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The Perfect Storm or How Two Cops Almost Became Felons for Doing Their Jobs

Posted on Monday, May 01, 2006 at 12:00PM
Posted by Harry S. Stern

Palo Alto is a town of contrasts and contradictions. Stanford University is here and the streets are lined with trees and multi-million dollar homes. But Palo Alto also has an undercurrent of radical politics and a not-insignificant crime problem. Caught in between these colliding worlds are the men and women of the Palo Alto Police Department. In other words, Palo Alto is a town where the citizens want to be safe in their persons and considerable property, but are squeamish about the type of proactive police work that mission sometimes requires.

In the summer of 2003, these competing forces came together and nearly cost two young officers their careers, and even their freedom.

Michael Kan came to Palo Alto PD from the high-tech industry after graduating from UC Davis with a computer science degree. He was an Eagle Scout and spent summers traveling to Mexico with a church group to build houses for the poor. Craig Lee had also been employed in high-tech, where he had enjoyed a very successful sales career. Police work, though, had always fascinated him, so he made the switch.

Just after 10 p.m. on July 13, 2003, Kan was working radar on one end of town and Lee was patrolling a main thoroughfare called El Camino Real. The officers had been told to pay close attention to auto burglaries. In fact, the watch commander assigned one officer to work in plain clothes to look for suspects in the rash of break-ins.

As Lee drove his beat, he noticed a man hunkered down inside of a car. The position of the car, a small Honda, struck Lee as odd: it was parked under the shadow of a large tree and was unusually close to the limit line of the stop sign that controlled the intersection. The car was parked near two bicycle shops that had been the victim of window-smash burglaries.

Lee circled around. The man behind the wheel of the parked car made eye contact with him and gave him a hateful stare. Lee decided to investigate further.

Lee cut his patrol car’s lights and pulled in behind the Honda. His plan was to keep watching the occupant of the car in order to find out what he was doing. As Lee sat in his patrol car, a woman driving a VW pulled up next to him and began to point frantically at the man in the Honda. She told Lee that the man had scared her. His position now revealed, Lee told the woman to stay put and he decided to approach the man in the Honda to speak with him.

Lee radioed in that he was “out” on a suspicious vehicle. The radio dispatcher acknowledged Lee’s transmission and assigned Kan to respond as a “fill unit.”

As soon as Lee walked toward the Honda, the occupant flung open the door and yelled, “what the f­___ do you want?!”

For his safety and in keeping with his training, Lee told the man politely but firmly to get back in the car. The man complied but continued with his barrage of verbal abuse. Lee ran a records check on the license plate of the Honda.

As Lee listened to the records check, the dispatcher radioed him that another citizen had called the department to report that the man in the Honda was acting suspiciously and wanted the police to investigate.

Lee, at the every least, wanted to confirm the man’s identity. Accordingly, he asked for the man’s identification. He told Lee that he wasn’t going to give it to him. It turned out that the man’s name was Albert Hopkins, a local resident with a history of angry encounters with police officers.

As this interaction was taking place, Kan arrived. When Kan pulled up he saw that Hopkins and Lee were in a confrontation: he could hear their angry exchange. Kan quickly stopped his car and jumped out to come to Lee’s aid.

Kan and Lee conferred. Lee described all of the circumstances that he had observed to Kan. In addition, by the time Kan arrived, dispatch had radioed that an independent citizen caller had reported Hopkins as suspicious.

Thus, Kan had ample reason to believe that there was cause to detain Hopkins. And if Kan and Lee had cause to detain Hopkins (or believed they had cause), they had the right to demand that Hopkins produce identification. After being briefed on the situation by Lee, Kan decided to try and speak to Hopkins, thinking that a “fresh face and a fresh voice would help relieve a little bit of the tension and help gain some cooperation.”

Unfortunately, Hopkins treated Kan to the same barrage of hostile remarks that had greeted Lee. Perhaps Hopkins’s demeanor was based on his irrational assessment of Kan as being “very statuesque” and on a “superiority trip.”

Kan attempted to calm Hopkins down. Rather than complying with Kan’s requests to produce identification, Hopkins made a number of furtive movements that concerned Kan. Kan ordered Hopkins out of the car. Kan was not sure what Hopkins was reaching for and Kan could not see the car interior very well. Therefore he felt it would be safer to have Hopkins out of the Honda.

Kan continued to request that Hopkins properly identify himself; Hopkins rummaged around the cluttered interior of the Honda and then suddenly pulled out a cell phone. Based on this bizarre action, Kan decided that the time had come to get Hopkins out of the car. Kan made this decision because he “wanted to get him out of an area that he had control over…where he could potentially have a weapon.”

Kan ordered Hopkins out of the car a number of times (first asking politely, then more assertively). Hopkins stared at Kan and said, “No.” Kan attempted to escort Hopkins out of the car by establishing a control hold on his wrist. Hopkins jerked away from Kan and eventually used his whole body weight to pull Kan partially into the car.

Realizing that rather than gaining control of Hopkins, he was now in a vulnerable position, Kan retreated and pulled his O.C. spray. Kan gave Hopkins additional orders to get out of the car. Hopkins eventually stood up, but was still not compliant. Hopkins assumed a fighting stance. Both Kan and Lee yelled for Hopkins to get on the ground. Predictably, Hopkins refused.

Not wanting to risk further hands-on action with the stronger and more muscular man, Kan sprayed Hopkins with his O.C. Lee sprayed him as well.

