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Officer Involved in Oakland Shooting Reinstated; Full Back Pay and Benefits

Posted on Sunday, May 01, 2011 at 12:00PM
Posted by Justin Buffington

On March 4, 2011, Oakland Police Officer Hector Jimenez learned via an arbitration award that he will be returning to work with full back pay and benefits after a nearly two-year struggle to get his job back.

This case involves a 24-year-old officer who, in a mere two years with the Oakland Police Department, enjoyed a distinguished and decorated career. Jimenez grew up on the hardscrabble streets of Richmond, California, where he fought through adversity to attend college and ultimately joined the Oakland Police Department as a cadet. From there, Jimenez went on to complete the Oakland Police Academy and join the ranks in a Department storied in rich history.

Jimenez immediately developed a strong reputation based on his teamwork and dogged proactivity. Jimenez developed an arrest rate that was four times his squad’s average. Jimenez garnered an unheard-of three Captain’s Commendations, an award given for superior work product or valor, in his short two-year career. However, accolades and selflessness would prove not enough for the Oakland Police Department to stand behind their young rising star after he most reasonably defended his life and the life of his partner in the wee hours of the morning on the mean streets of a war zone, otherwise known as East Oakland.

On July 25, 2008, Jimenez — a fairly new officer himself — was partnered up with Officer Joel Aylworth, an officer with less than one year of experience to his credit. The two were patrolling East Oakland at around 3:40 a.m. when they observed a red Buick speeding in the opposite direction on Fruitvale Avenue. The officers elected to make a U-turn and follow the vehicle.

After positioning themselves behind the Buick and conducting a pace, the officers noticed that the Buick was speeding and weaving within its lane. Suspecting that the driver of the Buick might be intoxicated, Jimenez activated the patrol vehicle’s lights and siren in an attempt to get the driver of the Buick to yield.

The Buick’s driver slowed and pulled to the right as if it was stopping for the officers. However, after a brief pause, the Buick made an abrupt U-turn and headed the other way. As the Buick passed the patrol vehicle, Jimenez observed that the driver of the Buick had his window rolled down and he was sweating, though it was cool out.  Jimenez became concerned the driver might be under the influence of a controlled substance and thus was likely to be less predictable and more erratic.

Aylworth, who was driving the patrol car, mirrored the U-turn of the Buick and gave chase while Jimenez conducted pursuit radio traffic. They saw the driver of the Buick run two stoplights at major intersections. The Buick then came to a sudden stop. Aylworth was unable to stop the patrol car in the proper position and instead stopped the patrol vehicle directly parallel to the suspect’s vehicle. Jimenez looked over to his right and made eye contact with the driver of the Buick. The patrol vehicle was too close to the suspect’s vehicle for Jimenez to exit his door and, being trapped in such a confined space, Jimenez was in a dangerous spot.

The suspect-driver left the Buick in gear and it continued to roll slowly forward. Seizing the opportunity of the clearance for his door to open, Jimenez exited, drew his duty weapon, and pointed it at the driver. Jimenez went around the passenger door of the patrol vehicle and positioned himself between the crease of the passenger door and the front wheel well. Jimenez began to shout for the driver to show his hands.

The driver’s door on the Buick swung open and the suspect bailed out and began to run toward the driver’s side of the patrol vehicle. The suspect’s choice of path and direction alarmed Jimenez, as he had last seen his partner seated in the patrol vehicle with the radio microphone, struggling to get his seatbelt off. Jimenez believed that his partner was in a vulnerable position, with little cover.

As the driver took three to four sprinting strides toward the driver’s side of the patrol vehicle, he looked over his left shoulder at Jimenez, who was pointing his duty weapon at him. Instead of following commands to stop and show his hands, the driver dived his hands into his waistband. Jimenez discharged four to five rounds at the suspect. Seeing no evidence of surrender from the suspect or any change in his course of travel, Jimenez fired an additional four to five rounds, until the suspect crumpled to the ground.

