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A little-known internal board that reviews use-of-force incidents at the San Diego County Sheriff’s Department – and claims that its dealings are shielded by attorney-client privilege – are being challenged in a federal lawsuit.
Aired: December 8, 2020 | Transcript
+ Subscribe to this podcastAn obscure internal board dedicated to reviewing use-of-force incidents at the San Diego County Sheriff’s Department is getting new scrutiny in court.
The department’s Critical Incident Review Board has been thrust to the center of a federal lawsuit brought by the family of a man with schizophrenia who died after an altercation with deputies at a county jail in 2018.
Paul Silva’s mother called San Diego police for help with her son’s mental health emergency in her Skyline front yard in February that year. Rather than receive treatment at a medical facility, Silva was arrested and placed in a jail cell on suspicion of being under the influence of a controlled substance. Only marijuana and benzodiazepines – the family of drugs that includes Xanax and Valium – were found in his urine when he arrived, police records show.
A day later in his cell, video footage shows Sheriff’s deputies tried to subdue a visibly disturbed Silva to take him for a medical evaluation. To do so, they deployed tasers, pepper spray and water balls and eventually pinned Silva to the ground with a body shield, leaving him unconscious. Silva was transported to the hospital and remained in a coma until he died a month later. He was 39.
“He definitely needed help. But for some reason, the response was to use overwhelming physical force and beat him to death to get him help,” said Grace Jun, an attorney for the Silva family who has sued for wrongful death and alleges the county has unconstitutional practices and policies. “It was a confounding amount of force against someone they knew was severely mentally ill.”
Silva’s death was ruled a homicide, but no criminal charges were filed against the officers involved, and internal and external reviews also found no fault.
Under the Sheriff’s Department policies, in-custody deaths like Silva’s and other use-of-force incidents like officer-involved shootings or encounters that end in great bodily injury must be scrutinized by the Critical Incident Review Board, or CIRB. The board is separate from the outside body that scrutinizes Sheriff’s cases known as the Citizens’ Law Enforcement Review Board, or CLERB. Unlike CLERB, the activities of CIRB, and any findings or recommendations it makes, have long remained under wraps, and the Sheriff’s Department wants to keep it that way.
The department is now battling Silva’s family in court over the matter. Jun believes the reports may reveal the department’s reportedly robust employee oversight system is failing its mission.
Among other things, Silva’s family accuses law enforcement in court documents of wrongful death, arrest without probable cause and claims existing officer accountability mechanisms, like CIRB, and other practices have instead created an environment that allows officers to kill with impunity. The lawsuit is using a so-called Monell claim to make their argument the problems at the department extend far beyond Silva’s death.
“We are trying to protect the constitutional rights of every San Diego resident who makes contact with the San Diego Sheriff’s Department. … and to make sure those contacts are respectful of constitutional rights,” Jun said. “It’s an uphill battle, but it has to be done.”
Sheriff’s officials claim attorney-client privilege shields CIRB reports, which reflect a variety of decisions and recommendations made by the five-member board. The Sheriff’s Department’s chief legal adviser is a member of the board, though only in a non-voting capacity. The remaining four board members are high-ranking commanders from each bureau.
Whether CIRB’s reports and activities will see any sunlight outside the Sheriff’s Department will largely hinge on whether a judge in the Silva case ultimately believes the county’s claim it is all protected by attorney-client privilege. And so far, that judge is not convinced everything should remain confidential.
“The Court Overrules the County’s attorney-client privilege and work product objections,” U.S. Magistrate Judge Michael Berg wrote in his Nov. 16 discovery order. Berg gave the county a Nov. 24 deadline to produce factual descriptions of each incident CIRB reviewed over a three-year period and a detailed log of the CIRB documents it seeks to withhold under the attorney-client privilege, both sought by the Silva family.
Berg stopped short of ordering the release of the CIRB reports themselves but said he would take up any lingering discovery disputes this month.
A spokesman for the Sheriff’s Department declined to comment.
Jun is encouraged.
“We are really gratified by the careful analysis and consideration that the court is putting into this issue,” Jun said. “We are optimistic we will gain these records.”
‘These Records Should Be Public’
Normally a court order about a discovery dispute is not monumental, but the decision has already pierced some holes in the county’s veil over its CIRB activities. And those who frequently litigate death cases against the Sheriff’s Department say the decision has broken new ground.
“I’ve been trying to get CIRB records forever. I’ve just given up because they just keep putting up attorney-client privilege” said plaintiff’s attorney Chris Morris, who has gone to court against the county over other in-custody deaths. “All I can say is congratulations because these records should be public, and should be the kind of thing the family should have access to. … Attorneys like me and some others who do jail cases, we are very excited about the ruling they got and are hoping we can start getting these records.”
