ALISON BERRY WILKINSON
Berry Wilkinson Law Group
A kidnapped baby. A hysterical mother. A good Samaritan who followed the kidnapper from the grocery store parking lot while he reported the suspect’s travels to dispatch. A rapid rescue of the baby by the responding police officers. A baby reunited safely with her mother.
This successful operation should have been the script from which a commendation was issued. However, for Grover Beach Police Officer Santino “Sonny” Lopez, it was the beginning of an extended nightmare and a two-year battle to overturn his employment termination and restore his good name.
The Underlying Incident
On February 9, 2010, Grover Beach Police Officer Sonny Lopez was dispatched to a “kidnapping in progress” at the Vons grocery store where a 6-month-old baby had been taken from her mother. As he responded, Lopez was advised by dispatch that the victim’s mother and a good Samaritan had followed the suspect vehicle to an address in Arroyo Grande. When he arrived at the address, Officer Lopez was told by the distraught and crying mother of the kidnapped baby that an “old man” had “kidnapped her baby” and was hiding in the locked, dark garage. The good Samaritan relayed to Officer Lopez not only that the man had refused to give the baby back, but also that he appeared “crazy.”
Concerned that the child was in danger, Officer Lopez, accompanied by the Arroyo Grande officers who had also been dispatched to the call, kicked open the locked garage door and made entry. In the dark and cramped garage space, the responding officers executed a rapid rescue of the child and apprehended the kidnapper. After the baby had been recovered and during the time the perpetrator was being taken into custody, Lopez discharged his Taser. The Taser, although discharged, failed to hit anyone or do any damage.
While Lopez’s perception of those tense moments was based on his angle of view during this rescue effort, the camera on his Taser recorded the event from a different perspective. When those perspectives were interpreted as inconsistent, the Department concluded that this veteran officer intentionally misrepresented the event in order to justify his improper use of the Taser. As a result, the City charged Lopez with: 1. being dishonest in his reporting of the incident and 2. using excessive force when he discharged the Taser. Following a Skelly hearing, his employment was terminated.
The Successful Termination Appeal
Pursuant to the City’s personnel rules, a termination appeal hearing is conducted before a hearing officer selected by the city manager. The hearing officer’s findings and recommendations were advisory to the city manager.
Retired San Luis Obispo Police Chief James Gardiner was appointed by the City to preside over the Lopez appeal. After a three-day evidentiary hearing, Chief Gardiner concluded that there was no merit to the dishonesty allegations and recommended that the termination be overturned even though he had found that the Taser use did not comply with policy.
In overturning the dishonesty charge, Chief Gardiner noted that the essential facts about the nature of the incident were not in dispute and that the controversy centered on the 23 seconds of video recording from the camera attached to Lopez’s Taser. The City contended the video showed a demonstrably different set of facts than those represented in Officer Lopez’s report written on the night of the incident.
Despite the discrepancies between the Taser video and the report, Chief Gardiner reversed the dishonesty charge. Several factors weighed heavily in his decision. First, Chief Gardiner noted that the Department could not and did not provide Officer Lopez the opportunity to review the Taser-cam video before writing his report. This failure caused Officer Lopez to report only his perspective and omit any description of the different angle of view his eyes had from that of the Taser-cam. When asked to explain the discrepancies between the report and the video, Lopez stated, “I didn’t see what the video sees.” This was due to the fact that Lopez was in a position of cover behind the driver-side car door pillar, observing the suspect from behind the seat and through the driver’s side tinted car window, whereas the Taser was extended by Lopez’s arm downward around the driver’s seat and extended into the cab of the vehicle. Also persuasive was the testimony from an expert who explained how the Taser-cam recorded using infrared lighting, which gave a clearer and brighter picture of the events than Officer Lopez could see in the “pitch black” garage using human eyes.
Chief Gardiner also took into account the fact that the underlying call was urgent and emotionally charged, which was a perception factor that did not exist when viewing the Taser-cam video in the calm confines of the hearing room. Chief Gardiner was particularly influenced by the testimony of Force Science Expert Jeffrey A. Martin, a retired San Jose Police Sergeant, who testified about the effects of stress on human behavior, auditory and visual perception and memory. Chief Gardiner found Martin’s testimony “informative and persuasive,” and noted that it reinforced his own professional experiences where both lay witnesses and police officers gave a sincere and truthful recounting of what they saw or heard that “proved to be demonstrably incorrect based on other evidence.”
Finally, Chief Gardiner said that he “was struck from the beginning that it was Officer Lopez who intentionally took out the Taser to document what happened,” and therefore, agreed with my argument that “it defies logic that Officer Lopez purposefully misrepresented what occurred when he knew there was a recording of the event because he himself chose to turn on the Taser with its camera.”
