Rorschach moments

By now I assume that readers of this blog are aware of the incident involving Fay Wells, the young African-American woman who in September was mistaken by a neighbor for a burglar after she locked herself out of her apartment and had to call a locksmith. The neighbor called 9-1-1, telling the dispatcher that he “needed some cops.” He said that his “next door neighbor,” whom he described as a Hispanic man, along with two female companions (also, he said, likely Hispanic), had just broken into into someone else’s apartment.

Within minutes Santa Monica police arrived on the scene. In response to a command to come out with her hands up, Wells emerged from the apartment to face two officers with guns drawn, as well as a barking police dog. Only after officers took Wells to the street with her hands held behind her back, was Wells able to convince them that she lived in the apartment. The case received nationwide, in fact international, attention after Wells wrote an op-ed about it for the Washington Post. (Wells can also be heard on last Monday’s Warren Olney’s KCRW show, Which Way, L.A.?”)

If you haven’t already, I suggest following up on a few links beyond the news coverage. For one, there is the 9-1-1 call that started the whole thing. Then there is the statement that Police Chief Jacqueline Seabrooks released. Along with her statement, Seabrooks also released a 47-minute audio recording of a conversation between Wells and police officers on the scene. The recording begins, unfortunately, only after Wells has established her bona fides. (A transcript of the recording has also been published.) Seabrooks’ response has been the only official response from the City.

The facts of what happened that night don’t appear to be in dispute, but different people interpret them differently. In her statement, Seabrooks invokes the metaphor of a Rorschach test, and she’s certainly right about that.

The facts start with the 9-1-1 call, which is a textbook example about the unreliability of eyewitness observation. The caller is confused both in his facts and his interpretation of what he’s seeing. He identifies the man “tapping” on the lock to get in—the locksmith—as a neighbor breaking into the apartment of someone else. The caller doesn’t identify Wells, his actual neighbor, as a neighbor, but instead includes her as one of two Hispanic “girls.” The caller twice says he “needs” cops, but then a couple of times tries to tell the dispatcher that it’s not an emergency, that he doesn’t “think this is some kind of crazy robbery.” (The dispatcher, trying to get the facts, cuts him off both times.)

Regardless of the caller’s confusion, the 9-1-1 call set the ball rolling for the whole incident. Depending on your perspective, the caller was either a conscientious “eye on the street” protecting the neighborhood (the view of Seabrooks and the caller himself), or otherwise a careless neighbor, possibly tipsy (a possibility that comes up later when Wells and the caller meet—you can listen, and judge for yourself), who can’t fathom that three Hispanics—including a neighbor!—trying to get into a locked apartment in an all-white apartment building at 11:15 on a Sunday evening could be up to any good.

My view? Admittedly with the benefit of 20-20 hindsight, I lean toward the latter interpretation: this doesn’t sound like a high-crime location and I wish the caller had done “due diligence” before calling. But I also recognize that the caller had probably internalized a lot of the irrational fear that permeates our “Film at 11!” society. To me what the caller relayed to the dispatcher precisely describes a locksmith doing his job, and in my wishful world the caller might have checked first to see if there was a locksmith’s truck parked outside before calling 9-1-1. Even better, and even more idealistic, what if he had called out over the ten feet he says that separated him from the locksmith and said something like, “Hey, everything okay, need any help?” That would have been neighborly, but it’s also nearly impossible to contemplate that he would have done that given our culture of fear. (Open question: would the caller have been more likely to do the neighborly thing if the locksmith had been white?)

The heart of the controversy, however, occurs when the police arrive. As Wells articulates in her op-ed as well as in other statements, she was terrified to emerge from her home to face drawn guns. Because of the barking dog, she couldn’t hear the police identify themselves. Anyone would have been afraid, but as an African-American Wells couldn’t avoid visualizing herself about to become another post-Ferguson victim. When she finds out that 19 officers have answered the call, she believes that they are all there as an overreaction to fear of blacks in an overwhelmingly white city.

