KFMB/CBS 8

“That’s him,” shouted the woman in the Walmart parking lot near Aero Drive and Interstate 15. Seconds later, Jeffrey Saikali felt a car bump him in the back of the legs. “I swept my arm around and pounded once on the hood of the car,” he says. “Just then, the woman jumped on me from behind.” The motion of his arm brushed the woman off, too, Saikali says, and she went down. “The next thing I know, the driver, a very big guy, is out of the car and has me down. He proceeds to choke me and beat the top and back of my head, driving my face into the pavement. All the while he’s berating me with profanities. Before long I was lying in a pool of my own blood. I thought I was being murdered. There were people who had gathered around to watch, and the woman was bragging to them that the attacker was a martial arts expert. I cried out for someone to help me. But the most anyone would do was to warn my assailant to stop because if he killed me things would go very badly for him.”

A verbal dispute inside of Fry’s Electronics led to Jeffrey Saikali being beaten in the parking lot across the street.

Photo by Howie Rosen

Moments earlier, Saikali and his female antagonist had been in a verbal dispute in Fry’s Electronics across Stonecrest Boulevard to the south. It was about 7:30 in the evening on Saturday, April 13, 2013. Saikali had gone to shop in the store and was speaking with a salesman. He had already put a few items into a cart that was standing nearby. He noticed that a woman began walking away with the cart. He let her know, and the woman apologized. Saikali figured the incident was over. But, he recalls, the woman came closer and insisted that his proper response to her apology should have been, “That’s okay.” Saikali says he told the woman, “You said you were sorry; the matter is done with.” He then went on talking with the salesman.

But the woman approached and pointed her smartphone at Saikali, announcing that he was being recorded. Saikali says he placed an envelope between her camera lens and his face. “When she maneuvered for a better angle, I moved the cellphone aside. She then began screaming that I hit her.”

A man Saikali took to be a security officer quickly appeared. The man asked Saikali to step into another aisle while he spoke with the woman. After waiting longer than he thought was reasonable, Saikali decided to leave the store. As he walked out the doors, he says, he heard the woman call out, “You have to stop him.” But he says no store employees complied. The woman then followed Saikali through the Fry’s parking lot. Saikali says he deliberately kept walking forward without looking back.

He walked almost as far as the front door of the Walmart store across the street, where he reversed his course. He could hear the woman calling someone on the phone to hurry and come.

“I sensed from voices around that other people were joining her,” says Saikali. “Now the woman also shouted that I had thrown her down.”

A light-gray car approached and passed him in the parking lot. Saikali says he could hear the car turn around behind him as the woman identified him to its driver. He maintains that during the beating he then endured, police officers arrived but did not intervene, allowing the assailant to continue briefly before stopping on his own. Police then handcuffed Saikali and stood him against a patrol car. “I could barely stand,” he says. Eventually, police put him in the car and an officer came to ask for his account of what happened. “But the officer did not take notes or use a recorder,” he says.

A cop with a bad rep

One of the first things Saikali told police was that he needed medical attention and wanted to be sent to the hospital. He says they told him he didn’t need it. But an ambulance did arrive shortly. Saikali’s eyeglasses had been destroyed in the beating, and he says he could barely make out people talking behind the ambulance’s open doors a short distance away. Soon it drove away without its attendants examining Saikali.

Sergeant Kenneth Davis

KFMB/CBS 8

After his continued insistence on going to the hospital, a second ambulance appeared, and attendants examined Saikali inside it. Sergeant Kenneth Davis then entered and issued Saikali a misdemeanor citation for “battery on a person.” Saikali says he requested of Davis several things, starting with an explanation of what the citation was for. But the officer refused to answer.

Was the man who beat Saikali also issued a citation? No. Could Saikali press charges against the man? No.

Davis then left the ambulance but not before becoming candid on one point. “He told me that I deserved my injuries,” Saikali says.