The City’s Rejection of the Hearing Officer’s Decision
The City rejected the advisory decision and upheld the termination using the original grounds cited in the discipline notice. As a result, the PORAC Legal Defense Fund authorized an appeal to Superior Court pursuant to Code of Civil Procedure section 1094.5.
The Superior Court Decision
After reviewing the entire administrative record and exercising her own independent judgment, San Luis Obispo Superior Court Judge Dodie A. Harman not only agreed that there was no basis to find Officer Lopez untruthful, but she also found his use of the Taser justified.
In so ruling, Judge Harman noted that Officer Lopez’s perception of the incident was consistent with that of the Arroyo Grande officers who were also present, that the Taser-cam recorded from an entirely different perspective than the involved officers and that because the camera records only at the rate of 10 frames per second, “every movement seen by the human eye during this same minute will not be recorded on the Taser-cam” and that “human factors cannot be recorded.” Judge Harman also found that “[t]he testimony of Jeff Martin is particularly persuasive in analyzing all of the evidence. What witnesses see and hear during a stressful event may vary considerably from one another and certainly will vary from a recording watched frame by frame in the calm, non-threatening, non-stressful environment of an office.”
The Court further held that there is a difference between a “mistake or misperception” and a “misrepresentation.” Judge Harman stated: “Officers, like any witness, make mistakes; they may perceive something in the heat of the stressful encounter that later, on calm reflection, seems unreasonable. That, however, does not make it a false reporting nor does it make it a misrepresentation.”
As to the discharge of the Taser itself, Judge Harman found it was justified and thus reversed the findings by both the City and the hearing officer. While Lopez did not make a verbal warning prior to discharge, as required by the policy, the Court found that was not significant. Judge Harman noted that “officers have to make split-second decisions under circumstances with less than optimal information” and that “Officer Lopez was not in a position, based on the surroundings, to assist Officer Johnson in any other way in gaining control over the suspect.”
Judge Harman’s decision was issued two days before Christmas, a welcome and wonderful gift to Officer Lopez’s family. Officer Lopez has now been reinstated to the Grover Beach Police Department, although complete implementation of the award is still underway. Sonny Lopez is grateful to the PORAC Legal Defense Fund for its support and funding, without which, he could not have afforded to aggressively defend his honor and reputation.
About the Author
Alison Berry Wilkinson is the principle attorney in the Berry Wilkinson Law Group, a law firm dedicated to providing effective, quality representation to public safety employees in civil, criminal, disciplinary, and collective bargaining matters. She is assisted in this enterprise by associate attorney and Force Science Expert Jeffrey A. Martin, a retired San Jose Police Sergeant, as well as Labor Relations Representative Mark O’Connell, a retired Alameda Police Sergeant. Formerly a founding partner at Rains, Lucia & Wilkinson, Alison continues to actively and aggressively advocate on behalf of peace officers statewide.
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This was my first Internal Affairs investigation, my lawyer walked me through every step and answered all of my questions, without my lawyer's advice, I would have been lost throughout the investigation and a complete disadvantage against my department.
- Anthony Alonzo South Gate POA
Very pleased with the way the process was explained to me. Received updated info faster than I expected. Overall a good experience in a not so good situation. Thanks to LDF.
- Korey Lankow Assn Highway Patrol of Arizona
Outstanding service from bottom-to-top.
- Patrick Davis Oakland POA
Very knowledgeable and thorough and would use the rep again.
- Anthony Gregori Sonoma Co Jr College P O A
Excellent work and well worth it.
- Miguel Suarez Monterey Co DSA
[My representative] was very knowledgeable and courteous. He knew his stuff, and I couldn't have asked for a better guy to be on my side on this matter. Thanks.
- Paul Spencer Santa Paula POA
[My Representative] was great!
- Sherri Coral Riverside Community College
He was very professional. I trusted him to defend and he did! I am very thankful he was here for me.
- Katherine Comesana Mountain View POA
Hope to never in a situation again, however, glad to know that LDF is there to help.
- Melissa Geraci Oakland POA
This is my 1st time using LDF and was very pleased with the service I got. [My representative] was so friendly & always returned my calls & even called to update me without provocation.
- Diana Drummey Coronado POA
I so appreciated my LDF rep - his kindness and understanding re my case during an embarrassing and uncomfortable time - he was so caring.
- Grace Castro AFGE Local 2455 – Laredo, TX
My representative was very kind and showed he cared when explaining what my legal rights were when dealing with an internal investigation.
- Ernest Marugg San Diego Deputy DA Association
The LDF responded immediately upon my request for counsel. LDF provided the best representative I could receive! When I called LDF for advice, I was given advice again immediately. Thank you LDF for your concern.
- William Pryor Statewide University PA
Very helpful program. Helped keep department personnel focused on the issue regardless of their personal issues.
