Family of man killed by Vallejo police to receive $5.7 million
San Francisco Chronicle, by Nora Mishanec, September 5, 2020
Vallejo officials have agreed to pay $5.7 million to the family of Ronell Foster, who was shot and killed by a Vallejo police officer in February 2018.
The officer, Ryan McMahon, was cleared of wrongdoing in January by the Solano County District Attorney’s Office, which declared McMahon’s deadly use of force justified after an investigation that included body camera footage.
But Foster’s family brought a federal civil rights lawsuit against McMahon and the city.
Vallejo officials announced the settlement Friday. The city itself will pay the Foster family only $500,000. The rest will be paid by the California Association of Joint Powers Authorities, a municipal insurance provider.
The Foster family is “happy the truth has finally come out,” Adanté Pointer, a lawyer for the family, said Friday.
“Ronell did not deserve to die,” Pointer said. “True justice would be to see Officer McMahon walking into court as a criminal defendant.
“What the family found most disturbing are the lies the city put out to justify his death when they knew the whole time Ronell’s death was not justified and the officer’s conduct flat-out wrong.”
Vallejo Police Chief Shawny Williams indicated his intent to fire McMahon in March, based in part on his conduct during another fatal shooting, that of 21-year old Willie McCoy. The termination is pending, a spokeswoman for the city said.
In a March letter to McMahon that was made public, Williams said McMahon endangered the lives of other police officers, neglected basic firearm safety and demonstrated “unsatisfactory work performance including, but not limited to, failure, incompetence,” in connection with the McCoy incident.
McMahon was temporarily placed on paid administrative leave following the fatal shooting of Foster, but was later cleared to return to duty. One year later, he was one of six officers who shot and killed McCoy, who was asleep in a car in a Taco Bell drive-through lane.
Vallejo police spokeswoman Brittany Jackson declined to provide details about McMahon’s leave, calling it a “pending personnel matter.” McMahon was paid $219,433 in salary and benefits in 2018, the year he shot Foster, according to public records.
Foster, 33, was riding a bike in downtown Vallejo without a headlamp the evening of Feb. 13, 2018, when he was spotted and pursued by McMahon, who later told investigators that he stopped Foster in order to “educate the public on the dangers that this person was creating for himself and the traffic on Sonoma Boulevard.”
After a brief pursuit, McMahon said, Foster grabbed his metal flashlight and tried to strike him during a physical altercation, prompting McMahon to open fire. Foster died at the scene after being shot in the back of the head.
Police later said McMahon had no choice but to use deadly force after Foster threatened him with the metal flashlight. Dark, grainy body camera footage released by the Vallejo Police Department at the time did not clearly show whether Foster presented the flashlight in the “threatening manner” that police described in statements following the shooting.
Foster’s family disputed the Police Department’s account of the encounter.
Three months ago, with protests against racism and police brutality gripping the state and nation, California lawmakers had plans for new legislation that would make sweeping changes to law enforcement.
But as their session came to a chaotic end at midnight Tuesday, state legislators had only approved a handful of relatively modest changes to police practices, while more controversial proposals — to strip problem officers of their badges, broaden public access to police misconduct records and limit the use of rubber bullets and tear gas at protests — died without the votes they needed to pass.
The defeat of those measures, coming in the Democrat- dominated Legislature of a state that positions itself as a beacon of progressive government, is a stinging disappointment for activists, civil liberties groups and lawmakers, who believed the time had come for major changes meant to bolster police accountability and transparency.
“To ignore the thousands of voices calling for meaningful police reform is insulting,” Sen. Steven Bradford, D-Gardena, said in a statement early Tuesday morning after his bill to “decertify” officers who commit crimes or serious misconduct failed to get a vote in the final hours Monday. “Today, Californians were once again let down by those who were meant to represent them.”
Policing wasn’t the only issue that left advocates and lawmakers unsatisfied — bills that passed for eviction protections and housing also fell short of what many hoped to see in the shortened legislative session that was upended by the coronavirus.
The law enforcement bills lawmakers did approve included a requirement that state authorities investigate certain deadly police shootings, as well as a ban on the carotid “sleeper” restraint a Minneapolis officer used in the deadly arrest of George Floyd on Memorial Day.
But Dennis Cuevas-Romero, a legislative advocate for the American Civil Liberties Union of Northern California, noted that many police departments have already prohibited officers from using the carotid restraint. Gov. Gavin Newsom also directed the state’s Commission on Peace Officer Standards and Training after Floyd’s death to no longer offer training on the tactic.