Sergeant Davis is already known in town for behavior ranging from questionable detainment to criminal stalking. In 2007, a lawsuit was filed against Davis in federal court for malicious prosecution. Southeast San Diego resident Melford Wilson had objected loudly and with obscene language to a drug investigation Davis was conducting in the neighborhood. The officer arrested Wilson for obstructing the search. After Wilson sued, the city attorney’s office was able to have the charges dismissed. But a 2011 appeal in the U.S. Appellate Court’s Ninth Circuit resulted in the judgment being reversed. A key issue in the case was Wilson’s constitutional right of free speech. But after the case was remanded to the district court, a second jury exonerated Davis again.

That same year, however, Davis didn’t fare as well. In the spring, he was charged with felony stalking against fellow officer Robin Hayes and was put on a three-year administrative leave. In a preliminary hearing, Hayes testified that Davis had also threatened to kill her. Through plea bargaining, Davis was eventually allowed to plead guilty to misdemeanor stalking. On October 13, 2011, after his trial concluded, NBC San Diego ran a story headlined, “Officer Stalks and Walks Free.” Davis soon was back at work on the streets.

Victim charged with a felony?

After Saikali arrived at the Sharp Memorial Hospital emergency room, he overheard the woman he says attacked him talking in a nearby enclosure. She was bragging again, he says, this time to a nurse, about how her male companion in the Walmart parking lot was an expert in martial arts. Saikali could hear that she was being treated for a broken wrist. He figured she had broken it when he flung her off his back. The first ambulance at the crime scene must have brought her there, he thought.

Before Saikali left the hospital, he had the nurse attending him take pictures of his injuries. Within days, he also wrote a three-page account of what happened both inside Fry’s and outside Walmart. He then went to the U.S. attorney’s office, where he was told there was nothing they could do. “I wanted them to see my injuries firsthand,” he says.

Saikali also called Fry’s and Walmart to ask that they save the surveillance video of the night he had been beaten. They promised to do it. When he called Walmart’s security department three weeks after the incident, he was told that only police could view the video. Had police come to look at it? No, they had not, he says the Walmart spokesperson told him.

Saikali tells me that previously he had never been in trouble with the law and that, during the aftermath to being “inexplicably charged with a crime,” he became “crazy with anxiety” over exactly what police had concluded about his case. And what would come next? The citation he was issued demanded that he appear at the Misdemeanor Arraignment Department in the courthouse by June 3 or earlier. But he was afraid of what “other bogus charges might be leveled at me downtown.” Would he be arrested if he appeared? Still, the most pressing thing was to obtain justice for what had been done to him.

On April 25, Saikali called the district attorney’s Victim Services office. He says that the woman who answered the phone “at first showed interest in what happened to me, but when she looked at the case, she said there was nothing she could do because I had been listed as a suspect.” Being labeled a suspect in his case has caused Saikali no end of frustration. He got the same treatment on May 14 when he contacted the Hate Crimes unit, also a service of the district attorney.

Before his next appeal for help, Saikali learned at the courthouse that the misdemeanor charge against him had been raised to felony battery. The same day, May 29, he also discovered that the district attorney’s office had rejected his case for prosecution. He tells me that a spokesman in the office could not explain why either of these developments had taken place.

Had his assailant been listed as a suspect all along? Perhaps Sgt. Davis had not told the truth. It wasn’t until July 10, 2013, that, on instruction from the mayor’s office, he went to police headquarters to obtain the crime report of his case. There he was told he couldn’t have it. Why? Because he was listed as a suspect in the case.

“All police have to do to prevent someone from seeing how they mishandle a case is to label him a suspect,” Saikali tells me.

Mike Marrinan, an attorney who prosecutes cases of abuse by San Diego police officers, thinks that explanation is unlikely. He acknowledges that the attack on Saikali should have been treated as a separate case. “What probably happened,” Marrinan tells me by phone, “was that, having received a citizen’s arrest call from the woman, police were too lazy to do anything other than list one suspect. Maybe they just didn’t like him. Or, on the basis of the charge he hit a woman, they felt he deserved what happened to him.”

