ALISON BERRY WILKINSON
Berry Wilkinson Law Group
A kidnapped baby. A hysterical mother. A good Samaritan who followed the kidnapper from the grocery store parking lot while he reported the suspect’s travels to dispatch. A rapid rescue of the baby by the responding police officers. A baby reunited safely with her mother.
This successful operation should have been the script from which a commendation was issued. However, for Grover Beach Police Officer Santino “Sonny” Lopez, it was the beginning of an extended nightmare and a two-year battle to overturn his employment termination and restore his good name.
The Underlying Incident
On February 9, 2010, Grover Beach Police Officer Sonny Lopez was dispatched to a “kidnapping in progress” at the Vons grocery store where a 6-month-old baby had been taken from her mother. As he responded, Lopez was advised by dispatch that the victim’s mother and a good Samaritan had followed the suspect vehicle to an address in Arroyo Grande. When he arrived at the address, Officer Lopez was told by the distraught and crying mother of the kidnapped baby that an “old man” had “kidnapped her baby” and was hiding in the locked, dark garage. The good Samaritan relayed to Officer Lopez not only that the man had refused to give the baby back, but also that he appeared “crazy.”
Concerned that the child was in danger, Officer Lopez, accompanied by the Arroyo Grande officers who had also been dispatched to the call, kicked open the locked garage door and made entry. In the dark and cramped garage space, the responding officers executed a rapid rescue of the child and apprehended the kidnapper. After the baby had been recovered and during the time the perpetrator was being taken into custody, Lopez discharged his Taser. The Taser, although discharged, failed to hit anyone or do any damage.
While Lopez’s perception of those tense moments was based on his angle of view during this rescue effort, the camera on his Taser recorded the event from a different perspective. When those perspectives were interpreted as inconsistent, the Department concluded that this veteran officer intentionally misrepresented the event in order to justify his improper use of the Taser. As a result, the City charged Lopez with: 1. being dishonest in his reporting of the incident and 2. using excessive force when he discharged the Taser. Following a Skelly hearing, his employment was terminated.
The Successful Termination Appeal
Pursuant to the City’s personnel rules, a termination appeal hearing is conducted before a hearing officer selected by the city manager. The hearing officer’s findings and recommendations were advisory to the city manager.
Retired San Luis Obispo Police Chief James Gardiner was appointed by the City to preside over the Lopez appeal. After a three-day evidentiary hearing, Chief Gardiner concluded that there was no merit to the dishonesty allegations and recommended that the termination be overturned even though he had found that the Taser use did not comply with policy.
In overturning the dishonesty charge, Chief Gardiner noted that the essential facts about the nature of the incident were not in dispute and that the controversy centered on the 23 seconds of video recording from the camera attached to Lopez’s Taser. The City contended the video showed a demonstrably different set of facts than those represented in Officer Lopez’s report written on the night of the incident.
Despite the discrepancies between the Taser video and the report, Chief Gardiner reversed the dishonesty charge. Several factors weighed heavily in his decision. First, Chief Gardiner noted that the Department could not and did not provide Officer Lopez the opportunity to review the Taser-cam video before writing his report. This failure caused Officer Lopez to report only his perspective and omit any description of the different angle of view his eyes had from that of the Taser-cam. When asked to explain the discrepancies between the report and the video, Lopez stated, “I didn’t see what the video sees.” This was due to the fact that Lopez was in a position of cover behind the driver-side car door pillar, observing the suspect from behind the seat and through the driver’s side tinted car window, whereas the Taser was extended by Lopez’s arm downward around the driver’s seat and extended into the cab of the vehicle. Also persuasive was the testimony from an expert who explained how the Taser-cam recorded using infrared lighting, which gave a clearer and brighter picture of the events than Officer Lopez could see in the “pitch black” garage using human eyes.
Chief Gardiner also took into account the fact that the underlying call was urgent and emotionally charged, which was a perception factor that did not exist when viewing the Taser-cam video in the calm confines of the hearing room. Chief Gardiner was particularly influenced by the testimony of Force Science Expert Jeffrey A. Martin, a retired San Jose Police Sergeant, who testified about the effects of stress on human behavior, auditory and visual perception and memory. Chief Gardiner found Martin’s testimony “informative and persuasive,” and noted that it reinforced his own professional experiences where both lay witnesses and police officers gave a sincere and truthful recounting of what they saw or heard that “proved to be demonstrably incorrect based on other evidence.”
