Another Citizen or Above the Law?

JUSTIN E. BUFFINGTON
Partner
Rains Lucia Stern St. Phalle & Silver, PC

Kensington Police Sergeant Keith Barrow, like any other law enforcement officer, never imagined in his wildest dreams that he would be disciplined, much less subjected to a double demotion, for allowing a subordinate to engage in a perfectly lawful car stop on a known traffic scofflaw. However, as far too many police officers have experienced firsthand, when politics are at play, anything can happen. Fortunately, the support Sergeant Barrow received from the PORAC Legal Defense Fund allowed him to clear his name and restore his rank in short order.
On the morning of October 15, 2015, Sergeant Barrow, who had worked a graveyard shift the night before in the small burg of Kensington (population 5,077), transitioned to his role as police officer association president, in an effort to renegotiate the association’s employment contract. At the conclusion of the negotiation session, Sergeant Barrow, in search of caffeine for his drive home, jumped into a marked police car with Officer Manny Ramos to go to a 7-Eleven less than a mile away in the city of Berkeley.

After their purchases, Officer Ramos drove Sergeant Barrow toward the police station. On their way, while still in Berkeley, Sergeant Barrow and Officer Ramos observed a member of the Kensington Police Protection and Community Services District Board of Directors (the governing board that oversees the police department), whose name was Vanessa Cordova, stopped in her car at a stop sign. Ms. Cordova shouldn’t have been driving her vehicle, as it was well known to the men and women of the Kensington Police Department that Ms. Cordova’s car registration had been expired in excess of a year.

Officer Ramos, as it turns out, had observed Ms. Cordova driving her car the evening before. At that time, Officer Ramos, having in mind the clearly articulated policy of Chief of Police Kevin Hart that nobody was above the law, attempted to stop Ms. Cordova and issue her a correctable citation for her severely delinquent registration. When Officer Ramos saw Ms. Cordova passing him in the opposite direction on a narrow stretch of road, he endeavored to make a multipoint turn in an effort to get behind her to make a stop. As Officer Ramos was turning around, he noticed that Ms. Cordova’s speed increased, and he ultimately lost sight of her. Officer Ramos believed that Ms. Cordova actively evaded him. Officer Ramos drove around the neighborhood, ultimately locating Ms. Cordova’s car parked in the driveway of her house. Officer Ramos conducted a file check and determined that her vehicle’s registration had still not been brought current, lacked a front license plate as required by law, and that Ms. Cordova did not have a valid driver’s license.

The very next day, when Officer Ramos saw Ms. Cordova while he was driving Sergeant Barrow, he observed her again engaged in what appeared to be another effort to ditch the cops, as she had done the night before. Ms. Cordova, who was preparing to make an immediate left turn that would place her directly in front of Officer Ramos’ police car traveling in the same direction, turned her head and looked directly at the patrol car. She then backed her vehicle up behind the limit line and quickly took off in the opposite direction. Officer Ramos, observing Ms. Cordova engage in this evasive maneuver, explained to Sergeant Barrow that Ms. Cordova had attempted to evade him the evening prior and that she had several vehicle code violations to her credit. Officer Ramos told Sergeant Barrow that he intended to stop Ms. Cordova for the vehicle code violations, to which Sergeant Barrow voiced no objection. Officer Ramos conducted a U-turn and pulled Ms. Cordova over less than a block away.

Though the City of Kensington does not provide its officers with any devices to record citizen contacts, Officer Ramos astutely equipped himself with one of his own, which he activated before approaching Ms. Cordova’s vehicle. The recording revealed that immediately upon contact, Ms. Cordova displayed an indignant and angry tone, insisting that she had not done anything wrong. During the brief stop, Sergeant Barrow, who was in plain clothes at the time, took no enforcement action and instead stood at the right front fender of the patrol vehicle as Officer Ramos conversed with Ms. Cordova. Ultimately, Ms. Cordova was given a correctable citation for expired registration and a missing front license plate. Officer Ramos elected not to tow Ms. Cordova’s vehicle, despite having the legal right to do so.

Immediately following the car stop, Ms. Cordova drove directly to the Kensington Police Department, where she demanded to speak with Chief Hart. Chief Hart was out of the office but a reportedly angry Ms. Cordova chose to wait for him to return. Upon Chief Hart’s return, Ms. Cordova met with him in his office. Chief Hart reported that Ms. Cordova, who appeared infuriated, threw on object onto the floor of his office as she railed on about having been pulled over and given a fix-it ticket. Ms. Cordova reportedly screamed at Chief Hart, at one point yelling, “It’s over, Kevin!”

Ms. Cordova insisted to the Chief that the car stop was the product of stalking and harassment by Sergeant Barrow and Officer Ramos, and that they had been keeping tabs on her whereabouts, which is how they found her in Berkeley, the location of the stop. Ms. Cordova loudly demanded that Chief Hart issue her an emergency protective order enjoining Sergeant Barrow and Officer Ramos from contacting her, and that Chief Hart initiate criminal and administrative investigations based on the issuance of the correctable citation.
When Ms. Cordova didn’t get exactly what she wanted from Chief Hart, she drove to the nearby El Cerrito Police Department, where she tried to file a criminal complaint against Sergeant Barrow and Officer Ramos for stalking and harassing her.

