San Rafael city attorney defends choice of investigator in police probe

San Rafael’s city attorney is defending his decision to hire a former Sonoma County police lieutenant to probe a bloody arrest, rebutting claims the investigation will be whitewashed.

“For those of you who believe that he will not be neutral in this particular case, or cannot be neutral, I don’t believe that or I wouldn’t have hired him,” Rob Epstein said addressing the community at the City Council meeting Monday. “I personally — I personally, won’t allow the process to be anything other than completely fair and unbiased.”

Epstein’s comments came in response to demonstrations, phone calls, emails and social media messages demanding that the city fire Paul Henry, who runs Independent Investigative Consultants LLC in Windsor. Henry, who worked at the Santa Rosa Police Department before his retirement, was hired at $200 an hour to conduct an internal affairs investigation of a violent arrest in the Canal area on July 27.

“It would be a critical error to dismiss Mr. Henry and replace him with someone else, or saddle him with a co-investigator,” Epstein said. The investigation has already begun and such a move would compromise the result, putting the city at risk of losing in potential arbitration, he said.

“The most defensible opinions are those reached by a professional who does the same kind of work as the person whose performance is being evaluated,” Epstein said. “Findings of misconduct against a police officers are most straightforward to defend when those findings are made by another police officer.”

As for concerns over Henry’s qualifications, Epstein said Henry has conducted more than 150 independent internal affairs investigations of police departments, and in many of those cases, he made findings of misconduct against other police officers.

Meanwhile, Mayor Kate Colin said the city is negotiating a contract with National Association for Civilian Oversight of Law Enforcement, or NACOLE, a nonprofit that promotes accountability and transparency. The details of the contract have not been worked out, Colin said.

“With their guidance and expertise, the city will examine training and improvements to internal systems, as well as explore ways that the community can be involved in police accountability or oversight,” Colin said.

Several days of marches and protests erupted after the incident, in which police officers Daisy Mazariegos and Brandon Nail questioned three men they suspected of drinking alcohol in public. According to police body-camera footage, police told the man to remain seated and tackled him after he twice stood up to get identification from his pocket.

The man’s attorney, Charles Dresow, said his client suffered a concussion and broken nose. His client was charged with felony resisting, but prosecutors withdrew the case after reviewing the footage of the incident.

The incident has drawn the interest of federal investigators. Epstein said the FBI has requested evidence pertaining to the incident. The Marin County District Attorney’s office has also opened its own criminal investigation.

Epstein said the district attorney’s investigation and any potential probe by the FBI are separate from the city’s internal affairs investigation.

The city’s investigation is solely to “measure the conduct of the involved officers against established written policies to determine whether those policies were followed or not,” Epstein said.

Mazariegos and Nail are on paid administrative leave pending the outcome of the probe.

Dresow said the city made a mistake by hiring Henry, who, among other responsibilities, acted as a press liaison for Santa Rosa police following the fatal shooting of 13-year-old Andy Lopez in 2013 by a Sonoma County sheriff’s deputy.

Lopez was walking on Moorland Avenue just outside Santa Rosa holding a pellet gun when the deputy fired on him.

Santa Rosa police handled some public information releases early in the investigation into the shooting, which was conducted by the Sonoma County District Attorney’s Office and the FBI. The probe ultimately cleared the deputy who killed Lopez.

“His selection contradicts the statements of various city officials who have professed a desire to seek justice and rebuild trust with the community,” Dresow said. “The lack of any community or civilian oversight of a process where the actions of current police officers are being investigated by a former police officer who was hired by the same city attorney that now supervises the investigation is troubling.”

Critics remain guarded and distrustful, said Cesar Lagleva, who grew up in the Canal neighborhood.

“I’m not impressed,” Lagleva said of the Epstein’s address. “My question is, what other investigator could have been selected? What was the vetting process? What were the considerations? There could have been many others, why him?”

However, Lagleva said hiring NACOLE “is a step in the right direction.”

“What we’re going to be asking for without question is a law enforcement oversight committee,” he said.

Saul Godinez, a San Rafael resident who has helped organize rallies to protest the incident, agreed.

“It doesn’t take a scientist or field expert to see what happened in the video,” Godinez said. “It is biased. I don’t see the city attorney reaching out to a community leader.”

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