By Carlos Avalos
Twenty-three years after the fact, incontrovertible evidence that officers at both the street and command levels allowed their professionalism to be compromised by the cavalier treatment of evidence at the scene of a murder is on the brink of being put on the public record as the result of a lawsuit brought by two current members of the Fontana Police Department.
The mishandling of evidence – the body of the deceased – was the product of, at best, a racially insensitive moment of jest on the part of one or more officers and, at worst, a manifestation of racism that may have allowed the perpetrator of a murder to escape being brought to justice.
The larger implication of the incident, now nearly a quarter of a century in the past, is that not only the members of the department who were involved, many of whom are now retired, but the department’s administration and now by extension the city’s municipal management, political leaders and its attorneys have been brought in on what amounts to 23-year running cover-up, which they are seeking to perpetuate into the future.
What all this comes down to at this point is whether Superior Court Judge Wilfred J. Schneider, Jr. will permit the evidence that will establish the tampering with evidence took place, delineating the Fontana Police Department as a bastion of racism that is devoted more to perpetuating a culture of prejudice than to ensuring equal protection under the law.
On June 30, 2016, David J. Moore Sr. & Andrew Anderson, represented by attorneys Bradley C. Gage and Milad Sadr, filed a lawsuit in San Bernardino Superior Court against the City of Fontana, alleging discrimination, retaliation and failure to take corrective action.
According to the suit, the 189-member Fontana Police Department is comprised of sworn officers who are predominantly white, such that it has never had more than four African American officers on the force at any given time, despite African Americans comprising more than 10 percent of the city’s population, while employing fewer than thirty Latino officers – roughly 15 percent – even though Hispanics comprise nearly 70 percent of the city’s population. According to the suit, the police department’s administration is even more lopsidedly out of step with the city’s demographics, which has perpetuated an atmosphere in which the department has condoned the mistreatment of minorities.
Manifestations of the culture include, according to the suit, officers referring to African Americans as “niggers, “silverbacks” and “wild monkeys” and to Hispanics using derogatory terms such as “wetbacks and beaners and pink panties.”
The suit maintains that because of the general dearth of minority officers on the force and because of the growing reluctance of the department’s white officers to engage in certain enforcement activities involving blacks and Latinos, Moore, who is African American, has been detailed to an overwhelming number of calls involving Fontana’s minority community. Among those are what the lawsuit designates as difficult and politically sensitive cases such as those referred to by department members as Acute Political Emergency (“APE”) cases. It is alleged that several of these APE cases are racially charged. If these cases are not handled properly and with the utmost care and correctness, it could cost the investigator his or her career. Other corporals in the department are not assigned to these cases. This has led to the perception that the department’s upper chain of command is engaging in some “strategic planning” to better the chances of corporal Moore making a mistake and being terminated, according to the suit.
Anderson, who is of mixed background but self-identifies as a Latino, has sought to become a field training officer with the department. Those efforts have met with rejection, based upon the department’s assertion he lacks the requisite experience. Several Caucasian officers with less experience than Anderson have been given field training officer assignments.
Moreover, according to the lawsuit, the Fontana’s Police Department’s administration has reserved plum assignments and its most prestigious positions for white officers, with just a few token promotions of Hispanics. One such example cited in the suit is that of the Special Enforcement Detail (SED), the most hallowed of the department’s divisions and from the ranks of which all, or nearly all, of the department’s commanders are promoted. Currently in the SED, there are 19 white members and one Hispanic. There are no African American Members.
The suit alleges that in 2006, upon receiving an electronic Martin Luther King doll which played the “I have a dream” speech as a retirement gift, lieutenant Tim Newsome mutilated the doll’s speaking mechanism and lieutenant Bob Morris tied a noose around the doll’s neck and then lynched it in effigy from a ceiling rafter inside the department’s crime prevention unit.
Moving beyond atmospherics, one element of the case Gage and Sadr are attempting to present is how the ingrained racist policies in the department endangered public safety by interfering with a murder investigation. According to the suit, in 1994 an African American male murder victim, Jimmy Earl Burelson, was discovered behind the Kentucky Fried Chicken eatery on Sierra Ave in Fontana. A cop while at the scene of the murder thought it would be funny to place a piece of chicken in the Burelson’s hand, to make it look like he was stealing chicken from the restaurant before he was killed. A photograph was taken and this photo was circulated around the department for years.
