Force Science News #226:
Force Science-trained team wins cop's job back after video controversy
Training notes: Congratulations to the graduates of the most recent Force Science Certification Course hosted by the Calgary Police Service. The majority of students -- nearly three quarters -- were from our host agency. They were joined by officers from 13 other agencies from across Canada. All did an excellent job and we're proud to welcome them to the growing ranks of the FSI's Certification Course graduates! [The current schedule can be seen by clicking here or by visiting www.forcescience.org.
On another note, be sure to check out a recent Law Officer article by Cert Course graduate Sgt. Chuck Humes titled "Less-Lethal Lessons: Insights from Dr. Bill Lewinski & the Force Science Institute by clicking here or visiting www.lawofficer.com.
Force Science-trained team wins cop's job back after video controversy
An officer's job termination, based largely on discrepancies between his description of a physical encounter and what a Taser camera recorded, has been reversed by a California judge, thanks to the efforts of an attorney and an expert witness with Force Science credentials.
Ofcr. Santino "Sonny" Lopez of the Grover Beach (CA) PD, the president of his department's police union, was fired after he participated in the rescue of a six-month-old baby from an alleged "crazy" kidnapper. After a 15-year unblemished career, his chief accused him of excessive force, "criminal, dishonest or disgraceful conduct," policy violation, and "misrepresenting material facts" in his reports of the incident.
The charge of lying about what happened was considered the most serious. As one reviewer of the case noted, "a finding of dishonesty and loss of credibility for a peace officer [is] the equivalent of a professional death sentence."
The successful rescue of the infant "should have been the script from which a commendation issued," notes Alison Berry Wilkinson, the attorney and Force Science certification graduate who won Lopez's job restoration. Instead, "it was the beginning of an extended nightmare and a long battle to overturn his dismissal and restore his good name."
Based on court documents and interviews, here's the meat of what happened:
"KIDNAPPING IN PROGRESS"
The controversial case began in the coastal community of Grover Beach at 2130 hours on Feb. 9, 2010, with a "kidnapping in progress" call to 911 from a "distraught" young mother. Her infant daughter had been taken from her in a grocery store parking by an "old man" who appeared "crazy," she said.
With the help of a concerned citizen, she'd tracked the suspect to a residential garage about a mile away. He'd locked himself inside in the dark with the baby and refused to open the door or hand back the child.
When Lopez arrived, the mother was crying and "hysterical," fearful that the alleged kidnapper would "hurt" her little girl. Lopez banged on the garage and yelled at the suspect, but got no response. Considering the situation urgent with the baby potentially in danger, he and a backup officer then kicked open the locked side door and made entry.
The garage was "pitch black" inside. Lopez turned on the light on his camera-equipped X26 to provide illumination and record what took place. The officers made out the shadowy figure of a man sitting in the front passenger seat of an old Oldsmobile van. Piles of boxes and other clutter were crammed so tightly around it that the officers could barely inch along the sides of the vehicle. Music blared from the car stereo.
The backup officer advanced to deal with the suspect while Lopez moved forward on the driver's side, positioning himself behind the minimal cover offered by the center doorpost.
Lopez's perspective of the scene was limited, but he judged from movements he could see in the Taser's light and from what he heard of the other officer's commands that the suspect resisted giving up the baby, who was being held in the old man's arms. Ultimately, in Lopez's perception, the child had to be "forcefully pulled away" from the suspect and handed off to a third officer who had entered the garage.
Then as the backup officer tried to bring the suspect out, Lopez would later report, movement occurred that suggested more resistance; the suspect was "using his size and arm muscles" in not complying, Lopez wrote. It appeared that the backup officer began "to lose his footing." With all the junk around, the cramped passageway was a hazardous place for a fight, Lopez judged.
As the only way he could quickly end the "struggle" from his location, he fired his Taser, sending the darts flying through the driver's open window, across the vehicle's interior, and out an open passenger-side door toward the suspect's back. Proper contact was not established (one of the darts got snarled in clothing) so the suspect was never shocked.
Lopez dropped the Taser and squeezed around the car to help the backup officer handcuff and remove the prisoner. Soon the scene was cleared with no injuries to anyone, including the baby. The suspect was charged with felony kidnapping, endangering a child, and resisting arrest.
OFFICER VS. VIDEO
Before he wrote his incident and use-of-force reports three or four hours after the incident that night, Lopez was not able to view the video of the incident taken by his Taser's camera. Only one lieutenant on the department was authorized to download the recording and he wasn't around.
When the officer did see the brief film about a week later, a major conflict with his report was obvious: the suspect, as captured on camera, showed no evidence of resistant behavior. "The camera didn't see what I saw," Lopez would acknowledge later.
He asked if he should write a supplementary report, but his sergeant waved that off as unnecessary. The sergeant had already read Lopez's accounts and had approved his actions as being "in policy."
Meanwhile, more had come to light about the baby snatching. Turns out, according to a newspaper investigation, the 82-year-old suspect and the young mother knew each other from their church. In fact, the woman and her baby had been living at the old man's house. On the night of the incident, they'd gone to a square dance class together and got into a spat about a shopping errand on the way home. The "kidnapper" had left the woman behind in the parking lot, driven home with the child secured in a car seat, and locked himself in the garage in a snit.
