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About this blog: So much is right — and wrong — about what is happening in Palo Alto. In this blog I want to discuss all that with you. I know many residents care about this town, and I want to explore our collective interests to help ...  (More)

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Police misconduct? My 10 questions for the PA police to answer

Uploaded: Jul 28, 2019
The video of the Palo Alto police officer slamming the head of a resident of Buena Vista Mobile Home Park into a car’s windshield and then arresting him is very upsetting – as it provides a factual account of police behavior in an that occurred in February 2018. The incident prompts questions -- were the officers acting legally or illegally in the arrest? What are their policies regarding use of force? Was there was a department cover-up afterward? The video certainly mars the Police Department’s record. (See the video for yourself – then decide (www.youtube.com/watch?v=dtuIzpMohyA&feature=youtu.be).

The case, now one-and-a-half years old, is still under internal investigation, according to the police. The officer, Sgt. Wayne Benitez, who banged the resident Gustavo Alvarado’s head, is on leave, but the other three officers involved are still working full-time at the department. None of them interfered in or tried to stop the head banging; they did break down the door to Alvarado’s residence at Buena Vista.

The incident was filmed by Alvarado’s home surveillance system. The police wore their microphones but not the video equipment they are provided to document what occurred, nor were the officers’ cars videos turned on.

Alvarez was charged with driving under the influence, driving with a suspended license and resisting an officer. But the charges were later dismissed by the Santa Clara County District Attorney’s Office because of insufficient evidence. The case has now resulted in a federal lawsuit against the Palo Alto Police Department.

Alvarez’s lawyers also allege that the police involved were anti-gay -- Alvarez is gay. He’s also racist, according to the lawyers, alleging there may be a bias by this officer against the non-whites who live in the mobile home park.

Cody Salfen, one of two of Alvarez’s attorneys, labeled the police actions as “intentional misconduct,” and an “intentional cover-up.”

The case is full of contradictions by the police, and I have a lot of questions about it. When I called Janine Del La Vega, Palo Alto’s police information officer, for answers, she said she could not comment or provide answers since the case is under litigation. She apologized, but would not comment on anything I asked except confirm that the three other officers were still working. But when I asked whether Alvarez’s driver’s license had been suspended, as the police claimed when questioning him, she said she could not answer. To me, that’s an answerable fact that certainly can’t interfere with pending litigation.

So I will raise my questions here. I do urge you to view the footage of the arrest first (url at the end of first paragraph), so you can better understand why I am asking these questions. My account of what happened is primarily based on this video.

1) When breaking down the door Alvarez had gone into after the policeman, Officer Christopher Conde, had asked him at the mobile park, the police said they didn’t need a search warrant to enter the unit Alvarez went into. Is that true?
2) Conde, who followed Alvarez’s car into the mobile home park, told Alvarez he was followed because he was driving with a suspended license. Was he and was the license suspended? Conde later admitted he didn’t know if the suspension still was in effect. He also told Alvarez he didn’t know if Alvarez was driving his own car – he just recognized the license plates.
3) Is striking a person and then banging his head into a car windshield a cause for dismissal? If so, how come Sgt. Wayne Benitez is still on leave?
4) Is Benitez still being paid while on leave?
5) How long will the investigation take to be completed? (The incident occurred 18 months ago.)
6) Police reports filed by Sgt. Benitez and the other three officers did not contain any mention of the violence involved in the incident. Was this a cover-up? And once the city found out through the dismissal of charges against Alvarez in late 2018, why were the records filed not accompanied by an addendum (or whatever) to indicate violence occurred?
7) Why did the other officers at the scene say and do nothing while Benitez’s head was knocked? What is police policy on the responsibility of other officers in a conflict?
8) After Alvarez was taken away, an elderly man who did not speak English came out to complain that his door had been busted. He was told by the police to go back inside but evidently did not understand what they were saying. One policeman told him, “You broke your own door”; another told the man he was “defying the police.” I’m not sure how or why. “We could charge him for a crime,” the officer said to a younger man acting as translator, “but we’re not going to do that. He can just go and fix his own door – that can be his punishment. He’s lucky he’s not going to jail. He should be going to jail.” Is this a threat or unwarranted harassment? Is this anger toward Buena Vista residents?
9) The police did have recordings of the conversations that took place but did not have their video cameras turned on, nor were the police cars videos turned on. Is it optional for a policeman to decide when to record an incident?
10) Was this a case of homophobia? The police knew Alvarez was gay from previous contacts, and when the tow truck came to take away Alvarez’s car, Sgt. Benitez told the driver, “He’s (Alvarez) gay,” and raised his voice higher to evidently mimic Alvarez.