From the police perspective, it’s different. As the officers explain to Wells in the 47-minute tape, they believed they had followed prudent standard procedures and would have done the same if she had been white. For all they knew, three burglars were in the apartment and they can’t take Wells’ word for it that she’s the only person there. Three burglars warrant a big response. Guns are drawn because officers get shot at in these circumstances. For all Wells’ fears, they did not shoot or tear up her apartment.

I urge readers to listen to the whole 47 minutes of the tape, if only to hear how easy it is for articulate, intelligent and well-meaning people to talk past each other. You’ll hear both sides, and I suspect your sentiments will go back and forth. Which raises this question: why is this a Rorschach situation? Why is it that (i) a young black woman, well-educated and professional, who says she’s never had so much as a speeding ticket, and (ii) the police (some of whom, including at least one officer on the scene and Chief Seabrooks, are themselves black), interpret the same facts so differently?

I’ll try to address this question in a future column. In the meantime, thanks for reading.

Riel Politics, Part 5: When you have a process, trust it

My intention a month ago when I wrote my fourth installment of “Riel Politics,” my series of posts on the firing of Elizabeth Riel, was to wrap up the series with a fifth post in which I drew some conclusions. Other matters came up, however, I got distracted, and I am only now getting to it. In the meantime there’s been more grist for the mill: two weeks ago the County District Attorney’s office wrote the City declining to investigate whether Councilmember Pam O’Connor had committed a misdemeanor by improperly influencing then City Manager Rod Gould when he fired Riel, and then Tuesday night the City Council voted to engage attorney John Hueston as an independent counsel to, among other things, review the Riel matter.

The D.A.’s decision not to investigate O’Connor has been reported as if O’Connor escaped prosecution because of the statute of limitations (for instance, the Daily Press’s headline ran, “Statute of limitations prevents criminal charges in Riel case”), but that’s not accurate for two reasons. For one, based on the letter the D.A.’s office sent to the City it’s clear that the prosecutors didn’t consider this a criminal matter. As reported in the Daily Press, the letter from the D.A.’s office said, before getting to the statute of limitations issue, that “the hiring and firing of employees is a civil matter left to the sound discretion of the City of Santa Monica and, when necessary, the civil courts.” For two, the statute of limitations would prevent an investigation, but not necessarily the filing of charges, which the D.A. would file only if there was evidence to do so.

In fact, if I were O’Connor, I would be asking if I could waive the statute of limitations: the D.A.’s refusal to investigate was a godsend to O’Connor’s accusers, since the D.A. was so unlikely to file criminal charges. Aside from whether the matter was civil rather than criminal, there is nothing in the exhaustive record unearthed in Riel’s civil action against the City that indicates that O’Connor had any intent to have Riel fired. Intent is a necessary element of a criminal case, and even assuming O’Connor had intended to cause Gould to fire Riel, unless anyone expects O’Connor to voluntarily confess such an intent (remember that in a criminal matter O’Connor could not be required to testify against herself), the D.A. would have had no case.

As I wrote in Riel Politics, Part 3, I assume the difficulty of proving a criminal case is why the Santa Monica Coalition for a Livable City (SMCLC) hedged on its claim that O’Connor was criminally liable when it gave the City a long list of questions for an independent counsel to investigate.

As for the hiring of Hueston, the council appears to have retained someone with the right credentials. The council hired Hueston to do a preliminary analysis, for no more than $25,000; after that, Hueston will advise the council on how much deeper he believes he should go.

One unknown at the present time is whether Hueston will uncover more evidence than what was discovered in Riel’s civil action. Except for one possible new source of information, I suspect that that is unlikely. I’ll discuss that possible source in a moment; in the meantime, here are the conclusions I’m prepared to make based on the existing evidence.

As I said, there is nothing in the evidence that shows either that O’Connor pressured Gould to fire Riel or that Gould did not make the decision independently. Based on the emails, O’Connor’s goal was always not to have to work with Riel. As we know from the Levy case (a/k/a, the “playhouse” case), councilmembers have First Amendment rights to speak to staff members. Looking ahead, it’s unlikely that Hueston is going to recommend that councilmembers cease communicating with the city manager and other staff, because that’s part of a councilmember’s job.

