July 2009 | Volume 17 | No.
Police Department Disciplinary
Bulletin
in this issue: Procedure
Officer engaged in inappropriate relationship
terminated
Procedure
Officer engaged in Citation: McMahon v. City of
inappropriate relationship
terminated....................................1 Monterey, 2009 WL 1508512 (Cal.
App. 6th Dist. 2009), unpublished/
Religious Discrimination
noncitable
Practicing Seventh Day
Adventist officer claims
religious discrimination................5 Officer Stephen McMahon, who
was employed by the Monterey Po-
Misconduct
lice Department, asked the court to
Family sues officers after son
is shot while fleeing police...........7 issue an injunction so that the Po-
lice Department could not discipline
him. The source of the discipline
arose from events that took place
around the time of the murder of
Starr Mooren in 1996. Initially, Of-
ficer McMahon was the lead detec-
tive, and Lieutenant Leslie Sonne as-
sisted him. During the initial inves-
tigation, Jodi Mooren, the victim’s
sister, was considered a primary
source of information. According
to Lieutenant Sonne, getting close
to the family and keeping people on
their side was how the Department
worked. After the murder, Jodi was
extremely emotional and distraught
and needed to be reassured that the
investigation was proceeding, and
both Officer McMahon and Lieu-
tenant Sonne established friendly
relationships with her. In particular,
Officer McMahon empathized and
comforted her, which created a close
friendship bond.
By the spring of 1997, Jodi had
moved to Las Vegas, and Lieuten-
ant Sonne had taken over the in-
vestigation from Officer McMahon,
who became a school resource of-
ficer. Lieutenant Sonne called Jodi
regularly about the ongoing inves-
tigation, asking her about possible
leads, answering her questions, and
seeing how Jodi and her children
were doing. As a result, their friend-
ship grew. Officer McMahon also
called and e-mailed Jodi, and as time
passed, their conversations expanded
to include other aspects of their lives
unrelated to the investigation. As a
result, their trust and friendship also
grew.
In 2001, Jodi told Officer Mc-
Mahon that her husband Willy Ty-
quiengco did not come home the
night that Starr was murdered. Of-
ficer McMahon relayed this infor-
mation to Lieutenant Sonne, who,
along with Sergeant Bill Clark, de-
cided to go to Las Vegas and arrest
him. They asked Officer McMahon
to accompany them because they
knew that the arrest would be trau-
matic for Jodi, felt an obligation to
support her, and thought Jodi’s trust
in Officer McMahon would make it
easier for him be the one to tell her
about the arrest and help her deal
with it.
Immediately after the arrest, Offi-
cer McMahon went to Jodi and told
her. She became hysterical and angry.
He stayed with her for the next two
40750886
July 2009 | Volume 17 | No. 7
Contributors
Brent Dean
Kerreanna DiMauro
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hours, by which time, he too was
stressed and emotional. Lieutenant
Sonne said that both she and Of-
ficer McMahon may have hugged
Jodi before leaving her. Although
Sergeant Clark thought that Offi-
cer McMahon may have gotten too
emotionally involved, Lieutenant
Sonne disagreed given the intense
human drama and time that Officer
McMahon had spent with Jodi.
After returning to Monterey, both
Officer McMahon and Lieutenant
Sonne stayed in touch with Jodi,
and Officer McMahon provided
Lieutenant Sonne with supplemental
reports about this contact, attaching
e-mails that he had sent to her. One
e-mail, written shortly after the ar-
rest and which Officer McMahon
had read to Lieutenant Sonne be-
fore sending, reflected a great deal
of emotion between them over Ty-
quiengco’s arrest, and Officer Mc-
Mahon closed by saying, “Love to
you and the kids, Steve.” Lieutenant
Sonne did not consider the e-mail to
be inappropriate given the fact that
it had been an emotionally intense
experience.
A couple of years later, in May
2003, Jodi called Deputy District
Attorney Ed Hazel, the lead pros-
ecutor in the Starr murder case, and
said that her boyfriend, Cade, might
call him and claim that she and Of-
ficer McMahon had an inappropri-
ate relationship. She explained that
she and Officer McMahon had e-
mailed each other, and although
nothing had ever happened between
them, her boyfriend thought so.
