7/24/2019 Update: Former San Jose Police Indpendent Auditor and Palo Alto resident filed a formal complaint Wednesday with the Palo Alto Police Department concerning the actions of Palo Alto Sgt. Wayne Benitez captured on surveillance video during the arrest of city resident Gustavo Alvarez. The retired judge said Palo Alto Police Chief Robert Jonsen called her after she filed the complaint, and told her Benitez's actions are being reviewed by the department.
Home surveillance video obtained by NBC Bay Area’s Investigative Unit shows Palo Alto police officers pulling city resident Gustavo Alvarez from his home in the Buena Vista Mobile Home Park before he says he was beaten and unjustifiably arrested on suspicion of driving with a suspended license.
Alvarez, who immigrated with his family from Mexico in 1997, installed the home security system two years ago, saying he feared police patrolling his neighborhood, and that the footage demonstrates a pattern of harassment that’s gone on for years.
The video, along with police reports and audio recordings from officers’ body-worn microphones, raises questions about whether the officers used excessive force and if bias played a role in the confrontation. Attorneys for Alvarez say subsequent reports filed by the officers involved don’t refer to the use of force and point to a potential cover-up.
The video shows Palo Alto police officers kicking Alvarez’s front door, pulling him from his home, then striking him at least once before one officer slams Alvarez’s head into the windshield of his car.
And it’s not just the video that Alvarez’s attorneys say points to police misconduct.
Just after Alvarez’s arrest, officers’ body-worn microphones capture veteran Palo Alto police Sgt. Wayne Benitez appearing to mock Alvarez for being gay and encouraging the use of force by police officers.
“See how quickly they behave once we put our foot down?” Benitez can be heard saying to another officer. “And that’s what we don’t do enough of.”
About 30 minutes later, Benitez can be heard saying, “We’re not gonna get s*** on out here by these frickin’ low-lifes.”
The incident also shows a potential lack of transparency from officers involved in Alvarez’s arrest. The use of force captured on Alvarez’s security camera is never mentioned in officers’ police reports, and use of force reports required by department policy were never submitted. Alvarez’s attorneys say the video challenges the entire legal basis of the arrest and subsequent criminal charges.
“[Alvarez's] opinion was that there was no legal justification to detain him,” said Alvarez’s attorney Cody Salfen. “And that ended up being true because the judge at the Superior Court level found that the officers lacked reasonable suspicion to detain him.”
The judge found Palo Alto officers lacked sufficient legal justification to detain and arrest Alvarez, and the Santa Clara County District Attorney’s Office dropped the four misdemeanor charges stemming from the incident, including driving on a suspended license, resisting arrest, appropriation of lost property and possession of drug paraphernalia.
Former San Jose Independent Police Auditor Judge LaDoris Cordell called the incident disturbing after reviewing the recordings and police reports.
“Everything about this incident – from the hollering, the yelling, the violence, the use of force, the failure to report it, and then the audio in the aftermath that showed absolute explicit bias – every bit of it was bad,” Cordell said.
Alvarez, who accuses officers in affluent Palo Alto of targeting him in part because he’s a gay Latino living in a mobile home park,filed a civil rights lawsuit against the police department in April. Palo Alto police Chief Robert Jonsen declined to comment on the case because of the pending litigation, as did attorneys representing the individual officers involved in the incident.
Independent police auditors for the city of Palo Alto said they were reviewing the incident but declined to comment as well.
Palo Alto City Manager Ed Shikada provided a written statement to NBC Bay Area, saying:
“Out of respect for the legal process and the rights of all involved, the City does not comment on matters in active litigation. The public should know that the Police Department has procedures to investigate allegations of misconduct thoroughly and to hold officers accountable if misconduct is determined to have occurred.
The City and the Police Department care deeply about our community and strive to provide the best service possible, expecting all City staff to treat everyone in the community fairly and with respect.”
A spokesperson for the Palo Alto Police Department said four of the five officers named in Alvarez’s lawsuit are currently on active duty. Sgt. Benitez is on leave.