As for what went wrong, the one clear lesson that emerges from this fiasco is that when the City has an extensive and formal application process (for, in this case, a job, but this applies to any kind of process), city staff, and in particular a city manager, needs to think more than twice before making a decision that subverts the process.

In a short period of time, from the afternoon of Friday, May 23, to the morning of May 24, 2014, Gould decided to fire Riel. Riel had been hired only after a thorough and formal process. Instead of trusting that process, from the emails it appears that Gould based an impulsive decision primarily on one answer Riel gave him to a question in a phone call late Friday afternoon. While Riel might have answered the question better (less defensively), the phone call had blindsided her: Gould had told Riel that he had a “gnarly” political issue to run by her, but he had given her no indication that the issue involved her. I would have been defensive, too.

It was the afternoon heading into a holiday weekend. In hindsight, the thing for Gould to have said to Riel was: “This is a problem. But have a good weekend, and let’s get together next week to discuss. Let’s try to find a way to make this work.” It’s possible that Gould felt badgered by O’Connor, but it’s a manager’s job to filter that stuff out.

What we don’t know, based on the evidence we have, is the role of City Attorney Marsha Moutrie in Gould’s decision-making process. From the emails it appears that Moutrie advised Gould on May 23 that Riel’s position was not protected by civil service, i.e., that she was an “at will” employee. As we know, however, from the ruling rejecting the City’s motion to dismiss Riel’s complaint, even at will employees cannot be fired wholly without cause or in violation of their constitutional rights. We don’t know if Moutrie gave Gould advice along those lines or what other advice she may have given him. It appears that Gould decided to fire Riel that Saturday morning without having had another conversation with Moutrie (he says in an email to O’Connor, Moutrie, and his deputy Elaine Polachek, that he “will” (future tense) consult with Moutrie), but we don’t know for sure.

The legal advice that Moutrie gave Gould is the one area I can see where Hueston may uncover more information, but this would require Gould, and possibly the City as a whole, to waive the attorney-client privilege. I don’t know if this can or will happen.

Thanks for reading.

SMRR: the more things don’t change, the more they remain the same

As a member of Santa Monicans for Renters Rights (SMRR) I attended last Sunday’s annual membership meeting during which 11 members of SMRR’s Steering Committee were elected. Since the meeting I have been puzzling over the question whether anything important happened.

On the nothing important happened side of the argument, the composition of the Steering Committee barely changed. If you look at the Steering Committee now and the committee that was elected two years ago, eight of the members are the same: Patricia Hoffman, Denny Zane, Sonya Sultan, Bruria Finkel, Linda Sullivan, Michael Tarbet, Roger Thornton, and Genise Schnitman.

The primary changes since then have been minor. Newcomer to Santa Monica politics Michael Soloff, husband of City Councilmember Sue Himmelrich, was originally added to fill a space vacated by Richard Tahvildaran-Jesswein after he was elected to the School Board in 2014. At the meeting on Sunday, Soloff was elected to a full term. Jennifer Kennedy, longtime SMRR staffer, was also elected, in effect replacing SMRR co-founder Judy Abdo, who was voted off. The other change Sunday was that Jackie Martin, a member of UNITE Here Local 11, was elected to the Steering Committee, replacing Pico Neighborhood activist Maria Loya as the committee’s one non-Anglo.

Not much change. However you look at it, the same core group of 60s and 70s lefties (Hoffman, Zane, Sultan, Finkel, Sullivan, Tarbet and Thornton) are still going to run SMRR. Time flies, though, and now for these aging radicals “60s” and “70s” mean something additional. SMRR is a gerontocracy and seems to have no mechanisms to bring in new or younger leadership, other than to reward sycophancy.

(In contrast, the Politburo Standing Committee of the Communist Party of China, the most powerful decision-making body in China, has a mandatory retirement age of 68. Because it’s hard to be elected to the Standing Committee before one turns 50, this acts as a de facto term limit. The Chinese do this because they’ve had bad experiences when power is concentrated in the hands of a few individuals over long periods of time.)

