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Death and Access 

When police officers and death coincide, the public has a right to the official record of the event

Wednesday, Dec 12 2001
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There was once an excitable man I'll call John who very much wanted a blender. John went to the Mervyn's department store at Geary and Masonic early last week, picked one up, and headed out the door, yelling that he would shank whoever tried to stop him. But John never got farther than the parking lot. A guard chased John and tackled all 6 feet 3 inches and 250 pounds of him to the ground. Three more guards piled on. John bit one of them on the ankle and wouldn't let go. So all the guards pushed and pummeled John until they knocked their colleague free from John's toothy grip. They wrestled John back inside the building, and later called the police. Some time afterward John died while lying handcuffed on the pavement.

And that is as much of this story as I can confidently tell. In a type of apparent violation of official San Francisco Police Department policy that may have become routine, S.F. police won't release their reports on the death.

Officers have told the San Francisco Medical Examiner's Office to withhold all information regarding the cause of death of this particular John Doe. The SFPD has also refused to release the incident report written by the officers who were there.

On its face, this suppression seems to violate the department's own policy regarding records.

Official department policy says officers must release incident reports unless the information contained would "endanger citizens, law enforcement personnel, or a law enforcement investigation." According to the policy, "In all cases, the burden is on the department to justify nondisclosure."

The Mervyn's case doesn't seem to fit these criteria in the slightest. Neither law enforcement officers nor their investigation seems imperiled here. Witnesses aren't in apparent danger; the violent shoplifter is, after all, dead. I'm aware of no threat facing law enforcement in connection with this incident. And public awareness of this event presents no practical impediment I'm aware of to the investigation. In fact, a police spokesman failed to provide any convincing specific rationale for not releasing the reports.

Just as with the case of Idriss Stelley, the Bayview youth who was gunned down in a 21-shot police fusillade at the Metreon movie theater earlier this year, the department appears to be abusing its secrecy policy to keep embarrassing information away from the news media, and with some success: The Mervyn's police custody death received no press coverage.


In the Stelley case, I didn't receive a coroner's report until November, some five months after the autopsy was completed. The report shows that police shot Stelley, an A student who freaked out while watching a movie, in the head, chest, foot, shoulder, calf, bicep, forearm, and buttocks. Still, by feeding reporters information of their choosing while suppressing official documentation for an absurd amount of time, police saw to it that this story received scant press coverage.

It is unclear how many cases the SFPD keeps secret, at least for a time, by refusing to release records that should rightfully be made public almost immediately. I asked an official with the Medical Examiner's Office whether the secrecy surrounding the Mervyn's case is unusual. He told me it is, on the contrary, common.

Police PR preferences notwithstanding, the people of San Francisco should certainly want greater access to information on police-related incidents, because such access has a consistently salutary effect on law enforcement. When the New York Times broke Frank Serpico's revelation of police misconduct in the 1960s, then-Mayor John Lindsay was compelled to create an independent committee to investigate police corruption.

In Los Angeles, publicity surrounding the Rampart Station scandal, in which officers were accused of beating, framing, and shooting innocent people, resulted in a federal consent decree that now guides police reform efforts.

In San Francisco, there have been no widely publicized police scandals. But this doesn't mean there aren't allegations (or a reality) of police misconduct. It just means the press has been kept away from such allegations. I asked the City Attorney's Office last week how much money the City and County of San Francisco spends on settlements of claims and lawsuits filed by citizens alleging police abuse, and didn't receive a response as of this week. But a couple of anecdotes from people who complained of police abuse to the Ella Baker Center for Human Rights during the past few weeks suggest San Francisco's finest sometimes step over the line.

There's the case of John Malcom, a 45-year-old disabled citizen who couldn't sleep last month because of his neighbors' loud quarreling.

"I hear the window break. She pushed him into the window. I go downstairs, and say, "Call the police,'" Malcom says. "I open the door, I was going to explain to them what happened, when the one officer put his foot in the door; he said, "Let me in.' I said, "No, you don't have to come in my room.' They both knock the door open, they push me down, and they start pounding me. They were hitting me with their fists. One was grabbing his stick. I was saying, "What are you all doing? What are you all doing?' One of them had taken his billy stick and pounded me in the head and knocked me unconscious. I come to, they're about to put the handcuffs on me, and they're dragging me out, and the manager says, "You've got the wrong person.'"

