EVIDENCE? WHAT EVIDENCE? LCPD MAKING EVIDENCE GO AWAY (YES, PART 2)

    This blog results from delving into the tangled IA investigation into my complaint.

     My previous blog detailed the failure of IA Sergeant Sean Mullen, now Deputy Police Chief responsible for Internal Affairs, to focus his investigation on the truth or falsity of an ACO’s five false allegations of animal code violations about which I had complained.  Instead, as it also detailed, he emphasized the ACO’s account of the circumstances of his site visit and the conversation which the ACO and I had on 1 August 2019, the day after he issued me a warning notice.  In his 5 February memorandum to the Police Chief and to the IA Chief, Mullen filled the 4+-page “FACTS” section with the ACO’s account.  He gave only a half page to “ANCILLARY ISSUES,” with its buried finding that the allegations lacked support.  In “ANCILLARY ISSUES” or “FINDINGS AND CONCLUSIONS,” he added three matters: recording devices, bias-based policing, and ACO2017-1 (follow-up).

 

    Two weeks later, the IA Chief’s very brief 19 February 2020 letter relied on Mullen’s memorandum to close out my 5 August 2019 complaint.  Her letter mentions those three matters but says nothing about the five alleged animal code violations:

 

The Internal Affairs Unit of the Las Cruces Police Department completed its investigation of your report concerning the conduct of Animal Control Officer Juan Valles on July 31, 2019.  Our investigation revealed that the officer violated departmental rules and regulations.  General Orders 151 Recording Devices, 165 Biased [sic] Based Policing, and ACO2017-1 were addressed in this complaint.  As discussed during the meeting in January, the Notice which states the reason for visit was updated and is in use by the Animal Control Officers.

 

It is peculiar that she includes these three matters and excludes the alleged violations.  It is misleading that she says the ACO violated “departmental rules and regulations” since he was charged with only one of them and cleared on the other two.  My complaint says nothing about recording devices, bias-based policing, or ACO2017-1 (follow-up/warning notice).  The matter of “Recording Devices” deserves scrutiny because it not only led to a charge against the ACO, but also bears on the ACO’s account emphasized by Mullen.  His story explaining this charge is worth reporting and rejecting.

 

On August 1, 2019, ACO Valles was in the office working on paperwork for a dangerous dog case and not responding to calls, so he left his recorder in his vehicle with other equipment.  [Receiving a message of my required call, he decided to call me.]  He was unprepared for Mr. Hays’ response [ACO claimed that I was angry (I was) and profane (I was not)] and unable to record it since his equipment was inside his unit [patrol car].  From my interview with ACO Valles this is not a deliberate act to avoid recording rather him trying to complete the calls quickly and efficiently while in the office….an audio recording of Mr. Hays’ interaction would have proven useful during the administrative investigation.

 

An inconsistency suggests that Mullen’s story is fictitious.  At the beginning, the ACO is intent on not placing calls so that he could do paperwork and did not bring his recorder in from his car.  But, in the end, the ACO is intent on completing calls at his desk—which implies that he had the recorder with him.  Mullen’s unforced error exposes his fiction.

 

    Another reason for thinking this account is fictitious is a “tell.”  Mullen claims that the recording would have been “useful” by confirming the ACO’s account.  It is odd that he thinks so, presumably without having heard it.  He doth protest too much, methinks.  Since he accepts the ACO’s account and ignores mine throughout his memorandum, neither the Police Chief nor the IA Chief would have noticed the absence of a claim about a non-existent recording unless its non-existence mattered to them.  It did, for without the recording, IA would prefer—he said/I said—the ACO’s word to mine contradicting his.  So Mullen had their interest as a good reason for his otherwise unprompted fiction.

