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By PORAC | December 1, 2016 | Posted in PORAC LDF News

Full Exoneration for Bart Police Officer

Senior Associate
Mastagni Holstedt, APC

Officer Michael Lewis, a 13-year veteran of the BART Police Department, was exonerated of any wrongdoing related to allegations of use of force, reporting use of force, and failure to activate his video camera. Though the BART P.D.’s bias against its own officers is no secret, Lewis and all BART police officers can rest assured that the Mastagni Law Firm will hold the Department accountable for its actions. In the present case, the arbitrator admonished the Department several times, and even stated that she was “troubled by the [investigation] report” authored by the Department, and “[t]here are concerns about [the investigator’s] findings.” The Mastagni Law Firm proved that the Department failed to objectively investigate the allegations against Lewis, and obtained a decisive victory when Arbitrator Kong-Brown overturned all allegations

Alleged Use of Force

On July 24, 2014, Lewis was dispatched to wake a sleeping passenger who refused to exit a Daly City–bound train. Upon arriving, Lewis attempted to activate the Axon Flex camera he carried in his front left pocket per Department policy. He contacted the sleeping individual and informed him that he needed to leave the train. When the passenger eventually began to stand, several items fell to the floor. Lewis observed a 40-ounce glass bottle of alcohol and went to pick it up. The passenger quickly snatched it from Lewis’ hand. Already smelling alcohol emanating from the passenger and alarmed that the bottle had been grabbed away, Lewis feared the intoxicated person might use it as a potential weapon. Lewis used a defensive maneuver referred to as a SPEAR (spontaneous, protection, enabling, accelerated response) technique, bringing his hands near his face and toward where the assault might come from in order to block a potential strike. No strike was thrown by the passenger, and Lewis never made contact with him.
A BART train operator standing by witnessed the encounter between Lewis and the passenger. The train operator testified to internal affairs and in arbitration that he did not witness Lewis strike the passenger at any time, and that Lewis acted professionally during his entire contact. The Department inexplicably dismissed the train operator’s recollection and decided to discipline Lewis for allegedly striking the passenger. The arbitrator not only overturned the allegation, but admonished the Department’s investigator that her interpretation of witness testimony was incorrect. The arbitrator’s decision to dismiss the use-of-force allegation and admonish the Department was an overwhelming success.

Reporting the Use of Force

The Department disciplined Lewis for allegedly failing to report his use of the SPEAR technique as a use of force. The SPEAR technique involves a person putting their hands up in order to block a potential strike and was taught as a self-defense maneuver. The arbitrator overturned the Department once again and ruled that the SPEAR technique is not a use of force, and therefore not a reportable use of force.

Activation of Video Camera

As Lewis walked away, he continued to monitor the intoxicated male to ensure that he could care for himself. As he did so, he realized that one of the leads that connect to his camera had become loose at some point and no video was obtained of the interaction. Lewis reconnected the leads, and decided to turn on the camera again and re-contact the passenger based on his level of intoxication. As many in law enforcement know, cameras (like just about any technology) are susceptible to error and malfunctions that are not intended by the operator. The arbitrator easily dispensed with the Department’s hardline approach, concluding that Lewis had attempted to comply with the policy to activate his camera and the camera malfunctioned, preventing him from recording the contact. Another allegation was summarily dismissed.

Use of Force While Handcuffing

Fearing that the passenger would attempt to drive home, Lewis re-contacted the subject to better evaluate his level of intoxication. After a few moments, Lewis decided to place the passenger under arrest for being drunk in public. As Lewis began to place handcuffs on the man, the subject began to slowly twist from side to side in protest. Lewis used a Department-approved wrist lock to bring his hands closer together in order to complete the handcuffing. Though its use-of-force policy explicitly states that a wrist lock is not a use of force, the Department disciplined Lewis. Once again, the arbitrator found that the use of the wrist lock by Lewis was not a use of force and therefore not required to be reported per Department policy.

Officer Lewis is thrilled to be exonerated from all the allegations levied by his Department. He is a person of strong moral character who steadfastly denied the allegations from the outset. Lewis is grateful to the BART Police Officers Association, PORAC LDF and Mastagni Holstedt, APC, for all their support.