And while Cuevas-Romero said having state authorities investigate police shootings “could be really significant,” he also noted that the bill only requires the state to investigate fatal police shootings of unarmed civilians, as opposed to all deaths at the hands of police.
“This was our concern from the very beginning, when all the police reform legislation was introduced,” Cuevas-Romero said. “The ones that were less impactful would be the ones that make it to the finish line,” allowing lawmakers to claim victory “without actually doing significant reform.”
The ACLU cosponsored Bradford’s decertification bill. California is one
of only five states that doesn’t have such a process, and an investigation by this news organization found dozens of police officers with criminal records were still working in departments across the state.
Bradford’s bill also would have rolled back some of the legal protection known as “qualified immunity,” which shields officers from liability in many excessive force lawsuits. Activists charge the legal doctrine is a significant barrier to holding police accountable, and the bill got a late lobbying push from a raft of celebrities, including Kim Kardashian West and Los Angeles Laker Kyle Kuzma.
Law enforcement groups say they are open to creating a decertification process, and have called for a special session of the Legislature to create one. But they vehemently opposed the bill’s limits to qualified immunity, which helped make it the most controversial of this year’s police reform proposals.
“We are pleased that the late-session rush to enact a flawed bill that would have had debilitating repercussions for police officers and public safety was not voted upon,” Craig Lally, the president of the union representing Los Angeles police officers, said in a statement after Bradford’s bill failed. “It is more important to get it right and not rushed, and we pledge our cooperation to work collaboratively with likeminded stakeholders and the legislature to get it right.”
Brian Marvel, president of the Peace Officers Research Association of California, said the shortened session made it difficult for his organization representing more than 75,000 police officers to negotiate with lawmakers. In the next session, Marvel said, “We will have a much better opportunity to collaboratively work with the authors on creating legislation.”
Bradford pledged to bring his proposal back next year.
Assemblywoman Lorena Gonzalez, D-San Diego, said she would do the same with her bill sharply limiting the use of rubber bullets and tear gas, prompted by what critics derided as a heavyhanded police response to racial justice demonstrations. That bill, which also faced opposition from police lobbying groups, similarly never came up for a vote Monday night.
Vallejo police officers accused of bending their badges to commemorate their killings may be immune from consequences because the city waited too long to investigate, according to legal experts and the attorney for the fired ex-captain who blew the whistle on the purported practice.
Police Chief Shawny Williams said last week that his department is opening an “official inquiry” into allegations by a former police captain that some officers bent the tips of their seven-point stars, which he said would amount to misconduct. “I’m not going to tolerate something like that,” Williams said.
But the state’s Peace Officers’ Bill of Rights sets a one-year deadline for taking disciplinary action against officers after police officials learn of alleged misconduct. That sets up a potential legal fight in Vallejo if badge-bending officers are identified.
The ex-captain, John Whitney, who was second-in-command in the Vallejo force, said through his attorney that he learned of the badge-bending ritual in April 2019, informed then-Chief Andrew Bidou that month and unsuccessfully sought an investigation. Whitney was fired four months later.
His attorney, Alison Berry Wilkinson, said that before his ouster he ordered supervisors to inspect officers’ uniforms and collect any bent badges. After 10 badges were turned in and held in a box in the office of Bidou’s executive assistant, Wilkinson said, Bidou told Whitney the repair costs could raise suspicion and cost him his job. Instead, the chief had the badges returned to officers, who were to fix them on their own, Wilkinson said.
“We’re skeptical that any investigation of badge-bending will be effective in holding any officer accountable, both because they destroyed the evidence of the misconduct, by returning the badges to the officers, and because the statute of limitations has expired,” Wilkinson said.
She said then-Chief Bidou and Vallejo City Manager Greg Nyhoff “were aware of the badge-bending in April 2019 but did nothing. The statute of limitations runs from the date of discovery. Anyone involved can now deny it with impunity.”
Assistant City Manager Anne Cardwell told The Chronicle on July 28 that the city is aware of previous complaints about badge-bending.
“In conferring this evening with the City Manager,” Cardwell wrote, “he noted that the Mayor had advised him last year regarding rumors of such a prior practice in years past at the Police Dept., and that he, the City Manager, then immediately consulted with former Police Chief Bidou, who indicated it had been previously investigated and such claims had not been substantiated.”
Attempts to reach Bidou and Nyhoff were unsuccessful Friday. Williams said the investigation would go on regardless of these concerns.
“There is no statute of limitations on moral obligations,” he said. “The ethical standards of conduct and the moral imperative to honor dignity and life exceeds legal statutes of limitations. As chief of police, it is my responsibility to uncover the truth, increase trust through accountability and take corrective actions when warranted.”
