Note: The attached video recap of the incident aired prior to the lawsuit against the Palo Alto Police Department being settled.
Months before the police killing of George Floyd in Minneapolis ignited outrage and protests across the country, the FBI’s Civil Rights division began quietly investigating a 2018 incident in Palo Alto that led to claims of brutality, bias, and a potential cover-up against the city’s police department.
While the FBI’s investigation may encompass additional cases, or could be a review of the entire department, court records obtained by NBC Bay Area’s Investigative Unit show the FBI is, at a minimum, looking into the violent arrest of city resident Gustavo Alvarez, captured in its entirety by a security camera affixed to Alvarez’s mobile home.
In July of last year, NBC Bay Area’s Investigative Unit first aired the video of Alvarez’s arrest. In September, Alvarez’s San Jose attorney, Cody Salfen, filed a complaint about the Palo Alto Police Department with the FBI. By October, court records show the FBI’s Civil Rights Division, which investigates "color of law" violations involving police officers, among other federal crimes, had initiated its own investigation into the incident.
The home security video captures the entirety of Alvarez's arrest: Palo Alto police officers kicking in Alvarez’s front door, pulling him from his home, and striking him at least once before one officer, Sgt. Wayne Benitez, appears to lift Alvarez’s head, who is already handcuffed, and slam it into a car windshield.
Just after Alvarez’s arrest, Benitez’s body-worn microphone captures the veteran officer 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 officers’ actions may have never come to light were it not for Alvarez’s home security camera. The officers’ use of force is not mentioned in their police report, nor was there a use of force report filed after the incident as required by department policy.
The incident stemmed from a Palo Alto police officer’s belief that Alvarez, 39, was driving on a suspended license, according to the police report.
Alvarez has had run-ins for years with Palo Alto police and has a criminal history that includes convictions for driving under the influence, as well as convictions for burglary and grant theft.
On video, Alvarez is heard questioning whether the officer had actually witnessed him driving the vehicle he’d just emerged from. After the officer seems to admit that he had not, the video shows Alvarez retreat inside his residence and shut the door. Four more officers soon arrive and begin kicking in the door after Alvarez refuses to come out.
A judge later found that officers had no legal justification to detain Alvarez in the first place, and prosecutors soon dropped the four misdemeanor charges he faced.
Alvarez filed a civil rights lawsuit against the department in 2019, which was settled in November. Under the terms of the settlement, Alvarez was awarded $572,500 and every Palo Alto police officer was required to undergo mandatory “LGBTQ awareness” training. Benitez resigned from the department and was required to write Alvarez an apology letter as part of the settlement.
The Palo Alto Police Department did not respond to an email Friday asking how many officers have undergone the mandatory training.
The FBI Investigation
While the civil case has been settled, it appears the FBI is in the midst of its own probe into the Palo Alto Police Department.
In September of last year, Cody Salfen, the attorney who represented Alvarez in his lawsuit against the Palo Alto Police Department, contacted the FBI to lodge a formal complaint about the department’s conduct.
“It’s very clear there’s a double standard in terms of accountability for police officers,” Salfen said. “We have the most objective form of evidence in Gustavo Alvarez’s case, in terms of having video with clear audio, where Wayne Benitez is assaulting a handcuffed man. A man whose hands are handcuffed behind his back, completely restrained, slamming him into the hood of a car, and simultaneously yelling at him and thereafter making fun of him for being gay.”
Less than a month later, a Bay Area-based FBI agent faxed a request to the Santa Clara County Superior Court requesting the entire file from Alvarez’s criminal case.
“The FBI is requesting all court proceedings to include initial complaint and motions for criminal case B1896518 in the matter of The State of California vs Alvarez, Gustavo in support of an ongoing FBI investigation,” the agent’s request stated.
The agent who filed the request is assigned to the FBI’s Civil Rights division, NBC Bay Area confirmed.
The FBI does not publicly discuss ongoing cases and declined an interview request from NBC Bay Area, but a source said the FBI has taken additional steps in its investigation, such as interviewing the prosecutors who handled Alvarez’s criminal case.
Salfen said it stands to reason the FBI would investigate the incident.
"The FBI has always been at the forefront of investigating what they call 'color of law violations,' where law enforcement officers in the course and scope of their duties commit crimes, and specifically crimes where the officers have violated an individual’s constitutional rights," Salfen said.
It’s unclear if the FBI is focusing on the Alvarez incident alone, or if it’s a broader investigation into the entire department.
The Palo Alto Police Department has declined multiple interview requests to discuss the Alvarez case, the FBI investigation, as well as another incident last year where city resident Julio Arevalo accused a Palo Alto police officer of excessive force and civil rights violations when he was slammed to the ground during an arrest, which fractured his orbital bone. That officer, Agent Thomas Destefano Jr., was also one of the officers depicted in the video arresting Alvarez.
Destefano wrote in his report he witnessed Arevalo engaged in a hand-to-hand drug transaction, though video from a nearby donut shop does not appear to show such a transaction. Almost a year later, Arevalo has not been charged with a crime in connection to that incident. Salfen also represents Arevalo, who filed a civil rights claim against the department last year.
Attorneys for Benitez and Destefano did not respond to requests for comment Thursday.
The FBI, according to its website, is the primary federal agency for investigating federal civil rights violations, including "color of law" violations.
“It’s a federal crime for anyone acting under 'color of law' to willfully deprive or conspire to deprive a person of a right protected by the Constitution or U.S. law,” the FBI states on its website.
Among the various “color of law” violations investigated by the FBI are excessive force by a law enforcement officer and false arrest. The agency says it conducts hundreds of civil rights investigations each year.
Federal law enforcement officials also have the authority to investigate law enforcement agencies that “allow officers to engage in a pattern or practice of conduct that deprives person of rights protected by the Constitution or U.S. Laws,” according to the FBI’s website.
“The Police Misconduct Statute gives the Department of Justice authority to seek civil remedies in cases where law enforcement agencies have policies or practices that foster a pattern of misconduct by employees,” the website states.
NBC Bay Area will update this story as it learns more.