Hazel directed Mark Puskaric, an
investigator for the district attor-
ney’s office, to interview Jodi and
Officer McMahon to see whether
there was some sort of relationship
and whether there were any other
e-mails besides those that Officer
Police Department Disciplinary Bulletin
McMahon had previously given to
Lieutenant Sonne.
Hazel also told Lieutenant Sonne
about Jodi’s call and Investigator
Puskaric’s interviews. Because the
matter had personnel implications,
Lieutenant Sonne referred Hazel
to Deputy Police Chief Tim Shelby
and then personally advised Deputy
Chief Shelby about Jodi’s call and
the interviews. She told him that
she did not consider Officer McMa-
hon’s friendship with Jodi to be in-
appropriate, told him that she had
no knowledge of anything like that,
and stated that Jodi’s boyfriend sim-
ply failed to understand the types of
relationships that build up during
an investigation. Given Lieutenant
Sonne’s report, absence of an allega-
tion of misconduct, and because it
is not unusual for a person to com-
plain about an officer’s conduct to-
ward a spouse or significant other,
Deputy Chief Shelby considered it
unnecessary to initiate a formal in-
vestigation by the Department. He
was satisfied to let Hazel proceed
first and later determine whether a
formal investigation was necessary.
He then relayed information about
the matter to Chief Carlo Cudio.
Investigator Puskaric interviewed
Jodi on May 9, 2003. She said that
she and Officer McMahon became
friends during the investigation and
stayed friends after she moved to
Las Vegas. They e-mailed each other,
and she sometimes told him about
her family problems. This continued
even after Tyquiengco’s arrest. She
said that at one point, they won-
dered about what would happen if
they were to get together. The sub-
ject was dropped and forgotten, and
nothing ever developed or happened
between them; they were just good
friends. However, she said that her
boyfriend had seen some e-mails
and got upset and jealous, and they
Police Department Disciplinary Bulletin
argued because she thought that he
might do something to jeopardize
the investigation. When asked about
additional e-mails, Jodi said that her
computer had crashed, and she lost
them all. She said that because of
time and distance, she and Officer
McMahon’s friendship had ebbed.
On May 12, 2003, Investigator
Puskaric interviewed Officer McMa-
hon. He had known Officer McMa-
hon for several years, did not sus-
pect any deception, and considered
Officer McMahon to be a truthful
person. Officer McMahon said that
he began e-mailing Jodi after she
moved to Las Vegas. He said that, at
first they talked about the investiga-
tion, but as time passed, she would
talk about her life, her children, and
other things, and they became closer
friends. Officer McMahon said that
he did not send her any romantic e-
mails, but at one point, she brought
up the subject of dating one another,
and they speculated about it. How-
ever, nothing came of it, and they
were never romantically or physi-
cally intimate with each other. Offi-
cer McMahon said that at the time
of those e-mails, he was already
involved with another woman and
that there had been other e-mails,
but he had not saved them.
After his interviews, Investiga-
tor Puskaric reported to Hazel that
there were no additional e-mails,
and as far as he could tell, there had
been no inappropriate relationship,
and there was no other informa-
tion that Hazel should know about.
Later, Hazel spoke to Officer Mc-
Mahon himself. After concluding
that no inappropriate relationship
existed, Hazel considered the mat-
ter closed. Lieutenant Sonne learned
that Hazel had found no evidence
of misconduct that might affect the
murder trial or require further in-
© 2009 Thomson Reuters
vestigation. She then reported this to
Deputy Chief Shelby.
A couple of years later in June
2005, Tyquiengco’s defense team
renewed a previous request for all
e-mails between Officer McMahon
and Jodi. The court told defense
counsel to interview both Officer
McMahon and Lieutenant Sonne
about the existence of any addi-
tional, undisclosed e-mails. The day
before the interview, Officer Mc-
Mahon called Hazel and revealed
that there may have been some
e-mails of a sexual nature, but he
denied that anything had ever hap-
pened between him and Jodi. The
next day, defense counsel asked Of-
ficer McMahon whether he and Jodi
had had a romantic relationship. He
said no. Concerned about what the
defense might know, Hazel told Of-
ficer McMahon to prepare a memo
fully describing his relationship with
Jodi.
