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East Bay | Police State and Prisons

BART has a long history of excessive force and lack of accountability
by SF Bay Guardian - 1992
Tuesday Feb 17th, 2009 2:45 PM
The problems with the BART police go far beyond the arrest of John Owens and the death of Jerrold Hall. In fact, the Bay Guardian has learned:
Lethal force

The BART Police Department operates without oversight or accountability - but with plenty of attack dogs and 12-gauge shotguns

By Tim Redmond
Editors note: This story ran Dec. 12, 1992

The autumn air was crisp and clear in Hayward on the night the kid called Glasstop took a shotgun blast in the back of the head and died for the theft of a $60 radio.

It was just before 8 p.m., on Sunday, Nov. 15. The lights were on in the parking lot outside the Hayward BART station, where a six-car southbound train had arrived a few minutes earlier. About 50 passengers had gotten off, and some were still straggling into cars or waiting around for the next AC Transit bus.

Glasstop, a 19-year-old warehouse worker from Union City whose legal name was Jerrold Cornelius Hall, had ridden the train from Bayfair, one stop north, along with John Henry Owens, a 20-year-old unemployed custodian who lived in Oakland. The two young African American men were standing at the bus stop, not far from the station entrance, when Officer Fred Crabtree pulled into the parking lot in a BART police cruiser.

Crabtree was a white 16-year veteran of the transit police agency and a member of its elite Canine Corps. His partner was a highly trained German shepherd imported from a special obedience school in Germany. The dog trotted at Crabtree's side as he approached Owens and Hall. The officer carried a loaded 12-gauge pump-action shotgun.

Crabtree was responding to a report of an armed robbery: Halfway between Bayfair and Hayward, a passenger had told the train operator that two black men had taken his Walkman personal stereo. The passenger said one of the robbers had a gun and described what they looked like; the trainman passed on the message, and the BART dispatcher passed it on again. Owens and Hall matched the third-hand description that came over Crabtree's radio.

Within a matter of minutes, Hall was lying in a pool of his own blood, Owens was in handcuffs, and the parking lot was a mass of sirens and flashing red lights. Hall was pronounced dead shortly after midnight at Eden Hospital; Owens is still in the Alameda County jail. The police never turned up a gun.

And the man who reported the robbery disappeared without leaving his name.

That's about all BART officials will say about the incident. They've clamped on a lid of secrecy that defies most normal local police procedures and violates the California Public Records Act. The San Francisco newspapers have almost entirely ignored the shooting, and there's been little reaction from the East Bay community.

But an extensive Bay Guardian investigation has turned up a long list of troubling questions about the death of Jerrold Hall - and a long list of serious problems in an agency that has some of the most sweeping police powers in California, and some of the least civilian oversight.

Our investigation, based on a dozen interviews, a review of public records, and more than 50 pages of unreleased internal documents from the BART police and other local authorities, shows:

Officer Crabtree violated one of the most basic rules of modern law enforcement - and his own department's written policy - when he fired a warning shot toward the suspect, potentially endangering the lives of passersby in the busy urban area. The nine .33-caliber pellets from that shotgun cartridge wound up in the side of a tree, about 4-1/2 feet above the ground.

BART's own internal documents contradict the official claim that Hall was attacking or threatening Crabtree at the time of the shooting. Statements filed by several witnesses, and at least two BART police officers, suggest that Hall was more than 10 feet from the officer when the shots were fired, and was walking away. Medical records obtained by the Bay Guardian show that he was shot in the back of the head.

The shooting appears to violate nearly every modern police standard on the use of deadly force. In fact, the latest BART Police Operational Directive, dated July 22, 1987, states that guns may be fired only to prevent a suspect from killing or wounding another person, or to stop a suspected felon who is presumed to be armed and dangerous from fleeing and escaping arrest. But BART internal documents and other records obtained by the Bay Guardian provide little evidence to suggest that Hall fit either category.