 

    Their interest arises from their participation in a 7 January 2020 recorded meeting to which Mullen’s IA Chief’s letter refers.  The attendees—District 1 Councilor, Interim City Manager, Police Chief, herself, and me—discussed conflicting accounts of the ACO’s site visit and our conversation.  The Police Chief and the IA Chief made a poor showing in trying to counter my account of the ACO’s site visit and our conversation (and my analysis of his allegations).  I referred to the ACO’s recording as evidence which would confirm my account.  Although the opportunity presented itself, the IA Chief never said that the recording did not exist—a point which no one in the LCPD had made in five months.  The likely reason: it did exist.  On 11 October, Mullen, writing the ACO’s commander, advised him to “immediately notify IA in writing” about “any recording related to this matter.”  I have no record of any reply about a recording but assume that the ACO’s Commander, who interviewed the ACO on or about 11 September, would have notified Mullen about its existence or its non-existence.  If it did not exist, then the IA Chief and everyone else would know, and the IA Chief would have said so.  She did not.

 

    My hypothesis is that their poor showing prompted Mullen to tell a story covering the elimination of adverse evidence.  His story begins with him and others listening to the recording and realizing that it was a problem, especially because it was liable to an IPRA request.  The recording refuted the ACO’s account and confirmed my account of it.  It also noted his other failures or misconduct: admitted flaws in his site visit and evident misrepresentations or lies about my statements in his interview, trespassing on two neighbors’ property, and threats to harass me with more site visits.

 

    The IA or the LCPD solution to the problem was to destroy the recording after IA used it to prepare for a second interview of the ACO.  Although his commanding officer had interviewed him, Mullen re-interviewed him to elicit enlargements of his previous comments.  He let the ACO say anything about his site visit which would exonerate him and anything about our conversation which would misrepresent my account or discredit me.  One result is inconsistent or derogatory details between his two interviews: first one dog heard, then two dogs seen; first an epithet, then a profane epithet.  Mullen covered the destruction of the recording by faking confidence in its contents and feigning regret at its absence—all implying that IA or the LCPD would not want to destroy it.  As a clincher, he ended his story with a charge against the ACO for a minor LCPD violation.

 

    However, if Mullen had been conducting a proper and fair investigation and learned that the ACO had never recorded our conversation, he would have sought my account of the conversation instead of relying only on the ACO’s account, one side of two sides of it.  But he was not conducting such an investigation.  Otherwise, I would have told him that the ACO’s recording was not the only account of the conversation.  My 4 August blog summarized it honestly, and not only because I believed that the ACO had recorded it and could use it to prove me wrong.  If he did not forget about it, he knew it was bad enough, though likely long since forgotten by its readers, but the recording, with the risk of disclosure from an IPRA request, was far worse.  So, poof!  Evidence?  What evidence?

 

    The question abides: why such defensiveness, persistent to this day and even, perhaps especially, on Police Chief Jeremy Story’s watch, about five false allegations of animal code violations?  A third blog in this trilogy will attempt to answer it.

ACCOUNTS, ACCOUNTABILITY, AND COPS IN LAS CRUCES (ONLY PART 1?)

    From the Mayor and City Councilors to the City Manager and LCPD and LCFD Chiefs, we hear much about accountability.  Yet I know of no instance of accountability.  I do not know what it takes to hold anyone accountable, who holds anyone accountable, how anyone is held accountable, and whether anything happens if and when anyone is held accountable, and, if so, what.  So I do not know what accountability means, probably because the word has been rendered operationally meaningless.  I suspect that the city’s powers-that-be like it that way because vagueness about accountability makes it unlikely.

    I learned that accountability is an empty political slogan after trying with a formal complaint, blogs, letters, and meetings to hold the LCPD accountable for five false allegations of animal code violations.  In such a trifling matter, accountability should have been no big deal.  In theory, the LCPD should have required the ACO to account for them.  Either the ACO’s commander or an IA investigator should have asked the 10-year veteran to justify each allegation with evidence or proof.  Did you see the owner release pets or let them run loose?  Did you see excessive pet waste?  Did you establish that the owner lacked valid permits, licenses, or shot records?  And, if the justifications failed—if they did not reflect the truth—, the IA interviewer should have recommended retracting the warning notice from my police file and dealing with the ACO.