When the pepper spray was ineffective, and Hopkins continued to advance at them, the officers struck Hopkins with their batons. Hopkins finally complied with their orders and was handcuffed without further incident.

The Investigation

The convergence of factors that created the “perfect storm” began simply enough. A sergeant who arrived on the scene felt that “something didn’t look right.” From this hunch, based on nothing more than pure speculation, grew a panicked overreaction that snowballed into felony charges.

Hasty phone calls were made and criminal investigators were summoned. The “case” started with the misguided premise that Lee had no legal cause to stop and detain Hopkins. The street supervisors that conducted the initial investigation were confused about the difference between “probable cause” (the standard to make an arrest) and “reasonable cause” (the standard for detaining a suspect). They were also unclear about the Peace Officers’ Bill of Rights and conducted (at the direction of a captain) an interview of Lee without providing him any of his rights. The department also hastily released Hopkins pursuant to Penal Code section 849(b). No one bothered to speak with Kan, however.

Most professional law enforcement agencies would have treated this incident as a routine occurrence and, perhaps, initiated an administrative investigation. Palo Alto PD went into crisis mode. The successful handling of a crisis requires strong leadership. Unfortunately, for Kan and Lee and the rest of the department, Chief Lynne Johnson was not up to the task. Rather than providing a steady hand on the helm, Johnson engaged in what can only be described as a series of knee-jerk reactions.

Johnson mandated that the incident be handled like the crime of the century. Criminal investigators seized the department computers that Kan and Lee had been working on in the hope of unearthing incriminating report fragments. The lead detective sergeant in the case even surreptitiously recorded conversations between he and the officer’s lawyer. Then the case was presented to the District Attorney’s Office, and Chief Johnson lobbied that charges be filed.

Thus, about three weeks after the incident, the Santa Clara County District Attorney’s Office announced that they had filed felony assault under color of authority charges against Kan and Lee.

And then a remarkable thing happened: The department launched an internal affairs investigation, which ultimately cleared Kan and Lee of any wrongdoing. The internal affairs investigation was much more thorough and in depth than the hastily put together criminal case.

The investigation was conducted by two of the department’s top investigators, Sgt. Lacey Burt and Lt. Dennis Burns. These experienced detectives located additional witnesses, conducted a re-enactment, applied the facts to the law as set forth in the California Peace Officers’ Legal Sourcebook, and prepared a detailed, comprehensive report that exonerated both officers.

Incredibly, Johnson reversed herself, and now being possessed of all the facts, approved the internal affairs findings.

The Trial

The District Attorney’s Office was basically caught between the proverbial rock and a hard place. The same chief who had pushed for charges now had found that the officers had not done anything wrong. The case had already garnered a great deal of media attention and there was really no way for the D.A. to dismiss the charges, despite the chief’s about-face.

Accordingly, in May of last year, Craig Brown and I began jury selection before the honorable Andrea Bryan. The prosecutor assigned to the case was a veteran deputy district attorney with a great deal of experience trying homicides and the like.

Jury selection alone took an entire week, as the attorneys and court waded through potential jurors.

The prosecution’s theory of the case was that any amount of force used, even a slight touching, against Hopkins would constitute excessive force because the officers did not have reasonable cause to stop or detain Hopkins.

The trial was contentious and hard fought. The “victim” proved to be as ornery and unpredictable in court as he had been on the street. He could not contain his temper during cross-examination and at one point asked me if I would like to be beaten with a baton. Hopkins, who had “opened the door” to some of his prior misconduct, explained to the jury he could tell that a school bus driver whom he had kissed and hugged had “wanted” him.

His other claims about living in his car because he had to live on a few dollars a day were undermined by the fact that he spent money on a vasectomy a short time before the incident and was paying for other “recreational” prescription drugs.

Hopkins was extremely theatrical in describing the encounter and even broke down in tears as if on cue. In short, in my opinion, Hopkins was not a credible witness. The D.A., however, did a very clever thing: he called Hopkins as one of his first witnesses. The prosecutor figured, probably correctly, that the jury was likely to forget about Hopkins as the trial wore on.

Craig Brown, counsel for Lee, skewered several of the prosecution witnesses, including the sergeant whose “hunch” started the investigation. The highlights of the defense case included the testimony of the internal affairs experts.

The D.A. concluded with an inflammatory closing argument in which he called Lee and Kan “thugs” and stated that the encounter was worse than the Rodney King case. Craig Brown gave an impassioned summation describing the dangers of police work where a “routine” traffic stop can turn deadly. I presented the jury with a time line and walked them through the reasonable cause issues and use of force jury instructions.

The jurors deliberated for a week and finally announced that they were hopelessly deadlocked. Accordingly, Judge Bryan declared a mistrial. Eventually, the District Attorney’s Office, after extracting a token gesture from Kan and Lee, decided not to retry the case. Although, there is no question in my mind that these fine young men were not guilty of any misconduct (civil, criminal or administrative), any criminal defense attorney will tell you that a hung jury is often as good as an acquittal. The district attorney’s decision not to retry these officers is acknowledgment that no reasonable jury would convict them.

I am very pleased to report that Lee and Kan are back patrolling the streets of Palo Alto. In fact, Kan tells me that he was recently flagged down by a citizen who wanted directions. Mike calmly and politely explained to the man how to get where he needed to go. The citizen was none other than Albert Hopkins.

Kan and Lee extend their extreme gratitude to the Legal Defense Fund, which provided defense counsel, investigators, expert witnesses, and all of the other costs associated with a major felony trial, and also to the members of the Palo Alto POA and other local officers who came to the trial to offer their support.

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