As my questions show, there are a lot of unanswered issues in this case and a lot of problems that should be answered by the city.

The Police Department’s record has been good the past few years, and residents, including me, trust the police – but certainly not blindly and not when the department is not transparent. As a community, we need to find out more – and hope that this is an isolated incident
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Comments

 +   10 people like this
Posted by askthis, a resident of Old Palo Alto,
on Jul 28, 2019 at 1:00 pm

An 11th question should be: Why didn't Mr. Alvarez post the part of the video prior to all the hubbub as the vehicle pulled into the driveway after fleeing the police (and putting people's lives in danger)to show WHO was driving the car? Would it be because it shows Mr. Alvarez driving his own car?


 +   2 people like this
Posted by CrescentParkAnon., a resident of Crescent Park,
on Jul 28, 2019 at 1:35 pm

If we understand that some suspects are going to be human, then we need to understand officers are human too, and look at and measure the failures on each side to come to a conclusion about criminal punishment or police misconduct and discipline. I don't think the actual damages/injuries to the defendent were detailed?

I need to know more information ( see the above questions answered ) and I'd also like to have 100% confidence that the police are not hiding or constructing a story that makes them look better than they really were in this case. Not having their police cameras on makes it difficult. This is chronic all over the place it seems.

Is what the police cameras of America capture too complex and ugly for America to face, and if so, what are we going to do about it?

Some more questions might be, if dismissal is an option, let's have some facts and figures about what happens to officers in these cases. Do they just go find another police officer job somewhere else. Depending on the cause should there be some standards where officers are not allowed to be employed as police officers again, or only pending some kind of retraining courses? It used to be a truism that the juvenile delinquents we grow up with become the police officers of tomorrow. I know of at least one case of that in the PAPD, but who as far as I know if a good cop.

Also, I feel that the public in the most outlandish comments in cases like this expect Police officers to behave like cool, calm, intelligent robots, not human beings. I know there are plenty of times in my life, work or home where I would not want to have to engage in physical altercation, or I would be angry and frustrated in dealing with what appeared from the video, at least at first viewing, to be a real smart-mouthed punk, making everything harder for everyone because he just doesn't care and wants to be annoying, and perhaps turn it back on the police. Because you never know when a smart-mouthed punk is going to take their lives or the lives of others lightly and risk them and maybe get themselves or others hurt.

We have hundreds of police shows on TV that show us various fantasies of what police life and our justice system is like. Most of them scare us by showing us dead people and all the terrible threats we are up against. If we can view these fantasies shouldn't we as citizens be able to look the realities squarely in the face?


 +   3 people like this
Posted by Resident, a resident of Another Palo Alto neighborhood,
on Jul 28, 2019 at 4:05 pm

All I can say, is why would anyone want to be police nowadays?

It used to be a position whereby police were respected by the community and it was considered a good job, a good career, and full of the types of people who we would want to be living nextdoor to us. In the past decade or so we have had so many stories of bad policing and rogue officers that they have all been tainted by the same brush. I can only think that to attract more officers which are badly needed, then the scrutiny is lax or it is attracting less desirable people to join as standards have accordingly had to be lowered.

As I said above, who in their rational mind would want to be a police officer? Who would choose what used to be a respected career but is no longer seen to be so.


 +   3 people like this
Posted by CrescentParkAnon., a resident of Crescent Park,
on Jul 28, 2019 at 4:54 pm

> All I can say, is why would anyone want to be police nowadays?

Maybe almost $300,000 per year in total compensation and good retirement.
I usually feel pretty good about the Palo Alto Police. Much better today than when
I was a young adult and saw friends getting harassed or pciked out. They generally
do a good job, but the real test is in these crisis situations.

I have to admit surprise to hear Officer Benitez in the middle of this situation
because of the small number of PAPD officers I have had interactions with Benitez
was one of the most thorough, polite and responsive to my minor issue.

