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City Attorney Comments City Council Meeting 2.21.2023

Posted on February 27, 2023


CITY ATTORNEY COMMENTS 2/21/2023

Thank you, Mayor Kate, good evening members of the council and good evening, to the community.

I’m out of town but glad to have an opportunity via Zoom this evening to provide a report on the police incident that occurred on July 27 on Windward Way in the Canal.

I will continue to refer to the gentleman who was involved in the incident as Mateo, to respect his privacy.

On August 26th, the Marin County District Attorney’s Office filed a dismissal of the criminal case that it previously had filed against Mateo.

Following that, the district attorney opened a criminal investigation concerning the officers conduct in the incident.

And separately, and distinct from that, the City hired an independent investigator to conduct the City’s Internal Affairs investigation concerning the involved officers.

Regarding that latter City investigation that I’m providing this update tonight.

It is my understanding that our independent investigator, Mr. Henry, has completed all of the witness interviews that he was able to obtain.

Those included compelled statements from all of the involved officers.

The investigator has now begun writing his report and I expect him to be done within a month.

The final report will be delivered to the Police Chief, who will make a decision about what discipline, if any, to impose against the involved officers.

I expect the police chief to act reasonably promptly after the report is delivered to him, however, I also note that the Police Chief’s deadline under the law to impose discipline, if any, upon the evolved officers is August 26th of this year.

The D.A investigation that I mentioned at the outset is separate and distinct from the City’s investigation. The City and has no involvement in the D.A investigation other than providing statements that are either requested or required and I have no information to provide you this evening regarding the District Attorney’s timeline.

The City has received a number of requests for a copy of the investigators report when it becomes final.

Generally, the law provides that these type of reports are to remain confidential for purposes of protecting the employee’s right of privacy.

However, there are certain exceptions that may provide for the report to be a disclosable public record. It depends on findings within the investigation.

And I’ll explain as follows, the report about the Mateo incident will be a disclosable public record if the report contains a sustained finding that an officer used unreasonable or excessive force or an officer failed to intervene when against another officer who was using force that was clearly excessive or unreasonable or an officer made a false statement or in the fourth exception an officer’s use of force caused Mateo to suffer great bodily injury.

That latter issue, Mateo recently placed an issue with his tort claim that he presented to the city in which he alleges that the incident caused him injuries including a brain injury.

The city has hired defense counsel to respond to Matteo’s claim.

There’s two other things that I’d like to add.

Because that’s all I have to report on status at this time and I can take questions if the council has any but I don’t have much more to add.

First, I want to let the community know that we continue to have a City website with all information that has been published about this incident.

That includes a flowchart that was recently posted that provides more information about the various steps in the police disciplinary process, which has a number of steps, so it may be helpful for those seeking further information, to look on the website for that flowchart.

And finally, since last fall September a group of committed community members has been meeting periodically with City staff including the Police Chief, two Councilmembers also have been involved.

And those discussions have concerned police practices and accountability and there will be another one of the these meetings coming up on March 8th. Those are public meetings and again more information about the timing and location can be located on the website.

So that’s all I have to report about status of the investigation of the July 27 incident.

I am going to stay through the consent agenda in case any questions arise between now and the end of that.

But then I am going to turn off my zoom and turn over the remainder of the meeting to the Assistant City Attorney, Genevieve Coyle, who is kindly consented to remain there with you in person for the balance of the meeting.

That concludes these remarks and again, Mayor Kate and Council, if you have any questions about anything I just said, I’m glad to answer.

City Attorney

Robert Epstein

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