For David Loy, legal director of the ACLU of San Diego and Imperial Counties, the ruling is welcome but should not be a landmark achievement.
“The court’s ruling is not or should not be remarkable,” Loy wrote in a statement. “The court simply held the County to the same standard as any other litigant. The mere existence of documents is not typically secret, and if the County wants to withhold the contents of those documents as privileged, it has to prove why the documents should be exempt from the general rule of public disclosure for governmental agencies.”
For all the attention the little-known board is now getting, it is worth understanding what CIRB does and what the reports at issue even look like.
CIRB’s Role
Use-of-force review boards like CIRB are not uncommon at law enforcement agencies but take different shape and operate with different levels of transparency elsewhere.
San Diego police officials said they have no similar review board, separate from its Internal Affairs unit and citizen review board processes.
A critical incident review board in Tucson, Arizona, posts its results online.
At the San Diego County Sheriff’s Department, no such disclosures are made, and judges in other cases have allowed the county to keep CIRB reports confidential even from plaintiffs who sue following injuries or deaths at the hands of officers.
The functions of the San Diego County Sheriff’s Department CIRB are diverse, and its very existence is not widely known.
It exists separate from Internal Affairs – which investigates alleged employee misconduct and has the power to discipline officers – and separate from the citizen’s review board, an external oversight body that has no actual authority over the Sheriff’s Department decision-making.
The Sheriff’s Department procedure manual says the board’s purpose “is to consult with department legal counsel when an incident occurs which may give rise to litigation.” It also outlines other responsibilities, like deciding whether to refer the case to Internal Affairs and making broader training and policy recommendations. Sometime in 2018, for instance, the department modified its tasers to only emit an electrical current for five seconds at a time in response to a CIRB recommendation.
The Sheriff’s Department CIRB has largely existed in its current form for at least 20 years, said Undersheriff Michael Barnett. He estimated the board reviews roughly 30 to 40 incidents per year, or about three per month.
When a use-of-force incident first occurs, Barnett said the incident is reviewed by a captain, investigated internally and sent to CIRB. Sometimes the initial investigation is performed by the homicide unit, like those for officer-involved shootings. Other times, the traffic division might investigate if it involves a death that followed a traffic pursuit collision.
The CIRB board gets a presentation that includes the investigation and any evidence, including audio or video evidence, and officer statements. The officers involved are not called in for questioning by CIRB, but a supervisor does attend, and other department officials may be asked to attend to respond to questions as needed.
Once CIRB members decide whether to make broader recommendations or refer the case to Internal Affairs for possible disciplinary action, the results are memorialized in a report and conveyed to the officers involved – though Barnett said the officers do not get copies of the report.
“It’s not a transcript. It captures the main points and any decisions that the board has made, but what led to those decisions as well,” Barnett said. CIRB answers the questions, “How as an organization can we minimize risk and keep the public safe without incurring unnecessary liability?” he said.
Barnett said the composition of the five-member board is intentional and valuable.
“They have both the experience and authority to identify changes that need to be made and make it happen. … Their role is to drive organizational change,” Barnett said. “We really are proud of this process. We think it provides a great service to the public.”
But the presence of the attorney on the board is suspect to some.
Attorneys representing families who die in custody believe the attorney’s presence on the board merely serves as a smokescreen.
“Having the attorney present for fact-finding is simply for the one purpose of obfuscation,” said Morris, the in-custody death attorney who has sued the county in other cases. “You could have the board do the fact-finding and figure out what happened. Then with the attorney present, do the analysis.”
The Silva family attorneys say privilege is broken when results are shared with the officers involved, and note the review happens with or without litigation. They also point to the words of Robert Faigin, longtime chief attorney for the Sheriff’s Department and a CIRB board member, as evidence of the ruse.
Faigin wrote a 2011 Police Chief Magazine article urging other departments to put an attorney on similar critical incident review boards, saying their presence may potentially “protect the confidentiality of the discussion under the cloak of the attorney-client privilege.”
Barnett said Faigin’s role on the board is not broken out separately, because “the legal function is intertwined with all of those (other) things” the board does.
But Berg, the magistrate judge, also questioned the purpose of the attorney’s CIRB involvement during a hearing.
“I mean, I guess what I’m trying to figure out here is the whole reason for this CIRB board,” said Berg, according to a transcript of the Nov. 2 hearing. “On the one hand, you say it’s to talk about all these litigation issues and pre-litigation issues, and that’s why Mr. Faigin called the people together, and then on the other, you say, well, yeah, we also talk about maybe policies and procedure changes, and the (plaintiff) attorneys can ask if any policies or procedures were changed as a result of it. Well, if they were changed as a result, then clearly that’s not privileged. You already said it wasn’t. And then you say, and we also tell an employee, yeah, you might get a referral to IA. That’s not privileged, but the information that came out of it is. I mean, it’s sort of like you’re throwing up this attorney-client privilege when it suits you, and when it doesn’t, you say it’s not, so I’m really try to get a handle on what is privileged and what is not.”
