Capitol Cop-Out

For years, Capitol Police officers have arrested people without cause and harassed the homeless.

They target those who hang out along the sidewalks and parking lots near state government office buildings just west of downtown Phoenix. They are lax in turning in booking information, leaving people to sit in jail for days at a time, only to be turned loose for lack of evidence.

Three separate reviews of the department — in 1997, 1998 and 2001 — have all reached the same conclusion. The Capitol Police department is an agency that lacks proper management, that allows for improper conduct to occur and that routinely has violated citizens' civil rights, according to the independent investigations, which were recently released by the state after a public records request.

Most of the problems can be traced, according to the investigations, to longtime Capitol Police Captain Jay Swart and a few other officers.

Many officers have left the department since 1996, citing intimidation, threats and retaliation against anyone who spoke out with concerns. Swart has acknowledged that many vacancies have been filled with less-than-qualified replacements who lacked the skills to properly do their job.

The state Department of Administration, which oversees the Capitol Police, has done little, if anything, to correct the problems, despite investigations that consistently reach the same conclusion. No disciplinary action has been taken. The officers accused of misconduct remain in charge or on patrol.

And, according to the Maricopa County Attorney's Office, the most pressing problem — improper arrests — has not been fixed. The county continues to refuse to prosecute numerous Capitol Police arrests because they lack sufficient evidence or contain serious questions regarding probable cause.

State officials won't discuss specific concerns about the Capitol Police. They declined repeated requests to allow Capitol Police officers or senior agency officials to talk about the investigations.

William Bell, deputy director of the state Department of Administration, says allegations of improper arrests by Capitol Police officers have never been substantiated.

In a letter to New Times, Bell says the department has worked with the County Attorney's Office to reduce the number of cases that prosecutors refused to pursue. He says that the department has far fewer bad arrests than in the past.

Swart wouldn't talk to New Times about the allegations. But during a September 2001 interview with an investigator, he admitted that some of the concerns weren't so far-fetched.

"I know the criticism of what people say about me, and I'm not saying that some of it's probably not true," Swart said at the time. "I'm not the most skilled police administrator, but I will tell you that I've worked, and I try to give what I can give to people."

Now, state legislators are getting involved in how the agency — which affects them directly — should be managed.

Representative Russell Pearce and 17 other House members introduced a bill this year to consolidate the Capitol Police with the state Department of Public Safety since both agencies handle security at and around the Capitol. At the time, the initiative was meant to eliminate an overlap in coverage and to provide more oversight, training and stability to the Capitol Police agency, which has about 30 sworn officers.

The bill failed earlier this month, but Pearce says he will continue to push for the agency to be removed from the state Department of Administration's supervision. He and other legislators now want to review the investigations -- reports the lawmakers have never been shown. They say they were never told about the severity of problems within the agency, and they are concerned because those problems have never been made public.

"We don't have a right to hide our dirty laundry under a rock," Pearce says.

The shadow of downtown Phoenix looms over a desolate strip of vacant buildings along West Madison Street between Eighth and Ninth avenues.

It's a popular spot for transients who seek shade beneath the awnings of boarded-up businesses, across the street from the St. Vincent de Paul soup kitchen.

On any given day, dozens of people can be found with their suitcases and shopping carts overflowing. Some sit and talk. Others wander the sidewalk.

It's also a popular spot for Capitol Police to make arrests.

Such was the case with Robert Louis Walker, who was hanging out on West Madison when he was nabbed in July 1997 by Swart. A 15-year veteran of the department, Swart has been its captain since about 1993.

Walker, a 30-year-old black man, began to walk away when Swart's car approached. Swart asked the man to stop, and promptly cited him for criminal trespassing, which is a misdemeanor. But Walker refused to cooperate and wouldn't sign the citation. So Swart took him to Madison Street Jail.

Walker was homeless. He had no immediate family. He didn't even have an address, so Swart wrote down the address of the building where he was arrested.

By the time his booking sheet reached Hugo Zettler, a deputy Maricopa County attorney, Walker had spent five days in jail. The arrest outraged Zettler who, after reading the report, immediately had Walker released.

Zettler determined that Walker was simply standing on a public sidewalk, not trespassing, and should not have been arrested, let alone jailed for nearly a week.

It was just the latest in a yearlong string of bad arrests that Zettler had been asked to review. The county, concerned with a growing number of questionable incidents by Capitol Police officers, had named Zettler the "Capitol Police specialist" in June 1996.

It wasn't an easy job, despite the small department's relatively minor responsibilities.

The Capitol Police rarely venture beyond their state-mandated territory, patrolling between Seventh and 20th avenues, from Van Buren south to Harrison Street.