Though the changes to the Steering Committee were minor, at the meeting it didn’t feel like nothing happened. Just the opposite. A lot of this had to do with the build-up: the venerable leadership of SMRR went crazy at the idea that Abdo, who had incautiously invoked the SMRR brand when she campaigned for Pam O’Connor and me in the 2014 election, might be reelected to the Steering Committee, or that Leslie Lambert, a former Rent Board member and affordable housing activist from way back, might be elected.

The leadership spent SMRR money to whip up turnout. (A paid canvasser even came to my door.) Co-Chairs Patricia Hoffman and Denny Zane used the SMRR newsletter to warn SMRR members that “groups that support luxury hotels, market rate housing and bigger development in Santa Monica [were] organizing, hoping to elect a pro-development SMRR Steering Committee. We need SMRR members to turn out and turn back this challenge.” At Sunday’s meeting, a flyer from Zane and other members of SMRR leadership told members to vote for a “Slow Growth & Renters’ Rights” slate that included all the candidates except Abdo and Lambert.

It was never explained how Abdo and Lambert could constitute a pro-development Steering Committee.

It was also odd that in their piece in the newsletter Hoffman and Zane blamed shadowy pro-development groups for causing the failure of the membership at SMRR’s 2014 convention to endorse any City Council candidates. This and previous failures of the members to endorse were the result of bullet-voting, which is a genuine problem for SMRR.

But at the 2014 convention, there was no group organized by developers telling people to bullet vote. Perhaps Hoffman and Zane were referring to UNITE Here, the hotel workers union, which does support the building of hotels, but the union’s 50 or so members at the convention voted for both Kevin McKeown and me. Since McKeown and I received more votes than the other candidates, and since we represent opposite sides of the development issue, it’s hard to say that the union’s votes prevented anyone from getting the endorsement.

In fact, as anyone knows who has been going to SMRR conventions in recent years, the groups that have tried most to manipulate the endorsement process through bullet voting are the anti-development groups, particularly the Santa Monica Coalition for a Livable City (SMCLC). At the 2012 convention, SMCLC bullet votes first got Ted Winterer the endorsement. Then SMCLC voters switched to Gleam Davis; Davis got the endorsement and then no one else did, since SMCLC didn’t want SMRR to endorse Terry O’Day, Tony Vazquez, Shari Davis or me.

As for the 2014 convention, afterwards I was told, by Patricia Hoffman and others (to explain to me why McKeown deserved the SMRR endorsement but I didn’t), that the reason Kevin McKeown didn’t get the 55% needed for the endorsement was because SMCLC members had had a strange strategy to bullet vote for Richard McKinnon.

But to get back to Sunday, the meeting also seemed like something momentous happened because it was just plain sad that Judy Abdo’s old comrades cut her loose from the organization she helped found so many years ago when she was a community activist working in Ocean Park. And the exclusion of Lambert seemed like a brutal rejection of the old progressive wing of SMRR that supported reasonable development to support social services.

So maybe the meeting was important.

Or was it?

While the votes were being counted Sunday, Mayor Kevin McKeown gave a speech recounting what had happened in the city over the past year. Aside from a gratuitous hit or two at old foes, it was a good speech. McKeown fairly summarized what had happened over the past year and what the issues were and are.

Along the way McKeown pointed out that the council had recently approved two housing projects, mixing market rate and deed-restricted affordable apartments. McKeown made the case very well that both kinds of housing were needed in Santa Monica. For one thing, if our children graduating from Samohi come back with college educations, and want to live here, they’re going to need housing and they’re not going to qualify for affordable housing.

McKeown also pointed out that the City finally had a new zoning law. The new law has standards for what developers can build without entering into development agreements, which are now out of favor. McKeown didn’t make the obvious point, but developers are going to fit their proposals into these standards, to avoid development agreements, and these projects, like the two apartment buildings McKeown spoke about, will be built.

This will, of course, infuriate the folks who believe they elected councilmembers like McKeown, Himmelrich and Ted Winterer (in part by getting them SMRR endorsements) for the purpose of stopping development. If the SMRR leadership believes these folks will be satisfied with the election of a “Slow Growth & Renters’ Rights” slate to the Steering Committee, they are mistaken. You already see this with the Residocracy LUVE initiative.

So, in the end, nothing happened.

Thanks for reading.