In the memo, Officer McMahon
said that he liked Jodi from the be-
ginning and that they developed a
good friendship during the investi-
gation, which grew after she moved
to Las Vegas. Their bond got stron-
ger when Tyquiengco was arrested,
and they continued to communicate
after he returned to Monterey. She
asked his advice about personal sub-
jects, and he helped her deal with
things unrelated to the investigation.
After a while, they talked about
what the future might be like when
the trial was over and imagined get-
ting together. Officer McMahon
said that he never considered his
relationship with Jodi romantic,
even though they had exchanged e-
mails that might have had a sexual
nature. After a while, each of them
pursued separate romantic relation-
ships, and their musing about the
future and communication tapered
off and finally stopped completely.
July 2009 | Volume 17 | No. 7
On the Beat
Police misuse records
system
Boston police and other govern-
ment agencies apparently have un-
checked power to collect, use, or even
share personal data about citizens
and potential criminals alike.
Overly curious Boston law enforce-
ment have repeatedly tapped into
the state’s criminal records system to
improperly access information on ce-
lebrities and “high-profile” citizens,
according to a recent and scathing
audit released, which also branded
the system as “obsolete and flawed.”
Law-enforcement personnel looked
up personal information on New
England Patriots star Tom Brady 968
times—seeking anything from his
driver’s license photo and home ad-
dress to whether he had purchased
a gun—and auditors discovered “re-
peated searches and queries” on doz-
ens of other celebrities, such as Matt
Damon, James Taylor, Boston Celtics
star Paul Pierce, and Boston Red Sox
owner John Henry.
The audit report showed that the
system lacks internal controls to inden-
tify who even made these searches.
The Criminal Offender Record Infor-
mation (CORI) system, with its massive
“intelligence-sharing” databases of
criminal records, driving histories, car
ownership records, probation records,
FBI National Crime Information Center
records, social security numbers, and
firearms purchase records, is intend-
ed to provide police and prosecutors
with complete portraits of individu-
als who have been arrested or have
been brought into the court system.
Reports are available to other users
such as landlords and some employ-
ers conducting background checks on
prospective tenants and job seekers.
Access is supposed to be restricted
to authorized law-enforcement users
who are specially trained.
The year-long review by State Audi-
tor A. Joseph DeNucci depicts a system
repeatedly accessed by users “without
3
July 2009 | Volume 17 | No. 7
any apparent work-related justifica-
tion.” Such unauthorized use could be
considered fraud under federal law,
and “disciplinary action, up to and in-
cluding dismissal and/or criminal pros-
ecution” could follow misuse of the
system, DeNucci’s audit said.
DeNucci’s audit condemned the de-
cades-old system as antiquated, highly
vulnerable to mistakes, and easily ac-
cessed by unauthorized users. With
terminals in many locations that al-
lowed anyone to look up information,
the system permitted law-enforce-
ment officials access without fear of
being indentified or detected.
Thomas Nee, President of the Bos-
ton Police Patrolmen’s Association,
said that he was stunned by the mis-
use of the system. “Anyone caught
socially surfing that important law
enforcement asset should be stripped
of their right to use it,” he said. “It’s
outrageous.”
Governor Deval Patrick’s plan, ac-
cording to a summary obtained by the
Globe, would allow prospective em-
ployers, landlords, and some others
to pay for criminal-records informa-
tion on the Internet. They could access
information about all sex crimes and
homicide convictions as well as felony
convictions, which would remain on
the defendant’s record for 10 years.
Misdemeanor convictions would re-
main for five years. The state expects
to collect $20 million a year in revenue
from the data-sharing program.
Source: Boston Globe
Tape of beating leads to
firing of five officers
Five police officers in Birmingham,
Alabama, were fired after a video be-
came public that shows them beating
and kicking an unconscious man in
2008 after a highway chase.
Chief A. C. Roper of the Birming-
ham Police Department called the
actions “shameful,” and the state
Bureau of Investigation is considering
charges.
4 © 2009 Thomson Reuters
He explained that he had previously
declined to mention the nature of
their relationship because he did not
think it was relevant.
In the preliminary phases of Ty-
quiengco’s trial, Jodi testified before
the jury that she and Officer McMa-
hon had intimately kissed on three
separate occasions. However, she
also stated that they both decided
not to pursue a romantic relation-
ship at that time, and given the geo-
graphic distance between them, the
relationship eventually faded. Ty-
quiengco was eventually acquitted
of the murder, and Jodi then made
a formal complaint against Officer
McMahon, alleging that he was un-
professional with her and that he al-
lowed her to form a close and inap-
propriate bond with him. A formal
investigation into Officer McMa-
hon’s conduct then commenced.
