MICHAEL L. RAINS
Rains Lucia Stern St. Phalle & Silver, PC
Any police officer who wants to know how the power of video evidence in a use-of-force case can potentially derail a career and throw a police family into despair should talk to Rocklin Police Officer Brad Alford. Due in large part to his thoughtful, forthright and powerful testimony at his own trial, a Placer County jury recently acquitted Alford of felony criminal charges of assault with a deadly weapon and assault under color of authority, as well as a lesser misdemeanor charge of battery. The jury deliberated for slightly more than two hours.
This is not a pretty story on a lot of levels, but it’s one that should be told.
A 19-Year Law Enforcement Veteran
Alford grew up in Concord, and made up his mind at an early age that he wanted to be a cop. He was an Explorer, a cadet and a CSO at Concord P.D. before taking the oath as a cop. He stayed there for four years before he and his wife decided to move to Placer County due to quality-of-life considerations. When Alford was arrested for this incident, I got calls and emails from a number of his former Concord P.D. colleagues, all telling me that he was the last cop in the world they would have thought would be charged with crimes of excessive force.
Alford had enjoyed a 15-year career at Rocklin P.D. without a single complaint of excessive use of force when this incident occurred. He was a Taser instructor. He had been trained and periodically retrained in the use of the straight baton, but in his 19 years of policing, he had only used it once to strike someone — until September 24, 2017.
Before I go any further in this article, let me indicate that I try to have, and want every attorney in this firm to have, a professional, cordial and cooperative relationship with district attorneys’ offices in the counties where we represent police officers. I think having such a relationship ultimately benefits our clients, and this has proven to be true in our cases time and time again. Although I have represented cops in criminal cases in many counties in this state, this was my first police criminal case in Placer County, and I do not intend to downplay my criticism of the way the Placer County District Attorney’s Office initially charged this case, the way it prosecuted the case and the way it conducted itself in the immediate aftermath of the not guilty verdicts against Brad Alford.
The Incident Giving Rise to the Charges
On September 24, 2017, Officer Alford was just about to go off duty at 6 a.m. He was parked in the Police Department parking lot and was planning to clean his car and go into the station when he heard Rocklin Police Officer Veronica Nitz attempting to stop a vehicle a short distance away. Alford could hear her vehicle accelerating over the radio and hear the inflection in her voice as she was announcing her attempt to catch up to the speeding vehicle. Having worked with Nitz for a period of time, Alford could tell that this was not a typical traffic stop and decided to head in her direction to assist, if necessary. On-duty Rocklin Police Officer Breanna Adams also heard Nitz’s broadcast and made the same decision.
Nitz had observed a vehicle driven by an individual named Emelio Perez-Chavez at the rate of 73 miles per hour in a 40-mph zone on city streets. As she was catching up to him and about to activate her lights, she saw him weaving and actually driving on the wrong side of the road. At one point, he failed to stop at a red light at an intersection. She activated the lights on her police car in an effort to pull him over, but he kept moving at a slow rate of speed. She had activated the siren of her car as Perez stopped his car in front of a metal gate of an apartment complex in Rocklin. By then, Alford was immediately behind Nitz with the lights and sirens of his car activated as well.
When Perez pulled up to the metal gate, which was closed, Nitz got out of her vehicle to make contact. However, as she got out of her car, the metal gate started opening and it was clear that Perez intended to drive into the apartment complex. Nitz quickly re-entered her car and began following Perez through the parking lot of the complex, ordering him over the loudspeaker of her car to stop and turn off the engine. After driving through the parking lot a short distance, Perez pulled into a parking stall, and shortly thereafter, his car appeared to lurch to a stop.
Nitz placed her police car to the left rear of the vehicle driven by Perez, and Alford placed his police car almost directly behind Perez’s vehicle. Adams pulled in behind Nitz and Alford. Unbeknownst to any of the officers at that very moment, Perez had been up all night and was attempting to get home to his apartment in that complex. He had been drinking and smoking marijuana. He was later determined to have a blood alcohol level of .14. He was driving on a suspended license, the result of a prior DUI. He had two warrants for his arrest, one of which was a no-bail warrant. He would later tell the officers he thought that if he could get home and park his car, the officers couldn’t do anything to him. This apartment complex had been the scene of fights, narcotics transactions, loud parties and shootings.
Since Alford’s car was essentially directly behind the car driven by Perez, Alford started giving Perez commands to get out of his car with his hands up. By this time, the events unfolding were being captured by five separate cameras — each of the three Rocklin police officers had activated their body-worn cameras, the dash camera in Nitz’s vehicle was activated and a bystander standing behind the police officer vehicles had turned on his cellphone camera and zoomed in on the vehicle driven by Perez.
Perez, prior to finally stopping his car in the parking stall, had ignored four separate commands by Nitz to pull his vehicle over and stop, and two separate commands by Alford to turn his car off. Once the engine of the car was finally turned off, Alford, joined by Nitz, issued 14 separate commands to Perez to open the door of the car, get out and put his hands up. At one point, when Perez was being noncompliant, Alford warned him that he would be shot “if you don’t f—ing start complying.” Alford would later tell the jury that although he does not normally swear, it has always been his preference to use harsh and even profane language, if necessary, to achieve compliance without having to use force.