This behavior by a Fontana Police Department officer or officers would potentially have been prosecutable as a felony under PC 141, which pertains to the planting or tampering of evidence, which is an obstruction of justice crime. In the specific instance of the deceased man at KFC, the manipulating of his body could be viewed as tampering with evidence.
In this case, the tampering with evidence was done as some order of a joke or prank, intended to be taken in a comical spirit among police officers. This action on the part of a police department member or members was also pontentially prosecutable as a violation of the California Health and Safety Code Section 7070.5, which states that every person who knowingly mutilates, disinters, wantonly disturbs, or willfully removes any human remains in or from any location is in violation of the law.
Best Best & Krieger attorneys Howard B. Golds and Joseph Ortiz, who are seeking to defend the City of Fontana and the police department in the face of the Anderson/Moore lawsuit, will be filing court papers, referred to as motions in limine, seeking to exclude certain evidence from being considered at the trial. One of those items of evidence for which exclusion will almost certainly be sought is the photo of the deceased Burelson, Kentucky Fried Chicken leg in hand.
Coming as it does at this time, the Anderson/Moore suit has even greater implication than it might at another point. In April, a date for the trail will be determined. The case will go before a jury in April, even as advocates of removing Fontana Mayor Acquanetta Warren from office will be turning what is anticipated to be the final corner in attempting to obtain a sufficient number of signatures of Fontana voters to put a recall question against her on the ballot.
In most city governments, municipal departments work hand in hand with one another to ensure the safety of the city and its citizens. The fire department and the police department usually function as a well oiled machine under the ultimate control of municipal administration and in unison with the other city divisions to make sure this happens. The fire and police departments, along with the city government, work collaboratively and with the best interest of the other departments in mind. In Fontana this is no different. Fontana’s mayor, Acquanetta Warren, as commander and chief of the city, works with the city council, the city manager, Ken Hunt, the police department, fire department, as well as other entities to make sure that the city is protected, prospering and, as the mayor is often quoted as saying, on the, “up and up.”
Ethics in any type of government is a pillar to its success. When the people in the important positions like mayor, city manager, city council, and police chief have a sense of duty and ethics in the way they conduct themselves, it shows in their productivity. At all stages of government, there is an occasional occurrence of unethical behavior. The philosopher David Hume stated that the mental faculties, secret propensities and animal passions of man are so interwoven, it is sometimes difficult from his actions to detect the impulses, or nominate the emotions, by which he is incited or induced to act; and he often acts under a combination of influences. Because there are so many different forces and factors that encompass a person and weigh on him, such as societal, social, and behavioral elements, making the rightful and honest choice in any decision is difficult.
Hume also stated that man is naturally selfish and this quality of human nature is dangerous to society and seems on a cursory view incapable of remedy; and there is no element in human nature which causes more fatal conduct than that which leads us to prefer what is present to the distant, which makes humans desire objects more according to their immediate situation than their intrinsic value. Because of this, men will falsify reports, steal, be negligent, or engage in a host of other wrong actions to do anything that assures their continuity in the present. The problem with this is that they are not worried about the important intrinsic fundamental values that are overall more important than one individual, especially in the community sense. Those values are honesty, trust, fairness, respect, responsibility, and courage.
Some see in the Anderson/Moore lawsuit an attempt to hold government officials accountable, to register in the public record that the leaders of a city government – in this case Fontana – have been presented with information about a systemic problem – racism – within the city. Whether Judge Schneider will permit Gage and Sadr to paint as stark of a picture of that systemic problem as they intend is a yet outstanding question. Whether Mayor Warren and other city officials such as city manager Ken Hunt will choose to close their eyes and look the other way is another question that is pending. Given the current accusations of negligence lodged against her as a consequence of the recall, Warren is in the position of being perceived as an accessory after the fact to the activity in the police department that is now about to go under a microscope.