In March 2006, Officer Mc-
Mahon discussed the investigation
with Lieutenant Phil Penko of the
Monterey Police Department, who
had known Officer McMahon for
his entire career and considered
him to be a close friend. Officer
McMahon said that he was under
great stress and feared losing his
job. Lieutenant Penko tried to calm
him by reminding him that even if
the Department decided to take dis-
ciplinary action, he could appeal.
Lieutenant Penko opined that if he
were in the same position, he would
fight it all the way. Lieutenant Pen-
ko also mentioned the one-year
statute of limitations applicable to
disciplinary actions and asked Offi-
cer McMahon how long the Depart-
ment had known about the alleged
misconduct.
In May 2006, the Department
notified Officer McMahon of its in-
tent to take disciplinary action. Af-
ter a hearing in November 2006, the
Department terminated his employ-
Police Department Disciplinary Bulletin
ment. Officer McMahon appealed
to the Monterey City Manager, who
upheld the action. In January 2007,
he appealed to the Monterey City
Council. In February 2007, he filed
a petition with the court to bar the
disciplinary action. That petition
was denied, and Officer McMahon
appealed that decision.
DECISION: Appeal denied.
The appellate court rejected Of-
ficer McMahon’s appeal and up-
held the decision of the trial court.
Officer McMahon claimed that the
Department had known or should
have known about the alleged mis-
conduct in May 2003 but did noth-
ing about it. Thus, he argued that
the commencement of disciplinary
action in 2006 was untimely and
that the action was barred by the
one-year statute of limitations. The
Department argued that although
it suspected that Officer McMahon
may have been engaged in an inap-
propriate relationship with Jodi as
early as 2003, his deception pre-
vented them from finding proof
and initiating disciplinary action.
Therefore, it argued that the stat-
ute of limitations had not run since
it acted as soon as it obtained solid
information of Officer McMahon’s
misconduct.
The appellate court agreed with
the Department, reasoning that it
was diligent in its initial question-
ing of Officer McMahon and Lieu-
tenant Sonne as well as its interview
with Jodi. But for Officer McMa-
hons’s deception, the appellate court
noted, the Department would have
had the opportunity to commence
an official investigation much ear-
lier. Because the Department began
the investigation only after they re-
ceived pertinent information, the
appellate court ruled that the stat-
ute of limitations had not expired.
Police Department Disciplinary Bulletin
Therefore, they upheld Officer Mc-
Mahon’s termination.
See also: Jackson v. City of Los
Angeles, 111 Cal. App. 4th 899, 4
Cal. Rptr. 3d 325 (2d Dist. 2003).
See also: Haney v. City of Los
Angeles, 109 Cal. App. 4th 1, 134
Cal. Rptr. 2d 411 (2d Dist. 2003).
Religious
Discrimination
Practicing Seventh Day
Adventist officer claims
religious discrimination
Citation: Elias v. City of New York,
2009 WL 1528530 (S.D. N.Y.
2009)
Lou-Ann Elias is an African-
American, a female, and a Christian
who is a practicing Seventh-Day
Adventism. She was employed as
an New York Police Department
(NYPD) officer beginning in July
2002. Elias alleged that she was dis-
criminated against during her first
years as a police officer because her
probationary status was not termi-
nated within two years as is custom-
ary. She also alleged discrimination
because one of her initial job assign-
ments involved night duty in viola-
tion of the usual NYPD procedures.
She further alleged that she was the
only person in her unit not to be
given time off during the weekend.
Finally, she alleged that she was dis-
criminated against because she was
suspended in July 2005 after being
involved in a domestic incident.
Most of the allegedly discrimi-
natory events occurred after Feb-
ruary 2007 when Elias requested a
religious accommodation from the
NYPD, specifically, that she not be
© 2009 Thomson Reuters
assigned duties from sunset on Fri-
days to sunset on Saturdays. Elias’s
supervisors granted this request.