Finally, Chief Gardiner said that he “was struck from the beginning that it was Officer Lopez who intentionally took out the Taser to document what happened,” and therefore, agreed with my argument that “it defies logic that Officer Lopez purposefully misrepresented what occurred when he knew there was a recording of the event because he himself chose to turn on the Taser with its camera.”
The City’s Rejection of the Hearing Officer’s Decision
The City rejected the advisory decision and upheld the termination using the original grounds cited in the discipline notice. As a result, the PORAC Legal Defense Fund authorized an appeal to Superior Court pursuant to Code of Civil Procedure section 1094.5.
The Superior Court Decision
After reviewing the entire administrative record and exercising her own independent judgment, San Luis Obispo Superior Court Judge Dodie A. Harman not only agreed that there was no basis to find Officer Lopez untruthful, but she also found his use of the Taser justified.
In so ruling, Judge Harman noted that Officer Lopez’s perception of the incident was consistent with that of the Arroyo Grande officers who were also present, that the Taser-cam recorded from an entirely different perspective than the involved officers and that because the camera records only at the rate of 10 frames per second, “every movement seen by the human eye during this same minute will not be recorded on the Taser-cam” and that “human factors cannot be recorded.” Judge Harman also found that “[t]he testimony of Jeff Martin is particularly persuasive in analyzing all of the evidence. What witnesses see and hear during a stressful event may vary considerably from one another and certainly will vary from a recording watched frame by frame in the calm, non-threatening, non-stressful environment of an office.”
The Court further held that there is a difference between a “mistake or misperception” and a “misrepresentation.” Judge Harman stated: “Officers, like any witness, make mistakes; they may perceive something in the heat of the stressful encounter that later, on calm reflection, seems unreasonable. That, however, does not make it a false reporting nor does it make it a misrepresentation.”
As to the discharge of the Taser itself, Judge Harman found it was justified and thus reversed the findings by both the City and the hearing officer. While Lopez did not make a verbal warning prior to discharge, as required by the policy, the Court found that was not significant. Judge Harman noted that “officers have to make split-second decisions under circumstances with less than optimal information” and that “Officer Lopez was not in a position, based on the surroundings, to assist Officer Johnson in any other way in gaining control over the suspect.”
Judge Harman’s decision was issued two days before Christmas, a welcome and wonderful gift to Officer Lopez’s family. Officer Lopez has now been reinstated to the Grover Beach Police Department, although complete implementation of the award is still underway. Sonny Lopez is grateful to the PORAC Legal Defense Fund for its support and funding, without which, he could not have afforded to aggressively defend his honor and reputation.
About the Author
Alison Berry Wilkinson is the principle attorney in the Berry Wilkinson Law Group, a law firm dedicated to providing effective, quality representation to public safety employees in civil, criminal, disciplinary, and collective bargaining matters. She is assisted in this enterprise by associate attorney and Force Science Expert Jeffrey A. Martin, a retired San Jose Police Sergeant, as well as Labor Relations Representative Mark O’Connell, a retired Alameda Police Sergeant. Formerly a founding partner at Rains, Lucia & Wilkinson, Alison continues to actively and aggressively advocate on behalf of peace officers statewide.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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Very knowledgeable and thorough and would use the rep again.
- Yvonne Heuston ERS/SPPOA Supervisors
My representative was outstanding and knew what to lookout for and how to handle situations as they appeared. He told me what to expect and how he proposed to handle the hurdles. Just telling what to expect helped put me at ease as the situation was so foreign to me, and intimidating.
- Gregg Palmer San Joaquin Co Corr POA
Everything was explained very well prior to my questioning. I was not worried at all during the investigation. Very professional and a great asset to its members.
- Jorge Garcia San Joaquin Co Corr Officers
No criticism to give. Very well.
