1 AMERICAN ARBITRATION ASSOCIATION CHAPTER 143, TEXAS LOCAL GOVERNMENT CODE THIRD PARTY HEARING EXAMINER PROCEEDING OFFICER JUAN GALINDO Grievant ) ) ) ) ( ( ( ( ) ( AAA NO. 01-16-0000-1520 ) ( and )( (Indefinite Suspension) m ) ( ) (Before Hon. Daniel Jennings ) ( Ti CITY OF SAN JUAN, TEXAS Employer es In the Matter of The Appeal Between re s s ARBITRATION HEARING BEFORE HON. DANIEL JENNINGS APRIL 26, 2016 ARBITRATION HEARING before HON. DANIEL JENNINGS, Ph.D., P.E., Examiner, taken in the above-styled and numbered cause on APRIL 26, 2016, og between the hours of 8:51 a.m. and 12:17 p.m., reported stenographically by MAUREEN STINGLEY, Certified Court Reporter No. 691, in and for the State of Texas, at the Pr San Juan Fire Station No. 2, Conference Room, 2301 North Raul Longoria Road, San Juan, Texas. Harlingen (956) BRYANT & STINGLEY, INC. 428-0755 McAllen (956) Electronically signed by maureen stlngley (001 -221-768·7849} 618-2366 291783f2-6048-49d6-Be22-3f825Bb9b7e2 4 2 G Applicable S[IJl Juan Police Department Rules and Regulation Manual ............. 8 APPEARANCES COUNSEL fOR CITY OF SAN JUAN, TEXAS: H Applicable Sun Juan Civil Service Commission Rules and Regulation Manual .. 8 REBECCA HAYWARD and ALAN OZUNA DENTON, NAVARRO, ROCHA, BERNAL, HYDE & ZECH, PC 70 I Enst Harrison, Suite I00 Harlingen, Texns 78550 UNION DOCUMENTARY EVIDENCE I One page from Tactical Team Close Quarter Countermeasures Instructor Manual .................................. 62 2 Tactical Team Close Quarter Countermeasures Instructor Manual .................................. 62 3 March 6, 2015 Memo from Police Chief Juan Gonzalez to Police Officer Ricardo Sanchez ................................. 64 4 December 15, 20 14 Discovery Review Board Action Form ............................. 67 es COUNSEL FOR GRIEVANT, JUAN GALINDO: ROBERT P. LEONARD, II CLEAT 1939 Northcnst Loop 410, Suite 210 San Antonio, Texns 78217 HEARING EXAMINER: Ti m DANIELJENNINGS, Ph.D. P.E. Department of Engineering Technology nnd Industrial Distribution 2049 Fermicr Hall 3367 TAMU College Station, Tcxns 77843-3367 5 s 3 INDEX re s PAGE Appearances ......... .... ....... ................. 2 Opening Statement by Ms. Hayward................ 8 Opening Statement by Mr, Leonard .. .............. 12 JUAN GONZALEZ Direct Examination by Ms. Hayward ............... 17 Cross-Examination by Mr. Leonard ................ 52 Redirect Examinntion by Ms. lla;ward ............. 71 Recross-Examination by Mr. Leonard .............. BS Redirect Examination by Ms. Ha;ward ............. 87 Recross· Examination by Mr. Leonard .............. 89 og JUAN PABLO GALINDO Direct Examination by Mr. Leonard ......... ...... 90 Cross-Exrunination by Mr. Ozuna .................. 109 JUAN GONZALEZ (Rcbunal) Direct Examination by Ms. Hayward ......... ...... 138 Cross-Examination by Mr. Leonard ..... ........... 140 Repor1c~s Certificate .......... .. .............. 145 CITY'S DOCUMENTARY EVIDENCE Pr PAGE NUMB ER DESCRIPTION A Notice of Indefinite Suspension ......... 8 B Notice of Complaint and Administrotive Orders .................................. 8 C Notice of Appeal .............. ......... , 8 D Monroy Body Cam Video ................... 8 E Monroy Dash Cam Video ........ ........ .. 8 F !A File ........................... ...... 8 Fl lA Audio and Video ...................... 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROFESSOR JENNINGS: Okay. Today is April 26th, [IJld we're in a place called San Juan, TeXllS, and this is a matter- it's a discharge case that's involving the City of San Juan and the officer that has been charged. And so then we'll begin the hearing. And let me say, as we begin the hearing, that the question that I need to put to each party is that is this matter properly before the arbitrator? Yes, ma'am? MS. HAYWARD: Rebecca Hayward for the City of San Juan. And with me is Alan Ozuna, Chief Gonzalez, and yes. PROFESSOR JENNINGS: Okay. Mr. Leonard, is this matter properly before the arbitrator? MR. LEONARD: Yes, sir, it is. PROFESSOR JENNINGS: Very·good. What I would like to do now is to swear the witnesses, and so if the witnesses will stand and raise your hand, I will swear you. (Witnesses sworn) PROFESSOR JENNINGS: If there are other witnesses that appear and I forget to swear them, I would ask that the parties remind me to do that, that we would swear them. What I would like to do, then, is to •• 2 (Pages 2 to 5) BRYANT & STINGLEY, INC. Harlingen ( 9 56) 428-0755 Electronically signed by maureen stlngley (001-221 -768-7849) McAllen (956) 618-2366 291783f2-6048-49d6-8e22-3f8258b9b7e2 6 es 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 exhibits that we're introducing? MR. LEONARD: No, I don't have objections to the entire binder. This is essentially the internal affairs investigation. PROFESSOR JENNINGS: Okay. Let the record show that the joint exhibits that were submitted by the parties have been