Nevertheless, on Dec. 4, a BART Firearms Review Board, consisting entirely of BART police officers appointed by the chief, determined that the "use of lethal force in this instance was justified." BART officials refuse to release the report or comment further on the findings.

The fact that Crabtree fired a gun to subdue Hall seems to undermine one of BART's central reasons for the use of trained attack dogs. The dogs, BART officials say, are supposed to support officers in situations just like the one in question - to intimidate, and if necessary, pursue and immobilize a suspect when other backup isn't available, and to attack immediately if an officer is under assault. Some law-enforcement experts, and many civil-rights advocates, question the use of dogs for that purpose - but all those contacted by the Bay Guardian agreed it was rather curious that Crabtree's canine partner sat out this whole bloody incident.

Officer Crabtree is on administrative leave, with pay, pending the final outcome of an internal investigation. Owens is still facing robbery charges, despite the lack of a victim willing to testify against him. A preliminary hearing is scheduled for this week.

But the problems with the BART police go far beyond the arrest of John Owens and the death of Jerrold Hall. In fact, the Bay Guardian has learned:

BART's Internal Affairs Division, which reviews citizen complaints against BART police officers, has investigated 162 cases in the past five years, 39 of them involving excessive use of force - and not a single charge was sustained. Law-enforcement observers say that's an astonishing statistic, one that casts severe doubt on the department's ability to control police abuse.

"I've never heard of any department with a rate of zero sustained complaints," said John Crew, director of the American Civil Liberties Union Police Practices Project. "I can't believe that none of those people had a single valid case."

The BART Police Department has a written procedure for civilians filing complaints. A 1991 directive signed by Chief Harold Taylor states that every department employee should accept complaints by mail, by phone, or in person, and refer them to the watch commander or the Internal Affairs Division. But there's nothing posted in any BART train or station to tell the public about the complaint process, no procedure for appealing a Police Department decision to a civilian review agency, and not much visible effort to inform BART employees about how to handle complaints.

The BART police use dogs for purposes inconsistent with many modern law-enforcement guidelines. Most local police agencies employ canines primarily to sniff out bombs and narcotics, or to search for dangerous suspects hidden in dark, confined areas. Berkeley has banned police dogs altogether. The BART police dogs are not trained to sniff out bombs or drugs, and are rarely involved in searches; the officers use the animals as standard backup, to intimidate and apprehend suspects in even fairly routine arrests.

The elected BART Board of Directors has demonstrated virtually no effective control over the BART police, and most board members don't seem to know or care what their armed employees are doing with those badges, dogs, and guns.

None of the board members contacted by the Bay Guardian could even guess how many citizen complaints had been filed against the BART police since 1988, or what the outcome of the cases had been. None could explain the complaint procedure, or identify the person responsible for supervising internal investigations. Most didn't know how the police chief was hired, or to whom he reported; some board members didn't even know his name.

Several years ago, I asked Art Shartsis, a downtown lawyer who was then the BART Board president, if he knew who ran the BART police. His answer was unusually blunt, but entirely typical of the attitude board members show toward the force.

"I don't know," he told me. "I guess we must have a chief."

A DAY AT THE MALL

Jerrold Hall was the son of Alameda Fire Department Captain Cornelius Hall, a retired Navy Reserve officer who lives with his wife, Rose and two other sons in a comfortable middle-class home in suburban Union City. Both of Jerrold's brothers are in college, earning top grades; his aunt is the first black woman ever to serve on the Board of Trustees of Auburn University.

Jerrold, who graduated from high school in 1991 and was living with his parents, "had some problems, like a lot of kids these days," his father told me. "But we hoped he'd outgrow them. He was a good kid, never into guns or killing or any of that sort of thing."

On Sunday, Nov. 15, at about 2 in the afternoon, Hall met Owens at the Eastmont Mall in Oakland. According to a sworn statement Owens gave to the police, the two drank a few beers and part of a small bottle of E&J Brandy. Early in the evening, Hill invited Owens to his home, and they left the mall on an AC Transit bus to catch a BART train for Union City.