After her visit to the El Cerrito Police Department, Ms. Cordova contacted the Contra Costa County District Attorney demanding that Sergeant Barrow and Officer Ramos be prosecuted, and renewing her request for a protective order. None was ever issued, and the Contra Costa District Attorney cleared both Sergeant Barrow and Officer Ramos of any criminal wrongdoing. Ms. Cordova then contacted the FBI and the local press, both of which appeared eager to hear her salacious, yet false, claims.

Amazingly, two FBI agents spent hours interviewing her. The two agents were so easily fooled and manipulated by Ms. Cordova that they persuaded an assistant U.S. attorney to open up a grand jury investigation to determine whether Sergeant Barrow and Officer Ramos had committed federal crimes by issuing Ms. Cordova a fix-it ticket for two minor vehicle code violations. The grand jury investigation predictably tanked.

Like the easily bamboozled FBI, the local media took Ms. Cordova’s words as though they were the Holy Gospel. Soon, reports were swirling around television and print media crucifying Sergeant Barrow and Officer Ramos for being part of a rogue department of eight officers that stalked, harassed and intimidated residents who disagreed with the goals and motives of the police department.

Given the source and nature of the allegations, Chief Hart sent the administrative case to the neighboring Richmond Police Department for investigation. It was there that a seasoned, veteran lieutenant conducted the investigation. The Richmond lieutenant determined that the detention of Ms. Cordova and the issuance of the correctable citation were both completely lawful. He also determined that the stop, having occurred outside of Kensington in the city of Berkeley, was lawful, consistent with departmental practice and a memorandum of understanding between the Berkeley Police Department and the Kensington Police Department authorizing Kensington police officers to take law enforcement action within the Berkeley city limits. Most saliently, the lieutenant determined that there was no evidence to suggest that either Sergeant Barrow or Officer Ramos had stalked, harassed or done anything untoward to Ms. Cordova.

However, in sharp contrast to the reasoned logic that the Richmond lieutenant displayed in reply to the allegations of stalking and harassment leveled by Ms. Cordova, he gratuitously determined that Sergeant Barrow should have removed his crystal ball from his duty bag and used it to predict that Ms. Cordova, who was known to be easily excitable and a critic of the police department, would erupt with the volatility she exhibited in response to her detention. The lieutenant reasoned that since Ms. Cordova would, predictably, have a visceral reaction to the car stop, Sergeant Barrow was derelict in his duties as a supervisor for allowing Officer Ramos to effect the otherwise lawful and appropriate stop.
Chief Hart, agreeing with the Richmond lieutenant and undoubtedly sweltering under the political heat (after all, it was one of his bosses who initiated the complaint), recommended that Sergeant Barrow be double demoted from sergeant to officer, bypassing the rank of corporal. Chief Hart believed that Sergeant Barrow should have instructed Officer Ramos not to stop Ms. Cordova, because it should have been foreseeable that Ms. Cordova would react with criticism and volatility.

The disciplinary recommendation was appealed to a Skelly hearing before a chief of police from another Bay Area agency. Following the Skelly hearing, the disciplinary recommendation remained untouched, and the double demotion stood.
Sergeant Barrow elected to appeal the demotion. Ordinarily, the Kensington Police Protection and Community Services District Board of Directors would hear any appeals of discipline. However, because one of the Board’s own was the complaining party and would logically be forced to recuse herself from hearing the matter, a quorum would be lacking. Thus, it was stipulated by Sergeant Barrow and the district that the matter would be heard by an administrative law judge (ALJ) from the California State Office of Administrative Hearings.

After a spirited battle at hearing, which included a failed and underhanded attempt by district counsel to backdoor the testimony of an expert as a rebuttal witness, and after the submission of over 100 collective pages of briefs, the ALJ sided with Sergeant Barrow.
The ALJ determined that, in light of the lawful nature of the detention, Sergeant Barrow had no obligation to intervene by instructing Officer Ramos to avoid the stop. The ALJ further found that Sergeant Barrow could not have predicted Ms. Cordova’s extreme reaction to the issuance of the correctable citation and that Ms. Cordova’s defiant behavior post-stop did not provide a legitimate reason for Sergeant Barrow to direct Officer Ramos to refrain from detaining her.

The ALJ endorsed my argument that espousing such an absurd approach to enforcing the law would very clearly encourage people to adopt a volatile and repugnant persona when in police contact, as doing so would, in essence, grant them legal immunity. In crediting the argument I made on behalf of Sergeant Barrow, the ALJ wrote, “All members of the community are required to follow the vehicle code, and officers are obligated to enforce the law equally. Against this background, imposing discipline because a member of the community is prone to making complaints violates public policy.”

After noting that any prior discipline that may or may not have been attributable to Sergeant Barrow was irrelevant because the charges against him in the present case were far from proven, the ALJ issued a final and binding order restoring Sergeant Barrow to the rank of sergeant and making him whole, with back pay and benefits. Sergeant Barrow expresses his profound gratitude to the PORAC Legal Defense Fund for its support throughout this process.

About the Author

Justin E. Buffington is a partner at Rains Lucia Stern St. Phalle & Silver. Justin specializes in the Legal Defense of Peace Officers Practice Group and also works with the litigation and criminal defense practice groups.