When Perez finally got out of the car, Alford recognized him immediately. Alford had seen him at the same apartment complex only about two weeks earlier, when a neighbor of Perez’s had threatened him with a shotgun after Perez and some of his friends were having a loud party and refused to quiet down. What was significant about the earlier contact with Perez and the current contact was that Alford noticed Perez to be wearing the same distinctive red T-shirt and sporting the same “Mongolian”-style haircut that Alford’s training had told him is consistent with a member of the Norteños street gang.
When Perez finally got out of the driver’s seat of the car, he put his hands above his shoulders and Alford started issuing commands to “get on your knees.” He was concerned about Perez being armed, since the red shirt he was wearing was baggy around the waist and Alford had seen him reaching down toward the floorboard of the car before getting out, a detail he included in the police report he wrote after the incident.
When Perez failed to get on his knees after four separate commands from Alford, he quickly holstered his firearm, knowing that both Nitz and Adams had their firearms trained on the suspect. He drew his baton and approached Perez, continuing to yell, “Get on your knees.” As he approached Perez, he saw Perez lower his hands and take a step, which he equated with getting into a “fighting stance.” As he got to Perez, he struck him initially on his lower left leg while giving commands to get on his knees, and then struck him several more times to achieve compliance. According to the analysis of the video evidence by RLS Video Analyst/Investigator Bob McFarlane, it took three baton strikes by Alford before Perez was on both knees.
Thereafter, both Alford and Adams started commanding Perez to “get down,” which both officers testified meant that they wanted him on his stomach. Instead, Perez went to his back and started kicking at Alford while Alford continued to deliver baton strikes and commands to “quit fighting” and “get on your stomach.”
In a period of 22 seconds, according to RLS Video Analyst McFarlane, Alford swung his baton 15 times in the direction of Perez while simultaneously yelling at him to get on his stomach and “quit fighting.” McFarlane testified at trial that during the 22-second period, there were 20 commands issued by Alford, Nitz and Adams for Perez to turn on his stomach. Of the 15 baton swings, McFarlane testified that he was only able to determine that eight swings resulted in a probable strike to Perez’s body. It appeared that the baton strike that may have broken a bone in Perez’s left wrist was one of the first three baton strikes by Alford before Perez got to his knees.
Although the DA attempted to convince the jury that Alford was angry and out of control both emotionally and physically as he delivered the multiple baton strikes to Perez, information we introduced concerning training given to Alford on use of the baton established that the strikes he delivered were all delivered to “acceptable target areas” of the body, and none to areas that are discouraged or forbidden, including the head, neck, heart and groin. This factor, coupled with the video footage from Alford’s body camera, which showed his body to be constantly moving during this 22-second period, established that Alford was constantly assessing the movement of Perez, reacting to it and repositioning himself in order to deliver strikes to acceptable target areas of the body.
The Graphic Video Evidence
As I teach students who attend my class on video analysis and officer-involved shootings, the first thing we always say about video evidence concerning police use of force is that it is both graphic and ugly, and this case was no different. The initial challenge in a case such as this is to start attempting to educate members of a jury at the first opportunity that the video evidence they will see concerning use of force is going to be graphic and ugly, and they should not overreact to that factor and close their minds to what the evidence will ultimately demonstrate. During my voir dire of the jury before they were ever shown the video for the first time during the prosecution’s opening statement, I actually made the video sound worse than it really was, hoping that when they finally saw the video they would think that it was not nearly as bad as they expected it to look.
The Hasty Charging of This Case
Alford went off duty shortly after the event occurred on the morning of September 24, and wrote his report that evening when he returned for the graveyard shift. By approximately 9 a.m. on the morning of September 25, the Rocklin P.D. Internal Affairs lieutenant was looking at some of the video evidence concerning this incident. He did not like what he saw, and would later testify that, based simply on his view of the video, and without reviewing either the report written by Alford or the reports written by Nitz and Adams (which described active resistance by Perez during the period of time when Alford was striking him), he formed the opinion that Alford’s use of force was excessive and unreasonable. He reviewed some of the existing video with his captain for approximately 30 minutes, and together with the captain and the chief for a similar time period, and then took the case to the DA’s Office. Alford was placed on administrative leave on the late afternoon of September 25.
The DA’s Office was asked to investigate the possible use of excessive force on the same afternoon. Within 24 hours, the DA’s Office had an arrest warrant prepared and Alford was taken into custody. Although the seminal case of Graham v. Connor (1989), 109 S.Ct. 1865, tells us all that the analysis of an officer’s use of force depends upon the perceptions of a reasonable officer on the scene at the time of the incident, the Rocklin Police Department administration had no idea of what Alford’s perception was or what the perceptions of Nitz and Adams were, because they did not read their reports. The DA’s Office gave pitifully little if any consideration to anything written by the officers and didn’t even bother to consult a use-of-force expert before issuing the felony criminal complaint and taking Alford into custody.
Stay tuned for Part 2 in the next issue to learn what happened at trial and beyond.
About the Author
Mike Rains is a principal and founding member of Rains Lucia Stern St. Phalle & Silver, PC. He heads the firm’s Criminal Defense and Legal Defense of Peace Officers practice groups. Mike is one of California’s top trial attorneys. He has over 35 years of experience representing peace officers and other high-profile clients in civil and criminal litigation.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.