According to Owens and several other witnesses, Owens and Hill encountered a black man in his late 30s on board the train, and the man asked them if they wanted to buy one of the Walkmans he was carrying in a bag. When first questioned by police, at about 1:35 a.m., Owens said he declined the offer, went to another train car "where more girls were," and met up with Hall again a few minutes later. At about 4:30 a.m., he made another statement, acknowledging that he was present when the friend he called "Glasstop" told the would-be salesman, "give me your Walkman."

Several other witnesses on the train agreed that Hall had confronted the man, and walked away with a bag. None, including Owens, saw a gun.

However, the victim of what the BART police still call an "armed robbery" called the train operator on the intercom and said two men with a gun had stolen his Walkman. The operator, who never saw Hall or Owens, reported the incident, and it was relayed to BART police, who instructed the trainman to stop in Hayward, and, after a brief delay, to open the train doors. Hall and Owens left with about 50 others; according to the station attendant, they jumped the emergency gate and walked into the parking lot.

The police were able to find several eyewitnesses to the alleged robbery; however, other than Owens and Crabtree, who was the only police officer on the scene at the time, the internal report does not identify a single witness who actually saw the shooting.

An official Dec. 7 statement, written by BART Police Chief Harold Taylor at the request of the Bay Guardian and reviewed by BART's legal department, notes that "witnesses disagreed as to the precise sequence of the next events."

The internal BART police documents obtained by the Bay Guardian contain no formal statement or direct quotation from Crabtree; he apparently filed no written report. The reports were all prepared by other officers, who arrived at the scene after the shooting.

According to those reports, filed shortly after the incident, Crabtree approached Hall and Owens, who were standing near a bench in the parking lot's bus-stop area, and ordered them to lie on the ground with their hands over their heads. Owens complied; Hall did not.

Hall, the reports state, "confronted and challenged Officer Crabtree, attempting to take Officer Crabtree's shotgun from him at one point." There is no mention of what the dog, who was trained to bite anyone who attacked Officer Crabtree, was doing at the time. BART officials refuse to elaborate, saying the incident is still under investigation.

However, one Bay Area dog trainer, who has trained police dogs, said it's highly unlikely that a German shepherd of the sort imported by the BART police (see sidebar) would fail to respond in such a situation. "Dogs are very loyal and protective," the trainer, who asked not to be identified, told the Bay Guardian. "These dogs are carefully bred and taught to attack anyone who physically endangers their human handler. Sometimes they overreact; they very rarely underreact."

TO TAKE A LIFE

Owens told the police he "did not see the cop and Glasstop get into any physical fighting. They did not touch. They were just arguing." After a few moments, Owens said, "Glasstop walked over to me and said we could go. So we started to walk away."

Whatever the nature of the confrontation between Hall and Officer Crabtree, the police report and witness statements leave very little doubt that it ended with Hall walking away - and, as the internal police report states, "with Officer Crabtree retaining the shotgun."

It's also clear that some time, perhaps as much a minute or two, passed between the initial clash and the shooting - more than enough time for Hall and Owens to start walking away. During that period, the documents suggest, the passenger who had initially reported the robbery - and had not made any contact yet with police - suddenly ran out into the parking lot, pointed toward Hall and Owens and shouted, "That's them." Then the passenger fled.

Crabtree then ordered the two young men to halt again - and at that point, the statements get very fuzzy.

According to the official statement released Dec. 7 by BART, Crabtree "summoned his canine, but Hall resisted the dog." A medical report filed by Alameda County emergency technicians who examined Hall after the shooting includes no mention of any dog bites or wounds of any sort other than those caused by the shotgun. A copy of the report, which has not been released, was obtained by the Bay Guardian.

Crabtree, the official BART statement continues, "fired a warning shot at a nearby tree. Hall continued to move toward the other suspect, and at one point turned and assumed a position which concealed his hands."

The internal police report, however, states that Owens was the one who was "failing to keep his hands in view," and who, in what the report described as "an effort to get rid of the evidence [Walkman]," put his hands into his pants pockets. At that point, the report states, Crabtree "used deadly force on suspect Hall."

