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By Messing Adam & Jasmine | May 1, 2022 | Posted in PORAC LDF News

Alameda Officers Found “Not Criminally Liable” in Prone Restraint Death

Principal Attorney
Berry Wilkinson Law Group
(Of Counsel, Messing Adam
& Jasmine LLP)

Messing Adam & Jasmine LLP

Almost a year after Officers Eric McKinley, James Fisher and Cameron Leahy encountered an incoherent man with open alcohol containers in a small city park, the Alameda County District Attorney’s Office issued a detailed 40-page report finding the involved officers “not criminally liable” for the man’s death, which occurred while he was being taken into custody.

On April 19, 2021, just as the jury started deliberations in the George Floyd murder case, a family that lived on Oak Street in the city of Alameda called the police to report that a scary man was acting strangely. Another neighbor called to report there was an intoxicated man in the park breaking security tags off alcohol bottles. Officer McKinley was dispatched to investigate.

When he arrived, Officer McKinley observed Mario Gonzalez pacing around the park, talking to himself, wearing his fleece jacket inside out and attempting to comb his hair despite wearing a watch cap. Next to him were two small Walgreens shopping hand-baskets containing multiple bottles of alcohol. One basket contained a bottle of brown liquid with the black security cap still on it; the other held an open bottle with security cap remnants nearby. The open container was missing about two cups of vodka.

Officer McKinley initially thought Mr. Gonzalez had likely shoplifted the alcohol from the Walgreens across the street. He was also aware that it is a crime to have open containers in Alameda city parks. So he radioed his responding cover officer, James Fisher, to stop at the Walgreens before responding to the park to determine if they had any “walk outs.” There were none. (The investigating detectives later obtained video footage from a nearby CVS that showed Mr. Gonzalez taking alcohol from the store shelves and leaving without paying for it.)

Officer McKinley tried to start a conversation with Mr. Gonzalez, saying,“Hey, bud, how’s it going? Just coming to check on you, make sure you’re OK. Someone called and said that you were maybe not feeling so great.” Mr. Gonzalez had difficulty responding, could not form complete sentences and was constantly making non-sequiturs while talking. Mr. Gonzalez was also holding pieces of plastic in his hand that looked like broken bits from the security tags. It appeared to Officer McKinley that Mr. Gonzalez drank the two cups of vodka after forcibly removing the security caps. When Officer McKinley asked Mr. Gonzalez for his name so that they could all be on their “merry way,” Mr. Gonzalez responded, “Merry-go-round?” Officer McKinley asked him if he had any identification, and said, “If you can’t do that, then I’m going to have to take you, OK?”

Officer Fisher, who had by then arrived following his detour to Walgreens, likewise tried to engage Mr. Gonzalez in conversation but was unsuccessful. The officers had hoped to come up with a plan that would allow them to safely turn over custody of the incoherent Mr. Gonzalez to family. But they were unable to secure any information that would allow them to contact a responsible person to care for him.

Based on the criminal violations observed and for safety reasons (while speaking with the officers, Mr. Gonzalez frequently changed positions, wandered unsteadily on his feet and placed his hands in his pockets), the officers attempted to detain Mr. Gonzalez in handcuffs. He immediately began fierce resistance, bending over at the waist, straightening his arms, pulling away and moving his hands in front of his body. The officers repeatedly and calmly requested Mr. Gonzalez to cooperate, but he would not comply or stop resisting.

After the officers tried for almost three minutes to handcuff Mr. Gonzalez while standing, they went to the ground, where Mr. Gonzalez continued to struggle, moving his entire body to resist the officers’ handcuffing efforts. The struggle was so intense, and the officers had so little control, that a parking control officer who was riding along with Officer Fisher exited the patrol car and laid across Mr. Gonzalez’s legs to control the kicking. It took about a minute and a half on the ground before the officers could extricate Mr. Gonzalez’s hands from underneath him and force them behind his back to secure the handcuffs. Even after he was restrained, Mr. Gonzalez continued to move his entire body and kick his legs. Officer McKinley asked, “Alright, what are we going to do? Keep him pinned down until the ‘Wrap’ comes?” Officer Fisher replied, “Yeah.”

Having been recently trained in the dangers of positional asphyxiation, the officers purposefully limited the amount of body weight and pressure they placed on the neck and back area. They also continued to talk calmly to Mr. Gonzalez to secure his cooperation. Officer McKinley laid on the ground next to Mr. Gonzalez, face to face, in order to monitor his ability to breathe, look him in the eyes and try to calm him. At one point, Officer McKinley said reassuringly, “We’re going to take care of you, OK?” Mr. Gonzalez responded, “Don’t!” Around this time, Mr. Gonzalez grunted, and body-worn camera footage showed the right toe portion of Officer Fisher’s boot coming up off the ground, as Fisher says, “He’s lifting my whole body weight up.”

Mr. Gonzalez continued to struggle and grunt as Officer McKinley continued to try talking calmly to him, asking his name and birthday, as well as telling him, “We got you. It’s OK. It’s alright.” Officer Leahy thereafter arrived on scene, relieved the parking control officer and took over controlling the legs.

The officers continued to evaluate the best way to control Mr. Gonzalez while avoiding pressure on his back, shoulders and neck, all while Mr. Gonzalez continued grunting loudly with effort, moving and jerking his body to cause the officers to lose balance and control. During the encounter, the officers verbalized exercising caution in the rib area, reminded each other not to place any weight on Mr. Gonzalez’s chest and discussed whether they could move Mr. Gonzalez into the recovery position while waiting for the “Wrap” without losing the little control that they had.

