This despite the fact that neither Enberg nor any of the other officers at the scene had identified themselves before they entered the shed to apprehend Alejo. Or the fact that Enberg commanded the dog to bite about 35 times in roughly 40 seconds. Or the fact that well after the biting, when Enberg and the other Palo Alto and Mountain View officers confirmed that Alejo was not the man they were looking for, Enberg proceeded to question Alejo in a way that the city's investigator characterized as an attempt to "shift blame."
The department's response to the Alejo arrest as well as other incidents involving police use of force are summarized in a new report from the city's independent police auditor, OIR Group.
Even though the Police Department internal investigation identified some areas of concern, it concluded that Enbeg's conduct did not, strictly speaking, break the rules.
According to OIR Group, which does not name any officers or victims in its reports, Palo Alto investigators concluded that Enberg's repeated commands for the dog to bite were permitted because he "perceived that the man's attempts to fend off the dog was violent resistance," making the commands appropriate under the circumstances.
Nor did Enberg apparently violate department policy for failing to identify himself before entering the shed. The agency's guidelines at the time stated: "Unless it would increase the risk of injury or escape, a clearly audible warning announcing that a canine will be used if the suspect does not surrender should be made prior to releasing a canine." But in this case, the dog handler told investigators that by waiting to make the announcements, the officers avoided getting "ambushed" or having the suspect escape.
The Police Department reviewer also confirmed Enberg's assertion that this approach to deploying a K-9 unit without identification has been "regularly approved and trained as a technique by PAPD's K-9 program."
"The internal investigator recognized that this tactic is problematic if the person sought is within a few feet of the entry point, as in this case, and could lend itself to the unfortunate result that occurred here," states the OIR Group report by auditors Michael Gennaco and Stephen Connolly. "However, based on the plain language of the policy and the training provided at the time of the incident, he found that the handler's actions were consistent with policy."
Despite siding with Enberg, department supervisors adopted the reviewer's recommendation to revise the policy so that officers are allowed not to announce themselves "only when specific and articulable facts exist to indicate that making the announcement would increase the risk of injury to officers or the public," according to OIR Group. The department also eliminated language that excused the absence of an announcement when there is an increased risk of escape, according to the report.
The one area in which the Police Department's reviewer took issue with Enberg's conduct was his interview with Alejo after the incident. He reportedly asked Alejo why he didn't come out, why he didn't show his hands, why he "choked the dog" and why he "tried to run," despite body camera footage clearly showing Alejo on the floor, moaning in pain and trying to wiggle out of the dog's bite. Alejo responded that he "did not know what was happening to him and was trying to get the dog off of him," according to the OIR Group report.
The department investigator reviewing the case concluded that "the victim had no intention of harming the dog but was merely defending himself from an unprovoked attack."
"The investigator concluded that the K-9 handler's attempt to shift blame to the victim was not appropriate," the OIR Group report states. "As the investigator aptly summed up: 'We should not try to blame the innocent person, or their response, because of very unfortunate circumstances that fell upon them.'"
The OIR Group found some faults with Palo Alto's internal investigation, including the failure of investigators to interview Alejo. The reason for that, the auditor's found, was because Alejo had hired an attorney and filed a claim with the city. The auditor did not buy that justification.
"In such situations a police agency should still make all reasonable efforts to obtain an account of the event from the victim of a K-9 deployment. While an attorney may decide that it is in the best interests of his client not to sit for an administrative interview, we also have experience to the contrary."
The Police Department has changed numerous policies since the incident, the report notes, including a stricter policy on issuing warnings before deploying a police dog.
The auditors also took issue with the fact that none of the three officers who entered the shed to arrest Alejo had identified themselves as police officers. The investigators concluded that because the officers believed they were apprehending a suspect who knew that he was the subject of a police response, they "would not have the mindset to advise him that they were police." The auditors felt otherwise and recommended counseling for officers on the importance of identification.
"While it may have not been necessary under policy and law to identify themselves as police officers, law enforcement is universally trained on the advantage of doing so to eliminate any potential confusion as to their status," the OIR Group report states. "This provided a learning opportunity to the responding officers that was not apparently pursued."
The long-awaited report covers incidents involving police use of force, Taser deployments, public complaints and internal investigations within the Police Department between July 2020 and November 2021. It is OIR Group's first audit since the City Council's move last June to expand the group's scope so that it includes a greater range of use-of-force incidents and internal complaints.
It includes reviews of two cases of Taser deployments. In one case, an officer fired a Taser at a carjacking suspect who reportedly refused to get on the ground and told the officers to "back the f--- up."
OIR Group took issue with the department's investigation and pointed at various inconsistencies in how different officers and the police supervisor described the incident. While they claimed that the man was moving his arms "wildly" and appearing as if he was about to assault officers, the auditors reviewed the footage and noted that the man was neither motioning "wildly" nor taking an aggressive stance, as officers maintained. Rather, he appeared to have been backing away when the Taser deployed without warning.
"The potential discrepancy between what the video shows and the arguably varying accounts from the involved supervisor and witness officer suggests that this matter should have been elevated to a formal internal affairs investigation," the auditors wrote. "That process provides for formal interviews of witness officers and the involved supervisor who deployed the Taser. A more formal investigation would provide an opportunity to fully flesh out any discrepancies from PAPD personnel and potential variances from what the video appears to portray."
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