Owens said he responded immediately to the second command to halt, but that Hall kept walking away. When Owens heard the shots, he turned around, "and my partner was lying face down.... Then I heard all the cops coming with sirens."

In fact, within a matter of minutes, at least three more BART police cars and a backup unit from the Hayward Police Department had arrived on the scene. Even if Hall, who by all accounts was walking, not running, had been attempting to "flee," it's unlikely he would have been able to get far.

And after an extensive search of the train, the tracks, the station, the parking lot, and everything else in the vicinity, the BART police acknowledge they were unable to find a gun.

Although the BART police initially insisted that Hall had been shot in the chest, and most of the news reports carried that statement unchallenged, even BART now admits that the shot struck the young man in the back of his head. His father, Cornelius Hall, never had any doubt.

"I'm a trained emergency medical technician," he told the Bay Guardian. "I was in the hospital room when the nurse was washing down the body. I know what an entrance wound looks like, and my son was shot in the back."

In Modern Police Firearms, a textbook on law-enforcement procedures, Professor Allen P. Bristow of California State University, Los Angeles, writes that deadly force should be used to stop a fleeing felon only when "he cannot be contained or captured" through other means. Further, Bristow notes, an officer considering deadly force should ask the following question:

"Is the crime this suspect is committing, or are the consequences of his possible escape, serious enough to justify my taking his life or endangering the lives of bystanders?"

The San Francisco Police Department guidelines on deadly force embody some of that same philosophy. "Officers shall exhaust all other reasonable means of apprehension and control before resorting to the use of firearms," the Aug. 24, 1984, policy states. Officers are allowed to shoot at a dangerous, fleeing felony suspect "only after all other reasonable means of apprehension and control have been exhausted."

San Francisco, like almost every other police agency in the Bay Area, and most in the country, strictly prohibits warning shots. So does BART: "Discharging of firearms [is] not allowable as a warning," BART's official weapons policy states.

The BART police are a bit more lenient than San Francisco on the use of deadly force to stop fleeing suspects. The officer must only believe that "the suspect is likely to continue to threaten death or serious bodily harm to another human being," according to BART's July 22, 1987, operational directive. Yet the directive also states that a firearm may not be used "when the officer has reason to believe ... that the discharge may endanger the lives of passersby, or other persons not involved in the crime, and the officer's life, or that of another person, is not in imminent danger."

THE OPEN RANGE

Armed guards have patrolled BART trains and stations since the agency started running trains about 30 years ago. At first, they were simply known as "BART Security"; the officers had the authority to carry weapons and arrest suspects, but under state law, they weren't members of a real police department. For the most part, that limited their authority to the confines of BART property.

In 1976, the state Legislature granted BART the authority to run a police department with jurisdiction and authority second only to the California Highway Patrol. BART officers now have full police powers, not only on their own turf, but in every one of the 58 California counties.

The department, headquartered near the Lake Merritt BART station, currently employs 151 sworn officers and nine dogs (see sidebar Page TK). An undisclosed number work undercover, in plain clothes, riding the trains and looking for crimes that range from fare evasion, "eating," and "expectoration," to assault, robbery, and rape. By far the most common crime, according to a BART police statistical breakdown for 1992, is "vagrancy": 4,227 separate instances were reported by BART officers in the first 10 months of the year.

The BART Police Department has a $12 million annual budget, a fleet of patrol cars, and its own communications system. Officers earn salaries that Chief Taylor calls "competitive" with other departments in the Bay Area.

And at a time when California law-enforcement agencies are coming under increasingly strict civilian control, the BART police operate with nothing more than token oversight.

Chief Taylor reports to no commission, mayor, or city council. The department is administered by BART's assistant general manager for public safety, who reports to the general manager, who reports to the board. BART spokesperson Michael Healy said the board plays no role in hiring or firing a chief, much less in disciplining police officers.