The Surveillance Video
On Feb. 17, 2018, Palo Alto police Officer Christopher Conde stopped Alvarez in his driveway at the Buena Vista Mobile Home Park and told him that he was being detained for driving with a suspended license.
The incident was caught on Alvarez’s home surveillance camera, which Alvarez said he installed two years ago to document his interactions with police. Alvarez has had run-ins for years with Palo Alto police and has a criminal record that includes convictions for driving under the influence, as well as convictions for burglary and grand theft. But Alvarez said his treatment by police was starting to get out of control, so he installed the camera.
“I wanted to have proof of what they were doing because I want them to stop harassing me,” Alvarez said.
On video, Alvarez is heard questioning Conde about whether the officer saw him driving the vehicle. After Conde seems to admit that he didn’t, Alvarez goes into his home and shuts the door.
But Conde calls for backup, and at least four additional officers soon arrive, including Sgt. Benitez and Agent Thomas Alan DeStefano, Jr.
The officers yell through the door for Alvarez to exit his residence and begin kicking the door when he doesn’t comply. Then, the video shows Alvarez opening the door before being pulled from his home and handcuffed on the hood of his car. The video captures Sgt. Benitez delivering an open-handed blow to the back of Alvarez’s head when Alvarez yells for his dad to start filming his arrest.
Thirty seconds later, the video shows Sgt. Benitez lifting Alvarez’s head off the hood of the car and slamming his face into the windshield while yelling, “You think you’re a tough guy?”
When Alvarez says he’s bleeding, the video shows Benitez responding by saying, “You’re going to bleed a hell of a lot more.”
Alvarez said the blow knocked his tooth loose and cut his lip. He pulled the loose tooth out at the jail later that night.
“I thought they were going to kill me,” said Alvarez. “Later on, you think about it, like why did they do this for a [possible suspended license]?”
“It was being perpetrated by police officers under the color of authority,” Salfen said. “And that’s unacceptable, it’s illegal, and it’s honestly shocking.”
A Potential Cover-Up
The Palo Alto Police Department policy manual states: “Any use of force by a member of this department shall be documented promptly, completely and accurately in an appropriate report.”
Although Alvarez’s incident meets five out of the nine circumstances that are each considered to be a use of force by the Palo Alto Police Department, there was no report generated, according to a public records request filed by NBC Bay Area.
The blows captured on video are also missing from Sgt. Benitez’s supplemental police report about Alvarez’s arrest.
“His vehicle was parked directly in front of the short set of stairs that led to his front door, so Agent DeStefano and I put Alvarez on the hood of his car where he was handcuffed. No other force was used on Alvarez,” the report stated.
"There's no mention of striking Gustavo," Salfen said. "There's no mention of slapping him in the head. THere's no mention of slamming him on the hood. There's no mention of any of those acts that amount to use of force, and that's dishonest and that's a lie."
“Who is going to trust that Sergeant and his group of officers who have engaged in this kind of behavior, and then don’t even have the courage to step up and write it down?” said Judge Cordell, the former San Jose Police Independent Auditor.
It's not the first time one of the officers involved in Alvarez's arrest was accused of dishonesty.
In 2017, San Jose police investigators found Agent Thomas Alan DeStefano, Jr. struck his neighbor’s parked car while possibly intoxicated and driving his personal vehicle. The police report stated DeStefano left the scene without leaving a note. DeStefano later denied his involvement when questioned by a San Jose police officer. Although a misdemeanor hit and run charge was later dismissed, DeStefano ended up pleading guilty to an infraction.
Cordell said she plans to file a formal complaint about Alvarez's with the city of Palo Alto.
“I’m calling upon the chief of the Palo Alto Police Department to stand up and address this issue,” Cordell said. “And let us know, particularly the folks living in the trailer park because they are Palo Alto residents, let them know that they are safe in this community. Because from what I saw, I don’t think that’s it at all."