Police Conduct in the Handling of Penn Case Raises Questions

Shortly after one San Diego police officer was shot to death and another was seriously wounded, six patrolmen armed with shotguns set out to find the killer.

The officers, with no knowledge of the gunman’s whereabouts, marched through a predominantly black neighborhood in Southeast San Diego. They had a hunch the suspect had fled to a small house where one of the “more prominent and violent local gang members” resided, according to a police report.

Police surrounded the bungalow on Quail Street, kicked in the front door and found no one inside, recalled neighbors who watched the break-in on March 31, 1985. Witnesses said the officers left the front door open and didn’t leave a note or make any explanation.

About the same time, the 24-year-old black man who shot the officers, Sagon Penn--who did not belong to any gang--turned himself in at police headquarters.

Another group of officers, meanwhile, barged into the house of Carlton Smith, who had seen the confrontation between Penn and police before the shootings. Smith said the officers turned off his television set and separated his six children into one room and the four adults in another. Police ordered them not to talk to anyone until detectives arrived, which was three hours later, Smith said.

“I asked them, ‘Was this legal? Can y’all just come in my house and do this?’ ” Smith testified during the Penn trial. “One of them said, ‘A police officer has been killed. We can do what we want.’ ”

Penn was found innocent last month of murder in the shooting death of Police Agent Thomas Riggs and attempted murder in the shooting of Police Agent Donovan Jacobs. In the wake of the verdicts, police administrators are trying to patch up their damaged relations with the city’s black community.

The jury concluded that Jacobs provoked Penn by beating him repeatedly and using racial slurs, although senior police officers maintain that the officer did nothing improper.

Beyond Jacobs’ conduct, however, there were numerous instances on the night of the shootings in which officers either went beyond legal restraints on police conduct or were insensitive to Southeast San Diego residents. These included police emergency operators who disregarded pleas from black residents calling for help, patrol officers who stormed into houses and held black occupants against their will, and homicide detectives who demanded that black witnesses talk to them.

Even though some of these examples were brought out in court during Penn’s trial, police officials say they have no knowledge of any illegal or unethical activity by officers March 31, 1985.

“If there was misconduct on the part of our employees, it has not been investigated because it has not been brought to our attention,” Assistant Police Chief Bob Burgreen said. “We should have investigated it, said we’re sorry and done what we had to do to make sure that it doesn’t happen again. But we didn’t even know about it.”

Burgreen suggested that minorities in depressed areas are often unwilling to file complaints with the Police Department against individual officers.

Penn faces a second trial in August on several undecided charges. The jury was deadlocked, 11-1, on acquitting Penn of the attempted murder of civilian ride-along Sarah Pina-Ruiz. It also voted, 10-2, to acquit Penn of the voluntary manslaughter of Riggs and the attempted voluntary manslaughter of Jacobs.

Police say they are encouraged so far by community reaction to the verdicts.

“I think the community still supports the police,” said Capt. David Johnson, commander of the department’s Southeastern Division. “No matter what they’re feeling, they are looking at this as a tragic incident. You can’t criticize all police officers and you can’t criticize the community. . . . We can’t really go back and undo it.”

But black leaders say that police should not forget the case, either.

“You don’t put things like this behind you. You learn from them,” said Nate Harris, an activist in the black community and a former San Diego police officer. “This is the first time in the San Diego community that anything like this has happened. It was a very sobering thing, a very hard lesson in life. But some officers out there needed to learn that lesson. . . .

“Tom Riggs was a martyr. If we put it behind us, he will have died for nothing.”

Based on numerous interviews, police documents and courtroom testimony, the following is a chronology of how the Police Department responded on the night of the shootings:

Angela McKibben looked out onto her driveway and saw Jacobs on top of Penn, punching him in the face, and Riggs striking Penn with his baton. She knew the black man needed help, and decided to call police.

Her conversation with a police operator:

“San Diego Police Emergency, 17.”

“Yes. I would like to report some police brutality right in front of my house!” McKibben said excitedly.

“What is the emergency?” the operator responded calmly. “ . . . What is the emergency?”

McKibben handed the phone to her friend, Doria Jones.

“I didn’t know how to explain it,” McKibben testified in court. “She kept saying, ‘What’s the emergency?’ Obviously, it was an emergency. So I just got fed up and handed the phone to Doria.”

As the phone was passed, screams of panic filled the background, as Penn grabbed Jacobs’ weapon and fired all six bullets.

Several neighbors ran for their homes to notify police. A communications dispatcher asked one caller who reported the shootings: “Are you sure? . . . Are you sure?”

Even though both tapes were played in court, police officials were unaware of these specific conversations, Deputy Police Chief Norm Stamper said. He explained that emergency operators, who handle 1 million calls per year, are often criticized for providing calm, routine responses to emotional callers.

Moments after the shooting occurred, a frantic call went out over the police radio.

“We need help! We need help! . . . Two officers down. I’m a ride-along and I’ve been shot . . . the officers . . . I can hear them moaning.”