A badge-bending investigation could be important for reasons besides discipline, if it led to changes in department policies or mended public distrust. It could also be driven by a desire to improve training, said San Francisco union attorney Gregg Adam, who has represented police officers in disciplinary proceedings and has no involvement with the Vallejo case.
Still, Adam agreed with Wilkinson’s analysis, saying she “is 100% correct.”
“The chief is quoting from the gospel, not the Peace Officers’ Bill of Rights,” Adam said.
California legislators enacted the one-year deadline to force police agencies to promptly address misconduct.
The statute carries several exceptions that can allow the one-year limit to be extended, including if an allegation is also the subject of a pending criminal investigation or lawsuit or if an investigation “involves more than one employee and requires a reasonable extension.” But authorities would need to show they were stymied by one of these factors.
Adam noted that the statute’s clock starts ticking when someone of sufficient authority “knew or should have known” about the alleged misconduct. And the person initiating the investigation doesn’t necessarily have to be a chief or city manager, Adam said. It could have been Whitney himself.
“If a captain knew about it, there’s a strong argument that that’s when the clock started,” he said.
Vallejo Mayor Bob Sampayan insisted there is no statute of limitations on the issue, and that Vallejo is still pursuing it. Bidou’s successor, Chief Williams, who was sworn in in November, has hired an outside investigator to do a “deep dive analysis into this culture of the bent badge,” Sampayan said.
He recalled feeling alarmed and distressed when Whitney approached him with the allegations, some time after he’d purportedly gone to Bidou.
Sampayan is a former police officer who joined Vallejo’s force in 1985 and trained many in the rank and file — including Whitney, he said. He’s frustrated with the recent string of alleged misdeeds in the city.
“If indeed they come up with things, then people will be disciplined,” the mayor said. “My position is because these have all been people of color that have been shot, I’m curious if this is not a civil rights violation” that could initiate an investigation by state Attorney General Xavier Becerra.
“This isn’t right to me — you don’t do this,” Sampayan said. “I’m appalled, I’m angered, and this is not what policing is all about.”
Whitney, who now works for another Bay Area police agency, is planning to sue Vallejo for wrongful termination after filing a legal claim seeking back pay, benefits, attorneys’ fees and $25,000. He says he was targeted for speaking out.
According to his claim, the city tied his firing to an investigation into a leak of confidential information, saying he improperly erased data from his phone amid the probe. Whitney said he had only erased personal information; he was exonerated in the leak case, Wilkinson said.
The Peace Officers’ Bill of Rights came into play during a 2015 scandal in San Francisco, in which several police officers were accused of exchanging racist, sexist and homophobic text messages.
Sent in 2011 and 2012, the texts included “white power” jeers and slurs against African Americans. Department brass learned about the content when it surfaced during a corruption investigation in 2012, but did not disclose it to the public until March 2015. At that point, Chief Greg Suhr announced he would fire nine of the officers involved, and discipline others.
A San Francisco Superior Court judge halted the disciplinary proceedings that December, however, ruling that the one-year time limit had run out. A state appeals court overturned that decision in 2018. In the 3-0 decision, Justice Martin Jenkins argued that the messages “displayed unacceptable prejudice against members of the communities SFPD is sworn to protect.”
At least one Vallejo police officer involved in a pending disciplinary case is seeking to assert the one-year deadline, according to Solano County Superior Court records.
In a court filing last month on behalf of an unnamed officer, attorney Justin Buffington said he was seeking to prevent the city from “imposing discipline that is time-barred by the relevant statute of limitations.” A judge sealed details of the case, and Buffington did not respond to requests for comment.
Rachel Swan and Demian Bulwa are San Francisco Chronicle staff writers.
[BenIndy editor: Former Benicia Police Chief Andrew Bidou figures in this story. During his tenure as Vallejo Police Chief, he is alleged to have told an underling to “burn that bitch,” referring to kidnap victim Denise Huskins. More below, and on OpenVallejo, and SFGate. – R.S.]
Stunning allegation against Vallejo police: Officers bent badges to mark people they killed
San Francisco Chronicle, by Anna Bauman & Demian Bulwa, 7/29/20
A former Vallejo police captain is accusing the department of firing him for flagging misconduct that included concerns that some officers bent their badges to mark fatal shootings and that a former police chief told an underling to “burn” a kidnapping victim he wrongly accused of orchestrating a hoax.