 

    In practice, neither interviewer asked these questions or showed a concern for the truth or falsity of the allegations.  Both ignored LCPD policy (103.17 Truthfulness).  With truth ruled out, anything else could be ruled in.  In a 11 September 2019 memorandum to the Police Chief, the Chief Codes Administrator defended the ACO by stating that the warning notice “consisted of the possibility,” not the actuality, of the alleged violations.  In a 5 February 2020 memorandum to the Police Chief, IA Sergeant (now-Deputy Police Chief) Sean Mullen reported irrelevant material and perverse excuses in the ACO’s account of events to avoid or obscure false allegations and clear the ACO of misconduct.  He also discredited me by misrepresenting my views and deploring my blogs refuting the ACO’s story and false allegations.  Both memorandums reveal LCPD policies and practices which the LCPD accepts as suitable in investigations, despite departures from LCPD policy or accepted legal principles.  LCPD Chiefs Patrick Gallagher, Miguel Dominguez, and Jeremy Story, knowing Mullen’s performance, have done nothing to address it, amend LCPD policies or practices, or clear my file.  Accountability, anyone?

 

    Three major LCPD failures in handling my complaint should discredit any LCPD claim to investigative integrity.  One, although Mullen concluded that there was no evidence or proof of the alleged violations, he did not recommend that the LCPD revoke the warning notice retained in my file.  Two: IA closed out my complaint by misrepresenting it as a complaint about the ACO and omitting any mention of the allegations.  Three: under guidance from the City Attorney, the City Manager, after first admitting error, reversed himself and refused to admit error (she even asserted that the alleged violations had occurred and were well documented.)  These failures mock the basics of law and law enforcement, and make accountability impossible and abuse of citizens inevitable.

 

    Mullen’s past does not augur well for the present or the future.  As an IA investigator, Sergeant Mullen did not hold the ACO accountable and was not held accountable.  He tacitly tolerated some perverse police practices and deviant legal principles.  As Deputy Police Chief responsible for IA investigations, he is unlikely to hold others accountable or to be held accountable.  The details of his conduct of this investigation show the police tendency in response to criticism to put protection of the LCPD above a citizen’s rights or public service.  In this connection, reports like Mullen’s play a significant role in skewing the police auditor’s reviews of cases and complaints.

 

    Mullen’s 9-page memorandum is repetitious and padded with details about the ACO’s site visit and phone call with me.  Few details are relevant to the truth or falsity of the alleged violations.  Mullen gave the ACO opportunities to explain the allegations away and exonerate himself, and gave himself opportunities to disparage my motives and means in protesting them.  In his one-sided investigation, Mullen accepted the ACO’s account at face value, made no attempt to confirm or refute it, and made no attempt to compare his account of events with mine.  Indeed, he never contacted me during his investigation.  Mullen defends an officer and attacks a citizen—contrary to best professional practice in police investigations but maybe compliant with LCPD policies.

 

    Mullen’s memorandum has four major sections: “COMPLAINT SUMMARY,” “FACTS,” “ANCILLARY ISSUES,” and “FINDINGS AND CONCLUSIONS.”  In “FACTS,” Mullen stresses the ACO’s story and excuses, all unchallenged, and excludes my facts.  In “ANCILLARY ISSUES,” Mullen buries his conclusion about the alleged violations, which are central to my complaint: “Mr. Hays’ warning notice had several violations marked to which there was no physical evidence or proof an actual violation had occurred.”  By burying this conclusion, he makes it unlikely that anyone would notice or act on it.  Copied on this memorandum, his IA Chief ignored the violations in her close-out letter.  Handling an adverse complaint by hiding it in this manner is probably LCPD practice, if not policy.