But Marrinan wonders why Saikali couldn’t obtain a copy of the police report. “They commonly give out police reports to suspects, too” he says. “To protect witnesses and other parties that might be subject to retaliation, the police will black out names and other revealing information in the reports.”

I tell Marrinan that in January Saikali finally put in a California Public Records Act request to get police to release the report. That often backfires, Marrinan tells me, “because then the department’s legal counsel gets involved. Usually the simplest request at the department’s records office works better. They see that he was involved in the case and send out the report.” But that approach was what Saikali tried first.

The public-records request Saikali would submit in January did produce one windfall. Although the response, which came from then–police chief William Lansdowne’s office, denied him the police report, it was accompanied by an “incident history.” This three-page typed document is a cryptic record of what various police officers apparently encountered when they responded to the Walmart parking-lot incident. No reference to what occurred earlier inside Fry’s is mentioned in the incident history.

One note in the History states, “3 males fighting one att to run over another.” A second reads, “fighting over a fem.” Then, “approx 2 people hitting one male on the ground.” And finally, “male-Jeffrey Saikali has injuries from being hit by veh and beat up by another male.”

There was no indication, however, of what Saikali wanted most. What did police do, if anything, in dealing with the individual who did the beating up?

Citizens’ review

I met Saikali shortly before he filed the public-records request. He is a black man in his 40s, but the way he first told his story struck me as devoid of racial overtones. I later pried it out of him that the woman who accused him was “a dark-haired white woman.” He had not gotten enough of a glimpse of the male attacker to determine his racial identity.

However, Saikali says that on May 2, 2013, he did go to a meeting of the National Association for the Advancement of Colored People. Danell Scarborough, executive director of the San Diego Citizens’ Review Board on Police Practices, was at the meeting, and Saikali handed her his written account of both the verbal altercation in Fry’s and the beating he took in the Walmart parking lot. Scarborough told him that she would file his complaint with the police department’s Internal Affairs unit, which investigates all citizens’ complaints against the City of San Diego’s police. She also promised to keep him posted on the progress of his complaint.

Meanwhile, May through July came and went and Saikali had heard nothing from Scarborough. By then, he had discovered the citizens’ review board’s mixed reputation. A 2012 San Diego County Grand Jury report criticized the participation of Internal Affairs personnel at board meetings. On its brochure, the citizens’ review board touts itself as providing “independent and impartial” oversight of citizens’ charges of police misbehavior. But former and current boardmembers told the grand-jury hearing some officers say in meetings “they never want any dissenting votes going from [the board] to the Mayor or the Chief of Police.” U-T San Diego would characterize the criticism by titling its May 22, 2012, coverage “Grand Jury: Bullying Common on police review board.” Later, on September 16, 2013, the U-T reported that 85 percent of recent complaints reviewed by the board were ruled “unfounded.”

Rubber-stamp board

The idea behind the Citizens’ Review Board on Police Practices was approved by San Diego voters as Proposition G in 1988. For many years, California citizens had been looking for ways to discipline misbehaving cops.

“In 1974,” according to Ali Winston in an August 17, 2011, AlterNet article, “the California Supreme Court granted defendants access to police employment files under certain circumstances. That prompted police departments to start shredding records, until, in 1977, police associations and unions won the Peace Officers’ Bill of Rights, which along with key sections of California’s penal code exempted all personnel information from laws allowing residents to access public records. In response, jurisdictions around the state created independent review boards to investigate complaints of police misconduct.”

San Diego’s review board became one of those boards after the Sagon Penn case in 1985. Penn, a black resident of Southeast San Diego, shot and killed one cop and wounded another. He also wounded a ride-along passenger in the dead officer’s car. In two trials, one in 1986 and the other in 1987, attorney Milt Silverman argued that Penn had acted in self-defense since he feared the officers were about to kill him. Widespread public perceptions of police brutality and racism were backdrops to the trials. Juries acquitted Penn in both cases.