Penal Code 32 states the definition of accessory: When a person not actually or constructively present but contributing as an assistant or instigator to the commission of an offense —called also accessory before the fact. Second, a person who knowing that a crime has been committed aids or shelters the offender with intent to defeat justice —called also accessory after the fact.
Gage and Sadr are looking to make a case that police department supervisors knew a crime occurred but failed to act, or failed to report the illegal actions of the racist officer who altered a crime scene. Later they aided in the crime by demanding or otherwise arranging that the evidence of the altered evidence – the photos of Burelson – be removed from booking, Gage and Sadr allege. They maintain this cover-up formed into a major conspiracy to obstruct justice. California Penal Code Section 182 PC makes it illegal to be part of a criminal conspiracy. Conspiracy is a felony-level offense that can carry severe consequences for those convicted.
The Sentinel has confirmed that the photo of Burelson, with a chicken bone in his hand, does in fact exist. The half-eaten chicken leg was visible in the decedent’s hand as the autopsy was being performed. One photo taken during the autopsy clearly depicts an African American man cut open on the coroner’s table, while the chicken bone remained in his hand. According to witnesses at the time, the bone was placed in Burleson’s hand as a cruel, racist joke.
The photos in question were brought to the attention of, and submitted to, Fontana Police officials. Once this information reached the command level, there was no investigation of the incident. Instead, the offending photos were removed from the compendium of photos which were to be booked into evidence. This was the first attempt to cover-up the crime of tampering with a corpse and police evidence. Nevertheless, the photos were allowed to circulate within the department and many cops passed the photos around and made fun of the horrible crime. This showed, according to Gage and Sadr, the openly racist environment of the Fontana Police Department during that time. The supervisors who covered up the crime rose in ranks and were promoted at the Fontana Police Department, composing what is today the police department’s top administration.
Moreover, the incident has implication beyond the confines of the Fontana Police Department. In one picture, the deceased, an African American with the partially eaten chicken bone clenched in his hand, is shown lying filleted on an autopsy table at the San Bernardino County Morgue. The photo shows the corpse on the examiner’s table and that an autopsy was conducted or is in the process of being conducted. The photo was taken from behind his head while he was lying on the autopsy table.
This crime occurred while those who perpetuated it were on duty, during the time, while, as agents of the law, they were sworn to professionally investigate the Burelson’s violent death. Unknown, precisely, was when the chicken bone was placed into the deceased’s hand, whether it was prior to or after arrival at the morgue, where a licensed doctor was present.
One Fontana police officer would go on record, or at least attempt to do so, protesting the desecration of a human corpse and the tampering with evidence. Former police Corporal Ray Schneiders did bring the incident to the attention of his supervisors, but he was ignored. Later he found himself targeted for retaliation for speaking up. Schneiders was ostracized and harassed for years. Ultimately, he filed a civil lawsuit against the department, and was subsequently granted a medical retirement. Using taxpayer money, the city used its hired legal guns – the law firms of Best Best and Krieger and the Jones and Mayer – to keep word of the alteration/destruction of evidence relating to a homicide under wraps. Burelson’s murder was never solved.
According to sources inside and outside of the Fontana P.D, information pertaining to the police department’s alteration of evidence impacting a homicide investigation and the racist motivation behind it was provided to Mayor Acquanetta Warren, city manager Ken Hunt, the city council, former chiefs of police Larry Clark and Rodney Jones and other police officials.
Warren finds herself in a dilemma. She stands at a political crossroads, with a growing number of her constituents seeking to remove her from office. At the same time, she has wedded herself to the city’s establishment, which includes the police department. It is unclear what political, personal and ethical calculations she will make. She can maintain her alliance with the establishment, which might offer her support against the grass roots organizations looking to dislodge her. At the same time, she lives in a city where 81 percent of the population is either Hispanic or African American. If, on behalf of Anderson and Moore, Gage And Sadr succeed in pushing into the public consciousness the details about how the police department has operated, political expedience and her own desire for political survival may persuade Warren to join the chorus seeking reform in the Fontana Police Department and show, in her own words, that she really is on the “up and up.”