Bart Police Sergeant’s Suspension Overturned with Full Back Pay Awarded

Posted by JUSTIN BUFFINGTON

In March 2010, during the difficult time in the aftermath of the Fruitvale Bay Area Rapid Transit (BART) station shooting of Oscar Grant by Officer Johannes Mehserle, a BART police sergeant responded to a call of an assault with a bottle, a deadly weapon, committed by a pre-teen juvenile at the Richmond BART station. The juvenile suspect was reported to have been riding a bicycle as he fled the scene.

As the sergeant drove from the El Cerrito Del Norte BART station toward the Richmond station, he observed an individual who closely matched the description of the felony suspect riding a bicycle out of a tobacco shop. The sergeant immediately recognized the suspect as a “frequent flyer.” He had arrested the suspect and his older brother for at least one strong-arm robbery at the Richmond BART station and he had credible information that the suspect had committed an additional strong-arm robbery at that same station; further, the suspect was a habitual BART fare evader — this kid was no Beaver Cleaver.

When the sergeant saw the suspect exit the tobacco store, he observed the juvenile’s eyes widen as he recognized the law enforcement presence. Clearly having a guilty conscience, the suspect immediately began to flee on his bicycle. The sergeant, knowing his foot speed was no match for the spry juvenile on a bicycle, pursued the suspect while in his patrol vehicle, with lights flashing and siren blaring.

As the sergeant pursued the suspect up the block, the suspect came to an abrupt stop, reversing direction. The sergeant was forced to make a cumbersome three-point turn to maintain his pursuit of the fleeing felon. Moments later, after the suspect rounded a corner, he quickly reversed direction again, requiring another three-point turn, giving the suspect time to create distance between himself and the sergeant.

Finally, after the sergeant had caught up to the juvenile and cut him off, he pointed his Taser at the suspect through his open passenger window and ordered him to stop. The suspect instead pedaled away from the sergeant in defiance. The sergeant continued his pursuit, and as he began to overtake the suspect again, the juvenile stopped his bike as though he were going to change directions. The sergeant, seeking to stop this fleeing felon who posed a future risk to the community, fired his Taser through his open passenger window. The probes missed the suspect, but the Taser use had its desired effect and the suspect immediately surrendered to the sergeant, who took him into custody.

As a result of the hysteria that pervaded the Department, prior to any investigation it was decided that there were going to be serious consequences for this hardworking sergeant who, in addition to having a bachelor’s degree in legal studies from Cal Berkeley, had over 25 years of loyal service working for the BART police department.

A member of the BART Board of Directors, no doubt in an effort to bolster her wilting political aspirations for a seat on the San Francisco Board of Supervisors, provided a scathing interview to the media. For all intents and purposes, the sergeant was tried and convicted before he even got his day in court.

The chief recommended that the sergeant, who had received only a written reprimand in 25 years of service, be demoted to officer. After we put on a vigorous case at the Skelly hearing, the chief decided to “lower” the discipline by imposing a 30-day suspension in lieu of demotion. Nevertheless, the sergeant was determined to appeal and receive a fair hearing.

Some months after the incident, we defended the sergeant against the allegations that he violated both the Department’s use of force and Taser policy. The arbitration included testimony from BART internal affairs investigators, a Departmental subject matter expert in force options and Taser policy, defense testimony from force-options expert Sean McCann and testimony from the sergeant himself.

Ultimately, after two hard-fought days of examination and the submission of closing briefs, Arbitrator Joe Gentile determined that the sergeant had acted in accordance with both the Department’s use of force policy and Taser policy. The arbitrator found expert McCann’s testimony to be more valuable and credible than the Department’s subject matter expert and found the sergeant’s arguments in closing briefs to be persuasive. Mr. Gentile determined that the Department lacked just cause for the discipline and awarded the sergeant full back pay and benefits, much to his delight.

On my behalf and that of my client, I would like to express our gratitude for the generous support provided to us by the PORAC Legal Defense Fund.

About the Author

Justin Buffington is a Senior Associate in the firm’s Legal Defense of Peace Officers Practice Group and also works with the Litigation and Criminal Defense Practice Groups. Justin represents peace officers in administrative investigations and disciplinary matters.