Fools Rush in, but Sometimes they Spend four Months Doing it

By Frank Gruber

July 26, 2010 --The Santa Monica Police Department's four-month investigation into whether Oscar de la Torre, member of the School Board and head of the City of Santa Monica-funded Pico Youth and Family Center (PYFC), committed the crime of child endangerment, rates as the sorriest episode of foolishness to come out of city government during the 10 years I have been writing this column.

The police based most of their investigation on a one-minute video of a fight between two Santa Monica High School students that took place after school on March 16 in the alley between the high school and the PYFC's offices on Pico.

I've now watched this video many times, often frame-by-frame. I've also read the application that the SMPD filed to obtain a warrant to search the offices of the PYFC for evidence that would show that Mr. De la Torre had the "in loco parentis" relationship to one of the fighters that would be necessary to prove a charge of child endangerment. I've now talked to Police Chief Tim Jackman about the case and watched statements made by the SMPD's press representative.

My reaction is to marvel how intelligent and rational adults can convince each other, based on 30 seconds of possible indecision when Mr. De la Torre was presented with a violent and complex situation, that he was guilty of child endangerment.

When one compares the video against the application for the search warrant, which lays out the department's case and to my knowledge is the only documentation about the investigation that the SMPD has released, inconsistencies become apparent immediately.

At the very beginning, the department says that the video shows that Mr. De la Torre arrived and watched as the fight began, but the fight is raging at the beginning of the video. There's no reason to doubt Mr. De la Torre's assertion that he was called to the alley because a fight was in progress.

For 25 seconds Mr. De la Torre watches the fight proceed, with the fighters ranging widely over the "ring" created by bystanders. While the fighters are having at it, there seems to have been little opportunity for any individual to step in and stop them. But 25 seconds into the video the fighters fall to the ground. Mr. De la Torre then emerges from the crowd and approaches the fighters, putting his hands out in what looks like a motion to tell the crowd to keep back. But before he can get closer to the fighters, they pop up and start swinging at each other again.

The fight then proceeds for another 30 seconds, until the fighters fall to the ground again and Mr. De la Torre, aided by a tall young man with a backpack, is able to get close to the fighters and separate them. The video ends moments after that.

The biggest area of inconsistency between the application for a search warrant and the video is that in the application the police use still shots taken from the video to illustrate their points. When you watch and listen to the video in real time, you realize how fast this all took place. In the real-world context the department's case, which is based on a psycho-babble type explanation of Mr. De la Torre's hypothesized "mindset" (a term used repeatedly), is ridiculous. I suspect that is the reason the District Attorney decided not to proceed with charges.

Specifically, the police base their case for child endangerment on the idea that in the 56 seconds of the fight depicted in the video, Mr. De la Torre made a deliberate decision to stand "idly by" and not to stop the fight (assuming he could have done so) because of a mindset Mr. De la Torre had in favor of young men settling their differences in a boxing ring.

As evidence for the existence of this mindset, the department cites various hearsay reports about what Mr. De la Torre allegedly said in the past about young men resolving their differences. Mr. De la Torre denies these reports, and they appear inconsistent with the positions he has taken about youth violence over the years.

Whatever the police might think about Mr. De la Torre's mindset, there's no logical reason to think that whatever it was changed in 30 seconds, between the first time the fighters went down and he failed to stop the fight, and the second time, when he successfully ended it. Mr. De la Torre's explanation for what happened at 25 seconds, which is that something a bystander said caused him to pause to evaluate the situation, makes more sense.

One of the bizarre aspects of the department's case is that the police chide Mr. De la Torre for only becoming involved at the end of the fight, ignoring the fact that the fight ended then because he ended it (with help from the young man with the backpack).

I don't have space to go into the department's strange and strained "in loco parentis" argument, based on one fighter's participation in a PYFC mentoring program, but I will say that if the fighter's real father had shown up, I don't believe anyone would have expected him to do any more than what Mr. De la Torre did in those 56 seconds. What is a shame is that in response to this contention about de facto guardianship from the police, the PYFC has, for liability reasons, suspended, pending legal clarification, the mentoring program in which the fighter was enrolled.

So what's driving this? Mr. De la Torre claims that the department's actions are political, designed to hurt him if he had decided to run for the City Council, which was his intention a few months ago.