Elias alleged that notwithstand-
ing her supervisors’ decision to ap-
prove the religious accommodation,
they subsequently discriminated
against her. Most significantly, she
alleged that her work responsibili-
ties changed. Prior to the request for
an accommodation, she was given
patrol assignments between 45%
and 72% of the time. After the re-
quest, she was given patrol assign-
ments from 0% to 26% of the time.
Instead, she was often assigned to
duty at Brookdale and other hospi-
tals and was given solo assignments,
assignments outside of her precinct,
or other unusual assignments. Elias
alleged that she was ultimately sus-
pended in retaliation for filing a
complaint for discrimination.
Elias also identified several in-
dividual incidents that she believes
that had occurred in response to her
accommodation request. On Febru-
ary 14, 2007, Elias was assigned du-
ties that conflicted with an appoint-
ment to visit the shooting range. On
March 9, six hours of compensatory
time were omitted from Elias’ pay
stub, although they were later cred-
ited to her. On March 12, her super-
visors denied her request for time off
to attend a friend’s baby shower. On
March 19, her supervisor screamed
at her. After she requested a name/
status change on April 17, there was
quite a delay before the request was
honored. On April 24, Elias was
placed in an NYPD performance-
monitoring program. In May or
June, her name was omitted from
the roll-call list during a shift.
Furthermore, Elias claimed that
she experienced problems with her
police radio and that her cowork-
ers harassed her, exhibited unusual
July 2009 | Volume 17 | No. 7
The video, filmed on January 23,
2008, by a patrol car camera, showed
officers chasing a suspect, Anthony
Warren, who lost control of his van
and was ejected from a window in
the crash. After the officers raced to-
ward Mr. Warren—who is visibly mo-
tionless on the roadside—they were
seen punching, kicking, and beat-
ing him with a billy club. Prosecutors
for the District Attorney of Jefferson
County, Brandon Falls, found the tape
in March while preparing their case
against Mr. Warren, who received a
20-year sentence for first-degree as-
sault for hitting an officer with his van
in the chase.
Mr. Warren filed a claim against the
city for more than $100,000, saying
that the beating left him with a se-
vere concussion, a skull fracture, and
other injuries, according to his lawyer,
Wendy Crew.
“He was not a threat to anyone,”
Ms. Crew said. “There was no reason
for the excessive force.” She also ac-
cused the Police Department of tam-
pering with the video.
Chief Roper did not identify the of-
ficers but said that they were veter-
ans. “We’ve terminated over 50 years
of combined service due to 10 seconds
of injustice,” he said. “In addition to
these terminations, we’re also review-
ing our supervisor’s actions, reporting
mechanisms and policies.”
Many officers and supervisors in the
Police Department viewed the video
in the past year but did not report it,
the authorities said.
Mayor Larry P. Langford likened the
beating to the police violence that oc-
curred in the city during the civil-rights
movement and recited Dr. Martin Lu-
ther King’s quote: “injustice anywhere
is a threat to justice everywhere.”
Source: New York Times
Two policemen charged in
beating
Two laid-off police officers in New
Bedford, Massachusetts, hoping to
be rehired face assault-and-battery
charges after an alleged attack at a
local gas station. Jason X. Silveira, 28,
and Antonio M. Pereira, 27, were two
5
July 2009 | Volume 17 | No. 7
of 31 local officers laid off in February
after New Bedford suffered a $2.8 mil-
lion midyear cut in state aid.
All of the officers told the city that
they hoped to be rehired as older offi-
cers retire or as money becomes avail-
able through new taxes or federal
grants. Five have been brought back
so far.
However, Silveira and Pereira face
arraignment, accused of assaulting a
man who was involved with Pereira’s
former girlfriend, according to police
reports filed in New Bedford District
Court. Those documents say that early
on March 28, the former officers were
eating hot dogs in Pereira’s sport util-
ity vehicle (SUV) after a night out
when they spotted Paulo Vieira, 26,
filling up at a gas station nearby on
Acushnet Avenue.
According to Vieira and several wit-
nesses, Silveira approached and struck
Vieira, then momentarily backed away
before Silveira and others, including
Pereira, struck again with repeated
blows. Vieira was bleeding from his
head and right ear and had abrasions
on his hands and forearms when po-
lice arrived after the fight.
Pereira and Silveira gave a different
account, telling police that Vieira ver-
bally accosted them before Silveira left
the SUV and engaged in a brief fight.