Officer Kevin Means was writing a report on San Ysidro Boulevard when he heard that desperate call from Sarah Pina-Ruiz on the police radio. Means activated the red lights and sirens on his patrol car and raced to Southeast San Diego.

By the time Means arrived in the neighborhood of Encanto, it was too late--Riggs was dead and Penn had fled in Jacobs’ patrol car, running over Jacobs on the way.

Means went to Penn’s grandfather’s house on 40th Street, where a police dispatcher said a black male had dropped off a police car. Penn was not there when police arrived.

“I was familiar with the area as a local gang place,” Means wrote in his report. “It is the area nicknamed the ‘neighborhood’ by gang members. . . . Both Officer (Leroy) McDowell and I are familiar with several of the more prominent and violent local gang members. We knew of one that lived at 1012 Quail St. . . . We felt there was a possibility that the suspect may have run to there after abandoning the police car.”

Connie Amos watched from inside her residence as Means, McDowell and four other officers with shotguns marched toward her house at Broadway and Quail. As police walked by outside the house, one officer ordered her male acquaintance to put his hands against a bedroom wall, she said.

Amos, frightened, crawled into her front room to watch police approach the house across the street.

“I didn’t know what was going on,” Amos said during an interview as she retraced her movements from that night. “I didn’t want to get shot or nothing.”

She said her friend joined her, but was told a second time to put his hands on the wall. The man complied, Amos said.

Police then surrounded the house across the street, according to four neighbors interviewed separately by The Times. One officer knelt across the street behind a car and pointed his shotgun at the house. Others took positions outside the front and rear. After knocking a couple of times, three officers forced their way through the front door, neighbors said.

“It didn’t take too long,” said Leroy Candler, 68. “They kept . . . lunging against it until the door swung back open.”

When Alvin and Diane Wooten returned home about 30 minutes later, they found their front door off one of the hinges, a bedroom window open, a window screen on the ground and drapes on the floor. The Wootens said they initially thought their house had been burglarized, until neighbors informed them that police had been in the house.

“I’m just so glad we weren’t here,” said Alvin Wooten, 26, who has been married for seven years and has worked as a plasterer since he was 17. “Just a few minutes later . . . and I would have been shot.”

Means and McDowell deny that police forced the door open. Means crawled through a front window, then let the other officers in, according to his report.

“No one was in the house,” wrote Means, who could not be reached for comment. “I told the officers in the back of the house to make sure the back door was locked. I then locked the front door. Other officers exited after me, then closed the front door.”

However, each of the four neighbors said the officers were unable to close the door on their way out because they had knocked it out of alignment when they entered.

“That door was not kicked,” McDowell insisted. “If it got kicked, it happened after we left. . . . A bunch of dirtbags live in that house. I’m surprised they didn’t file a complaint. That would be their chance to get back at the Police Department. They probably did it (damaged the door and blamed it on police) so they don’t have to pay the landlord.”

The Wootens said they intended to file a claim with police, but had trouble getting the right papers and gave up. They reported the damage to their landlord, who replaced the hinge and doorjamb.

Wooten said he was upset by McDowell’s portrayal of him and his family as “dirtbags, gang members and crooks.”

During a phone interview Wednesday, McDowell told a Times reporter that if he visited the Wooten house that evening, he would find gang members on the front lawn.

“I’m up there every other day,” said McDowell, who said he has worked in the Southeast Division for six years. “Every time I pass the house, there are 9 or 10 Crip gang members hanging out front.”

The reporter found the Wootens’ 4-year-old son playing in the front yard with his aunt. Across the street, elderly neighbors chatted while another woman polished her car.

According to neighbors, police hit the wrong house. The Wootens said they have lived there for 2 1/2 years. Before then, a Vietnamese family rented the house. Neither family has harbored gang members, neighbors said.

Mike Wilcoxson, who lives directly across the street, said police probably intended to search the corner house next door to the Wootens. He said a group of “thugs” lived in the corner house several years ago, but they were evicted after neighbors complained to the landlord.

Burgreen said his officers reacted in a tense situation based on whatever limited information was available at the time.

“I think they would be derelict if they did not follow up on what they knew and reasonably think through where that suspect might be,” Burgreen said. “ . . . A person on the loose with an officer’s gun is not the type of person they want in the community. They had no idea that that person . . . went to the Police Department and turned himself in.

“Now, whether or not they acted properly, we can’t know without an active investigation. We have heard basically one side of the story through the media.”

Harris, the black activist who was fired as a police officer in 1983 for insubordination, said it is unlikely that the officers actually believed the gunman had barricaded himself inside the Wooten house.

“Because if they did, they wouldn’t have gone in there,” Harris said. “Not unless they were stupid. They would have organized themselves, talked to him over a loudspeaker, tried to obtain a phone number for the residence, and called the SWAT team.”

At the Encanto driveway where the shootings took place, officers were assigned to secure the site and gather witnesses for detectives to interview.