I suspect that's reading both too much and too little into the situation. I suspect that the police would have investigated this the same way without regard to Mr. De la Torre's political ambitions. But that doesn't mean that the decision to investigate was "apolitical," as the department claims. There are deeper political conflicts in play.

If you read the police's arguments, you can't escape the conclusion that what they would have considered appropriate action for Mr. De la Torre to take would have been for him to stay in his office and call the police. They would have arrived in three or five minutes, meaning that the kids might have gotten more beat up, but if the fight was still going on, the police would have busted it up and arrested the fighters. Two kids would have rap sheets. (To be clear, Mr. De la Torre says that as he left to intervene in the fight he directed people in the PYFC office to call the police; the police dispute this. Police ultimately appeared at the scene after the fight was over.)

Let me ask my middle-class readers -- if your son got into a fistfight with another kid after school, something known to happen among even middle-class boys, what outcome would you prefer, that they shake hands and walk away, which is what happened March 16, or that they get arrested?

The real "mindset" of Mr. De la Torre that the SMPD doesn't like was expressed directly by Mr. De la Torre to the police investigator in an interview during the investigation; there's a long quote from the interview in the application for the warrant. Here is part of what he said:

"[I]f law enforcement would have gotten there, heads would have been knocked around if they didn't stop, somebody could have ran, who knows what's going to happen. But for sure, a black and Latino would have been arrested, no handshake, because no member of law enforcement is trained to do what I do. No member of law enforcement is going to say, 'hey man, let's end that shit right now and end it and shake hands.' I've never seen a police officer in the city of Santa Monica go into a fight where black and Latino are fighting, grab both kids and say, I'm not arresting you guys right now, but you need to shake hands and end this shit right now. No police officer will ever do that."

Consider this a turf war. The police believe they know how do deal with youth crime and gangs. Oscar de la Torre believes they need help.

Oscar de la Torre is not one of the easy people in Santa Monica politics. Personally there have been issues -- most recently regarding the Expo line's maintenance yard and last year how he got involved with the Edison Elementary School P.T.A.'s aborted Carlos Mencia fund raiser -- where we have disagreed. (Although I have to say that Mr. De la Torre deserves credit for encouraging his PYFC clients to become involved in issues like the maintenance yard, so that they learn how to engage constructively in civic affairs.)

Mr. De la Torre likes to question authority. In recent years during all the controversy about special education, Mr. De la Torre was the member of the School Board who most directly challenged the District's staff, and it's obvious that when he became a board member his self-perceived role was to upset what he saw as complacency over the achievement gap. His organization is funded by the City, but that doesn't stop him from criticizing City policies and programs. That rankles people.

It's also true that the police department has a difficult responsibility when it has to investigate public officials. The fact is, that with all the involvement of the police union in local politics (its endorsements of candidates are considered second only in importance to those of Santa Monicans for Renters Rights), the police should not have this responsibility.

When I spoke to Chief Tim Jackman Friday evening after Mr. De la Torre's press conference to get his side of the story, he told me that after concluding its investigation the department referred the matter to the City Attorney. (Incidentally, Mr. Jackman pointed out that since the City Attorney's office can only prosecute misdemeanors, this meant that after concluding its investigation the department had reached the conclusion that there were no grounds for a felony charge against Mr. De la Torre.)

However, according to Chief Jackman, the City Attorney's office refused to accept the matter, claiming that it had conflicts because of Mr. De la Torre's various roles, and sent the case to the District Attorney.

Looking back, and hopefully looking forward in case similar cases arise in the future, Chief Jackman should have done the same thing as the City Attorney, and directed his investigator to turn the evidence over to a neutral police agency, or the sheriff's office, to get an unbiased opinion based on the video.

I'm betting that if a neutral agency, without mindsets about mindsets, had looked at the video, the whole thing would have been dropped, sparing pain and embarrassment for many people -- first, Mr. De la Torre, but now, the police.

Read article: DA Drops de la Torre Investigation

Frank J. Gruber is the author of Urban Worrier: Making Politics Personal, available at Hennessey + Ingalls and Angel City Books in Santa Monica, at City Image Press, and on amazon.com.