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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- Dennis Leach National City POA
[My Representative] is a knowledgeable attorney and I would highly recommend him to anyone needing representation.
- Tigran Topadzhikyan Glendale POA
[My representative] is an excellent attorney. I would use him again. He communicates with his clients and is very competent.
- Katie Angermiller Tuolumne Co DSA
I was very satisfied with the work the LDF performed. The lawyers and clerical staff at [law firm] were all very kind, professional and they always assisted me when I called and never made me feel like I was a burden. Thank you LDF!
- Cherie Rye Lyon Co SEA
I am very happy with the service I received from LDF. I am grateful that our association includes LDF as part of our dues.
- Evelyn Hooks Shasta CO PPOA
Thank God for the L.D.F.
- John M. Laser Oceanside POA
[My representative] always took my calls or returned them within hours. Put my mind at ease and kept me well informed. LDF is well served by this law firm!
- Robin Gonzalez Yolo Co. DSA
[My representative was] very quick to respond, helpful and professional. Thank you!
- RIchard Okeson Hesperia USD POA
I can't express how satisfying and comforting it was to have such a well qualified and pleasant attorney at my side. Thank you so much for everything you did for me, and if you can, please thank [ my representative] again for being there for me.
- Kim Jasper Alhambra POA
Excellent service, prompt and courteous.
- Steven Moorehouse Redding POA
You guys are Great! Very professional and well informed. THANK YOU!
- 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!
- Jeff Stanley Upland POA
Excellent representation. [My representative] is a great attorney.
- James Hika Border Patrol Supervisors Association
They did a great job!
- Brad Young Oakland POA
[My representative] is an excellent attorney and I am very happy he picks up the phone and answers my questions whenever possible.
- David Heller Yolo County DSA
The charges against me, if sustained, would have likely ended my LE career. I was rightfully exonerated on all charges. I was well represented by [My Representative] and thank him for a job well done!!
- Michael Sexton Manteca POA
[My representative] was awesome.
- Robert Glock Oakland POA
I am always satisfied with LDF and all their representatives.
- Brad Young Oakland POA
[ My representative ] is an awesome attorney.
- 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.
- Oliver Sansen Concord POA
In 14 years I have never had to deal with an "IA." [My representative] was wonderful & put my mind at ease throughout the entire process. Thank you!
- Kenneth S. Blonski East Bay Regional Parks PMA
I was very pleased with my representative.
- Patrick Davis Oakland POA
Very knowledgeable and thorough and would use the rep again.
- 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.
- Doug Plumhoff Ridgecrest PEA
Great job by all! Always great to know LDF is there when needed.
- Gregory Carbett Ontario POA
The attorney assigned to my case was GREAT! It's sad, but it's impossible to be an officer in today's world without a defense fund like PORAC LDF. I am now retired and signed up for the retired officers CCW LDF. Thanks!
- Byron Kies Santa Barbara Co DSA
Everything was great!
- Kevin Hullquist Siskiyou Co. Correctional POA
[My representative] did a good job representing me. Kept me informed.
- Steven Curtiss Shasta Co DSA
This was my first need for LDF support and I was very happy with the level of service. Thank you.
- Robyn Delaney Mono County PSOA
[My Representative] truly is an exceptional attorney. He has always represented me with honesty and compassion. Well Done.
- Kerry Carlson Midpeninsula Ranger POA
I have held leadership positions in our POA most of my career. Because of my role as President and Vice President I have been a target to management. I feel that if it were not for LDF I wouldn't have a job
- Albert Contreas Imperial Co. DSA
Thank you for your services.
- Jaime Kim Oakland POA
My rep did a good job. First we met and he explained that there might be culpability on my part but not nothing close to the allegations. I appreciated his honesty as we have all done things that can be taken out of context so it was important he told me to realize that.
- 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.
- Jay Garacochea Culver City POA
[My representative] not only did he do a great job but he listened to my concerns. He did not force his views or game plan and we worked well w/ each other. We agreed on a goal and achieved it.
- Katherine Comesana Mountain View POA
Hope to never in a situation again, however, glad to know that LDF is there to help.
- Omar Daza-Quiroz Oakland POA
I have had (2) two cases in which LDF represented me. Both lawyers were exceptionally professional, intelligent and caring for me. They were friendly and very helpful.
- Alfredo Hernandez El Centro POA
[My representative] was very attentive, [informative] and knowledgeable. He spoke very clearly and explained things in ways easy to understand. [He] made me feel like he truly cared about what was going on with this case and me. Not to mention [he] was funny and witty, traits which made him trustworthy and someone who would stand by me and other police officers.
- Yvonne Heuston ERS/SPPOA Supervisors
My representative was outstanding and knew what to lookout for and how to handle situations as they appeared. He told me what to expect and how he proposed to handle the hurdles. Just telling what to expect helped put me at ease as the situation was so foreign to me, and intimidating.
- Steven Mayorga Ventura County DSA
I was well represented and very glad to have LDF. Thank you.
- Scott Cox Tulare Co DSA
I just want to say [my representative] did a great job! Thank you.
- Scot Hicks Humbolt County DSO
My experience was made much less stressful thanks to the LDF representation.
- Jonathan Smith San Diego D.A. Investigators
I couldn't be happier or more satisfied with my LDF Representative, the process and the outcome of my case.
- Christopher Wirth A F G E Border Patrol
LDF referred me to [ representative ] in Spokane, WA. [ Representative ] did an outstanding job representing me. Thank you very much for the referral ! I would not be employed any longer had it not been for [ representative ] and his legal team.”
- Shandon Murphy San Mateo POA
Great work! Thank you so much!
- Brendan Tinney UC Berkeley POA
[My representative] has represented me twice now and both times I have been very pleased with his thoroughness with handling my cases. I appreciate all what LDF and [my representative] have done for me.