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Policing the Police 

EPD Convenes Review Board on McClain Shooting

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Photo by Mark McKenna

The way Eureka Police Chief Andy Mills sees it, his department took a "big, bold" step toward transparency and accountability on Jan. 15, when he convened a community review board to look at the death of Thomas "Tommy" McClain, who was shot dead by an officer last year. Others, however, see the review as, at best, a first step and, at worst, a whitewashing effort.

"The purpose is to have somebody else looking at what transpired, other than just the police department," Mills said. "The hope is it will help us think through what happened and why, and give the community a level of confidence and transparency — confidence that it's not just EPD looking at our own shooting. It's my personal belief that with transparency comes legitimacy."

The subject of some system of community review of law enforcement is not a new one in Humboldt, and bubbles up with some regularity on the heels of critical incidents. The conversation reached a fever pitch back in 2007, after Martin Cotton II died in the Humboldt County jail hours after a violent confrontation with EPD officers. Cotton's death came after EPD recorded a string of four fatal officer-involved shootings in the span of a year. But the conversation has always fizzled, with widespread disagreement over what form such a review board should take and what power it should have.

Nationally, however, the conversation is raging, thrust under the public microscope by a string of police actions that have spurred widespread protests and scrutiny. Currently, there are more than 200 known civilian law enforcement oversight bodies sprinkled through communities across the country. They range widely in form and function. Some have paid staff and the power to conduct independent investigations into critical incidents and citizen complaints, like those in Berkeley, Los Angeles, Oakland and Long Beach. But most are less formal affairs that act largely as advisory boards and places for citizens to bring complaints and concerns.

In a paper submitted to President Obama's Task Force on 21st Century Policing, the National Association for Civilian Oversight of Law Enforcement (NACOLE) said the "current crisis of mistrust and breaking or broken relationships between police and the communities they are sworn to serve and protect is one of the most pressing challenges facing the nation." The paper goes on to tout civilian oversight bodies as a way to foster accountability, transparency and confidence, and to generally break down the walls that often exist between police and the public.

The McClain shooting is just the type of critical incident most review boards would take up, said NACOLE's president, Brian Buchner. McClain was shot and killed in the front yard of his Allard Street home shortly after midnight by EPD officer Stephen Linfoot, who, according to Mills, opened fire after seeing McClain reach for a BB gun in his waistband. The unloaded BB gun was almost indistinguishable from a real handgun. Former Humboldt County District Attorney Paul Gallegos declined to pursue criminal charges against Linfoot or any officers involved in the incident after an investigation by Humboldt County's multiagency Critical Incident Response Team. Mills said the investigation revealed the shooting to be a justifiable tragedy. (For a more detailed version of EPD's account of the shooting, see prior coverage at www.northcoastjournal.com.)

But Mills said he wants to learn if there's any way EPD could have better handled the incident, which is one of the reasons he convened a community review board. The board was made up of six people: EPD Capt. Steve Watson, then Eureka Police Officers Association President Josh Siipola, Eureka City Council Members Melinda Ciarabellini and Linda Atkins, Humboldt County Coroner Dave Parris and local attorney Elan Firpo. Mills said he gave each of the board members a full copy of the investigative file, as well as a 13-page summary put together by his department. The board also had access to all evidence in the case, as well as EPD's policies and procedures and training materials.

Mills said he asked the board to compare all the materials, wanting it to evaluate both the incident itself and the multiagency investigation into it, as well as whether officers followed departmental policies and whether the policies themselves need tweaking. "If there are things that could be done differently in how we respond to these incidents, then I want to hear it," Mills said, adding that he requested the board offer him its findings in writing. (The board members have agreed not to talk about the process, respecting the confidentiality of the investigative file.)

Asked if he intended to make those findings public, Mills said, "Not at this point," adding that he would need to confer with the city attorney and some other people before doing so due to the threat of civil litigation.

That the board's findings won't be made public doesn't sit well with some.

Redwood Curtain Copwatch issued a press release the day the board met decrying the process, going so far as to say it was an attempt to "perpetuate the farce of independent investigation and transparency." Copwatch has pressed for an inquest — a public fact-finding hearing conducted by the coroner — into McClain's death. "Instead," local activist Amanda Tierney said in the release, "the city of Eureka gave us a PR stunt."

The makeup of the review board is also a point of contention, as it's made up of two current EPD officers, a former EPD detective (Parris), a former sheriff's office employee (Ciarabellini) and a former prosecutor (Firpo). Mills was unapologetic for this, saying it's important to have people who understand use-of-force situations and the reasonable options available to officers. Parris, Mills said, is an expert in death investigations and Firpo is a skilled attorney with legal expertise in the "tolerance level of reasonableness." The general public, Mills said, is represented through its elected officials.

Buchner said Mills makes some valid points, "and his is a real concern that these kinds of cases will be reviewed by individuals without any understanding of policing, police tactics, use of force, department policy, or law." But there's some validity to the criticism of Mills' board, as well, Buchner said.

"The whole point of independent review is to have non-police officers look at something and see if it makes sense to them — and not just from a casual, common sense way, but to provide the public with a singularly independent, technically proficient and sophisticated account of the actions taken by the police, evaluating whether those actions were appropriate under the circumstances or showed a need for some measure of reform," Buchner said. "Therefore, if the point is to have a truly independent review of the incident, which has tremendous benefit for the police department and for the public, then the majority of the board should not be comprised of individuals with a law enforcement background."

Greg Allen, an attorney who chairs the local chapter of the American Civil Liberties Union and was at the forefront of cries for police review back in 2007, said Mills' convening a board to look at McClain's death is a big step. The fact that EPD is bringing in some folks from outside the department and soliciting their input on a critical incident for the first time can't be dismissed, he said. "This is a step in the right direction, Allen said. "If you look at it as a step, it's certainly better than nothing."

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