As Silveira returned to the car, they
said, Vieira pulled a knife and tried to
attack Silveira from behind before be-
ing restrained.
A clerk magistrate reviewed the case
and found probable cause to charge
Silveira and Pereira with assault and
battery with a dangerous weapon, a
shod foot, and to charge Silveira with
assault and battery.
Vieira said that he has suffered
headaches and blurred vision and has
been treated several times at a local
hospital. He said that he returned to
work as a shipping-and-receiving su-
perintendent to support himself and
an aunt despite the persistent health
problems and fears of another run-in
with the former officers.
A conviction would disqualify the
two men from receiving a gun permit
under state law, meaning that they
6 © 2009 Thomson Reuters
behavior, failed to comply with
unspecified “Patrol Guide proce-
dures,” and failed to relieve her
promptly at the end of her shift.
Elias also identified a variety of per-
sonal problems that she presumably
believes are related to the alleged
discrimination, including water
damage to her home, problems with
her personal cell phone, problems
with her mail delivery at home, and
unspecified threats to and about her
and her family members.
Elias claimed that the City and
the NYPD were responsible for
most or all of these actions and for
failing to correct the allegedly un-
lawful practices. She also alleged
that police detectives Maddrey, Cae-
sar, and Magoolahan participated in
some of these actions and claimed
that the Patrolman’s Benevolent As-
sociation failed to properly assist
her in addressing these problems.
Finally, Elias claimed that Brookdale
conspired with the NYPD in its ef-
forts to post her at Brookdale as a
means of harassment and retalia-
tion. She also alleged that she was
assigned to guard certain Brookdale
patients because they were more
privileged than other patients and
that Brookdale was harassing her in
retaliation for a discrimination com-
plaint filed against Brookdale by her
mother, a Brookdale employee.
Elias filed a lawsuit against the
NYPD and various individuals
claiming that she was discriminated
against. The defendants all offered
motions for summary judgment,
asking the court to dismiss the case
against them.
DECISION: Motions granted.
The court granted the motions
for summary judgment and dis-
missed the case. Although Elias
claimed that the allegedly discrimi-
Police Department Disciplinary Bulletin
natory behavior was leveled against
her due to her religion, the defen-
dants argued that she was granted
a religious exemption. Therefore,
they could see no source of discrimi-
nation. They further noted that in
discrimination cases such as this,
it is the duty of the plaintiff to give
articulable facts that demonstrated
that she was discriminated against.
It is then the responsibility of the de-
fendant to explain that their actions
were nondiscriminatory. The plain-
tiff must then show that the defen-
dant’s reasons were merely pretext.
Here, the defendants argued, Elias
did nothing of the sort. She merely
made sweeping,nonspecific allega-
tions and stated that she was being
discriminated against.
The court agreed with the state
and found that Elias could offer no
real evidence of discrimination. It
further found that the defendants
put forth convincing evidence that
she was terminated for her poor job
performance and not her religious
beliefs or practices. Therefore, it dis-
missed Elias’ case against the vari-
ous defendants.
See also: McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93
S. Ct. 1817, 36 L. Ed. 2d 668, 5
Fair Empl. Prac. Cas. (BNA) 965,
5 Empl. Prac. Dec. (CCH) P 8607
(1973) (holding modified y, Hazen
Paper Co. v. Biggins, 507 U.S. 604,
113 S. Ct. 1701, 123 L. Ed. 2d 338,
16 Employee Benefits Cas. (BNA)
1881, 61 Fair Empl. Prac. Cas.
(BNA) 793, 61 Empl. Prac. Dec.
(CCH) P 42186 (1993)).
Police Department Disciplinary Bulletin
Misconduct
Family sues officers
after son is shot while
fleeing police
Citation: Hernandez v. City of
Pomona, 2009 WL 1475256 (Cal.
2009)
Before dawn on January 16,
2001, City of Pomona Police Of-
ficer Dennis Cooper was patrolling
a neighborhood in a marked black-
and-white police vehicle when he
saw a gray Ford Thunderbird ap-
proach from the other direction
with its headlights off. The Thun-
derbird abruptly pulled over to the
curb and stopped with its engine
running. Officer Cooper engaged his
overhead lights and pulled his car to
within about 10 feet of the stopped
Thunderbird, facing it. He saw two
individuals inside the Thunderbird
and ordered them to exit. The driv-
er complied, putting up his hands,
opening his door, and exiting. The
passenger, George Hernandez, did
not comply. Instead, he slid into the
vacant driver’s seat and, with the
headlights still off, drove off in the
direction from which the Thunder-
bird had come.