The citizens’ review board that resulted was never independent. It lacked subpoena power and could not conduct its own interviews of witnesses, including cops. It has been limited to evaluating the investigative work of the police department’s Internal Affairs unit. However, the board can have criticisms placed in officers’ personnel files and report the most egregious misbehavior to the mayor.

A second and stronger initiative to create police oversight was on the ballot in 1988 as well. Proposition F provided for a truly independent citizens group to investigate police misconduct. But it came at a greater annual cost to pay for the investigations.

Both propositions were passed by San Diego voters. Then–city attorney John Witt determined that they conflicted with each other and decided that the one with the most votes should be put into operation and the other dropped. It turned out that G had garnered 815 more votes than F. So, San Diego ended up with a police-monitoring, rather than a police-investigative, board.

The efforts of California residents trying to track the careers of misbehaving cops became even more difficult after 2003. That year in San Diego, Copley Press unsuccessfully sought details in the case of a misbehaving deputy sheriff. Copley sued, and the California Supreme Court sided with police in protecting officers’ privacy.

In her AlterNet article, Winston quoted the opinion of Tom Newton, a former executive director of the California Newspaper Association. Police unions, said Newton, have been “relentless over the past 25 years to create a tool for law enforcement agencies to work without public scrutiny. With Copley, they hit the jackpot.”

In the past 15 years, San Diego’s Citizens’ Review Board on Police Practices has been criticized by not one but two San Diego Grand Jury reports. Unhappiness with police oversight tends to emerge after spikes in troubling police behavior, as has happened in the cases of sexual abuse by a few city cops over the past several years. The first grand-jury report raised the question, “Have we been getting what we voted for?” That report took on not only the city’s review board but also San Diego County’s Citizens’ Law Enforcement Review Board. The 2012 report recommended that the chief of police stop Internal Affairs personnel from its attendance at closed sessions of the citizens’ review board. In a response, Mayor Jerry Sanders noted that “police personnel records are required in closed session meetings. Internal Affairs,” he wrote, “is the custodian of records and must be present or nearby at all times.”

Sanders also observed that, during discussion of cases in meetings, boardmembers benefit from being able to question Internal Affairs personnel.

“In my four years,” on the Citizens’ Review Board, says Jude Litzenberger, “not one citizen complaint of police misconduct was sustained by the board.”

Photo by Howie Rosen

Former member Jude Litzenberger believes strongly that the citizens’ review board can make a great contribution to public oversight of police work. Yet, she is one of the board’s severest critics. For 21 years she served in the Navy, where she developed training programs and “learned to work within the system. But I flunked retirement,” she says. After the Navy, Litzenberger earned a law degree from the University of San Diego and has been working with San Diego’s Veterans Court. The court helps vets in legal trouble find treatment to deal with post-traumatic stress and other service-related problems that may be contributing to criminal behavior.

Litzenberger served a two-year stint on the citizens’ review board. Each applicant to serve on the board must first spend two years as a prospective member, doing everything boardmembers do, except vote.

When a citizen’s complaint is reviewed, boardmembers have four optional categories in which to place it. The first two, “Unfounded” and “Exonerated,” leave no mark on an officer’s record. Both “Not-sustained” and “Sustained” complaints go in the officer’s personnel file. Sustained complaints also go to the mayor for possible sanctions.

“In my four years, not one citizen complaint of police misconduct was sustained by the board,” says Litzenberger. “If you never sustain any complaints, the public will look at you as a rubber stamp.”

Litzenberger believes that paid city staff, especially executive director Danell Scarborough and a representative from the city attorney’s office, play too domineering a role. Scarborough trains boardmembers and participates in their recruitment. Recently, in a change of bylaws, she became the supervisor of boardmembers. During meetings, she and the city attorney’s representative inform members what they can and cannot do and say.