accepted. Okay. MS. HAYWARD: Just a brief opening to give a bird's eye view, really, of the case. We're here today on the appeal of an indefinite suspension of Juan Galindo. It arises out of an incident in which it was observed through a body cam video of another officer that Galindo struck an arrestee who was handcuffed from behind. He was being escorted to a unit by two other officers, one on the left and one on the right of him. He wnsn:t resisting, and he wasn't armed, and Officer Galindo, you'll see in the video, comes up to him from the front, puts his right arm over his left shoulder and strikes him in the upper inner thigh groin area. Our primary witness is going to basically be the chief of police. Like I just said, the entire incident is on a body cam video. We'll be showing two videos. One is the dash cam video that will show the incident lending up to the strike, and then the actual m 11 1 2 3 4 5 6 7 8 Ti 4 5 6 7 8 9 10 what I need to get us to do is-- this is a discharge case, and what I would like to do is to frnme the issue, not to go into making your opening statement, but just to frame the issue. And so we'll go with the city first. And would you frame the issue, please? MS. HAYWARD: Yes. This is an indefinite suspension case. As you just said, it arises out of an incident in which fonner Officer Galindo struck an arrestee who was handcuffed. That was all captured on a body cam video, and the chief will walk you through all that. And the chief will also explain his reasoning for the indefinite. PROFESSOR JENNINGS: Okay. Mr. Leonard, we'll let you frame the issue, sir. MR. LEONARD: Yes, sir. We believe that the decision to terminate Investigator Galindo from his position with the San Juan Police Department was excessive discipline, given the facts and circumstances surrounding this case. We believe that it's not in keeping with the past practices of the San Juan Police Department. We believe that Officer Galindo, while he may be deserving of some discipline, termination is grossly excessive, and we're asking the arbitrator to reinstate him to his position as an investigator with s 1 2 3 8 9 7 5 6 7 og 8 9 10 11 12 the San Juan Police Department. PROFESSOR JENNINGS: Thank you, Mr. Leonard. Now we'll move to the opening statements. And what we'll do is -- this is a matter of discharge and discipline, and so the city is the moving party. So I would let you make your opening statement. Now, when the city finishes their opening statement, Mr. Leonard, you can follow with your opening statement, or you can wait until it's your time to present. So you can be thinking about that. MR. LEONARD: Yes, sir. PROFESSOR JENNINGS: So if you would make your opening statement. MS. HAYWARD: Sure. Prior to the opening, do we want to talk about the exhibits? MR. LEONARD: I think we have some joint exhibits, sir, that we'll put into the record. PROFESSOR JENNINGS: Okay. MS. HAYWARD: They are right here in front of you. That's your binder. 1l10se are the city's exhibits. PROFESSOR JENNINGS: Now, these are joint exhibits? MS. HAYWARD: Yes. At least Tab F is a joint exhibit, but you don't have any objection to the re s 1 2 3 4 13 Pr 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 body cam video that will show the strike. And, again, the chief will walk through that for you. What the evidence will show is that basically the call was initially with another officer, Officer Elias Lopez, responding to a runaway incident. He makes contact with that runaway. He makes contact with that runaway's boyfriend, which is Victor Aguirre, and fl scuffie ensues, a physical altercation. Because of that scuffle, Officer Lopez sends a distress call, Code I0-18, he needs backup. Basically what that means is that all officers that are available will come and respond to assist Officer Lopez. Officer Galindo is one of those officers that responds. Another officer is Office Monroy, Officer Hernandez, and Investigator Hernandez. We'll see all of that pl!ly out in the video. Now, officer Monroy is the one who has the body cam. You again will see that in the video, and what we'll see is Officer Monroy's body cam showing the actions that Officer Galindo took. So basically it's the city's position that the relevant facts aren't contested, So the chief will walk you through that. You'll will see all through the video, and the chief will basically explain his reasoning for an indefinite suspension. 