After approximately three minutes and 39 seconds of non-stop, intense active resistance, Mr. Gonzalez suddenly became unresponsive. As one officer described: “It was like a light switch turning off.” The officers immediately noticed the change, shifted gears and began aggressive life-saving efforts. Forty-five minutes later, Mr. Gonzalez was declared dead by medical personnel.

After the death, I, then principal attorney for the Berry Wilkinson Law Group and now of counsel to Messing Adam & Jasmine LLP (MAJ), responded to assist the officers with the multiple investigations that were initiated. In a change from custom due to the unique environment that existed in the spring of 2021, given the George Floyd trial, the Alameda Police Department requested the Sheriff’s Office conduct the criminal investigation. The Alameda County District Attorney’s Office joined that investigation. The City also hired an outside independent investigative group to conduct the administrative investigation. A civil rights lawsuit was also filed, alleging excessive force and comparing the incident to the murder of George Floyd, even though they were vastly different situations.

Given the multiple pending investigations, the City hired me directly, and I procured the assistance of MAJ Associate Scott Thorne to defend the officers in the federal civil case. The pair of us, having worked together on other civil rights defenses of excessive force cases when an agency needs independent counsel, undertook a thorough review of the incident and put together persuasive arguments showing that the unlawful detention and arrest allegations had no merit and that the force used was reasonable. Our team remained in constant contact with the officers, the criminal investigators, administrative investigators and the district attorney’s office to ensure that the officers’ rights and interests were protected.

No one was surprised when the autopsy returned a finding that the cause of death was the “toxic effects of methamphetamine” with other contributing causes being morbid obesity, alcoholism and the physiological stress of the altercation with police. Toxicology testing detected methamphetamine (907 ng/ml), amphetamine (methamphetamine metabolite; 134 ng/ml), naloxone (50 ng/ml) and ethanol (< 0.02 grams %). Although Mr. Gonzalez’s family claimed the levels were “recreational” amounts, the coroner and the district attorney noted that medical literature sets the toxic levels as significantly lower than was found in Mr. Gonzalez’s blood.

Because the death was classified as a “homicide,” the Alameda County District Attorney’s Office assigned its Critical Incident Team to evaluate the in-custody death. That team compiled a 40-page, single-spaced report that extensively discussed the evidence, as well as the applicable legal standards. The report concluded, consistent with the findings Scott and I made, that the detention and arrest were supported by reasonable suspicion and probable cause as well as officer safety concerns.

The report also concluded that while taking Mr. Gonzalez into custody, the officers remained “calm and patient” even while Mr. Gonzalez fiercely resisted their efforts, never once raising their voices. The report emphasized the force options used to counter his resistance were reasonable under the circumstances, and that the officers “repeatedly attempted to de-escalate the interactions.” This included Officer McKinley getting down on the ground with his face next to Mr. Gonzalez’s in the dirt, to reassure him and calmly ask questions, hoping to distract him from resisting, as well as to make sure he had sufficient room to breathe. The report further noted the officers throughout were “mindful” of not placing weight onto Mr. Gonzalez that would put his breathing at risk, constantly repositioning so there would be limited pressure.

The report additionally noted that while the police encounter was a factor in Mr. Gonzalez’s death, there was no way the officers could have foreseen that the standard control techniques they used would have resulted in death. The report stated: “The officers were dealing with an individual in his mid-twenties who appeared to be drinking from a stolen bottle of alcohol based on the physical evidence and his contact. While Mr. Gonzalez was a larger individual, a reasonable person could not be expected to know that Mr. Gonzalez had toxic levels of methamphetamine in his system, or that his heart and liver were compromised physically due to morbid obesity and alcoholism. These are conditions invisible to the naked eye… .” (Emphasis added.) The report went on to note that a contrary conclusion would require “officers to predict a detainee’s level of intoxication or drug use and pre-existing medical conditions. This would lead to a causation standard in which officers would be encouraged to let some people go free out of fear of criminal prosecution because some pre-existing medical condition could lead to death. Such a result would also encourage detainees to physically resist with the knowledge that officers must cease detention out of fear of a fatal medical incident.”

The report also noted that the toxic effects of the methamphetamine, coupled with Mr. Gonzalez’s thin and weak heart muscles, which the officers “had no way of knowing … existed,” could have alone caused the heart to cease function even if there was no police encounter. Ultimately, the district attorney concluded the officers were “not criminally liable” for Mr. Gonzalez’s death, declined to file any charges and closed its file.

Sadly, this is not the end of the journey for these three officers, who remain on administrative leave and unable to assist their colleagues during a significant staffing crisis within the department. The administrative review is not yet complete, and the federal civil rights lawsuit is still pending. But the officers are thankful for the thorough, diligent and professional work done by the detectives with the Alameda County Sheriff’s Office. They are also grateful the district attorney recognized that this tragic death was an unintended consequence of their legitimate and lawful actions.

About the Authors

Alison Berry Wilkinson is of counsel to the law firm of Messing Adam & Jasmine LLP and is also principal attorney for the Berry Wilkinson Law Group. In both those roles, Alison is dedicated to providing effective, quality representation to public safety employees in civil, criminal, disciplinary and collective bargaining matters. Alison was honored to be named a “Lawyer of Distinction” in police liability law, and to be rated by her peers as a “Super Lawyer.”

 Scott P. Thorne is an associate at Messing Adam & Jasmine LLP who uses his background with law enforcement agencies in both Northern and Southern California and his experience working with the U.S. Federal Labor Relations Authority and the Sacramento County District Attorney’s Office to assist police officers and other public employees during investigations, disciplinary hearings and critical incidents.