 

    Mullen accepts the AOC’s mistakes in making allegations.  He says that the violations were “checked based off an anonymous caller’s complaint and ACO standard practice.”  Both officers assume that the complaint is true, ignore that an anonymous complaint is no basis for alleging a violation, and disregard that the purpose of an investigation is to ascertain the truth or falsity of the complaint.  (Note: IA does not investigate anonymous complaints about police.)  Both fail to consider that, when owners are not present to show proof of permits, licenses, and shots “upon request,” allegations of code violations are not justified.  Both show no concern that LCPD policy or “standard practice” urges or allows officers to allege violations even if they have no evidence or proof or are too busy or unable to check the pertinent records—in other words, to lie.

 

    Mullen also accepts some oddities in the ACO’s account and excuses, and his muddled logic.  He reports the ACO saying that “it wasn’t that he saw violations, but he must still educate the owner about the city ordinances.”  But, if he saw no violations, he knew that none occurred and so had no need to educate the owner, who must be presumed to know and comply with the ordinances.  Mullen also reports that the ACO explained one alleged violation by saying that “he was unsure if there was any animal waste in the parts [of the yard] he couldn’t view/access.”  An officer’s state of mind—uncertainty—is no basis for alleging a violation; alleging a violation on this basis assumes that the owner is guilty until he/she proves his/her innocence (so, too, in the case of absent owners).  This bizarre statement raises questions about the ACO’s, Mullen’s, and the LCPD’s understanding of and fidelity to fundamental principles of American law.

 

    Mullen shows the same lack of appreciation of such principles in the “FINDINGS AND CONCLUSIONS” section of his memorandum, a section initially redacted when it was released to me.  He expresses his irritation that “Mr. Hays…protested the facts in emails, blogs, phone calls and meetings.”  But, since I was right about the facts, as Mullen himself recognizes, I had every right to be outraged by five false allegations of code violations and to protest the injustice of them.  Plainly, Mullen does not like people exercising their First Amendment rights, at least when they expose LCPD mistakes and especially when he knows that the LCPD has doubled and tripled down on them instead of admitting the truth and correcting them.  In his emotional statement disregarding Constitutional rights, Mullen reveals his intemperate temperament.  It shows him to have been unfit for his past, to be unfit for his present position, and likely to be unfit for the position to which he likely aspires.  But, if Mullen is not held accountable, his prospects for advancement remain undiminished.

TWO NOTES FROM THE OVERGROUND

Note One: Absenteeism and the Flight from Education

 

    According to a recent article in the New York Times, absenteeism in public schools has dramatically increased among all demographic groups since 2020.  The article explains that covid-induced disruptions broke the routines of attendance, academics, clubs, and athletics.  It also describes the many and varied failed efforts to significantly reduce absenteeism in the aftermath.  But covid is not the answer to this and every other problem in the country’s public-education system.

 

    When I arrived in Las Cruces in 2007, perhaps the biggest concern in Las Cruces as well as the state was the high drop-out rate, the ultimate in absenteeism.  Everyone had a solution; no one knows which one or ones worked, but the rate went down.  So, too, did academic standards, with New Mexico recently confirming its lowest-in-the-nation public-school ranking of all states and the District of Columbia.

 

    The articles which I have read for the past two decades suggest an array of solutions: merit pay (often confused with pay for performance), student-test-score-based teacher evaluation, Common Core State Standards, small schools, fewer students per classroom, charter schools,  early childhood education, and, of course, higher teacher salaries—to many for me to recall them all.  Missing from the list: reforms of schools of education, higher standards for teachers, independent testing of their subject-matter competence, higher academic standards for students (and alternative programs for those who fail to meet them), and open shop for teachers from other fields (e.g., journalists, engineers, environmentalists, veterans, etc.).