Faigin, the attorney who is a member of CIRB, does not write the CIRB reports. Instead they are written by a non-attorney investigator, a fact also questioned by Berg.
Barnett said confidentiality of CIRB’s specific activities and reports must be maintained for the public good.
“It would be a disservice to the public to make those reports public, because it would lessen the quality of review that is done. It is not a secret, but we want the most candid unvarnished version of events,” Barnett said. “We want people to say exactly what needs to be said without fear it will be mischaracterized in the media or exploited by somebody who has an ill intent.”
Plus, he said the underlying evidence reviewed by CIRB in the Silva case was already turned over to the family.
But the Silva family alleges the department’s years-long failure to properly investigate and discipline officers involved in use-of-force incidents – like those who ultimately killed Silva – has contributed to a string of wrongful deaths.
They point to San Diego County’s in-jail death rates that exceed those of the five other large counties in the state, as documented in a 2019 San Diego Union-Tribune investigation. The ranking compared deaths to average daily jail populations – a widely used and accepted method for analyzing jail death rates.
But Barnett said looking at jail deaths compared to annual bookings provides an equally important view of their death rates, since inmates are more at risk of dying from a drug overdose, accidental death or suicide the first 48 hours after they are booked. By that measurement, San Diego County does much better and is in the middle of the pack.
Barnett also rejected allegations the department fails to hold its officers accountable and said superiors may decide to put an officer on paid leave or desk duty “within hours of an incident unfolding” before formal reviews are wrapped.
“We have robust systems of oversight. We hold our employees accountable,” said Barnett. “We put people on leave immediately where we think that is warranted and we do everything we can to protect the public.”
Anyone concerned about the quality of the department’s oversight should read the internal investigations released under a new state law – SB 1421 – in cases where an officer used force and caused death or great bodily injury, an officer lied, an officer was involved in a shooting or sexual misconduct, Barnett said. Those documents are now posted on the sheriff’s website, but the department had been slow to release everything and initially tried charging media companies hundreds of thousands of dollars for the records before backing down.
To date, CIRB reports have not been released under the law, but the attorney Morris thinks they should be. “Part of the purpose of (SB) 1421 was to broadly define the term ‘record’ and to allow the public access to all records. It appears to me the county is simply throwing an attorney in the mix to avoid the Public Records Act, the Civil Discovery Act and 1421,” Morris said. “To me, it’s a complete sham.”
In a separate case from 2017, Barnett made the call to merely reprimand a captain for illegal gun sales and the matter was handled by human resources. The captain was charged by the U.S. attorney’s office in 2019 for a gun-trafficking scheme and pleaded guilty in September.
In court papers, the Silva family also highlight a 2007 external use of force audit of the Sheriff’s Department that found the CIRB process largely lacking a “sufficiently robust response to any
information learned from the reviews of shootings” and recommended several changes that never came to pass. The audit also noted just one of the 25 shooting incidents reviewed by CIRB also went to Internal Affairs – and it did so apart from the CIRB process.
Barnett said after the 2007 audit, the only change made was the legal counsel was removed from the chairman position on CIRB.
Where the Case Goes From Here
Barnett estimated 10 percent of CIRB cases get an Internal Affairs investigation initiated “because of CIRB” but “at least half” of the cases CIRB reviews are already under review by Internal Affairs, and both processes can occur simultaneously.
Silva’s case never made it out of the CIRB review. CIRB declined to send the case to Internal Affairs and no Sheriff’s Department officers were charged or faulted in Silva’s death. Six out of seven deputies and a supervising sergeant who used deadly force on Silva are still employed by the Sheriff’s Department, officials said.
Two years later, the independent Citizens’ Law Enforcement Review Board also declined to fault the deputies, finding the “action justified” in February 2020, writing in its report, “there was no evidence to support an allegation of procedural violation, misconduct, or negligence on the part of Sheriff’s Department sworn personnel.”
But Jun, the Silva family attorney whose law firm has litigated roughly a dozen cases against the Sheriff’s Department in the last 20 years, said the sheer amount of force used on a man who committed no crime indicates otherwise.
U.S. District Judge James Lorenz denied the county’s motion to dismiss the case on Nov. 25, as well as motions to dismiss filed by the city of San Diego and Coast Correctional Medical Group. Both are also named defendants in the lawsuit because San Diego police made the arrest, and the medical group supplies nurses to the county jails who did not treat Silva during his 36 hours in custody.
A trial date won’t be set in the Silva case until late next year.
Ashly McGlone is an investigative reporter for Voice of San Diego. She can be reached at ashly.mcglone@voiceofsandiego.org or (619) 894-6397.
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