Capitol Police officers, who, like other police officers, must be certified by the Arizona Peace Officer Standards and Training Board, essentially guard buildings and property, providing security outside and around state offices. While Capitol Police are responsible for protecting state lawmakers, officials and any visitors to the Capitol grounds, major incidents are handled by the Department of Public Safety, whose officers also patrol the area.

According to memos written by Zettler, the concerns raised by the county prosecutor's office did little to change the way the department went about its job.

Officers continued to provide little or no evidence that crimes were being committed. If they arrested someone on a drug offense, the report often did not include a lab analysis which would have identified the substance as illegal.

Trespassing cases were numerous, despite Zettler's repeated refusal to spend taxpayer dollars prosecuting homeless people picked up by Capitol Police officers for simply loitering on public property.

Some erroneous arrests were more blatant than others, such as a November 1996 incident in which Capitol Police officers booked a young man for trespassing, aggravated assault and resisting arrest.

According to Zettler, who summarized the incident in a memo to his bosses, the man was having an argument with his girlfriend. But the officers decided it was more serious and intervened.

"Fuck you," the young man is reported to have said, "you ain't got no reason to talk to me."

The officers pepper-sprayed the man and beat him. Then they took him to jail, but didn't submit his arrest paperwork to the county for several days.

By law, anyone arrested for a crime -- felony or misdemeanor -- must appear in court within 24 hours.

Capitol Police arrest documents show that many suspects who could not make bail sat in jail for as long as 10 days before their arrest information reached the County Attorney's Office.

And, in numerous cases documented by Zettler, people had been arrested for violations that did not warrant prosecution. Many were homeless people who were released only after the county refused to file charges.

"I am sorry, but I am having a real problem with [Capitol Police] conduct and the way they seem to harass anyone they don't like," Zettler said in a November 1996 memo to his supervisor, Miles Nelson. "It is my belief that it is the police conduct that causes the actions of the suspects and the grounds for the arrest are bogus."

Zettler documented his refusal to prosecute on each questionable arrest. His missives often included sarcastic retorts to the officers themselves, the memos show.

That was the case with a homeless man identified as "Donaldson," who was arrested standing outside a building at 11 a.m. where a "No Trespassing" sign was posted. Capitol Police officers said Donaldson also possessed drug paraphernalia, but no lab report was included with his arrest to show that a substance found on a pipe was an illegal drug. Donaldson sat in jail for five days before the paperwork was received by the county.

"While you may have a zero tolerance policy," Zettler replied to the request to press charges, "you cannot arrest someone for trespassing on a sidewalk at 11:00 in the morning."

In August 1996, Zettler immediately dismissed a burglary case against an unidentified man.

"Once you find out who John Doe is, I might consider filing this case," he wrote. "I don't know what you expect us to do with a case that we don't know who the suspect is???"

In three narcotics cases filed in the same week, none included lab reports, and all the suspects were released after spending days in jail on drug possession charges that could not be proved.

"The procedure to obtain rush lab reports from the DPS lab has been reviewed with Captain Swart several times," Zettler noted.

In Robert Louis Walker's trespassing case, Zettler sent memos to his supervisor and to Swart expressing his frustration.

"I have discussed this with your department before, and I thought we had the problem solved," Zettler told Swart. "You cannot trespass on a public sidewalk no matter how close to a 'No Trespassing' sign it is."

His memo to Nelson essentially ended with a plea for help.

"What should we do?" he asked. "One suspect spent 5 days in jail!!!!!"

In early 1997, the Capitol Police took issue with the county attorney's consistent refusal to file charges.

Swart and his chief, Theo Nielson, wrote two complaint letters to County Attorney Rick Romley, accusing Zettler of using inappropriate language and demeaning comments in his memos.

A county Merit Board hearing officer who later reviewed the complaint letters, along with a stack of Capitol Police arrests and Zettler's accompanying memos, ruled that Zettler had done nothing wrong in pointing out procedure problems, regardless of his tone.

The hearing officer did find fault with the Capitol Police officers, however.

"The Capitol Police are a small department that is slipshod," the hearing officer concluded. "Their investigations and reports were substandard. The way they treated people was criminal."

Still, the police agency itself as well as the Department of Administration made no changes in the way it handled arrests.

Zettler eventually left the county prosecutor's office, and the Capitol Police cases were assigned to other deputy attorneys. Zettler, who is now in private practice in the Valley, declined to discuss the department, or the problems he encountered.

But the Department of Administration continued to hear grumblings about the Capitol Police. And in December 1997, the state began its own full-fledged investigation into the police department.