- Katie Angermiller Tuolumne Co DSA
I was very satisfied with the work the LDF performed. The lawyers and clerical staff at [law firm] were all very kind, professional and they always assisted me when I called and never made me feel like I was a burden. Thank you LDF!
- Katherine Comesana Mountain View POA
Hope to never in a situation again, however, glad to know that LDF is there to help.
- Chris Lyon Tulare Co DSA
Very thorough group of sharp/smart government concerned [attorneys]. They understood what was happening and briefed me on everything. I was very impressed.
- Jon Seabron Oceanside POA
[My Representative] was the best and if I ever need to call al lawyer again for anything, I'll be calling her.
- Erik Kusmerz Lyon Co SEA
Amazing job, Thank you.
- John Dougherty National City POA
My LDF Representative was [Representative]. He did an outanding job with my case and I am overjoyed with the results.
- Richard Salcido Brea PA
LDF is a great organization that not only helps their clients but many of those around them such as coworkers and family members.
- Rich Stepper Montana PPA
[ My representative ] was very knowledgeable regarding dept & legal rules regarding officer involved shooting. Provided good legal advice & was very supportive.
- Scott Muir Tracy POA
Very satisfied with the service I was given.
- Stephanie Haas Lyon Co SEA
When I first contacted LDF re: my case I was unsure of how well/poor I'd actually be represented. I was impressed beyond belief. From the timely responses from my attorney, his knowledge in my case, advising me what my rights were and where I stood. I felt like I was genuinely being protected from unwarranted and unfounded accusations and believe, as long as I am in the right, I have someone fighting for me. Thank you, Thank you.
- Patricia Goss San Anselmo POA
[My Representative] is fabulous! Thanks for all the exra work she did for me!
- Jason Walters Claremont POA
LDF was very informative and provided me with the direction on how to handle my case. I was very happy with LDF and their staff.
- Brad Young Oakland POA
[ My representative ] is an awesome attorney.
- Sherri Coral Riverside Community College
He was very professional. I trusted him to defend and he did! I am very thankful he was here for me.
- Joseph A. Henderson Merced POA
The firm I used was very valuable to my career and kept me updated as to status of the case. Thank you!
- Gilbert Garcia Oceanside POA
My attorney provided outstanding representation.
- Sean Tinney Berkeley PA
[My representative] was very attentive to my case and thorough with his investigation. I would request [him] again in the future.
- Aaron Delgado Monterey POA
My representative called me back promptly and kept me informed. I had the impression she cared and was there to help.
- Allison Clark Twin Cities POA
[My representative] is the best attorney LDF has. Her attention to details, professionalism, and intelligence were off the charts. If I did not have her as a rep I would probably be out of a job. She is fair and she was honestly concerned about me, my family and my case.
- German Alvarez Anaheim PA
[My representative ] was great!
- Caitlin Collins Tiburon POA
[My representative] made himself available 7 days a week understanding that those were my needs. He was very well informed and kept me on the right track and in the right frame of mind.
- Christopher Wirth A F G E Border Patrol
LDF referred me to [ representative ] in Spokane, WA. [ Representative ] did an outstanding job representing me. Thank you very much for the referral ! I would not be employed any longer had it not been for [ representative ] and his legal team.”
- Brendan Dolan Milwaukee PA
Everything went very smooth and they handled everything! Thank you.
- Thomas E. Lorente III Bart POA
[My representative] did an excellent job! I would highly recommend him to any officer in need of LDF services.
- Robert Morales Rialto PBA
I was very pleased with the service I received
- Kenneth Nelson Plumas Co SA
Good job. Thank you! [My representative] does an outstanding job representing the employees and seems to be very intimidating to the [County Management]. We like it this way!
- Anthony Zack Vernon POA
This was the first time in my twenty-five year career that I had to use the services of my legal defense fund. My LDF Representative was extremely courteous, informative and professional.. She addressed all of my concerns and answered all of my questions. She did an overall outstanding job of representing me and handling my case. I could not have been any more pleased or satisfied with the job she did! I would definitely request her to represent me in the future if I needed representation.
- Anthony Russo Clark Co School District
The members of my Association are very pleased with the level of representation that PORAC has given to us. As the President I can not thank you all enough.
