Eye on the Courts: Digging Up the Past and the Buzayan Case

Now that the family of Halema Buzayan has dropped its case against the city of Davis, it seems fair game that I can release a few nuggets that I have been holding onto for some time.  I was actually looking for something specific and ran into old files and documents I had long since forgotten I had owned.

The bottom line is that the Buzayan case was, at its core, a bumper bender in a parking lot.  The family paid for the damage of the vehicle.  Once that occurred, the owner of that vehicle was no longer interested in the police pursuit of the case and, once she found out, she was outraged.

We never got to see the evidence tested in court, because Judge Thomas Warriner threw out the criminal charges on the basis of the pending civil solution and now the civil suit has been dropped.  But the family had some evidence to back up their claims that they had not been involved in the accident.

Nevertheless, there are still three troubling aspects to this case: first, that Officer Pheng Ly of the Davis Police Department made the decision to arrest a minor late at night rather than allow her father to bring her to the station the next morning; that he seems to have ignored her request for counsel; and finally that Sgt. Gina Anderson used the internal investigation process itself to attempt to coerce or at least convince the 16-year-old to confess.

Officer Ly’s Alleged Violation of Miranda Rights

As the complaint filed by the Buzayan family states: “The Yolo County District Attorney’s Office and Ly mischaracterized the complaints made by the Buzayan family as arising out of Ly’s demeanor during his interactions with them – as opposed to his multiple violations of federal, state and local laws – and then refuted ‘strawman’ arguments never made by the Buzayan family”

The complaint filed by the Buzayan family, however, claims a much more serious violation of the law–“Defendant Ly also deliberately and unlawfully denied her request for an attorney in direct violation of both federal and state law.”

This is a violation of Ms. Buzayan’s Miranda Rights.  This was taken by some to mean that Officer Ly failed to read Miss Buzayan her Miranda rights.  But the rights embodied under Miranda not only include the requirement that the officer inform the individual of her rights, but also that, at the moment she requests an attorney, any interview immediately cease.  Particularly in the case of a minor, it is incumbent upon the police officer to ensure that her rights are not violated.

L: ugh before I…emmm… ask you questions about the case, I wanna read you something very important.. emm OK?

H: Umhem

L: You have the right to remain silent. Do you understand?

H: Yeah… to be quiet?

L: Yes

H: And not answer your question OK?

L: Any thing you say may be used against you in court. Do you understand?

H: Not really.. no.

L: Ok. Anything you say may be used against you in court.  OK. Basically, if you tell you me anything I can go to court and say this is what she told me. OK.

H: Umm OK?

L: You have the right to the presence of an attorney before and during any questioning. Do you understand?

H: So, like right now or no?

L: Yeah right now if you want one you can.

H: Will it be my attorney? Or…

L: It could be……….any attorney that you want.

H: OK… uhhh… my parents… like my dad has an attorney. Could I use that one?

L: He has a…. he has a…he’s…he’s… he’s…an attorney…? He has a law partner..?

H: No no no no he has…. No no he has an attorney like for UC Davis employees they have them.

L: Ugh umm yeah.

H: OK

L: Yeah, if he is available

H: OK, could you? Can you do that?

L: if you can not afford one, then one will be appointed for you free of charge before any questioning if you want. Do you understand that.

As the complaint explains: “As Ly well understood, Halema’s statement, “ok, could you? Can you do that” constituted a request for an attorney under federal and state law, requiring him to cease his already unlawful interrogation of Halema. But Ly, in direct violation of state and federal law, denied a minor’s request for an attorney. Ly and the Yolo County District Attorney would later falsely claim that Halema did not request an attorney, or that her request was ‘ambiguous.’ “

According to my understanding of the law (explained to me by a variety of civil rights attorneys over the years), the moment that Ms. Buzayan said, “Ok, could you?  Can you do that?”  Officer Ly was required to cease his interrogation.  For some reason, however, the issue of Miranda became focused on the question of whether Ly read Buzayan her Miranda Rights.

Sgt. Gina Anderson’s Interrogation

As far as I know this has never been published before.  Keep in mind as you read this, this is Halema Buzayan, 16 years old, no attorney present, filing a complaint about her treatment.  And Sgt. Anderson, who at that point was in charge of the Professional Standards Unit, uses the complaint process to press her about her criminal case.

H: BTW, I forgot to tell you, you know how the hit and run, hit and run, it was done by Friday everything was paid, so he was coming on Monday talking about a hit and run, I don’t even know what he was talking about.  My parents already paid for it…

GA:  Well see the thing is is there’s a California Law that basically says that if you run into somebody’s vehicle you have to leave your information on their vehicle so that they can find you.  So that they know how to get a hold of you, so you can either arrange to have payment for the damages or you can exchange insurance information.  So it’s a violation of that law not to leave that information.

H:  That’s why he was arresting me (?)

GA: That was exactly; so even if you pay later, the only reason why payment was made to them, to that person was because somebody else witnessed the accident and got the information.  So if nobody saw it, if there wasn’t a witness to see the accident then they never would have found…  you guys…  in order to receive payment.

H:  Okay

GA:  So some people are upset about that fact when that happens to them that the only reason why they are later getting payment is because there was some, there just happened to be a witness.  Because whoever was driving the car wasn’t honest enough to leave their information because they didn’t want to make the payment.  So some people would want to proceed regardless of whether they

H: made the payment

GA:  they end up ultimately receiving money from it.

H:  Okay

GA:  So even though it’s paid for, I’m just explaining to you that

H:  That’s why it happened

GA:  That’s why Officer Ly continued to investigate it and it didn’t matter to him whether or not the payment was made.  I’m a little bit concerned right now though…  you’ve been arrested and received a citation.

H: Yes

GA:  But your mother has admitted to driving the car.