3 (Pages 6 to 9) BRYANT & STINGLEY, INC. Harlingen (956) 428-0755 Electron ically signed by maureen stlngley (001·221-768-7849) McAllen (956) 618-2366 2917B3f2·6048-49d6-8e22-3f825Bb9b7e2 10 24 25 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROFESSOR JENNINGS: Mr. Leonard, would you like to make your opening statement now? MR. LEONARD: Yes, sir,l'll make it now. PROFESSOR JENNINGS: Yes, sir. MR. LEONARD: The incident of December 14, 2015 was captured on video, but what wasn't captured on video was the mindsct., the thinking of Investigator Juan Galindo when he decided to issue what was basically a tactical compliance strike on a subject who was confronting him, arguing with him about that he didn't need to be arrested. Investigator Juan Galindo had been a police officer investigator for the San Juan Police Department for nearly seven years at the time of this event. For all accounts and purposes, he was a good officer, zero discipline, and like any good officer who makes a lot of arrests, there were complaints filed against him, but those complaints did not result in any discipline. They were unfounded. He was, as I said, an investigator. He was a SWAT team leader. He has been to many instructor schools and provided training to members of the San Juan Police Department. On the night in question, he was processing an arrest at the station house when he heard an officer issue a distress call over the radio. He es 1 2 m 11 12 13 14 15 16 17 18 19 20 21 22 23 One of the things you'll also learn here today is that a few days atler this incideni, the video vvas released to the media. It wasn't released with the approval of the department, and the chief will explain that he's currently investigating that. The chief will also explain how that release to the public did make an impact on his decision to discipline Officer Galindo. Now, the binder that we have in front of you -- that you have in front of you is basically there to help facilitate us to move through the process here. And what you'll see in Tab A is the charging instrument. PROFESSOR JENNINGS: Okay. MS. HAYWARD: And it lays out the facts in the beginning, and then of course the rule violations that the chief will walk through. Tab B is the notices that arc required under Chapter 143 and 6!4, the administrative notices that Galindo got. And then Tab C is the notice of appeal, showing that it's timely. And we have no problem with that. Tab D is the body cam video of Officer Monroy, which we'll play for you. Tab E is the dash cam video of Officer Monroy that we'll also play for you. And tab F is essentially the !A investigation. Ti 1 2 3 4 5 6 7 8 9 10 12 og 11 And then you'll see included in Tab F is Tab Fl, which is all the other IA logs and other dash cam videos. The Garrity statements that were taken that are recorded are all included in there. We don't plan on playing those, but they're in there for the sake of completeness and for your availability. And Tab G and H are the applicable rule violations there. Now, even though this case is an indefinite suspension and is pretty serious, it's not necessarily complex, in that everything is documented on the body cam video. And basically the chief will explain the role that the body cam had in terms of its effect on the community. He'll explain that he reviewed the entire lA investigation, he reviewed the statements that were taken from the other officers at the scene, he took into consideration the statement that was taken by Officer Galindo, and, n light of that, we went with an indefinite suspension there. And so it's our position that due to the documentary evidence that is not necessarily contested in this case, you'll see at the end of this case that the chiers decision for an indefinite suspension is not arbitrary or capricious, and is completely reasonable in this case. And that's my statement. re s 1 2 3 4 5 6 7 8 9 10 s 11 Pr 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 rushed to the scene to find several officers already present. The video will show that as he pulls up, a subject that he has no knowledge of-- he doesn't know this person. He doesn't know why this person is in handcuffs. He just knows that there's two officers escorting this person to his vehicle. When he steps out of the vehicle, you'll hear testimony that there was a lot going on around the scene, that the incident was not contained, that there was still a disturbance, a fight ongoing with other actors in the front yard of the home where this incident took place. When Officer Galindo steps off his vehicle, he's confronted by the subject, who steps up into his face and basically wants to argue with him about why he didn't need to be arrested or deserve to be arrested. In a split second, Investigator Galindo made the decision that he needed to put this subject into his vehicle as quickly as possible because behind him he could hear what he believed to be a fight ongoing, and believed that other officers were involved in that fight. So he instantly steps down, is confronted by the subject. He makes the decision to issue a tactical compliance strike to the inner thigh of this individual in order to get him to be compliant and easily movable. He puts his hand on the subject's 4 (Pages 10 to 13) BRYANT & STINGLEY, INC. Harlingen (956) 428-0755 Electronically signed by maureen stlngley (001-221-768-7849) McAllen (956) 618-2366 291783f2·6048-49d6-Be22-3f8258b9b7e2 14 