- David Baker Placerville POA
My experience through dealing with this matter was horrific. Without the efforts of the LDF and more specifically [my representative], I would most certainly have fallen victim to a corrupt and unethical administration. The LDF has saved my career and brought me justice.
- Robert Curato Anderson POA
He did a great job for me!!! He always returned my phone calls within 24-hours. He showed an interest in my case and we were able to get the issue resolved in less than 45 minutes. Thank you for being there when I needed the legal assistance.
- Kim Jasper Alhambra POA
Excellent service, prompt and courteous.
- Kenneth Nelson Plumas Co SA
Good job. Thank you! [My representative] does an outstanding job representing the employees and seems to be very intimidating to the [County Management]. We like it this way!
- Cathleen Weldon Siskiyou Correctional POA
Very Comforting to have a knowledgeable person looking out for my best inerests. Thx!
- Ken Burbank Shasta Co DSA
[ My representative ] was professional, articulate and prepared, but most importantly he understood the emotional impact the investigation was having on me as a person and peace officer. I highly recommend [my representative].
- Linda Mendez Imperial Co Prob and Corr
I'm very pleased with the services offered by the LDF. I feel so fortunate to enjoy the benefits of having the membership. The services provided by LDF to its members is simply 110% professional, supportive, great!! LDF care for its members is reflected by the quality of Best Law Firm offered, simply the best!
- Jon Seabron Oceanside POA
[My Representative] was the best and if I ever need to call al lawyer again for anything, I'll be calling her.
- Christopher Connally Assn of LEA
To whom it may concern: Let me start by saying how much I appreciate the opportunity to join the PORAC Legal Defense Fund. This is a great benefit for our membership. During the past twelve months I was fortunate to have access to the Legal Defense Fund through MPCA. Earlier this year I was both surprise, and disappointed, when realized that I needed to provide counsel to mediate pending litigation. In accessing the Legal Defense Fund I found your staff to be very professional and reassuring. The staff felt that [my representative]., would be the best ft for the situation. I would like to take the opportunity to express my appreciation for being represented by [Rick Barry]. Not only was he a good fit for the circumstances, at times it seemed as if he was the only attorney out of several involved that really had a grasp on the issues. Again, I would like to thank the PORAC staff, and know that I could not have been better served than by what was provided by [my representative].
- Brad Young Oakland POA
[ My representative ] is an awesome attorney.
- Robert Muelberg Denver PPA
I could not have had a better attorney. [My representative ] went way above and beyond his duties. I would not have had a better experience with my representative. I believe that the LDF is the single most important benefit a police officer could have!
- Rodney Kirkland Oakland POA
Being a police officer in the city of Oakland, I appreciate the services that are offered.
- Evelyn Hooks Shasta CO PPOA
Thank God for the L.D.F.
- James Beckman Miracosta College POA
Highly recomend his progam for any LEO!
- Gerhard Wallace Santa Clara Co DSA
I think that [my representative] did a great job in presenting my case. I would recommend her to any deputy (officer) facing disciplinary action. My case was minor compared to other cases but [she] still did a professional job.
- Gina Reyes Broadmoor POA
[My representative] was wonderful! Even though my situation didn't end in my favor, he was very supportive, informative & patient. He always answered every email in a timely fashion and was very accessible. I appreciated everything he was able to do for me.
- Billy Aldridge Chico POA
[My representative] was awesome! He provided an excellent explanation of the process and was very professional. This was my first IA in 11 years of LE and [my representative] did a great job of reassuring me that I had nothing to worry about. Thank you so much for all your help.
- Jason Boust Sanger POA
My rep was very helpful in explaining the processes and stayed in contact throughout the ordeal.
- Tai Pena-Hornung Oakland POA
Those who foolishly feel LDF is not a valuable resource, do so only because they have not yet needed legal representation.
- Christopher Adams Modesto POA
Thank you for all your help!
- Gregg Palmer San Joaquin Co Corr POA
Everything was explained very well prior to my questioning. I was not worried at all during the investigation. Very professional and a great asset to its members.
- James Beckman Miracosta College POA
Excellent service everytime.
- Scott Cox Tulare Co DSA
I just want to say [my representative] did a great job! Thank you.
- Kip RIngen Lake Co DSA
My LDF rep kept me well informed concerning the progress of my case. I was extremely satisfied with the service I received. Thanks.
- Rick Stephens Alpine CO DSA
My representative was very good. I highly recommend my lawyer to anyone.
- Allison Clark Twin Cities POA
[My representative] is the best attorney LDF has. Her attention to details, professionalism, and intelligence were off the charts. If I did not have her as a rep I would probably be out of a job. She is fair and she was honestly concerned about me, my family and my case.
- Kristen Patterson Contra Costa Co Prob. Assn.
[My representative] was helpful and made me feel supported. I got the results I desired. Very pleased with the process.