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The day 70-year-old Russell Hartsaw was killed in a San Diego jail, he was supposed to be in protective custody, a housing status reserved for inmates who could be targets in a jail’s general population. Frail, mentally ill and gay, Hartsaw somehow managed to argue his way out of protective custody and into a dorm-style unit where he was beaten to death by Mario Lopez, a 6-foot-4, 215-pound gang member nicknamed “Evil.” Days later, a deputy intercepted a note from Lopez in which he bragged to another inmate about killing a “chomo” — jail slang for a child molester — and that his “obligation was to smash all trash.”
Hartsaw’s rap sheet included armed robbery when he was much younger and, more recently, threatening two people with a broken stun gun, but nothing involving child molestation.
In 2013, a jury found Lopez guilty of Hartsaw’s murder. Not part of the trial, though, was whether deputies erred in granting Hartsaw’s request to be removed from protective custody, and placing him with someone like Lopez.
“They should have known the poor guy was losing it,” said Jesse Gonzalez, Hartsaw’s longtime friend who’d watched his slow decline.
The San Diego County Sheriff’s Department conducted its own review of Hartsaw’s death, but such records are exempt from disclosure under state public records law. The public can’t access those records, but the Citizens’ Law Enforcement Review Board, an independent oversight body, can. CLERB investigates complaints against county law enforcement officers and any in-custody death that may have been the result of law enforcement misconduct. It issues summaries of its investigations and, if necessary, recommends disciplinary action and policy changes — though the sheriff is under no obligation to follow those recommendations.
But five and a half years after Hartsaw’s death, CLERB has yet to release its findings. Hartsaw’s name is at the top of CLERB’s list of the 46 deaths it’s investigating, the most open death cases in the board’s 25-year history.
At the beginning of 2011, seven months before Hartsaw’s death, CLERB had just six open death investigations. That number grew to 19 by the end of 2014, then to 35 in December 2015 and 46 by the end of 2016.
The steep increase doesn’t appear to be tied to a spike in deaths involving county law enforcement officers. In other words, the problem appears to be on CLERB’s end – it’s completing far fewer death investigations, even though the number of cases coming over the last several years has stayed relatively consistent. Between 2005 and 2012, for instance, CLERB opened an average of 16 investigations a year and completed an average of 18. From 2012 to 2016, it opened an average of 15 investigations a year but completed fewer than half that number.
Sue Quinn, who served as CLERB’s first special investigator and, from 1995 to 1997 as its executive officer, said the board needs to prioritize the most serious cases — deaths in county jails and lethal use-of-force — “so you prevent the next one from happening.”
“We prioritized [those cases] because they were the most potentially damaging to citizens, the officers and the county in liability,” she said.
Hartsaw’s case is by far the oldest open investigation, followed by nine deaths that occurred in 2013, two of which prompted lawsuits against the county that have already been settled. In November 2015, the county agreed to pay $1.5 million to the family of Rosemary Summers, a 16-year-old who committed suicide in a Kearny Mesa juvenile detention facility after repeatedly telling staff she planned to kill herself. Robert Lubsen’s family agreed to an $80,000 settlement after suing the county for failing to put the 26-year-old on suicide watch after he tried to hang himself in a holding cell. Lubsen was instead housed on the Vista Detention Facility’s second floor and jumped to his death a day after he was booked. The lawsuit alleged his cellmate warned deputies the young man was suicidal.
Lawsuits, or claims against the county — the precursor to a lawsuit — have been filed in at least four of the cases awaiting CLERB’s investigation.
CLERB Chairwoman Sandra Arkin said death cases are a priority for the board but are often complicated or hampered by delays in receiving information from agencies and individuals tied to the investigation.
“It is a priority to us to get them completed and we will continue to bring down the number of unresolved cases,” she said via email.
The large number of open death investigations isn’t the only challenge CLERB’s facing. In November, Executive Officer Patrick Hunter resigned abruptly after more than six years on the job. Hunter, a retired Navy officer, served on CLERB’s board as a volunteer before being hired in 2007 as executive director of the city of San Diego’s Community Review Board on Police Practices, where he worked until 2010.
Hunter declined to say why he resigned and directed questions to the CLERB board. Arkin said she couldn’t discuss Hunter’s resignation because it’s a personnel matter.
At its Jan. 10 meeting, the board appointed longtime CLERB Special Investigator Lynn Setzler as interim executive officer and established a committee to conduct a search for a permanent executive officer. Arkin said the goal it to hire someone within six months.
Prior to Hunter’s resignation, CLERB’s paid staff included two special investigators, an executive officer and an administrative assistant. Setzler’s appointment leaves only one full-time investigator.
Setzler, like Arkin, wouldn’t comment on Hunter’s resignation. But it was clear at the board’s January meeting that CLERB was unhappy with Hunter’s performance. Several expressed frustration over complaints being dismissed because an investigation hadn’t been completed within a year. Under California’s Peace Officers Bill of Rights, any allegations of misconduct that could result in discipline of a law enforcement officer must be investigated within a year, or dismissed. Even though CLERB only recommends discipline, it abides by the one-year rule.
The one-year rule doesn’t apply to death investigations.
A review of CLERB’s 2016 agendas reveals 20 allegations of misconduct that were dismissed because an investigation couldn’t be completed within a year. Some allegations were minor — one involved an inmate who alleged a deputy failed to remove his name from a list of inmates required to wear shackles in the jail’s day room. But others are far more serious. A case dismissed in September involved allegations that deputies confiscated an inmate’s legal paperwork, pepper-sprayed him and hit him repeatedly. A case dismissed in October included multiple allegations of abuse from a complainant who said more than a dozen deputies beat and Tasered him until he was unconscious.
Case dismissals were a problem for Hunter’s predecessor, Carol Trujillo, who resigned in March 2010 amid a growing backlog of complaints and allegations of mismanagement by a former CLERB investigator.
Not long after Hunter was hired to replace Trujillo, the county brought in an outside consultant to help CLERB streamline its investigative process. At the January meeting, board member Loren Vinson suggested CLERB undergo another performance review, but Setzler argued it would be an unnecessary expense.
“The former [executive officer] was a participant in the [2011 review],” Setzler told the board. “He just chose not to follow the process.”
Arkin said CLERB strives to complete investigations in a timely manner. While the vast majority of complaints are investigated within a year, “We always strive for 100% compliance. … We want to reach a resolution for both the complainant and for the Sheriff’s deputy or Probation officer,” she wrote in an email.
Quinn believes the Peace Officers Bill of Rights shouldn’t prevent CLERB from investigating a case; the law only prevents discipline from being imposed.
“Even if you no longer have jurisdiction over recommending discipline, you still do the investigation,” she said.