I have to wonder, how many hours had he been on shift. When was the last time
he ate. Questions like that affect how much mental energy people have to deal
with situation and to over-ride their emotions. DD makes a good point about where
were the other officers and what are the dynamics with one's co-workers, even
superior officers are doing something that might not be right. The airline industry
faced this kind of thing that could lead to disaster and deaths when lesser ranking
pilots were afraid to speak up when the ranking officer was flying the plane and
did something wrong or failed to notice a critical condition.

When I watched that video I was immediately sympathetic to the police and thought
the guy was a punk for defying an order from the police to step out of his house and
speak to them. No one likes to get stopped by the police, especially if it leads to anything
more than a polite conversation, but you have to do it, and if there is something wrong
you report it later. Anyway, that is no excuse for physical abuse, but again, what were
the guy's damages and injuries?

Police are police, and a lot of them have an attitude or affect an attitude to take the
superior authority position to communicate they cannot accept definance, when they
need to in touchy situations, and that will probably always be the case. I assume it is
part of their training.

If there is no or minor damage it should just let slide, but now everyone seems to think
they can hit the jackpot playing games, and wants to claim there is something
more involved in a situation to threaten to sue. That is a bad precedent to set as well.


 +   3 people like this
Posted by Howard Kushlan, a resident of Downtown North,
on Jul 28, 2019 at 6:25 pm

This is the same police force where a cop made a joke using the N word and is still on the force. Horrific.


 +   13 people like this
Posted by Bill, a resident of Barron Park,
on Jul 29, 2019 at 2:00 am

The Palo Alto Daily Post reported in May that Alvarez had a 20 year criminal history both inside and outside of Palo Alto. Alvarez and his vehicle were known to the police. Alvarez had been stopped and cited 3 weeks earlier over Alvarez's suspended license.

According to Alvarez's own federal lawsuit, around 10:23 PM on February 17, 2018 Officer Conde saw Alvarez's vehicle travelling on Los Robles and pulling into the Buena Vista Mobile Home Park. Officer Conde followed and determined that the vehicle belonged to Alvarez. Conde drove to the area near Alvarez's residence, again known to police, and saw Alvarez exiting the driver's side of Alvarez's two door Ford Focus.

Officer Conde asked Alvarez to accompany the lone officer to his police vehicle. Both Alvarez and his father, who was seated in the front passenger seat, refused. Alvarez's own video clearly shows that Officer Conde explains to Alvarez that Alvarez was detained. At that point, Alvarez was legally not free to leave. However, both Alvarez and his father remained argumentative, left the driveway and entered Alvarez's house. These actions are elements of resisting arrest. Officer Conde backed off and called for additional assistance.

There is no PAPD body camera video because Palo Alto City Council did not approve the purchase of police body cameras until May 7, 2018. Alvarez's video does not show the events at between 10:26 and 10:29 PM when Alvarez and his father continue to argue with PAPD or Alvarez opening and slamming shut the front door of his house on officers. In fact, Alvarez's video seems cropped to eliminate the front door of Alvarez's house entirely. If Alvarez's camera is the same as the one shown on the NBC TV report, the time code along the top of the video seems to be missing. Nearly ten minutes elapsed between the start of the incident and Alvarez's arrest.

Alvarez's license was found suspended and his car was impounded. In November, 2018 a Santa Clara County judge found that the circumstances surrounding Officer Conde's stop did not sustain the charges against Alvarez of driving with a suspended license. All remaining charges, including resisting arrest and those related to the discovery of drug paraphernalia and lost property in his vehicle were dropped.

Given that the incident is under a recently opened internal police investigation and will also be reviewed by PAPD's independent auditor, it's too soon to talk about the process of handcuffing Alvarez. Please note that in 2018, the FBI reported that 3 officers died while handling handcuffed suspects. Alvarez's video depicts the officers applying restraints in a very confined area that was controlled, including the area lighting, by Alvarez. The officers had no way of knowing if Alvarez concealed a weapon near his front door, vehicle or in vacant space beneath his mobile home.

The Palo Alto Police Department Policy Manual is available on line (Web Link). You can read about the Use of Force policy starting at Section 300. State law allows officers the use of reasonable force to make an arrest. Alvarez's own federal lawsuit points out that Alvarez did not seek medical attention at the time of his arrest, nor did Alvarez seek any medical attention while in jail. In fact, Alvarez admits in his federal lawsuit that he himself removed his own tooth while in jail.

As the initiator of the federal lawsuit filed at the end of April, 2019, Alvarez bears the burden of proof of all of his charges.


