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By PORAC | April 3, 2013 | Posted in PORAC LDF News

Court Rejects Dishonesty and Excessive Force Charges, Grover Beach Police Officer Reinstated

Principle Attorney
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 an 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 the 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.”

The Reinstatement

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 principal 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.