DOJ seeks recusal of judge in Vallejo police reform case

VALLEJO – The state Department of Justice has requested that the judge overseeing its Vallejo police reform case recuse himself because the judge shared a post critical of the Justice Department’s handling of the case on the social media website LinkedIn, according to court filings.

The filings come in response to Solano County Superior Court Judge Stephen Gizzi indicating that he may not sign or enforce a proposed stipulated judgment between the Justice Department and the city, the latest step in the Justice Department’s reform efforts in Vallejo that have been ongoing since 2020. 

Vallejo police failed to complete 45 required reforms by June of this year, prompting the Justice Department to seek court oversight of the remaining 25 tasks. The Justice Department filed the stipulated judgment in October. Gizzi was randomly assigned the case. In his first order last month, he indicated he may not sign the judgment at all. Gizzi set a hearing on the case for Dec. 13.

The Justice Department responded to Gizzi’s order and submitted the request for Gizzi to recuse himself last week. On Tuesday, Gizzi delayed the next hearing until January.

Justice Department filings allege that Gizzi sharing the LinkedIn post constituted an ex parte communication and a violation of rules which require judges to remain impartial and prohibit them from publicly commenting on court proceedings.

Court filings indicate that Gizzi reposted a LinkedIn post about the case by Dave Blake, a retired police officer who operates a consulting firm that provides evaluations of police practices. Blake has previously worked for the city of Vallejo and prepared a report that found that officers acted reasonably when they shot Willie McCoy 55 times after he was found unresponsive in his car in 2019. Blake tagged Bob Scales, another contractor for Vallejo whose firm Police Strategies LLC has provided data analysis for the police department.

Blake’s post quoted a Vallejo Sun article about Gizzi’s latest ruling in the case, which reported that Gizzi found portions of the Justice Department’s 67-page stipulated judgment to be vague, contradictory or unsupported by law, and indicated that he would not enforce large portions of it. 

The post spurred numerous negative comments directed at the Justice Department from former law enforcement officers. Joe Polisar, a former police chief in Orange County, wrote, “Finally a judge with the courage to push back and hold the DOJ accountable. Refreshing.” Jim Benfield, a retired police captain from North Carolina wrote, “Outstanding that someone is looking at the fine print and seeing through all this Woke, Progressive BS.”

The Justice Department argued that Gizzi reposting the article and commentary was an endorsement of the content. 

“The re-posting of a comment stating that the court will not enforce large portions of the stipulated judgment – despite the fact that the order to show cause regarding entry of said stipulated judgment continues to pend – suggest disqualification is appropriate, and potentially necessary,” Deputy Attorney General Gabirel Martinez wrote in the Justice Department’s submission.

“Even if the court did not intend to commit to a particular result, the damage is done,” Martinez continued. “If the court ultimately determines not to enforce the stipulated judgment, it will appear as though the court’s mind was made up before argument.”

The Justice Department and the city also responded to the substance of Gizzi’s order, arguing that Gizzi has the authority to execute the stipulated judgment and would not be exceeding judicial authority by taking on a role in policing powers in Vallejo. 

Gizzi wrote that he found no legal support for the Justice Department’s plan to appoint an evaluator to oversee the Vallejo police reform work. He objected to acting as a mediator in disputes between the Justice Department and the city, saying it would give him undue power over policing in Vallejo.

But the Justice Department said that the plan to appoint a monitor is authorized under California law and similar to other reform efforts that the Justice Department has conducted in Bakersfield and Kern County. 

“Court oversight with a monitor is a common post-judgment structure in law enforcement pattern or practice settlements, as well as other types of actions,” the city and Justice Department wrote in a joint filing signed by Martinez and City Attorney Veronica Nebb.

They also argued that Gizzi has limited discretion to refuse to enforce the judgment, which is essentially a contract between the city and the Justice Department. Gizzi had indicated that he would not enforce some portions of the judgment, such as new restrictions on stops and searches, finding them contradicted by existing law. But the city and Justice Department argued that the police department voluntarily agreed to new restrictions.

“The law provides a floor, not a ceiling, to policing practices, and no provisions require VPD to go below legal minimums,” the city and Justice Department wrote. “Where VPD has agreed to terms that exceed legal minimums, it is doing so in a voluntary manner.”

And while Gizzi expressed concern that his role in enforcing the agreement would amount to making operational decisions for the police department, the city and Justice Department argued that in refusing to enforce the judgment, Gizzi would essentially be doing that by rolling back reforms that the police department had already agreed to.

“Several of the court’s observations, if made mandatory, would in fact place the court in the position of making the operational decisions of VPD that the court seeks to avoid, and which the DOJ agrees would raise separation of powers issues,” the filings state.

Gizzi set the next hearing in the case for Jan. 23 in Fairfield.