Elliott Hibbs, director of the Department of Administration, began receiving complaints from officers themselves. He had met several times with officers, both in public meetings and in private.

The Capitol Police officers said they were being treated unfairly by Swart. Two officers who went to Hibbs privately said the department's chief, Theo Nielson, was ignoring their complaints.

Hibbs hired James Humphrey III, a former Phoenix police officer turned private investigator, to look into the complaints.

Turnover within the Capitol Police department was increasing, and state officials now believed many employees were leaving because they could not work with Swart.

State records show 27 people left the department between 1996 and 1997.

Swart, a former department-store accountant, had joined the department in 1986 as a patrol officer and worked his way up. As captain, he was the second-highest-ranking person on staff next to Nielson.

But many employees felt Swart had too much power. They complained that Nielson had relinquished control and was allowing Swart to run the department. Officers said that favoritism was common, and anyone who spoke out was retaliated against. Many questioned Swart's arrest techniques, which seemed questionable at best, particularly on busts where the captain claimed to be able to see drug transactions occurring from a considerable distance away.

Swart didn't like to document his arrests, the officers said. He routinely called in other officers to write reports, which accounted for the lack of information received by the County Attorney's Office.

And, up until the time Humphrey began his investigation, it wasn't uncommon for Swart to go on daily patrols, leaving the department unsupervised for hours at a time while he searched for criminals.

Word of Humphrey's inquiry spread quickly through the Capitol Police department.

Numerous people asked Humphrey not to reveal their names and, in his final report to Hibbs, Humphrey said several concerns could not be fully investigated because of fear of retaliation by some of those he interviewed.

For three months, the private investigator collected information. He talked to more than three dozen people, including current and former Capitol Police officers and county attorney employees.

Many believed that Swart was making improper arrests, according to Humphrey's findings. They said Swart had Nielson's support and that the chief knew about many of the problems.

The harshest comments came from deputy county attorney Zettler and Miles Nelson, who was Zettler's supervisor through 1997.

Nelson, according to Humphrey, called the Capitol Police "by far the worst police department in Maricopa County for making bad arrests and for having the poorest documentation to back their arrests."

Zettler told Humphrey that he blamed Swart, whom he said "in particular makes illegal arrests and expects the county attorney to prosecute them."

Humphrey, however, was unable to quantify or specifically document inappropriate arrests. "It would take an audit of the reports and further interviews to get to the truth of the matter here," Humphrey wrote in his findings.

Documenting the number of questionable arrests is difficult.

The County Attorney's Office, according to a spokesman, does not consistently track bad arrests by individual police agencies.

And statistics given to New Times by the Department of Administration are inconsistent and don't match arrest reports compiled by the county. The state later could not explain how the numbers were compiled or why they seem flawed.

Humphrey declined to talk to New Times because he is still under contract with the state as a private investigator.

But Humphrey also told Hibbs he found it troubling that Nielson, as chief, was not aware of key issues regarding the department. Humphrey said it appeared favoritism had been involved in the hiring and promoting of officers. And he said that many employees had left the department because they believed they had been mistreated by Swart.

Again, Hibbs and the Department of Administration did little, if anything, to correct the situation at the Capitol Police department.

By summer 2000, the Capitol Police department had hired a number of new employees to replace the officers who had left. Many of those new officers were ill-suited for the job, Swart later told a Department of Public Safety investigator.

Swart said he and Nielson had agreed to take a "second chance or third chance or fourth chance" on applicants who had been unsuccessful at other departments.

As the department's captain, Swart was responsible for setting an example through his police work.

But concerns continued to surround Swart. The new allegations came in the form of two anonymous letters, received by Hibbs' office, in August 2000 and May 2001. Copies of the May letter were also sent to Valley media, including New Times.

The unknown author detailed specific violations by Swart, including allegations that the captain was targeting Hispanic males and conducting improper searches for drugs. The letter accused Swart of trying to intimidate other officers into not reporting his actions. And it suggested -- again -- that Nielson was aware of what was going on.

"Captain Swart profiles violators," the letter writer said. "When on his drug enforcement projects, he drives his unmarked vehicle looking for Hispanic males who are walking with their hands in a closed position. He will stop, rush them, and make them open their hands. When he does not find drugs in their hands, he searches them."

The four-page letter concludes, in part: "Laws are being ignored, citizens and officers rights are being violated and the captain's incompetence is demoralizing the Capitol Police department.

"This is a mockery of this branch of law enforcement in Arizona. Captain Swart has to be investigated and forced to stop his inadequate leadership."

This time, Hibbs asked the Department of Public Safety to get involved.

Over the next four months, DPS investigators interviewed more than two dozen people, including Swart, who maintained he was the victim of a witch hunt.