There is a natural tendency for boardmembers to side with the guys who fight criminals. Litzenberger argues that the mayor is responsible for making sure that the recruitment of boardmembers includes “people who are not easily led.”

The board also needs to recruit and keep more minorities, she says. “But even when we got them, we often drove them away.”

In addition to officers from the police department’s Internal Affairs unit, Litzenberger tells me, assistant chief David Ramirez also attends board meetings.

She says that when discussions started moving toward censuring an officer, Ramirez would occasionally offer an exculpatory explanation. “Our team would not have seen the information he was talking about,” she says. “Only he knew about it.”

If run more independently, Litzenberger thinks the review board could provide a crucial early-warning system for detecting cops that may be going wrong. Correcting their behavior would be “a tremendous service to the majority of cops who are doing a great job.”

The problems start in Internal Affairs, Litzenberger maintains, with poor quality interrogation of witnesses. “I listened to tapes of interviews in which the investigator was clearly leading the witness,” she says. “There are techniques of cross-examination that don’t involve planting evidence.”

A number of factors then get in the review board’s way. Most of the boardmembers only have time to listen to taped interviews and review notes in the case files after working a full day at their jobs. They must go to the police department before 7 p.m. and check out files for examination onsite only.

The biggest structural problem is that the city attorney’s office defends police when they are taken to court and advises both the review board and the city’s Risk Management office. “There is no glass wall between these functions,” says Litzenberger. “The board really needs an independent legal advisor.” But the overriding role of the city attorney’s office, in regard to citizen complaints, is to minimize the city’s liability.

“Right now,” says Litzenberger, “the legitimate complaints about the police are being resolved in court.” A well-functioning review board, she believes, could save the city from many expenditures on defending against lawsuits. “But when the city is being sued, complaints to the review board get pigeonholed until the legal action is resolved. Being charged in court does not end up in an officer’s personnel files.” Since the review board can put nothing negative in the files more than a year after a citizen complains, the time the board has to review a case is often diminished, leading to errant cops going undetected. “We would get down to having three weeks to finish a case, and members would say, ‘Let’s just agree with Internal Affairs.’”

And in reviewing cases, says Litzenberger, “We never heard that a police officer had been accused of the same thing, let’s say, seven times before.” The Peace Officers Bill of Rights makes sure of that. With the exception of judges during trials, she says, “only the police department gets to look at officers’ records.”

Citizens are permitted to serve on the review board for eight years. Mayor Sanders chose not to reappoint Litzenberger after she served two years.

What about the attacker?

On August 2, 2013, Jeffrey Saikali decided to bypass the citizens’ review board and call Internal Affairs directly. “A Jeff Peterson there told me that he didn’t deny the board had sent them my complaint,” says Saikali. “Peterson said Internal Affairs just didn’t have a record of it. He also told me that it’s not the policy of Internal Affairs to document everything that comes into the office. I find that outrageous.”

Ten days later, Lt. Bernie Colon wrote to Saikali, thanking him for his complaint. “During the formal investigation process,” wrote Colon, “you, the officers and all witnesses will be interviewed.”

On August 14, Saikali spoke to an investigator at Internal Affairs. Sgt. Shawn Takeuchi acknowledged having photos of Saikali’s injuries that had been taken in the hospital. “Those photos,” Saikali says, “clearly show abrasions to my face and how damaged I was in my eyes.”

San Diego police Internal Affairs document incorrectly indicates that Jeffrey Saikali was not injured as a result of his beating on 4/13/2013.

Two days later, Internal Affairs sent Saikali a form with a few details of his case. The form indicated that, although police also photographed Saikali after the attack, he had no injuries.

On August 27, Douglas Oden of the NAACP wrote to district attorney Bonnie Dumanis, asking her to clarify what happened in Saikali’s case. “Our concern,” said Oden, “is not only with how Mr. Saikali was treated by police, but also why the person who assaulted Mr. Saikali has not been prosecuted.”