Patricia Ann-Lowe Smith, a student at Southwestern College, was headed to church for a 6 p.m. prayer service when she witnessed the shootings. After she described for a television reporter how police beat Penn, a police officer walked her to the church and told her to “stay inside . . . and not talk to anyone else,” Smith testified.

Inside the home of Carlton Smith (no relation), police stood watch over four adults in one room and the six Smith children until detectives showed up to question them. When one of the youngsters went to the bathroom, an officer followed, Smith said.

Smith, director of athletics at St. Stephens Christian School, said that at one point he asked the officers: “ ‘Is this America?’ . . . I got no remark from that.”

During the wait, Smith said, neither he nor his wife, Irma, was permitted to talk to their family. Smith said he was concerned about the well-being of his children--four girls and two boys ranging in age from 7 to 14--who had just witnessed the terrible bloodshed.

“The kids were so frightened they couldn’t sleep that night,” Irma Smith said. “They were asking why the police were in our house. They wanted to know What did we do?”

At 9:30 p.m.--three hours after the shootings--detectives entered the Smith home.

Homicide Detective Richard Thwing testified that investigators were instructed to take statements from “hostile” witnesses inside the Smith residence. The Smiths were labeled “hostile” because they “didn’t want to talk to the police,” Thwing said.

Thwing testified that, even though Smith said he did not want police in his house and he did not want his children interviewed, a police sergeant explained that detectives were going to interview all of the witnesses inside.

Milton J. Silverman, Penn’s defense attorney, asked Thwing: “Is it a usual practice for you to go into a residence like that and tell the occupants that they are going to be interviewed in their home, whether or not they want to be talked to, and whether or not they want to furnish their home for that purpose?”

“I do what I am told.”

“Well, if it was your home . . . “

“It wasn’t.”

“I guess that is what makes the difference, huh?”

Lt. Paul Ybarrondo, the former head of the homicide detail who directed detectives that night, said police have no authority to order any witness to cooperate with an investigation.

“You can’t order somebody to talk to you,” Ybarrondo said in an interview. “If Mr. Smith said, ‘I don’t want to talk, get the hell out of my house,’ we don’t have much of a choice.”

Smith said that police wanted to interview his children at their command post at Encanto Recreation Center, but he balked because it was so late at night. Smith said he did not want his children interviewed at all.

“I didn’t want them involved, anyway, because they were afraid,” Smith said. “The sergeant told me if we didn’t grant interviews, they could make things hard for us.”

Smith said he reluctantly agreed to let his children be interviewed as long as he was present.

Christine Williams was not so fortunate. She testified that, when police took her son, Dwayne, then 14, to the recreation center for an interview, they refused to let her accompany him. Mrs. Williams walked to the command post, where detectives again told her she was not allowed to be present for her son’s interview.

At the police station, detectives held Penn for several hours and recorded two lengthy statements without reading him his Miranda rights.

Several witnesses testified that they told detectives during interviews that night that Jacobs warned Penn: “You think you’re bad, nigger . . . I’ll beat your black ass.” But the word nigger did not appear in a single police report. (In court, prosecutors used the absence of the word nigger in the reports to discredit the witnesses.)

When informed of his department’s conduct on March 31, 1985, Deputy Chief Stamper said: “My reaction is there is nothing that can justify unlawful police practices. If there is anything this society needs, it is police officers who themselves uphold the law. . . .

“Given the state of mind and information produced that night, we had a police officer dead, another quite likely dying, a civilian ride-along shot and the ‘cop killer’ at large. . . . I really do believe that helps to explain the actions of the officers.”

Burgreen acknowledged that police-community relations in Southeast San Diego suffer because many minority residents are reluctant to step forward and file complaints against officers who engage in misconduct.

“I don’t think it is just a problem with police,” Burgreen said. “How often do people in the minority community complain about trash not being picked up? . . . It is an overall attitude with people who are socioeconomically in a depressed situation. They feel nobody will listen to them.”

Harris agreed, saying that minority residents must learn to stand up for their rights.

“When people don’t know their rights or don’t demand them,” he said, “there are officers out there on such a high horse that they will violate a person’s rights as much as the person lets them.”

Nonetheless, senior officers believe they are making steady progress in gaining support for police in the city’s minority neighborhoods.

When the Penn verdicts were announced, Stamper said, there was no dancing in the streets, no “rubbing the noses of police”--and no patrol officers taking out their frustrations on the community.

“What that says, I think, is really very important,” Stamper said. “What we were hearing was, ‘We are happy for our friend, for our neighbor, for our relative Sagon Penn. We are happy for him, but this is not a joyous occasion.’ . . .

“What I think is getting lost in the moment is the fact that the quality of the relationship between individual officers on the streets of Southeast San Diego and the residents of that community has substantially improved over the years.

“Had this incident taken place in late ‘60s or early ‘70s in this city . . . there would have been in all likelihood violence in the streets. There would have been overreaction and excesses on both sides, and we would have had one horrible mess.”