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City Attorney Comments City Council Meeting 9.6.2022

Posted on September 6, 2022


This is a very difficult moment for San Rafael. Tonight, we heard many speakers struggle with their emotions as they delivered their remarks.

I have been a San Rafael resident my entire life. I am an attorney, and I am used to public speaking, but talking about this topic tonight is hard for me too. I hope you will be patient as I do my best to respond to what has been said and explain what the City is going to do about it.

We have heard you. You are angry. You are demanding answers. You want immediate City action. Your comments and questions this evening echo many emails and texts that we received over the weekend.

You want answers to your questions now. You are saying:

Every person is entitled to be treated with respect and dignity.

And you are asking:

Is this still true in San Rafael?

And you are asking more. You are asking:

How could what we saw on that video possibly happen in our City? Why weren’t the officers immediately placed on leave?

Now that they are, are they continuing to receive their paychecks? Will the officers be disciplined?

Will their supervisors be disciplined? Will their employment be terminated?

Why is the City waiting? Why aren’t people being fired right now?

What does our Police Chief think about what happened? And what is he going to do about it?

And what do our elected officials — our Mayor and our City Councilmembers — think about what happened? What will they say? And what are they going to do about it?

The use of force by police is an extremely serious matter that must be fully investigated and responded to for everyone involved. California law mandates it.

Right now, the City is requiring that this incident be thoroughly investigated by an outside professional, a neutral expert who is unaffiliated with the City. We are assigning the independent investigator the responsibility to study the officers’ conduct in detail and provide a comprehensive written report. The goal is to determine whether the officers and their supervisors followed, or failed to follow, the policies of the San Rafael Police Department.

You may feel that question already has been decided by the video you saw. And yet, the law does not allow the answer to be derived so simply or quickly. The officers are entitled to due process of law which includes their rights to legal representation and a fair and unbiased investigation of their conduct. Again, these requirements are mandated by state law. The City must follow the law.

At the conclusion of the investigation, after the independent investigator makes findings about the conduct of each and every officer and supervisor involved in the incident, the Police Chief will make the decision whether to take disciplinary action, up to and including potential termination of employment. But the Police Chief cannot legally make that decision until after the independent, neutral investigation process is over.

In addition, the City’s investigation will be separate and distinct from the question whether the District Attorney will conduct any further investigation or action regarding the incident.

I want to assure the community that I, your elected city attorney, will continue to be closely involved in this process as it unfolds to ensure that the City acts 100% properly and lawfully in the course of the outside investigation and in the City’s handling of all aspects of this matter.

As for all of your questions tonight, the answers must wait until the process is over. I can assure you that when the investigation is complete, the City will publicly report all information that it is legally permitted to provide.

I regret that this response is not everything you were hoping for tonight, but please know the City Council and I are deeply committed to making sure there is an unbiased investigation and that the law is followed.

I would like to make a few additional comments.

I spoke with the District Attorney, Lori Frugoli, earlier today. We discussed the community’s sacred trust that her office, as well as every local police department must earn, maintain, and protect on a daily basis. She and I agreed that all law enforcement officials, including police officers, must conduct themselves in a way that justifies the faith of judges and juries that our system of justice is fair.

In addition, I also spoke with Charles Dresow, the lawyer who represented the individual involved in the incident. I am pleased to report he told me that — at the appropriate juncture — his client is willing and interested in pursuing a process of seeking justice and positive change that could include him sitting down with the Police Chief, the Mayor, and whoever else should be there to talk about what happened and figure out how to move forward from it together. We don’t know yet exactly what that process might look like; we have to continue to discuss it and work to make it happen.

Meanwhile, the City will separately work to address what occurred and help our community begin the process of recovering peace and achieving reconciliation. I know at the outset that our task will be very difficult.

The integrity of the neutral investigation, the employee disciplinary process, and the City’s legal position in any potential civil litigation can all be jeopardized if any comments are made by public officials before the process is concluded. This is why, at this time, in the best interest of my client, the City of San Rafael, I have requested the Police Chief and our Councilmembers not to comment about the specific details of the incident, the employee investigation, or the potential of a civil lawsuit.

For the past 15 years, as your city attorney, I have worked closely with your City Council and the city staff, including your police chief. I know them well. I know them personally. I have discussed this incident with all of them, and I know how strongly they feel about all the issues that are raised by what they saw on that video and the importance of having an independent investigation of the officers’ conduct.

Tonight you have told us, and we have heard, about our obligation as a City to ensure fairness in the justice system, including in the work of our police officers in the course of each and every one of their encounters with any and all individuals in our community.

You told us this:

“Everybody must count, or nobody counts.”

I know that Mayor Kate, your City Councilmembers, your police chief, and your city attorney deeply agree with this statement.

Thank you, Mr. City Manager, for this opportunity to address the community.

Rob Epstein
City Attorney

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