A Perfect (and Passing) Storm

ANDREW M. GANZ
Attorney
Rains Lucia Stern St. Phalle & Silver, PC

On April 29, after very brief deliberations, a Sonoma County jury acquitted Sergeant Lance Novello on all charges in a case that epitomized the overreach and injustice of the current crusade to charge and convict police officers. The criminal case was the result of an unfortunate confluence of (what should be) irrelevant factors, hovering like storm clouds over a system that is supposed to be guided by what is just, rather than what is politically beneficial. I believe these clouds are starting to slowly pass, as juries’ implicit and explicit messages peek like a glimmer of sunshine through what feels like a very dark period.

The power to take an individual citizen and put them in the crosshairs of a potential criminal conviction is perhaps the most consequential one that the government possesses. When that power is used for any reason — including for political gain — other than because the prosecutor believes in the truth and justice of the charges, it should be alarming to all of us who claim to care about justice. Those who have advocated for drastic criminal justice reform in California should be the first to raise hell.

But curiously, that reverence for the rights of a defendant and push toward extreme leniency is thrown out the window when it comes to the prosecution of police officers. In fact, whereas we have all heard the refrain that “police officers are not above the law” to support a focus on charging officers with crimes, the fact is, at this point, most charged cops are far below it.

Such was the case for Sergeant Novello of the Petaluma Police Department. A man who served the public for approximately 35 years (first as an EMT/paramedic and then for nearly 20 years as a peace officer) now found himself, in late summer 2020, squarely in the crosshairs of the Sonoma County district attorney, and would stay there for nearly the next two years.

Take yourself back to late May 2020 for a moment: COVID is raging, and George Floyd perishes under the perceived cold and cruel knee of Derek Chauvin. The world is convinced (which is not very hard at this point in our civilization, as to any issue) that police officers are mostly racist murderers. Politicians and corporations react with remarkable speed and intensity in an attempt to distance themselves from, and even cast blanket aspersions toward, law enforcement. The fear that if they do not adopt this anti-police narrative, and express their allegiance to it, is real and intense.

But this is not all cynical. Just like cops are human, politicians and the people who make up corporations are, too. They can be brainwashed and do things to soothe their own psyches as well. In late May 2020, it feels way better and provides one with far greater social capital and affirmation to throw up your fist and say “ACAB” than to extend it and say, “Thank you for your service.”

Novello ended up with the label of “criminal defendant” as the result of a perfect storm that started to take shape over him beginning on July 20, 2020. On that date, he was dealing with an unrelated call at Petaluma Valley Hospital (PVH) when he noticed a young adult woman causing a scene in the emergency room. She was falsely alleging hospital staff dropped her on her head, accusing them of racism and threatening to sue them. A couple of hours earlier, she had caused a serious collision when she T-boned a group of teenagers in a Camaro and then falsely claimed it was their fault, and that they physically threatened her and were about to attack her after the incident. She implied that the teenagers were violent thugs and must be gang members because of their ethnicity (Latino).

This was nothing new. A few years earlier, the same woman tried to frame a man for a hit-and-run, alleging that he struck her while she was walking in a parking lot, when surveillance showed her purposefully throwing herself at the car. Even on the night in question, after leaving the hospital against medical advice, she claimed her mother ran over her foot for no reason, when in reality she attacked her mother, who then drove away in self-defense and defense of the vehicle’s windows as her daughter ran up in a rage and threw her shoes at the car, barely scratching the side of her daughter’s ankle.

When Sergeant Novello encountered this woman in the parking lot, along with other officers, she was demanding her mother be placed in handcuffs and locked up for the non-offense. It was easily and quickly determined that no crime had occurred, but the officers there, including Novello, felt an obligation not to just leave her there, sitting in her mother’s borrowed parked car (she totaled her mom’s car in that crash earlier) in the middle of the emergency room driveway. Meanwhile, other officers were petrified to coddle her as she made it impossible to provide her any assistance, including transportation from the hospital.

After a newer officer erroneously told the young woman that she was detained, Novello felt obligated to step in and tell her she was free to leave. He did not want her rights violated nor his young officer to get a complaint. She asked again if she was detained, and Novello repeated that she was not and told her that she needed to start listening. He told her twice, in a calm but firm tone, to “shut [her] mouth and listen.” Although most rational people observing her behavior would agree with his assessment, this is not what she or the Petaluma Police Department wanted him to say, apparently.

Well, maybe she did. It was the perfect opportunity for her to once again inject race into a situation where it was never a factor, and start to build her lawsuit. For the next several minutes, she made allegations of racism and demanded Novello’s name and badge number. Novello smartly removed himself from the situation and went to talk to the woman’s poor mother, who recognized the behavior all too well. He was trying to find a way to move forward from this stalemate that had gone on now for far too long. He declined to immediately give in to the demands that he provide to her his name and badge number.

After speaking with the mom, Novello walked back in the general vicinity of the young woman. She was rummaging around in the parked car and emerged with a piece of paper and pen. As she walked quickly to Novello, he figured this would be a good opportunity to give her what she was yelling for: his name and badge number. After all, it was right there on his uniform, and she was walking up to him. He took a step toward her, with his hands on his hips, as she got up to him. He presented his uniform to her, and said, “[I]t’s right there.” They bumped into each other momentarily, slightly. He pointed to his chest. This all happened within seconds. His “decision” (to the extent that there was any real thought process) to provide his information in this way was an in-the-moment and almost sarcastic one. The “bump” was entirely unintentional.