 

    I believe that much absenteeism and many discipline problems reflect boredom with teachers who do not care about them, do not know their subjects, or teach perfunctorily.  Long after the advent of women’s liberation, one unintended consequence has been the disappearance of the best and the brightest from teaching, especially in the elementary grades.  The worst and the dullest are left to introduce the major subjects—English, social studies/history, mathematics, and science—with the notable result that more than half of all students fail to achieve proficiency by fourth or by eighth grade—one reason for dropouts before ninth grade.  If students cannot learn to read before fifth grade, they are much less likely to read to learn in and after fifth grade.  Early childhood education, even if it succeeds, is not likely to have lasting effect as the mediocrity of elementary school teachers erodes much, if not all, of what it might have achieved.

 

    There is, of course, more to the flight from education than the majority of mediocre teachers and mediocre curriculums.  American parents do not want their children to study too hard.  More generally, American society has forever been an anti-intellectual society.  Although it recognizes those distinguished by their accomplishments in their disciplines, it also scorns experts as out-of-touch elitists.  Populist scorn of information and intelligence appears in the virtue imputed to “regular” Joes and Janes with up-from-poverty biographies of hardships overcome, as if such backgrounds are, in themselves, qualifications for dealing with increasingly complex, often highly technical issues.  Americans believe that “gut feelings” are a good guide, or at least a better one, to national well-being.  We may soon have a chance to see, if Donald Trump, notably uninformed, inconsistent, and impulsive, has a second chance to show what boorishness and barbarism can do for or to us.

 

Note Two: Ersatz Patriotism and Its Perilous

 

    Over twelve million people recently watched the rematch of last year’s women’s college finalists for the national basketball championship.  Louisiana State University, led by All-American Angel Sweet, and University of Iowa, led by All-American Caitlin Clark, both played their games.  Iowa and Clark had a far better night and a better outcome than LSU and Sweet.  I greatly admire both women, as players and as people.  Last year’s kerfuffle about Sweet’s trashing Clark at the end of the game was much ado about nothing except for race-based attacks on the LSU star.  Clark responded that Sweet did nothing more to her then she has done to Sweet because trash talk on the court is part of the game between highly competitive athletes.  She added, and Sweet later allowed, that off the court, they get along just fine.  Best friends, no; but friendly and respectful, yes.

 

    Such a good show in the game and such good sportsmanship before, during, and after, was sullied by the Governor of Louisiana, Jeff Landry, who stated that players who were not present for the singing of the National Anthem should lose their scholarships.  Landry is a lawyer, so he probably has heard and possibly has read the Constitution of the United States, which just happens to protect free speech.  Supreme Courts, at least up to the Roberts’s Court, have applied the First Amendment to such acts as burning the flag, wearing it on the seat of one’s pants, or using other means to show disrespect for it.  Presumably, it would protect absence from the ritualistic singing of the National Anthem.

 

    Going farther, I wonder why it is sung at sporting events.  I know that the words written by Francis Scott Key in 1814 became the National Anthem in 1931.  Which means the American people lacked, but survived the lack of, a national anthem for over a century.  How did they do it?  We had sporting events before 1931.  Babe Ruth hit his then-record 60 home runs in the 1927 season without the benefit or such vocalizing.  I know that the National Anthem is played before sporting events and is taken so seriously that professional football players who kneel instead of stand for it can lose their jobs.  In that dishonorable tradition, Landry made his suggestion to punish those who were not present when it was sung.  He did not know or care that the LSU women’s basketball team in this year and previous years has spent the minutes before the game in their locker room for last-minute instruction and a prayer, not for a political statement at all.

 

    Landry’s suggestion assumes that punishing these student-athletes will promote red-blooded patriotism in all good Americans.  It reflects the common recourse of Republican officials to punish behavior which, despite Constitutional protection, they find offensive or deem unpatriotic.  We can expect more such suggestions—personhood at conception, for one—on a national scale if Republicans succeed in electing top-of-the-ticket and down-the-ticket candidates.  Count on them to use coercion—Trump wants U.S. troops to suppress U.S. citizens if they protest his re-election or policies—to advance their interests or enforce their positions—the truth, the law, and the Constitution be damned.