The DA dropped the major charges against him, and the old man was given a year's probation for disturbing the peace.
Lopez was not so lucky.
During the recovery effort in the garage, he had violated department policy by not calling out a verbal warning before discharging his Taser and for firing it at an elderly subject.
More important, his report of what happened didn't jibe with the "proof" of events offered by the camera. The conclusion was reached that he had deliberately ginned up his report of resistance to justify his use of excessive force.
At the insistence of his chief after an internal investigation and hearing, Lopez's employment was terminated late in 2010.
FORCE SCIENCE CLARIFICATION
Under the City of Grover Beach's personnel rules, Lopez was entitled to an appeal hearing conducted by a neutral hearing officer selected by the city manager. For this task, advisory in nature, the manager chose James Gardiner, retired as chief of nearby San Luis Obispo PD after 34 years in law enforcement.
During the three-day hearing early in 2011, Wilkinson as Lopez's attorney presented a case heavily grounded in concepts she had studied in the Force Science Analysis certification course. As her key witness, she called another Force Science graduate, Jeffrey Martin, himself an attorney and a retired sergeant for San Jose PD.
Under Wilkinson's examination, Martin methodically walked the hearing officer through a revealing dissection of what had taken place during the "emotionally charged" encounter inside the darkened garage.
The defense goal was to establish, as Force Science teaches, that what is seen, heard and remembered in high-stress situations is not always a precisely accurate reflection of what happened because of physiological and psychological phenomena affecting perception and memory that may be beyond the control of the observer involved.
From Gardiner's report on the hearing:
"Martin described the impacts of stress on human perception and memory [and] demonstrated excellent knowledge of the physiology of the human eye, the human brain, and how the brain processes information to create memory.
"Of particular note was the information on how memories are impacted by previous experiences, personal expectations, and the stress of tactical situations. Additionally, [he] discussed the effects of stress on both auditory and visual perception....Martin emphasized the fact that if there is a difference in what someone remembers from the actual facts, it doesn't mean they are lying."
Martin, a Taser master instructor, also described, among other things, certain factors about the Taser-cam that may have been influential.
First, the camera angle was different than Lopez's point of view. Held in Lopez's left hand, the Taser was extended through the driver's open window and around the seatback. That view was lower and farther forward than from where Lopez was awkwardly standing and watching the action through a tinted rear window.
Moreover, the camera's mechanical "eye" functioned differently from the officer's human eye. Recording the incident using infrared light, the camera offered a "clearer and brighter picture of the events," allowing the video to pick up images and actions which the human eye would not be able to see.
Also, Martin explained, the camera has a wider field of view than the eye does because of the narrowing of human vision in a stressful situation. But because of the camera speed, there are brief breaks in its recording, creating the possibility that it misses some things that the human eye may pick up.
In effect, Martin stressed, attempting to match Lopez's perceptions with the camera's could be an apples-and-oranges comparison. In a report issued in May 2011, Gardiner characterized Martin's testimony as "informative and persuasive." Lopez made mistakes, both in his response to the incident and in his account of his actions, Gardiner said, and he did violate department policy.
But, the hearing officer concluded, there was not sufficient evidence that Lopez had intentionally falsified information in his report, the most critical charge against him.
Firing him, Gardiner ruled, was unjustified.
That was the good news...
SETBACK & SUCCESS
The bad news was that the city manager more than a month later rejected this finding. Despite the contrary testimony summarized in Gardiner's 23-page report, the manager agreed with the chief that Lopez should be sacked. The officer's termination for dishonesty was upheld, likely ending any hope that he would ever again find work as a cop.
Now Wilkinson took the matter to the California Superior Court in San Luis Obispo. Last December, just in time for Christmas, Judge Dodie Harman issued her decision.
Echoing the hearing officer, she noted that Jeff Martin's testimony was "particularly persuasive" in seeking a cause for the discrepancies between Lopez's report and the Taser video.
What officers "see and hear during a stressful event may vary considerably from...a recording watched frame by frame in the calm, non-threatening, non-stressful environment of an office," she wrote. "[T]he Court cannot conclude...that Officer Lopez made knowingly false or misleading statements....[T]here is a difference between a 'mistake or a misperception' and a misrepresentation....
"Officers...may perceive something in the heat of [a] stressful encounter that later...seems unreasonable. That, however, does not make it a false reporting nor does it make it a misrepresentation."
In addition, she determined, Lopez's discharge of his Taser, while technically a policy violation, should not be considered "unreasonable, unlawful or excessive force," given the "potentially volatile" and "evolving" circumstances in the garage.
In short, nothing in the evidence warranted Lopez's dismissal. Harman's ruling, in effect, overturned his firing.
After a long and frustrating journey, "it was a tremendously satisfying victory for a wrongfully accused police officer," Wilkinson told Force Science News.
Since then, Lopez has been reinstated to the Grover Beach PD. He is currently going through the reintegration steps necessary to get back on patrol.
© 2017 Force Science Institute Ltd.