Former BART Board member Arlo Hale Smith said that in his term of office, the BART police chief rarely showed up for board meetings. "Even when we had something to discuss about the department - usually a labor-contract issue - the assistant general manager would come," Smith explained.

Citizen complaints against the BART police are handled by the Internal Affairs Department, which is not a separate agency, as it is in many police departments, but a branch of the Detective Division, Taylor told the Bay Guardian.

That, some critics say, may explain why BART has the lowest possible rate of sustained complaints against its police officers. "There's a very good reason for civilian agencies to handle complaints against the police," said the ACLU's John Crew. "People who have been abused by the police have a hard time trusting the same police department to do an honest investigation."

Cornelius Hall, who is no stranger to government bureaucracy, said he ran into a stone wall when he tried to get some basic information about his son's death from BART. "They wouldn't even give me the police report," he told the Bay Guardian. "The only way I can find out what happened to my son is to hire a lawyer and have it subpoenaed."

Crew said he finds the situation "chilling." He said he saw a "complete dearth" of civilian oversight in the BART administrative structure. "There's no opportunity for meaningful public input, for hearings, for discussion of issues," he continued.

"It's not an acceptable situation. But under the circumstances, the members of the BART Board have an increased responsibility to ask questions and keep on top of their police department's practices."

In the case of Jerrold Hall, at least, that doesn't seem to be happening. The shooting hasn't been on the agenda for any board meeting since Nov. 15, and board members say they haven't received any information about it from BART management.

And unlike Cornelius Hall, they haven't even bothered to ask.

TO TELL THE TRUTH

The day after a BART police officer shot Jerrold Hall in the back of the head, transit agency spokesperson Mike Healy told reporters that Hall had been shot in the chest.

Not true.

Healy also told reporters that Hall had attacked Officer Fred Crabtree, and continued to attack him after Crabtree fired a warning shot.

Not true.

And Healy said that the warning shot was fired "over Hall's head."

Not true, either.

Healy freely referred to an alleged "armed robbery," but he didn't tell reporters that BART police had searched the entire area and never found a gun. He didn't say that the alleged robbery victim had vanished without a trace, either.

So the public got a one-sided - and, as it turns out, largely inaccurate - picture of the incident. The press, taking Healy's information at face value, portrayed Jerrold Hall as a violent, gun-wielding punk, shot in the act of attacking a cop.

"In some ways," says Hall's father, Cornelius, "that's the saddest part of all."

And while Healy finally put out a statement Dec. 7 acknowledging that some of his previous comments were in error, he did so only after a three-week barrage of questions from the Bay Guardian - and he never issued a word of apology to the Hall family.

It's hard to blame Healy for the initial round of misinformation: In the heat of a bloody battle, the truth is often obscured. But Healy clearly knew, or could have known, within a few days after the incident that his official press statements had been wrong - that, for example, the medical reports showed Hall had been shot from behind. He could have called the reporters who were covering the story and let them know, or issued a new press release with updated information.

He could have tried to rescue some of what was left of the dead 19 year old's personal reputation - and salvaged a bit of his own in the process. Instead, he fell back on the old BART strategy: When in doubt, stonewall. Then duck for cover, and hope it will all go away.

The BART Police Department may be the least-responsive law-enforcement agency I've seen since the discovery of the shredding machine in the White House basement. There is no press officer. The watch commanders, lieutenants, and captains refer all press calls to Chief Harold Taylor, who won't come to the phone; his secretary refers the calls to the BART Public Affairs Office.

When I first called Healy Nov. 16 to ask about the shooting, he told me he hadn't seen a police report, and didn't know if one existed. He also said he didn't know what the citizen complaint procedure was for the BART police, and had no idea if it was in writing. I filed a formal request for those and other records Nov. 17; under the Public Records Act, I had a legal right to a response within 10 days.

I let it slide to 15 days (holidays and all), then started calling Healy's office. He was too busy to come to the phone at first, but after I harassed him for several hours, he told me that Chief Harold Taylor was handling my request, and that I should call him directly. Taylor wouldn't come to the phone at all: He had an assistant tell me that Public Affairs was handling the request, and that I should call Mike Healy.