- Dwayne Sue Oakland POA
[My representative was] great! She kept me informed and was very professional. She would be my choice if I should need her services in the future! (But I hope I won't) Thanks!
- Kristen Patterson Contra Costa Co Prob. Assn.
[My representative] was helpful and made me feel supported. I got the results I desired. Very pleased with the process.
- Andrew J. Brice Santa Maria POA
As always... an excellent result.
- Dan Lovelace Chandler LEA
Thank you for the funding and support. I would be in jail right now if it were not for LDF. I would not have had the funding to pay for the case. It was a tremendous help having [my representative] and his support team and the many experts supplied by LDF. I speak for myself, my family and other members of my association.
- Robert Glock Oakland POA
I am always satisfied with LDF and all their representatives.
- Ron Ruddy Riverside POA
- Carl Miller Clearlake POA
- Anthony Alonzo South Gate POA
Very pleased with the way the process was explained to me. Received updated info faster than I expected. Overall a good experience in a not so good situation. Thanks to LDF.
- Joe Charvez Santa Clara Co DSA
I could not be happier with the interest, work put into my case, and assistance from [my representative]. Thanks !!
- Greg Gladson LA Airport POA
[My representative] was very professional and helpful. She kept me informed with my options and the direction of the investigation.
- Rick Stephens Alpine CO DSA
My representative was very good. I highly recommend my lawyer to anyone.
- Ernest Marugg San Diego Deputy DA Association
The LDF responded immediately upon my request for counsel. LDF provided the best representative I could receive! When I called LDF for advice, I was given advice again immediately. Thank you LDF for your concern.
- Juan Pascua, Jr. San Diego Co DSA
Very helpful and very informative!
- Gary Silva East Bay Region Parks POA
Thank you for providing this service. My experience with LDF was very much to my satisfaction.
- Paul Barrolaza Twin Cities POA
- Kerry Carlson Midpeninsula Ranger POA
I have held leadership positions in our POA most of my career. Because of my role as President and Vice President I have been a target to management. I feel that if it were not for LDF I wouldn't have a job
- Dan McDow San Luis Obispo POA
[My representative] is the poster face representative of the greatest attorney (representative) that anyone could possibly ask for. She gets a 12 out of 10 star rating. Nobody works harder.
- Alfredo Hernandez El Centro POA
[My representative] was very attentive, [informative] and knowledgeable. He spoke very clearly and explained things in ways easy to understand. [He] made me feel like he truly cared about what was going on with this case and me. Not to mention [he] was funny and witty, traits which made him trustworthy and someone who would stand by me and other police officers.
- Joseph Barrett LA Airport POA
I was very well represented by a professional. I felt well represented and got great advice.
- Steven Curtiss Shasta Co DSA
This was my first need for LDF support and I was very happy with the level of service. Thank you.
- Gerhard Wallace Santa Clara Co DSA
I think that [my representative] did a great job in presenting my case. I would recommend her to any deputy (officer) facing disciplinary action. My case was minor compared to other cases but [she] still did a professional job.
- Doug Plumhoff Ridgecrest PEA
Great job by all! Always great to know LDF is there when needed.
- Steven E. Lopez Santa Maria POA
Keep up the Good Work! Your service was extremely helpful to me. Thank you.
- Brendan Tinney UC Berkeley POA
[My representative] has represented me twice now and both times I have been very pleased with his thoroughness with handling my cases. I appreciate all what LDF and [my representative] have done for me.
- Stacey Bonilla San Mateo County DSA
[My Represenative] is an excellent attorney. He is very professional yet personable and I would definitely use him again. Thank you!
- Andrea Salas Sonoma County DSA
[My Representative] was great! Thank you.
- Jason Kearsing Elk Grove POA
Very happy with LDF.
- James Beckman Miracosta College POA
Excellent service everytime.
- Scott King Ripon POA
[My representative] is the best LDF rep I have ever had. If I were to need an LDF rep again I would want it to be [my representative].
- Kip RIngen Lake Co DSA
My LDF rep kept me well informed concerning the progress of my case. I was extremely satisfied with the service I received. Thanks.