 +   5 people like this
Posted by Resident, a resident of Midtown,
on Jul 29, 2019 at 7:29 am

All I see here is the Race card being played so lawyers can make more money...


 +   2 people like this
Posted by Is there a good cop???, a resident of another community,
on Jul 29, 2019 at 11:55 am

"All I can say, is why would anyone want to be police nowadays?"

Good salary. they can get away with murder (all they need to do is claim they were afraid for their lives and display their soiled undergarments on the stand).
Many are bullies who like to push people around. many like playing judge jury and executioner.
There are some good police. Unfortunately there is the blue wall of silence


 +   4 people like this
Posted by Not a cop, a resident of Professorville,
on Jul 29, 2019 at 12:41 pm

To "Is there a good cop?"Yes, there are plenty of good cops, far more than any who get angry or frustrated. Perhaps most of us have had an encounter because of speeding or similar level of pushing the limits. No one likes the blue lights in the rearview mirror. I usually drive with my light switch on automatic so the car lights come on as needed. I was stopped by a PA officer on University (I was not driving fast and had just begun to drive coming from a parking spot). I pulled over and lowered the window and a polite police officer said, "Sir, put your lights on. You might get in an accident if they are off." I was surprised then noticed the switch was "off," I don't know why and University is well lighted so I didn't realize they were off. I switched to ON and he saw they were working and thanked me...and I thanked HIM. I think most of us have had that kind of experience.

But we had an incident where the police brought my wife to Stanford Hospital and stayed with her and me when I arrived making sure she was all right. He came to our door several days later to see how she was doing. Later we invited him and his wife to dinner and have met his kids and family dog. Yes, there are good cops and we are thankful for them. Even the cop who stopped me when I made the left turn from Alma into Hawthorne at 5 p.m.


 +   3 people like this
Posted by Steamboat , a resident of Downtown North,
on Jul 29, 2019 at 1:43 pm

Abuse Under Color of Authority! With video and audio evidence to prove it. Jurors love video!!! Why aren't all involved officers on leave pending investigation? The fat round-headed blob of a man had his gun out for a cite and release misdemeanor at best. Chief" are you listening????

Training is everything! Read the Peace Officer's Source Book. This same scenario is in there, as an example of what Not to do!


 +   1 person likes this
Posted by CrescentParkAnon., a resident of Crescent Park,
on Jul 29, 2019 at 3:09 pm

Thank you Bill, a resident of Barron Park.


 +  Like this comment
Posted by almunday60, a resident of another community,
on Jul 30, 2019 at 10:06 am

almunday60 is a registered user.

there should never be any police brutality unless they are in danger.
but lets face it, at that moment the PD can do whatever they want with you because
the PD's know it takes a long time for any investigations to turn up anything.


 +   2 people like this
Posted by Cop lovers HATE bad cops, a resident of Adobe-Meadow,
on Jul 30, 2019 at 10:56 am

This one gives the rest a bad name. He's driven by ego, not law.
Remove the rot and the body will heal.


 +   6 people like this
Posted by Police Bullying Tactics Uncalled For, a resident of Stanford,
on Jul 30, 2019 at 11:29 am

With all of the emphasis on 'bullying' these days, the police should be setting a better example.


 +   4 people like this
Posted by Police Bullying Tactics Uncalled For,, a resident of Barron Park,
on Jul 30, 2019 at 12:12 pm

> A better example of not doing it.

But we all know that cops enjoy intimidating people & maximizing their 007 licenses (when a warning shot or minor wound would ordinarily suffice).


 +  Like this comment
Posted by TonyB, a resident of Menlo Park,
on Jul 31, 2019 at 12:23 pm

In reviewing the video, and seeing Sgt. Benitez's comments to the young man who was acting as the translator for Mr Alvarado's father, it's would seem he was 'speaking-down' in a condescending manner to the father and the translator. A Spanish speaking officer should have been summoned to the incident scene at the time of Mr. Alvarado's' arrest. In the heat of the moment, with English not the primary language for the father, things were chaotic, at best. Although I do think the follow-up by the two Palo Alto officers the next day - with a Spanish speaking officer present was warranted - and good follow-up, with an offer to submit a claim with the City of Palo Alto to have the broken door mended/replaced, the situation could have been handled with a bit more finesse and people skills from Sgt. Benitez. Yes. There is good cause for breaking-down the door when you have an individual taunting the police by opening and shutting the door multiple times. Mr. Alvarado is no saint; however, when you fail to comply with a police order, you must pay the price. Palo Alto officers should be given some basic Spanish lessons to affect an arrest, and as protocol summon a bi-lingual officer for assistance.