burden off the chief to have to answer questions regarding this matter. It is our position that the tennination was grossly excessive. We nrc asking the arbitrator to reinstate Investigator Galindo to his position as an investigator with the Sun Juan Police Department with full backpay and benefits. And if the arbitrator decides that some discipline was warranted, we are requesting that a more reasonable and appropriate discipline be issued in lieu of the tennination. PROFESSOR JENNINGS: Okay, sir. Thank you. I realize that this is an open hearing meeting. Now, do the parties •• will you bring in other witnesses other than the people that are in this room, and if you do, do you want to invoke the rule for those witnesses that testify? MS. HAYWARD: The city doesn't have any other witnesses, save for perhaps some rebuttal testimony, if needed. But most likely when the chief is done, we'll rest. PROFESSOR JENNINGS: Okay. MR. LEONARD: And we're only putting on Investigator Galindo. PROFESSOR JENNINGS: Okay. So then we won't invoke the rule? es 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 m shoulder to hold the subject up because he knows that once he issues this strike, the effect is to basically jcllify the subject's legs. It has a reaction where it causes a loss of motor control over the legs, and the individual basically can't stand and resist. The subject was then placed inside the vehicle. The subject was then detained inside the vehicle, allowing Investigator Galindo and other officers to now tum their attention to the tight that was ongoing in the front yard. It turns out that when Officer Galindo finally gets to sec who's involved in the fight, he sees an officer rolling on the ground with another subject, who was also later taken into custody. There will be evidence that the strike that was issued to the subject was a strike that was taught in a course that was put on by the San Juan Police Department. It was a course that the evidence will show the chief himself attended. The strike was meant to incapacitate momentarily. There are no long-term damaging effects of the strike, and as you will see in video evidence, the individual had no long-tenn or lasting effects. It was un instantaneous incapacitation, and he recovered fully. There's a video that we will show later in the evening that shows the subject walking around freely, Ti 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 re s pain free, with no issues. He never requires medical attention. He never received any injuries. As a matter of fact, we will show that this person never even filed an official complaint against Investigator Galindo. It us our position that the chief of police, reacting or overreacting to the media stonn that ensued following this, made a decision, a very rash decision, to tenninutc the employment of Investigator Galindo because somebody in his department took it upon themselves to leak the video to the media, and we believe that that leak was motivated by political concerns by a rival union and their leadership. It's our position that the decision to tenninate Investigator Galindo's employment with the San Juan Police Department was premature. It was grossly excessive, given the lack of a discipline history for Officer·· Investigator Galindo. It's not in keeping within the past practice of the San Juan Police Department. It was basically the chief kowtowing to political pressure and the media stonn that he was facing. The easiest, most exponential, quick way out for the chief was to was just to tell everybody "I fired him and he's gone." So it took the og 11 s 15 1 2 3 4 5 6 7 8 9 10 Pr 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 MR. LEONARD: No, sir, not at this time. PROFESSOR JENNINGS: Okay. Then we'll let the city proceed with their case. MS. HAYWARD: The city will call Chief of Police Juan Gonzalez. Since we'll be viewing the video, do you mind if he stays right here? PROFESSOR JENNINGS: I guess not. That's always the sanctity of the witness chair. I'm going to let the chief kind of sit there and slide his chair over. MS. HAYWARD: That's fine. PROFESSOR JENNINGS: That's one of the things they tell you in arbitrator school, is you're not supposed to ignore the hot seat. MS. HAYWARD: I'm going to go nhead and tum o!T some of the lights. JUAN GONZALEZ, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MS. HAYWARD: Q. Good morning, Chief. A. Good morning. Q. Before we play the video, can you please state your name for the record and your position with the city? 5 (Pages 14 to 17) BRYANT & STINGLEY, INC. Harlingen (956) 428-0755 Electronically signed by maureen stfngley (001-221 -768-7849) McAllen (956) 618-2366 291783f2·604B-49d6-8e22-3f8256b9b7e2 18 and one of the certifications or the teachings U1at I would do was defensive tactics, as well. Q. Can you explain what PPCT means for the hearing examiner? A. Yes. PPCT means pressure point control