The young woman, already in an artificial rage, went utterly apoplectic at this point. She screamed and shook with (the appearance of true) anger as she started to move a pen to within an inch or two of Novello’s eyes. He grabbed her wrist and held it down for a few moments until the threat no longer appeared to exist. She (erroneously) thought the multiple officers’ BWCs were not rolling up to this point and took the perceived opportunity to make several false allegations: she accused Novello of touching her breast with his hand, suggested he inappropriately touches his nieces and nephews, called him a racist in various ways and yelled other exaggerations and lies about the incident. After committing the assault with the pen against Novello, and arguably the crime of giving false information to officers, she committed a battery against her mother in front of the various Petaluma officers by pinching her mother hard on the arm. She said she was going to get a lawsuit out of it and was going to “get paid.”

The young woman faced no criminal or other liability for her crimes or defamatory statements, but she was an ideal vehicle for the Sonoma County district attorney — who was about to face a recall effort based on allegations that she “ignored issues of inequality, injustice … prevented the release of police body camera recordings, disproportionately incarcerated minorities and abused her powers to pursue personal vendettas,” and faced heavy (perceived) public criticism in the wake of her appropriate declination to charge a Sonoma County sheriff’s deputy in a 2013 OIS of a teenager holding an airsoft AK-47 — to sacrifice an officer to stave off more heat. Novello was charged with two crimes: assault under color of authority and battery. The charges related specifically, and only, to the so-called “chest bump.” Yes, a person was charged with two crimes for momentarily and accidentally bumping into another person who was angrily moving toward him. He faced the possibility of a year in jail.

As all of us who have been a part of the process of citing, arresting and charging people
with crimes know, this sort of contact is not a crime. Even an intentional shove with no injury is rarely, if ever, charged by a DA. The reality is the criminal justice reform and progressive prosecution movements have not only reduced by huge margins the number of misdemeanor cases charged but resulted in some of the most serious crimes being declined for charges. In fact, some prosecutors have declined to criminally charge people who shoot at others leading to a death.1 But Novello needed to be “held accountable.”

As shocking and upsetting as this decision by the DA was, his own department’s abandonment of him hurt even more. They simply were unwilling to put this matter in the proper perspective and provide any support to him. After all, what police chief in summer 2020 was going to dare to suggest that a charged officer was not a violent racist? The perception and fear, perhaps warranted based on the nature of the uninformed public reaction, was that it would be far too risky to take that stand. But this is not about some blind loyalty; it is about publicly and unapologetically stating that, while there were parts of the incident that we do not love or approve of as a department, and while we will deal as we see fit with the matter internally, this was not a crime, has never been a crime and we take serious issue with our DA treating officers as political pawns.

The career that Novello spent decades working toward was now over. He never worked another day for Petaluma.

As for the court process, the treatment of Sergeant Novello as a second-class citizen continued as he tried to put the matter behind him by asking for statutory “diversion.” Advocates for reform were able to get legislation passed to give first-time offenders the ability to keep convictions off of their record through this process. But the DA objected to this first-time “offender” getting the benefit of the law, and a judge, just like Petaluma P.D., had no incentive, other than doing the right thing, to grant the request.

As the case grinded its way through multiple hearings over many months, it finally went to trial this past April. A jury of 12 citizens, plus three alternates, were required to miss two weeks of their lives to sit through a trial about a momentary, accidental, tapping of torsos based largely on the testimony of an accuser with less credibility than a 2-year-old with frosting all over their face claiming their baby sister ate the cake.

This was the pinnacle of absurdity. The perfect storm accumulated in Petaluma, California, in summer 2020. The incessant information/propaganda that pumped through all forms of media and echoed for the next several months and years resulted in a public servant facing criminal charges for something that no violent criminal would ever be so much as cited for. This abuse of the system basically ruined Sergeant Novello’s life and tortured him in the process.

But the end of the story provides some glimmer of sunshine that I believe will continue to break through. After the quick acquittal, several jurors made a point to walk over to Sergeant Novello as he shared the emotional moment outside of the courtroom with his family. They felt compelled to express their displeasure with the fact that he had been put through this, and then a heartfelt “Thank you for your service” followed by a touching handshake. Sergeant Novello and I both could not help but think about how this was much more than he ever got from his police department of nearly 20 years.

I believe people are tired of being manipulated by distortions of reality so often presented for political or personal gain. I believe these jurors were furious and given a wake-up call about how bad this phenomenon has gotten. But I also believe that this storm is finally passing, and that reasonable, honest and good people shine in the long run. Sergeant Novello is one of the good people, and he is officially not guilty.

About the Author
Andrew M. Ganz is a trial attorney in the RLS Legal Defense Practice Group. Andrew defends public-sector employees in criminal matters, administrative investigations, critical incident investigations and disciplinary appeals. He also represents public-sector employees in disciplinary actions and related litigation. Prior to joining RLS, Andrew worked as a prosecutor for over 13 years, during which time he handled virtually every type of criminal matter.

References
1. “Kim Foxx Claps Back After Mayor Criticizes Decision Not to Charge Shooting Suspects.” NBC Chicago (WMAQ-TV). (2021, October 4). tinyurl.com/ycyraer9.