The captain, John Whitney, said that some officers would bend one tip of their seven-point star for each of their killings. He said he became aware of the practice in February 2019 after police fatally shot Willie McCoy in a Taco Bell drive-through, where he had passed out with a gun in his lap.
Whitney brought his misconduct concerns to Mayor Bob Sampayan, City Manager Greg Nyhoff and then-City Attorney Claudia Quintana, before he was released last August after 19 years on the job, his lawyer, Alison Berry Wilkinson, told The Chronicle.
According to his claim, Whitney was released “for expressing his professional opinions on a variety of misconduct issues within the Police Department.” The claim seeks back pay, benefits, attorneys’ fees and $25,000 for Whitney, who now works for another Bay Area police agency.
The city did not respond to the claim, filed Feb. 21 and amended March 24. Claims are considered rejected if not answered within 45 days, meaning Whitney can now file a lawsuit.
The claim does not mention the badge-bending allegations, but Wilkinson said they will be part of the lawsuit to come.
“I’m not able to speak to those allegations at this time,” Brittany Jackson, a spokeswoman for the Vallejo Police Department, said Tuesday evening. She said Police Chief Shawny Williams, who took over in November, was not immediately available.
Nyhoff and City Attorney Randy Risner did not immediately respond to requests for comment.
Assistant City Manager Anne Cardwell told The Chronicle that the city was aware of previous complaints about badge bending.
“I am not aware of any current complaints related to badge bendings being filed with Human Resources, City Manager’s Office or City Attorney’s Office,” she said. “In conferring this evening with the City Manager, he noted that the Mayor had advised him last year regarding rumors of such a prior practice in years past at the Police Dept., and that he, the City Manager, then immediately consulted with former Police Chief (Andrew) Bidou, who indicated it had been previously investigated and such claims had not been substantiated.
“The City takes any claims or credible information regarding potential misconduct seriously and we will follow up with the appropriate investigatory measures, as well as take appropriate action based on information provided.
“Finally, as it relates to former Captain John Whitney, the City cannot comment on personnel matters and/or ongoing legal actions.”
According to Whitney’s claim, the city tied his firing to an investigation into a leak of confidential information, saying he improperly erased data from his phone amid the probe. Whitney said he had only erased personal information; he was exonerated in the leak case, Wilkinson said.
The allegations come as the Vallejo force faces intense scrutiny over a string of shootings in recent years. The state is investigating the department’s disposal of a bullet-shattered windshield in the June 2 police killing of San Francisco resident Sean Monterrosa, while separately reviewing the department’s policies and practices.
Whitney’s claim states that, before his termination, he had raised concerns about issues, including a car stop involving the cousin of Willie McCoy and the “embezzlement of time” by a high-ranking officer.
More explosively, Whitney said that, in 2015, former Police Chief Bidou told the department’s then-spokesman, Lt. Kenny Park, to “burn that bitch” — an alleged reference to kidnap victim Denise Huskins. Bidou retired last year.
The claim also states that Bidou told Whitney to “delete text messages on his cell phone so that they would not be downloadable during the litigation involving the Huskins’ kidnapping.” The city ultimately paid the couple $2.5 million in a settlement.
Bidou could not be reached for comment late Tuesday.
Huskins was kidnapped from her boyfriend’s Vallejo home and held for ransom before her captor let her go two days later. Rather than looking for the attacker, Vallejo police accused Huskins and her boyfriend of faking the whole thing. At a news conference, Park called it an “orchestrated event and not a kidnapping.”
The claim concludes that Whitney was “also retaliated against for truthfully answering questions posed by the City Manager and the Mayor concerning ongoing issues within the Police Department.”
After Whitney’s release, Mayor Sampayan wrote a recommendation letter for Whitney, saying, “Frankly, I believe that because John spoke out about a negative culture on the Vallejo Police Department, his reputation was soiled by those that did not want any ‘dirty laundry’ aired.” The letter was attached to the claim.
Wilkinson said that when Whitney found out about the badge-bending, he sought an investigation of the alleged practice. She said Whitney subsequently ordered supervisors at a meeting of the department’s command staff to inspect officers’ uniforms and collect any bent badges.
After 10 badges were turned in and held in a box in the office of Bidou’s executive assistant, Wilkinson said, Bidou told Whitney the repair costs could raise suspicion and cost him his job. Instead, the chief had the badges returned to officers, who were to fix them on their own, Wilkinson said.
“John Whitney repeatedly challenged unethical practices at Vallejo PD, including badge bending and destruction of evidence,” Wilkinson said. “ The City tried to silence him by firing him. Only the Mayor was willing to speak the truth about why Whitney was fired. No one else was willing to do the right thing.”