H:  Yeah

GA:  So that would mean that if your citation was dismissed then your mother would be arrested.

H:  I don’t understand

GA:  Because you, okay.  You told me that she was, during this whole exchange that she, during this whole exchange of payment information, excuse me, what am I looking, uh.   During the whole time when you guys were making arrangements to pay the damage to these people, she wrote a letter to the insurance company saying that she was taking responsibility for the accident, that she was driving.

H:  I just remember her saying that she is paying for it.  So I guess that means she is taking responsibility, I don’t know.

GA:  But she told me earlier that she wrote a letter.

H:  Yes, she wrote a letter saying that I am paying for the woman’s damage.

GA:  And that she was taking responsibility.

H:  I’m guessing so if…

GA:  But what I’m saying is, if you didn’t do it, and we have that letter, which we can get, then she gets arrested.

H:  I don’t know, I guess so

GA:  It sounds like that one of you did it, so one of you has to…

H: get arrested?

GA:  I don’t want to say… suffer the consequences because that sounds so harsh, but basically go through the whole court process, the whole arrest process.  And if you didn’t do it, because she’s admitting that she has it sounds like, then yours gets dismissed but she gets arrested.  So then she’s prosecuted and she’ll have to suffer whatever you know, is imposed by the court for that violation.

H: Okay

GA: Is there something that you want to tell me now?

H: I’m telling you the truth, I was not driving

GA:  Okay, you just seemed a little bit nervous when I mentioned that your mom might get arrested.

H:  So you guys would just ignore exactly what happened to me?

GA:  Okay this is what will end up happening, I need to forward this to either Officer Ly, this is a side note because I’m interested in Officer Ly’s behavior, and if he violated any (phone rings), if he violated any of our department policy then I need to know that too.  As far as on a personnel level we can handle that with him.  Because you know we take allegations of misconduct by our police officers seriously.  So that is a complete side-note.  I want to get back to it and handle it, but that is an aside to what I’m talking about right now.

H:  Wait I don’t understand, the issue, I thought was his investigation.

GA:  Right and this issue is a personnel issue.

H:  We’re just talking about the personnel issue?

GA:  We’re talking about the personnel issue right now.  But I also, from what I’m hearing you telling me, about the whole incident which sort of involves the personnel issue, but also now involves whether or not it was you or your mother who hit the car.  So now there is sort some criminal component to that.  I just needed to let you know that if you are not the person who did it, she’s admitting to doing it, then your case will end up getting dismissed and we would end up arresting her.  Because she sounds like she has admitted it.  But I don’t know if Officer Ly will pick that up and go get the letter from the insurance company or if that will go to one of our detectives.  Because I’m not necessarily sure that Officer Ly would be the appropriate person to investigate, to continue to investigating this case just because your father has made allegations of police misbehavior.  That’s kind of where both of these cases are.  Do you understand that?

H: Uh-huh

Consequences for Advocacy

I was also reminded of some rather unpleasant consequences for my wife’s advocacy at the time.  Funny thing is, I really thought seven years later I would have been over it.  But I guess when you have to face comments like this, written in a letter to the editor by a local resident, James Hechtl, it’s hard to get over it.  Mr. Hechtl refers to my wife Cecilia Escamilla Greenwald, then a chair of the Human Relations Commission, and longtime activist Jann Murray-Garcia.

James Hechtl writes, “Ms. Greenwald and Ms. Garcia apply their racist views to every possible issue that confronts them. They look at the world through their prism of hate. … The mere fact that they support numerous frivolous and hate-based lawsuits against the city should be enough to invite them and the rest of the Human Relations Commission to practice their trade in a more appropriate city. I recommend Johannesburg, South Africa.”

There were Heroes Too

The nicest discovery I found was a response letter I found that I have saved from one Paul Nicholas Boylan.  Those of you who might recognize that name will recall Mr. Boylan is the Vanguard‘s attorney.  Funny thing is this is the spring of 2006 and I wouldn’t meet Mr. Boylan until he applied for the council vacancy in January 2011.

But there he is, heroically and with humor, coming to the defense of my wife and Jann Murray-Garcia.

That had to be a joke, right?

James Hechtl recently wrote a letter bitterly critical of some of our local civil rights activists and social justice advocates. Mr. Hechtl objected to their belief that the Davis police practice “racial profiling.” He got upset over an “open mic night” where Davisites could discuss the issue.

He pointed out that a City Council member encourages this “potentially unlawful behavior.” He called our social justice advocates a “cancer” destroying Davis. Then he invited them to go back to Africa.

I was shocked. I asked myself “is this some kind of sick joke?” And then I read it again, and realized it was a joke carefully crafted by a comic genius! Humor that finds its roots in offensive comment or content is not easy, and, boy, was this offensive! It was so offensive it had to be a joke.

Attacking public participation on important issues? Stupefyingly offensive! Attacking the First Amendment and defending the possibility of racial profiling? Hilarious! Calling Cecilia and Jann – two of the finest people I know – a “cancer?” Brilliant!

And then evoking the darkest, evilest, most disturbing moments of the civil rights movement by suggesting they go back to Africa – a master stroke!

As one comedian/social commentator to another, you have my sincere admiration, Mr. Hechtl. You have a gift. I cannot wait to read your next diatribe.

Paul Nicholas Boylan

Life is ironic at times and that letter lifted my spirits.  I still believe that the core of the case is that Ms. Buzayan had been wronged and I also believe that had this case happened this year, we would never have heard about it, because it would have been handled entirely differently from the start to the finish.

Is this my last article on this subject?  Hard to know.  But in a very sense this is the story of the Vanguard and why ultimately I created it, seven years ago, on July 30, 2006.

—David M. Greenwald reporting

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