tactics, techniques and so forth that you utilize in different circumstances, depending on the situation of the arrest, the search or the transport of prisoners that come into custody. Q. So you're familiar with the pressure point control tactics? A. Yes, that's correct. Q. And you were an instructor in that as well? A. Yes. Q. And how long has the City of San Juan used body cameras? A. I would say back - not exactly the time we implemented it, but I want to say 20 !3 . Before I came on board in 2009, they had a version of a body camera, but we implemented it for the whole department l think in about 20 13 or so. Q. And why did you --so they were implemented before you came on board? A. They had a version of it, and we brought in a different vendor and a different type of camera and so 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 tort h. Before I came on board, they had a version of a body camera. Q. And then when you carne on board, you got a different version? A. Yes, that's correct. Q. And why did you decide to implement body cameras? A. Multiple reasons. One of the reasons was also to make sure that the officers write better reports, also for them to recall some of the events that-- when they're writing their reports, to make sure they go back and review the body camera, see what they dismissed. Also to enhance our investigations, as well, and to also address some community concerns that our officers that are out there are doing the right thing on the road, and also to make sure that we use them to correct any issues or any actions that the officers do on the road that is captured through the body camera. Q. And has the use of the body cameras had a positive impact on the department? A. Yes, it has. Overall, I believe that the body cameras improve our community relations, improve the quality of the work performed by the officers, but also individual officers are able and capable to review the es 1 1 2 3 m A. Yes. Juan Gonzalez, police chief of the City of San Juan. Q. And how long have you been with the City of San Juan? A. A little bit over seven years. Q. And prior to being the chief of police, had you-- your entire time with the City of San Juan, have you been the chief of police? A. Yes. Q. And prior to being with the City of San Juan, where did you work? A. 20 years in the City of Pharr. Q. And what did you do in the City of Pharr? A. I was a lieutenant there, retired as a lieutenant, also in charge of training. Q. And you said you were in charge of training. What did that entail? A. It entails preparing curriculum for the officers, mandatory training that is required by law every three years, and other additional duties that were given to me by the chief of police. Q. And as part of your job as a training officer in the City of Pharr, did you ever train officers on PPCT training? A. Yes. I had multiple instructor certifications, Ti 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 3 4 5 6 7 8 9 10 og 11 re s 2 s 19 Pr 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 body cameras to make sure they write more efficient and better reports. Q. Are all officers in the San Juan Police Department assigned body cameras? A. Yes. At first we bought-- I believe we purchased about20, and then later on- you know, we've been implementing them gradually towards everybody. So everybody in the department is assigned -- now is assigned a body camera. Q. Okay. And what's the typical process for an officer coming off duty? How does that body camera video get uploaded into the city's server? A. We do have software that the officers proceed to download their cameras in the software. Typically a computer -- they install the body camera in it, they attach it to it, and then they proceed to download the video. And then the video that is particular to a case then gets assigned to a particular case or investigator. Q. Okay. A. Not all videos get downloaded unless there's an arrest or something that's significant to that case. Q. And in this case, Officer Monroy's dash can1 video that we're about to sec, what happened when Officer Monroy got back to the police department? 6 (Pages 18 to 21) BRYANT & STINGLEY, INC. Harlingen {956) 428-0755 Electronically signed by maureen stlngley {001-221·76!1·7849) McAllen {956) 618-2366 2917B3f2·6048-49d6-Be22-3f8258b9b7e2 22 15 16 17 18 19 20 21 22 23 24 25 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 respo nding to? A. It was a runaway call. Q. And typically how would you characterize a runaway call? A. Not an aggressive type of cal l. A typical call. The officer will go out there and try to locate the runaways that a have been reported and make contact with the parents and so forth, to sec what other steps we need to take, maybe see where the runaways arc at, and just use minimal resources that we have available. Q. For just a typical runaway call, would an oflicer nonnally need backup? A. No, not necessarily. Q. And