The letter writer was believed to be a patrol officer, and Swart was trying to find out who that person was. Some Capitol Police officers were made to write memos detailing conversations they had with other officers that suggested who might have authored the letter.

DPS investigators didn't care who wrote the complaint. They had bigger concerns. Detective John Gigous, the DPS investigator, had reviewed more than 20 arrests by Capitol Police officers that had been declined for prosecution between December 2000 and June 2001.

And, in talking to numerous officers, Gigous was hearing some disturbing comments.

"With the exception of Chief Nielson, everybody that I interviewed said to me [in] almost [the] exact words that they believe the arrests that you do, the stops that you make on the street are done illegally," Gigous told Swart, according to interview transcripts. "That there's no probable cause and that you're just basically harassing homeless people."

Swart gave little explanation as to why he stopped certain people and conducted searches. Swart himself, according to Gigous, had provided little documentation for county prosecutors to use in justifying charges being filed.

"You talk to these guys I've worked with, this is what they'll tell you, 'I've never seen a guy who can spot stuff quicker, faster and better than this guy, tell you right where it is and everything,'" Swart told Gigous last September.

Gigous was unconvinced.

"The main concern, and the concern with the allegations, is the fact that 18 people tell me that they feel you do illegal arrests. Several people tell me that they've witnessed you conducting illegal arrests and illegal search. I've had a total of three officers refuse to talk to me because they're afraid of you personally," the DPS detective said.

Available reports support Gigous' -- and others' -- concerns.

In late January 2001, for instance, Swart allegedly saw a man receive a "small off-white rock substance believed to be crack cocaine." The report said the man had dropped the substance to the ground by his foot when Swart approached. The report stated that Swart was on "routine patrol," but gave no details about how the captain had seen the exchange. The case was rejected by the county prosecutor.

Another felony drug arrest in mid-February was rejected for lack of documentation after Kelly Neal, a deputy county attorney, wrote: "It seems Captain Swart searched the suspect, but I don't have a report or supplement by him.

"If Captain Swart found the drugs, he needs to draft a report. [Officer Clayton] Jeppsen saying that Captain Swart searched a suspect and photos of drugs were taken simply can't sustain a felony prosecution."

Jay Swart was the last person interviewed by DPS. The agency closed its investigation and submitted its report to the Department of Administration in early October.

Hibbs immediately asked a senior state official to review the findings. But seven months later, no action has been taken.

Swart is still the department's second-in-command, although he no longer reports to Nielson. The chief retired in August 2001. Former lieutenant Andy Staubitz was promoted in February to chief.

Hibbs and Staubitz declined New Times' request for interviews.

The only person who did respond to the newspaper was William Bell, the Department of Administration's deputy director, but only in writing.

Bell wrote that the Capitol Police no longer encounter arrests that are questioned by the county or declined for prosecution.

But Bill FitzGerald, a spokesman for the county attorney, says the Capitol Police cases continue to have problems. "A lot of the cases they submit to us have . . . possession problems. Sometimes there are issues with regards to search and seizure."

What action, if any, that might be taken to correct those types of problems won't be known until the state closes its review of the DPS findings.

Regardless of the outcome, state legislators now say they, too, want to review the findings.

State Senator Joe Eddie Lopez, a Democrat who represents the downtown area, says he's gotten calls in the past about alleged mistreatment by Capitol Police. He says he thought the problems were taken care of after he called higher-ups in the police agency.

Still, Russell Pearce, the House member who initiated legislation to fold the Capitol Police into DPS, says he plans to look into the previous investigations.

Pearce, a 23-year veteran of the Maricopa County Sheriff's Office, says he also plans to continue pushing his bill until the consolidation is approved.

Merging the two departments would give the Capitol Police "better communications, better training, better supervision," he says.

Representative Bob Robson, who sits on the House Appropriations subcommittee that oversees criminal justice matters, says the kinds of issues being raised in the investigations are "some of the very reasons why consolidation should occur."

Robson was a co-sponsor of Pearce's bill because overlapping security "doesn't make sense."

The current arrangement, Pearce says, can allow for mistakes to occur because the Department of Administration is not equipped to oversee a police agency.

"I don't think it's fair to the officers," he says. "I don't think it's fair to the citizens."

We use cookies to collect and analyze information on site performance and usage, and to enhance and customize content and advertisements. By clicking 'X' or continuing to use the site, you agree to allow cookies to be placed. To find out more, visit our cookies policy and our privacy policy.


Join the New Times community and help support independent local journalism in Phoenix.


Join the New Times community and help support independent local journalism in Phoenix.