Officer Cooper began pursu-
ing Hernandez in the car. Officers
Humberto Sanchez, Anthony Luna,
Robert Devee, and Edgar Padilla
joined the pursuit in other police
vehicles, including a K-9 unit driven
by Luna. Hernandez led the officers
on a high-speed chase through city
streets that lasted about 18 minutes
and ended when Hernandez crashed
and the car came to rest in the mid-
dle of the street.
After crashing, Hernandez exited
his car and started running away.
Officer Cooper, followed closely by
© 2009 Thomson Reuters
Officer Sanchez, pursued Hernan-
dez on foot. Eventually, Hernandez
slowed down and stopped. Accord-
ing to one witness, Hernandez, with
his back to Officer Cooper, lifted his
shirt to expose his waistline and,
while turning around, yelled that
he did not have a gun. According
to Officer Cooper, Hernandez, af-
ter reaching toward his front right
pocket, spun towards him yelling, “I
got a gun, I got a gun.” Startled, Of-
ficer Cooper reached for his weapon
but discovered that he had lost it.
He spun around, covered his head,
and ran away screaming to Sanchez,
“Shoot him. Shoot him, Bert. He’s
got a gun. He’s going to kill me.”
As Officer Cooper ran, he broadcast
over his radio that Hernandez had
brandished a firearm. Hearing Of-
ficer Cooper, Officer Luna released
the police dog and, with Officers
Devee and Padilla, joined the foot
pursuit.
Hernandez spun around and
started running away again. Of-
ficer Sanchez, who was now lead-
ing the chase, had an open shot at
Hernandez but decided not to take
it because Hernandez was facing
away and did not pose an immedi-
ate threat. Instead, Officer Sanchez
chased Hernandez, yelling at him to
stop. He was followed by theother
officers, including Officer Cooper,
who had rejoined the pursuit after
finding his weapon.
Ignoring Officer Sanchez’s or-
der to stop, Hernandez kept run-
ning and fled around the corner of
a building. The police dog passed
Officer Sanchez as they rounded the
corner of the building, caught up to
Hernandez, struck him in the shoul-
der, and spun him around. Accord-
ing to Officer Sanchez, as the dog
was striking Hernandez, Hernandez
reached towards his waistband, yell-
ing either “I got a gun” or “Gun.”
July 2009 | Volume 17 | No. 7
could not be rehired. Then again, the
allegations alone could pose a serious
problem in the background check re-
quired by the Police Department.
Source: Boston Globe
FBI looking at allegations
at Transit academy
The FBI is investigating allegations
that female cadets in a widely used
MBTA-run police academy were co-
erced into having sex with superior of-
ficers, according to a law-enforcement
official and a lawyer representing
Transit police unions.
FBI agents have questioned several
female and male officers about sexu-
al-misconduct allegations dating back
to 2002, according to the union law-
yer, Douglas I. Louison. The span of
years combined with what one official
described as unusual after-hours frat-
ernization between female recruits
and male supervisors raise concerns
about a culture of impropriety at the
academy. Allegations of coerced sex in
a police training setting, if true, would
constitute a civil-rights violation and
would be evaluated by the FBI on a
case-by-case basis.
The MBTA Transit Police Academy
located in Quincy, Massachusetts,
trains not only the MBTA transit po-
lice force but also cadets for suburban
and collegiate police departments
throughout the region. The T acade-
my—as it is known—is staffed by six
full-time MBTA instructors. Officers
from other police departments lecture
at the Academy.
Daniel A. Grabauskas, General
Manager of the MBTA, said that the
MBTA has not received any internal
complaints about similar misconduct
through its human resources office,
its civil rights office, or its individual
supervisors and that the investigation
appears to be at an early phase.
According to the Academy rule
book, the training school “strictly for-
bids instructors and cadets from so-
cializing, dating, carpooling, or even
taking meals and coffee breaks to-
gether.”