Malcom says officers twisted his wrists back so far that, two weeks later, he has yet to regain full use of his hands.

Does Malcom intend to sue?

"I most certainly do," he says.

For information on Malcom's case, a police spokesman referred me to the Office of Citizen Complaints, which handles cases such as Malcom's. And that office, as a matter of policy, does not comment on complaint investigations.

Then there is Stephanie Mitchell, 43, a hairdresser who went to Safeway with a companion a couple of weeks ago to buy some batteries. The car they were driving had been reported stolen, and police stopped them, Mitchell recalls. Mitchell was sitting in the driver's seat, she says, and when police told her to get out of the car, she reached for the ignition keys in order to remove them.

"When I went to get the keys, maybe he thought I was trying to start it. Two officers came diving into the car," Mitchell says. The officers then beat her unconscious, she says.

"I woke up five minutes later, I must have been there 10, 15 minutes unconscious. I looked up and saw three figures standing over me, and they were telling me to get into the paddy wagon. I'm a transsexual, and they made a lot of rude comments about that. I wanted to get up, and I didn't feel comfortable. I couldn't feel my legs. There was no strength in my legs. It felt like my legs were floating in the air," Mitchell says. (She also claims she's been seeing a doctor about her legs, because she's still unsure exactly what happened while she was unconscious.)

"I think they continued doing things. I really don't think they realized how bad they hurt me. They really don't. They thought they did something lightweight. There were bruises all over my hand and my arms. They either stepped on me with their boots, caused bodily injury.

"I have every interest in suing them."


In the case of the Mervyn's incident, police secrecy has been an advantageous PR strategy, from a short-term, authoritarian, law enforcement point of view: A violent man died in police custody, yet the incident wasn't reported in any newspaper. In the longer term, though, even as regards the interests of the SFPD, secrecy and death are incompatible partners: When there is official silence about police-related death, citizens have no real choice but to speculate, presume, even accuse.

For my part, I'm going to suggest that in this case, the responding officers may have done nothing wrong. Witnesses I spoke with said the Mervyn's John Doe was enraged, irrational. The scuffle with the guards didn't appear to involve the kind of vicious blows that could kill a large, strong man. According to the police spokesman, officers didn't have their hands on the suspect when he died.

Optimistic speculation would suggest that the Mervyn's incident involved a case of "in-custody death syndrome," a controversial theory put forward to explain the surfeit of nationwide police-custody deaths in recent years. According to this theory, crank and crack make people paranoid and prone to heart attacks. If they're arrested while so stimulated, this theory says, the resulting panic-induced adrenaline rush may be enough to kill them.

As it happens, two of the theory's strongest proponents work in the San Francisco Medical Examiner's Office. Chief Medical Examiner Boyd Stephens has been quoted saying most such deaths are unavoidable. Assistant Medical Examiner Steve Karch has spoken in Europe on this theoretical syndrome. Critics say the theory explains away police abuse.

Whatever the case, it's an issue worthy of public debate in San Francisco -- one the SFPD apparently seeks to avoid by suppressing information.

Sadly, California law allows police to hide reports they deem harmful to an investigation. Sadder still, our Police Department's application of state law is absurdly broad; the law does not, after all, require the SFPD to suppress anything. Our Police Department keeps citizens in the dark about its activities because its officers and managers choose to.

In other states, incident reports and coroners' reports are routinely released shortly after the activity in question, and only rarely suppressed, even for small amounts of time. In other words, in most states, such records are presumed to be public, because they describe public officials interacting with members of the public. Here, they appear to be considered too important and sensitive for the government to allow its citizens to see them.


Outside San Francisco, the United States is living an odd historical moment. Law enforcement types, including eight former high-ranking FBI officials, have backed the cause of liberty, criticizing Attorney General John Ash- croft's secrecy-laden "anti-terrorism" measures as draconian, ineffective, and un-American.

Police Chief Fred Lau should join this bandwagon -- and then show his support by ending his department's policy of suppressing public information about police-related death.

About The Author

Matt Smith

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