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On Duty 24/7 But Will Your Department Support You?

Posted on Thursday, June 01, 2006 at 12:00PM
Posted by LDF Panel Attorney Bill Rapoport

On August 21, 2004, Officer Edward Rivers, Jr., by invitation, attended a 21st birthday party for the sister of an East Palo Alto Police Department Explorer Scout Eddi Tapia-Torres in East Palo Alto. Prior to that night, Rivers had been an East Palo Alto Police Officer for six years and obtained the status of a field training officer, acting watch commander, warrant entry team member, K-9 officer and recruit training officer for the San Mateo County Police Academy (A position approved by all the Chiefs of Police for San Mateo County). He also had been a resident of the city of East Palo Alto for three years.

Upon arriving at the party, he realized he knew virtually no one there and called his fellow officer, Johnny Taflinger, Jr., to see if he would come over and keep him company at the party. Taflinger agreed, and Rivers was driven by Tapia-Torres to pick up Taflinger. On returning to the party, Rivers had a couple of shots of tequila and about half a beer by the time the party was winding down. A civilian couple (the Barrons) offered to take Rivers and Taflinger, as well as Tapia-Torres and his friend “Juan”, to a nearby 7-11 to pick up more beer and cigarettes. As the vehicle, driven by Mrs. Barron began to leave the parking lot of the 7-11 heading back to the party, the vehicle was approached by a drug user and dealer named Calvin Brooks. Brooks was known by Rivers and Taflinger before that night, but due to his dress (hooded shirt) was not recognized by them. Brooks offered to sell Rivers some crack cocaine but was too far from the vehicle for Rivers to take any enforcement action. Rivers cajoled Brooks into getting closer to the vehicle, and when Brooks did, Rivers reached out and grabbed Brooks by the hand in which Brooks was holding numerous twists of rock crack cocaine. Rivers announced “I am a cop” and Brooks struggled, breaking free and running away.

Rivers, angry that someone was trying to sell him narcotics in his neighborhood while he was off-duty, jumped out of the vehicle and gave chase. Taflinger, in order to assist Rivers with the apprehension of Brooks, and to provide him additional safety, followed immediately behind Rivers. Brooks began a zigzag pattern of running back and forth across this dark tree-lined street in order to avoid Rivers, and Rivers, not watching where he was going hit a tree, and fell down. Taflinger, picked up Rivers and placed him back in the Barrons’ vehicle which had now pulled up to their location, and they all left and returned to the party.

Neither Rivers nor Taflinger called for a supervisor to come to the scene, notified a supervisor, nor wrote any reports about the incident, since neither of them had recognized Calvin Brooks, nor had they caught a suspect nor recovered any drugs. In East Palo Alto it is not unusual for unidentified suspects to be chased by officers only to loose the suspect over the fences or in the yards. Under those circumstances (like here) no reports are written. The department remains critical of Rivers and Taflinger, however, for not doing off-duty, what they would not have done even if on duty.

David Carson of the East Palo Police Department, a long time critic of both Rivers and Taflinger, claimed that Rivers had made statements to him (unrecorded) claiming responsibility for, “beating up a crack head”, and claimed these statements were also made in Rivers presence by Tapia-Torres (also unrecorded). Carson went to the District Attorney’s Office in San Mateo County and reported these alleged misdeeds after finding Brooks and convincing Brooks that he had been the victim of an assault. The district attorney’s officer provided Carson with a digital recorder with which he surreptitiously tape recorded Rivers in an attempt to get him to admit culpability for the assault. Rivers, from day one, has always acknowledged that he chased Brooks, but always indicated that he hit a tree and fell down never catching Brooks. While being surreptitiously taped by Carson, Rivers said nothing different than he had always said i.e., he hit a tree and fell down, never catching Brooks. Nevertheless, the District Attorney’s Office told Brooks that they believed he was the victim of an assault and didn’t care about his attempted drug sales. They then took the case to the grand jury, which indicted Rivers, Taflinger and Tapia-Torres in February 2005. They were all indicted for violations of Penal Code Section 149 (assault under the code of authority), 245(a)(1)(assault with force likely to produce great bodily injury), and misdemeanor Penal Code Section 242(simple battery). Even a conviction for simple battery would have prohibited Rivers and Taflinger from carrying a gun for 10 years and, therefore, would have ended their careers.

Brooks, who claimed at trial that he had been caught by anywhere from two-to-six persons (depending on which statement he gave to whom), testified at the criminal trial of Rivers and Taflinger that he was “beat to a bloody pulp” by Rivers and others from the vehicle he was traveling in. Brooks presented himself to the Stanford Hospital Emergency Room 14 hours after the alleged assault and claimed that unknown persons had assaulted him. He complained of being kicked on the right side, but neither the triage nurse, the registered nurse, nor any doctor found any scratches, bumps, bruises or visible injuries of any kind. Despite that, the Emergency Department doctor diagnosed Brooks as having a right rib fracture (unspecified), despite an X-ray that revealed no fracture at all.

Criminal trial for Rivers and Taflinger (Tapia-Torres case was severed out by the district attorney to be tried later) began on March 6, 2006 and ended after less than 3 hours of jury deliberation on April 25, 2006 with verdicts of not guilty on the P.C. Section 245(a)(1) and 242. The court, at the conclusion of the prosecution’s case-in-chief earlier, dismissed the Penal Code Section 149 charge on motion of the defense. The prosecution’s “star” witnesses were Calvin Brooks (I was only allowed to impeach him with seven of his felony convictions) and Carson (who admitted lying in two separate Internal Affairs’ investigations in 2003). Carson’s testimony about alleged statements made by Rivers to him, and about statements allegedly made by Tapia-Torres in front of Rivers, were not believed by the jury.

Despite the quick not guilty verdicts, the city of East Palo Alto is continuing with the termination proceedings against Rivers and Taflinger, and the arbitration in those matters is scheduled for October 2006. It would appear, based on the city’s determination to terminate these officers, that if you are a police officer in East Palo Alto and you see a crime being committed while you are off-duty, run, don’t walk, away if you are expecting support from your department, unless you have very specific definite policies on off-duty enforcement activities. All police officer organizations would be well advised to immediately review your off-duty enforcement policies and develop a clear understanding with management on these issues.

It is obvious that both officers Rivers and Taflinger could not have presented a successful defense in the criminal case without the continued support of the Legal Defense Fund. This writer represented Officer Rivers, and Craig Brown of San Jose, CA, represented Officer Taflinger. Counsel, the officers and their families all gratefully acknowledged this continued support.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.