The next day, Saikali received a phone message from Sgt. Takeuchi, who now asked if they could meet for an interview. Saikali responded by listing three possible times to meet on a day of his choice. After hearing back that Takeuchi could not meet that day, Saikali figured the investigator would suggest alternative times. But in a letter on September 11, Takeuchi said only that he had not heard from Saikali in a while and asked him to respond within five days “to confirm your interview.” Takeuchi then noted that “time is of the essence.” In response, Saikali sent Takeuchi a letter that was never returned.

On September 16, the district attorney’s office replied to the letter of the NAACP’s Douglas Oden. The response stated that insufficient evidence precluded a prosecution in Saikali’s case, due in part to “the other party [having] suffered a fractured wrist,” an obvious reference to Saikali’s female antagonist on April 13. But what of her male companion that beat up Saikali?

On February 24 of this year, I spoke by phone with Danell Scarborough. She told me that the unit had authorized her to disclose a little information about Saikali’s case. She reported that before the attack on Saikali outside Walmart, there had been an incident in the Fry’s Electronics store between him and a female. More importantly, she said, the Internal Affairs investigation had turned up testimony that supported the woman’s version of events. What was the woman’s version? I wondered. I asked Scarborough if any of the witnesses had said that Saikali struck the woman or threw her to the ground.

“I feel like this is potentially getting into information from the investigation that is confidential and that I am not at liberty to talk about,” Scarborough told me. “I believe the testimony tended to support the woman’s version of events.”

Scarborough also reported that Sgt. Takeuchi told her that Saikali had not returned messages intended to arrange for an interview.

“We heard that story many times while I was on the citizens’ review board,” Jude Litzenberger told me.

On March 14, Scarborough wrote Saikali an encouraging email, saying that in reviewing his case, the citizens’ review board had “requested that Internal Affairs conduct additional, extensive interviews, which they are doing. The team specifically asked that Internal Affairs request additional information from you. It is my understanding that you have not responded to multiple attempts at contact. Please make yourself available to speak with Internal Affairs to ensure complete and accurate information is documented.”

Still waiting for Internal Affairs

On March 7, Shelly Zimmerman granted me an interview in her seventh-floor office at police headquarters. It was three days after the city council confirmed her appointment as San Diego’s new police chief. Most of the notes she sounded that day have been aired publicly already. But did Zimmerman know anything about the Saikali case? No, she said, but she would have Lt. Kevin Mayer, who was sitting with us, look into it.

On March 18, Mayer emailed, “Please put together some questions as to what you would like to know and we can talk tomorrow on this.”

The next morning, I emailed the following questions: “Did the male who attacked and beat Saikali commit an act of vigilantism? Did police cite or arrest any suspect other than Mr. Saikali in the incident? Did any witnesses from Fry’s Electronics tell police investigators that Saikali struck the woman or threw her down in the store? Was any surveillance video from either the Fry’s or Walmart stores able to shed light on what happened at either location?”

Within an hour, Mayer responded that he could not talk that day after all. But the rest of his email was intriguing. When police responded to the April 13, 2013, incident, he wrote, “they found a female who alleged being a victim of battery with injury that occurred inside Fry’s Electronics. The suspect was detained by the victim’s husband. The victim wanted the suspect arrested for this crime and placed him under citizen’s arrest. As a result of this citizen’s arrest, the suspect was issued a citation and released. The suspect was not booked into jail and therefore his name is not a matter of public record. Officers documented related evidence, witness statements and statements by those involved. Due to the severity of the injury to the victim which was discovered after hospital treatment, the entire case was submitted to the District Attorney for prosecutorial review.”

Saikali denies that anyone in Fry’s “placed him under citizen’s arrest.” Meanwhile, more than a year afterward, the citizens’ review board waits for Internal Affairs to interview him.