 +   2 people like this
Posted by Anon, a resident of Another Palo Alto neighborhood,
on Jul 31, 2019 at 1:23 pm

Posted by CrescentParkAnon., a resident of Crescent Park:

>> Also, I feel that the public in the most outlandish comments in cases like this expect Police officers to behave like cool, calm, intelligent robots, not human beings.

Keeping your cool is job #1 for police. It is the most basic requirement there is for law enforcement. Police who can't control their anger and impulses are not acting as "police" and we, the public, don't need them. To represent the community, under the "rule of law", requires police to not only obey the law themselves, but, to always be the adults in the room. If we don't have the rule of law, but rather, the policemen rule us, then, we have a police state. Not what we want.


 +   3 people like this
Posted by WhoKnows, a resident of Crescent Park,
on Jul 31, 2019 at 3:14 pm

The only abuse I see here is the judge who dismissed a good case against a bad guy.


 +   2 people like this
Posted by CrescentParkAnon., a resident of Crescent Park,
on Aug 1, 2019 at 12:32 am

> Anon - Keeping your cool is job #1 for police

I totally agree, and this is a warning sign for the officers - a training moment, and they should be kept an eye on and maybe written up.

> to always be the adults in the room. If we don't have the rule of law, but rather, the policemen rule us, then, we have a police state. Not what we want.

I don't see we have much of a difference in view. I believe police officers are human beings and not robots. If there were damages in this case it would be much more serious, but as there are none ( that I am aware of ) I'd chalk it up to frayed tempers.

These punks ( sorry to use that word, but I think it fits ) that try to drive police to the point of losing it are a big problem. Punks who no matter what is happening scream I cannot breathe, or some other cry when in fact they are not being hurt hurt everyone. The case in New York that is being adjudicated right now is like that. If everyone does that thinking they can manipulate the police this kind of confusion is the result.

I kind of feel there should be a price to pay for a punk that plays around with law enforcement. I don't care if this guy bumped his head or something - if he was not injured. That is a thin line, and I am all for each situation being looked at in a different light and the police being held responsible. The police should do this with Officer Benitez.

I was a lot more concerned with the shooting of the man over on Addison St. who was mentally disturbed and running around with a knife. I wish that had had a better outcome.


 +  Like this comment
Posted by Rick Moen, a resident of Menlo Park,
on Aug 2, 2019 at 9:37 pm

Ms. Diamond, I believe the answer to your first question, about whether PAPD officers' entry without warrant was lawful, will revolve around the legal concept of exigent circumstance*, which provides some narrow exceptions to the Fourth Amendment requirement of a warrant based on probable cause, one of which is the escape of a suspect. Since Mr. Alvarez had been told he was being detained but left and entered his house anyway, I'd guess the officers were well within their rights to pursue him without requiring a warrant. However, each court case about exigent circumstance is different, and a judge would need to decide whether the necessary level of urgency applied.

-- Rick Moen
rick@linuxmafia.com

* There's a handy Wikipedia article on this subject.


 +   1 person likes this
Posted by Anon, a resident of Another Palo Alto neighborhood,
on Aug 3, 2019 at 4:00 pm

I am gratified that PAPD resisted the pressure/temptation to act precipitously in the prolonged action near Robles Park yesterday/today. As far as is known so far, a few hours later, things were resolved as peacefully as possible. That is how it should be.


 +   2 people like this
Posted by Resident, a resident of Another Palo Alto neighborhood,
on Aug 3, 2019 at 4:49 pm

I agree with the previous poster that prolonged activity and eventual satisfactory outcome to the situation on Tennessee/Wilkie Way has to be congratulated for doing it the right way.

My question though is at what cost? I have to think that the number of man hours policing the situation with not only PAPD but other agencies and their various squads, units, etc. means that this was a very expensive operation. The taxpayers now have the expense of jail and court time.

We have to ask ourselves about the cost of gun ownership. When some individual who can't sort out his problems any other way than causing a situation like this with a gun, it is costly to society. One man and a gun. Last week in Gilroy. Today in Texas. Yesterday and today in Palo Alto. Guns are costly.


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