Source: Boston Globe
7
July 2009 | Volume 17 | No. 7
In response, Officer Sanchez fired his
weapon at Hernandez. As the other
officers rounded the corner of the
building, they heard shots and as-
sumed that Officer Sanchez was in a
gun battle with Hernandez. All but
Officer Padilla fired at Hernandez.
The officers fired 37 shots in all, hit-
ting Hernandez 22 times and killing
him. Hernandez was unarmed.
In September 2001, Hernandez’s
parents, both individually and as
administrators of his estate, and
his seven minor children, by and
through their guardians ad litem,
collectively filed a complaint in fed-
eral court seeking damages in con-
nection with his death. The plain-
tiffs alleged that the officers had
used excessive force, were improp-
erly trained, were negligent, and had
discriminated against Hernandez on
the basis of his race, which was La-
tino. They brought both federal and
state claims. The federal court found
that the officers had not violated the
rights of Hernandez by using deadly
force. They reasoned that, given the
circumstances of the altercation, it
was not unreasonable for the offi-
cers to believe that Hernandez pre-
sented a deadly threat to their lives.
Therefore, that court dismissed the
claims against the officers.
The plaintiffs then filed a state-
court claim that was similar to the
federal claim. The state claim also
included a claim of wrongful death
against the police department and
the officers. The defendants imme-
diately moved to dismiss the state
claim on the basis that the federal
claim had already been decided in
their favor and that it was illegal
for the plaintiffs to get a second
chance to bring suit. The plaintiffs
Editorial Questions or Comments: west.quinlan@thomsonreuters.com
8 © 2009 Thomson Reuters
argued that their state-law claim
was different since the definition
of “reasonableness” (as in reason-
able use of force) for purposes of
a federal claim is not the same as
“reasonableness” under state neg-
ligence law. The trial court agreed
with defendants in part, explaining
that the fundamental use of judging
reasonableness was similar and that,
therefore, the plaintiffs should not
be allowed another bite at the apple.
They dismissed the case against the
defendants. The plaintiffs then ap-
pealed, and the court of appeals re-
versed the judgment. Based on prin-
ciples of collateral estoppel, it first
held that the federal judgment pre-
cluded the plaintiffs from recovering
on the theory that the officers failed
to exercise reasonable care in using
deadly force. It then held, however,
that the plaintiffs could proceed on
the theory that the officers failed
to use reasonable care in creating,
through their preshooting conduct,
a situation in which it was reason-
able for them to use deadly force.
The defendants then asked for an
appeal on this ruling.
DECISION: Appeal granted.
The appellate court granted the
defendants’ appeal and dismissed
the case against them. The plain-
tiffs continued to argue that the of-
ficers could be found negligent in a
state-law claim since the negligence
referred to occurred before the ac-
tual shooting. That is, if not for the
preshooting conduct, the shooting
never would have occurred. They
argued that this was much different
than a suit claiming that the shoot-
ing itself was the result of negligence
on the part of the officers as their
Police Department Disciplinary Bulletin
federal suit claimed. The defendants
argued that the entire situation was
part of the same ongoing series of
events and that the court in the fed-
eral suit had all of the facts before it
when the decision was made in fa-
vor of the officers.
The appellate court agreed with
the defendants and found that the
state-law suit should have been
barred due to the doctrine of col-
lateral estoppel. However, the ap-
pellate court did point out that the
federal court never properly exam-
ined the preshooting events to de-
termine whether or not they were
substantially reasonable. It merely
looked at the actual shooting with
knowledge as to what had happened
prior to the shooting. Nevertheless,
the appellate court found the case
in favor of the officers based upon
the idea that the officers followed
procedure and the jury in the fed-
eral case found that they had acted
in an objectively reasonable manner
given the circumstances. The ap-
pellate court reasoned, essentially,
that the jurors had before them all
of the facts of the case, both those
facts that occurred at the time of
the shooting and those facts that
occurred immediately prior to it.
Therefore, the appellate court be-
lieved that the preshooting events
had been analyzed by the federal
jury and that the jury had deter-
mined that no negligence had oc-
curred. Therefore, it ruled that the
plaintiffs should have been stopped
from filing the state lawsuit.
See also: People v. Sims, 32 Cal. 3d
468, 186 Cal. Rptr. 77, 651 P.2d
321 (1982)