San Jose city manager moves to fire cop involved in videotaped beating

By Sean Webby

swebby@mercurynews.com
Posted: 12/21/2010 05:15:39 PM PST
Updated: 12/21/2010 07:12:12 PM PST

San Jose police officers caught on video using baton, Taser gun on suspect

Rejecting a more lenient recommendation from the San Jose Police Department, City Manager Debra Figone is moving to fire a cop for using "unnecessary and unreasonable" force during a secretly videotaped 2009 arrest of a Vietnamese college student, the Mercury News has learned.

Acting Police Chief Chris Moore had initially recommended veteran Officer Kenneth Siegel be suspended for a month without pay for raining more than a dozen baton blows on Phuong Ho, an aspiring actuary studying at San Jose State.

But in a rare move, Figone's office sent an official notice this week that the city instead intends to take his badge away for good, multiple sources told the newspaper, for "failing to properly assess the situation'' and "using poor officer safety tactics.''

Figone has also decided to assess a harsher penalty for another officer involved in Ho's arrest. Moore had recommended a letter of reprimand for Officer Steven Payne Jr. for reasons including not having his baton that day. Figone increased that to a week-long suspension, sources said.

Both cops, who were not criminally charged earlier this year, are expected to ask for administrative appeals, and if that doesn't work, demand arbitration.

Neither Figone nor Moore would comment for this article citing the confidential nature of personnel disciplinary decisions.

Alex Gurza, the city's director of employee relations, also declined to discuss the decision,
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but said: "Discipline isn't only about punishment. A very important goal of discipline is to set a standard of public service.''

The city manager's decision comes at a critical juncture for the police department, when Figone is searching for a new chief to replace the retired Rob Davis and the popular Moore is considered a prime candidate for the job. Up to now, Figone has publicly defended the department against excessive force allegations: Just weeks ago, a committee she headed found no problems after examining a series of cases in which police used force as they arrested suspects for minor crimes.

"The city manager had no business overturning the chief's decision,'' said Terry Bowman, Siegel's attorney when asked for comment. "She substituted her layperson's judgement for the judgment of recognized experts and a police command staff that regularly evaluate police use of force cases. If you trust them to know what it is, you have to trust them to know what it's worth.''

Ho told the Mercury News that he did not want the officer to lose his job.

"We cannot fire all police officers that make mistakes,'' he said. "Instead we should be carefully reviewing the department's training system for
use of force.''

Ho, who is suing the city over the arrest, said he had recently met with the four officers that arrested him during a lawyer's conference. The student said: " When I look at their faces, it's over, no problems.''

But Richard Konda, executive director of the Asian Law Alliance, said he supported Figone's decision and disagreed with the level of discipline originally proposed by the chief.

"Maybe in their view it wasn't that serious,'' Konda said. "To me it was really serious from what we observed in that grainy video. The termination sends a message to the whole department that this kind of behavior will not and cannot be tolerated.''

In September of last year, police busted Ho after a report that he threatened a roommate with a knife. During the arrest Siegel repeatedly struck Ho with his metal baton and another officer Tased him. A roommate's smart phone video of the arrest showed the officer striking the unarmed student for no other obvious resistance than groping around for his eyeglasses, which had been knocked off.

Criminal charges against Ho were later dropped.

The murky, barely audible video, with Ho's yelps and the sharp sounds of the baton striking the student, was acquired and put online by the Mercury News. For some, it became an iconic visual symbol for a police department already under heavy fire with allegations of racial profiling and overaggressive policing of low-level crimes.

Figone recently told union president George Beattie that she had watched the video of Ho's arrest many times, union officials related, "agonized over it'' and that "this was her call.''

Union officials reportedly told Figone that some applicants for the city's open police chief's job had backed out "because it is well known that the police chief does not run the department,'' said union vice president Jim Unland. "The city manager runs the department.''

Unland called the city manager a "micro-manager'' who had made a faulty decision that would eventually be overturned through a civil service commission or an arbitrator.

"There is no question in my view that this decision was politically and media driven,'' Brown said. "As police officers and lawyers know, the San José police department has taken a pretty hard line in terms of disciplinary matters. They take officer conduct and misconduct seriously and deal with it vigorously. There is no free lunch over there."

This is the second controversial disciplinary case in recent weeks.

Two fired officers suspected of trying to cover up the drunk driving of a former officer were reinstated last month to their jobs by an arbitrator last month. Sgt. Will Manion and Patrick D'Arrigo had their terminations reduced to 11-month suspensions. Both are now back on the street.

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Imagrunt Comments:

I too have agonized over the videotape of this particular beating in my AO.

The vast majority of LEOs with whom I have dealt were not corrupt brutes, but make no mistake that there are a few in every department, even San Jose.

The blue-code of silence still exists.

The City Manager's decision will be appealed.


BUT


The video camera proved itself a great equalizer; a veritable Peacemaker.

And always remember folks.

An armed society is a polite society.

No wonder there is such a gap in the whole mentality of military vs law enforcement even though there is a lot of cross training and cross career paths which mesh with each other.

The really big difference being the unions that people get in law enforcement, and those sweetheart contracts. Military personnel get educated on UCMJ real quick, and figure out that the "individual" really has next to no rights under it. Of those few rights that you do have, if you assert them, automatically results in federal court level court martials which don't even have much of an appeals process. Get convicted by a "jury" of your superiors, get reduced in rank, tossed to the brig, ejected from service, that's that.

The lawyering industry out in these here parts is booming.

The unions and municipalities both have attorneys (who attend the bar together).

Ultimately, it boils down to politics, and in this instance, a loud and persistent public outcry.

Still, the video makes the case!