being intoxicated. Nine officers beat Silva senseless take Silva "into custody," which in this case is synonymous with "attempt CPR and call an ambulance." Ironically, Silva was only a block away from Kern Medical Center, not that it did him any good.

Not content to limit its wrongdoing to a beating, deputies then barge into a home without a warrant and detain two citizens against their will, one of them for nearly nine hours, until the warrant they should have needed just to get in the door at 3 AM finally shows up at noon.

Now, all of the inarguable evidence is in the hands of the same people who would prefer it just went away. It will be tough for them to get away with simply deleting the recordings, but stranger things have happened to evidence that implicates law enforcement officers but has ended up in the possession of law enforcement. The recording can be termed "unrecoverable" or have inexplicably large gaps in the footage. Or the phone may be damaged during "processing." Sometimes, the evidence just vanishes conveniently and a lengthy internal investigation will unwind at a glacial pace until everyone loses interest.

There's a law enforcement problem here, and the problem is with the brand of "enforcement" that bypasses the law entirely. David Silva's death at the hands of police officers conjures up images of similar methods being deployed to subdue a schizophrenic homeless man in nearby Fullerton, CA. Kelly Thomas was beaten by several officers, resulting in a death by "mechanical suppression of the thorax." This one was caught on tape (via security camera), as well as captured more intimately by a microphone worn by one of the officers.

The people who witnessed this beating have nowhere to go. They can't trust the police and they've seen those who recorded the event quarantined in their home until they complied with the officers' requests to turn over their phones. If not for the constitutional violations committed by "law enforcement," the footage would already be publicly displayed. The longer the Sheriff's office delays in releasing this footage, the worse it appears. If this went down as described, there's no way law enforcement can hope to salvage some respect by attempting to downplay or justify the actions of these officers.

Even if Silva was putting up the fight of his life, he was intoxicated and was outnumbered 9-to-1. Any reasonable person would expect a suspect to be subdued before it got to the point where it became life-threatening. But any hopes of a reasonable outcome were discarded the moment that first two-handed swing connected.

Filed Under: bakersfield, evidence, mobile phones, photos, police brutality, video, witnesses