During the arbitration of this case, Jimenez provided a strong foundation for his use of deadly force. First, Jimenez explained that he was trained that a fleeing suspect usually means that they are or have been engaged in more serious criminal activity than a mere traffic violation. Likewise, he had been trained that a suspect fleeing in a vehicle could likely be disposing of contraband or arming themselves. Thus, when the suspect-driver fled, Jimenez’s concern for his safety and the safety of his partner became elevated.

Furthermore, Jimenez articulated that the Department’s high-risk car stop policy specifically requires that its officers “consider any high-risk car stop suspect armed until [the officer] personally assures themselves otherwise.” Therefore, Jimenez was required by policy to presume the suspect-driver to be armed. What’s more, Jimenez related that the driver eschewed other wide-open avenues of escape, in favor of running directly toward the driver’s side of the patrol vehicle. Finally, Jimenez testified that the driver jammed his hands in his waistband, an area that all witnesses testified is synonymous with the secreting of weapons.

Those factors were the lynchpins in establishing the reasonableness of Jimenez’s use of deadly force.

Two main factors complicated the case:  (1) Unbeknownst to Jimenez, Aylworth was outside the patrol vehicle, positioned behind the “V” of the driver’s side door with his duty weapon pointed at the suspect-driver; from his vantage point, Aylworth was able to see the suspect-driver’s empty hands after they were pulled from his waistband; (2) There was a fresh bullet strike mark on the trunk of the suspect’s vehicle that the Department tried to attribute to Jimenez and that, based on the angle of the mark, would have indicated Jimenez fired prematurely, while the suspect was still in the “V” of the driver’s side door.

However, the arbitrator clearly understood the implication of different vantage points. Moreover, thanks to the Legal Defense Fund’s generous coverage, this author hired Certified Senior Crime Scene Analyst Alexander Jason to provide expert testimony in ballistics. Jason suspected that the deep, non-perforating bullet impression left on the trunk lid could not have come from the type of weapon Jimenez used. Jason tested this hypothesis with two trunk lids of the same make and model and numerous and various rounds fired at the trunk lids.

Jason easily documented with beautiful photo imagery that it was impossible for Jimenez’s firearm to have left the type of impact mark found on the suspect’s trunk lid. Rather, the mark was more likely caused by a lower-caliber round. This testimony proved very persuasive.  The arbitrator held that the Department’s theory that Jimenez fired prematurely wholly lacked merit.

During the arbitration proceeding, the arbitrator determined that the evidence pointed to the suspect fighting rather than fleeing. The arbitrator agreed that it was reasonable for Jimenez to perceive the suspect as posing a deadly threat because:

  1. The suspect evaded officers, raising the threat level.
  2. The Department’s high-risk car stop policy requires officers to assume a high-risk car stop suspect is armed until the officer personally assures themselves otherwise.
  3. The suspect eschewed other open avenues of escape.
  4. The suspect failed to obey commands to show his hands.
  5. The suspect looked over his shoulder at Jimenez, causing Jimenez to believe that the suspect saw that he had a gun pointed at him.
  6. Instead of complying with commands, the suspect reached into his waistband, an area that, based on Jimenez’s training and experience, was synonymous with the secreting of weapons.

The arbitrator noted that, while not relevant, he was cognizant of the fact brought out at arbitration that the suspect had a long criminal history; that the suspect had committed a murder during a robbery, which earned him $46, just five hours prior to Jimenez’s encounter. Moreover, the arbitrator recognized that the suspect was high on a cocktail of ecstasy, alcohol and cocaine.

Ultimately, the arbitrator ordered the City to return Jimenez to work with full back pay and benefits, within 14 days.

Jimenez is thrilled to be going back to continue fulfilling his lifelong dream of policing, and he and this author are grateful for the support that the Legal Defense Fund provided throughout this case.

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