I spent another day trying again to reach Healy, who finally told me he wanted to set up an interview with Taylor - for Dec. 4, 17 days after I'd sent in a request for information most police agencies would probably have provided in less than an hour.

Chief Taylor showed up for the interview with a BART lawyer, who promised that the chief would fax me a statement of the facts of the shooting sometime later that afternoon. The brief, incomplete statement finally arrived three days later, around 3:30 p.m. Dec. 7, 21 days after my initial request. And BART officials still won't release the full police report.

If I were a suspicious reporter, I'd wonder what they were trying to hide.

------------

Deputy dog

In Philadelphia, the Inquirer revealed several years ago, police dogs attacked 358 people in the course of 33 months, leaving many of them scarred or maimed for life. In Los Angeles, the Times recently reported, the local K-9 Corps recorded more than a thousand bites in three years. In Washington, D.C., and Baltimore, trained German shepherds tore into a total of 375 legs, arms, and torsos in the course of their law-enforcement work.

In the past 10 years, canine corps scandals have tarnished the reputations of police departments all over the country and have cost taxpayers millions of dollars in lawsuits.

In Berkeley, however, police dogs have been banned since the early 1970s, when a City Council member named Ron Dellums responded to the brutal use of dogs against blacks in the South with a resolution abolishing the local canine corps. In San Francisco, dogs handle only a few very limited tasks.

But since 1990, the BART Police Canine Corps has been expanding into the sort of work that created such extensive problems in other American cities - a use for dogs that critics say has little justification.

"There are two basic rationales for using police dogs," explained Richard Avenzino, director of the San Francisco SPCA, whose agency has worked with the local Police Department canine program. "One is for sniffing out explosives or narcotics. The other is for searches, mainly in enclosed spaces, where the dog's sense of smell can aid in finding a hidden human suspect.

"But there's also a perception that a snarling dog can intimidate people, which creates a lot more potential for trouble."

The first BART Police canine corps dates back to the early 1970s. But the BART Board disbanded the program in 1975, after a police dog on a train in Philadelphia barked at BART Director John Glenn.

In 1990, Police Chief Harold Taylor restored four dogs to the force, saying they would be "a strong statement of police presence," would deter violent crime, and could be used to help clear homeless people from trains and stations. In an interview last week, Taylor said the dogs, which now number nine, are used "to back up officers, in all their law-enforcement duties."

The dogs, imported German shepherds, are bred and undergo Schützhund training at a special school in Germany, where they learn to attack on command. "The dogs only [understand] German," explained Deputy Chief Kevin Sharp. "The officers learn to issue their commands in that language."

Sharp said none of the BART dogs are trained to sniff out bombs or drugs and that they aren't often needed for searches. In normal situations, he said, the dogs stay in the police car, with the window open, while the officer approaches a suspect. "They're trained to jump out and attack without any command if they see that the officer is under assault," he added.

ACLU Police Practices lawyer John Crew found that description alarming. "In other words," he said, "we have dogs deciding on their own when to use what amounts to lethal force. That's not a very good idea."

Avenzino said the training methods used for such dogs "are, to put it mildly, controversial. A dog will do anything to please its owner; if you teach it to attack on command, it's like loading a gun. In my opinion, it's very dangerous."

Jim Chanin, a Berkeley lawyer who has filed several lawsuits over attacks by police dogs, said he sees no good reason for BART to have a canine corps. "The problem is that these dogs are just trained to attack," he explained. "You can't use them to search for some kid lost in the BART tunnel.

"If there's something the BART police do on a regular basis that requires the use of dogs, I certainly can't see what it is."

Chief Taylor told the Bay Guardian that dogs provide much less expensive backup than additional sworn officers. Berkeley Police Lt. Tom Grant said he agrees, to a point: "But then you have to pay out those big legal settlements if one of the dogs does something wrong."

Monday January 5, 2009