so when Officer Lopez gets invo lved in the scumc with the boyfriend and he calls for backup, docs that tum into u di!Tercnt type of call? A. Yes, that turns into a distress call, officer in distress, oflicer needs assistance, and all the available officers should respond to back up that officer. Q. Okay. So let's go ahead and play the dash cam video. (Video being played) Q. Who is that officer? A. I believe that's Officer Monroy. es 13 14 1 2 3 4 5 m 4 5 6 7 8 9 10 11 12 A. I beli eve that he was down loading the video, and there were some technical issues, and he asked the supervisor to help him down load, and that's when they started reviewing the video. Q. Okay. And that supervisor-- who was that? A. That's Sergeant Rolando Garcia. Q. Okay. And was it Sergeant Garcia who brought the incident, I guess, to your attention? A. The following morning, yes. Q. All right, Chief. So you're familiar with the incident that occurred December 14, 2015 with Officer Lopez requesting backup? A. That's correct. Q. Okay. Let's go ahead and tum to Tab-- well, you fou nd out -- let me back up real quick. You found out about this incident the next morning, December 15th? A. Yes. Q. And how did you find out about that? Verbally or-A. Actually, I do believe that Officer Galindo and some other officers did advise me of the incident, that they had a serious incident the night before and there was a resisting arrest, and the officer was asking for backup and so forth. So I asked to review the video, Ti 1 2 3 24 8 Pr og 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and that's when -the video was handed to me by Sergeant Garcia. Q. When you saw the video, what did you do next? A. Then I proceeded to -- I can't recall exactly what my next step was, but I proceeded to contact my sta!T, and we immediately, you know, proceeded to start an investigation or an inquiry into what happened. Q. Can you turn to Tab B? PROFESSOR JENNINGS: Which tab? MS. 1-!A YWARD: Tab B. THE WITNESS: You said B, right? MS. HAYWARD: Yes. Q. And what are we looking at here in Tab B? A. These arc your standard internal affairs documents that we serve the officers when we're about to do an inquiry or investigation on possible misconduct. Q. Is this what you were just referring to in terms of opening an lA investigation? A. That's correct. Q. All right. Before we begin the .video, at what time did this call occur? A. I believe it occurred at-- the start of the call was about 6:18 in the afternoon. Q. And what kind of call was Officer Elias Lopez re s 6 7 s 23 1 2 3 4 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 Q. Who's running at the moment? A. I want to say-- I think it's Officer Hernandez. Q. Okay. And do you know why he's running to his unit? A. More than likely there's a call that came in, an officer in distress. Q. Okay. Go ahead and play it. (Video playing) Q. Who did we just see run by? A. Officer Monroy. Q. And whose dash cam video is this? A. It's Officer Monroy's. MS. HAYWARD: Go ahead and play it. (Video playing) MS. HAYWARD: Alan, pause it right there. Q. What are we witnessing off to the side there? A. You're witnessing the arrest of a subject that is resisting arrest. You've got some officers there that responded also. I do believe that there were some officers from another agency that were present as well. Q. Okay. And arc there civilians there? A. I believe there's a civilian. Q. And do you know what he was doing? A. He was also assisting the officers. 7 (Pages 22 to 25) BRYANT & STINGLEY, INC . Harlingen (956) 428-0755 Electronically signed by maureen stlngley (001·221-768·7849) McAllen (956) 618-2366 291783f2-6048-49d6-8e22·3f825Bb9b7e2 26 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 4 5 6 7 8 9 10 11 12 13 14 15 16 MS. HAYWARD: Pause it real quick. Q. If you can see otfto the left, there's another officer. Is that a San Juan police officer? A. Yes, that's the primary officer on the scene that requested the backup that went over the radio and made that distress call saying that he wanted some backup. Q. And what is he doing right now? A. l-Ie picked up something from the ground, but he's going back and finishing up his interview or making contact with the other occupants of the house. And that's just standard protocol. When something like this happens, they go back and make sure that they get all of the information that's necessary for them to complete their report. Q. Okay. MS. HAYWARD: Go ahead and play it, Alan. (Video playing) MS. HAYWARD: Pause it. Q. What did you just hear there? A. You can hear the arrestee, it sounds like the arrestee, some sort of yelling and screan1ing. Q. Okay. And later we find out that it was -· what had occurred? A. Later we found out that he was struck by es 5 6 7 8 1 2 m 4 MS. 1-IA YWARD: Go ahead and play it, Alan. (Video playing) MS. HAYWARD: Pause it. Q. And what are we observing there? Can you identify the officers that are on the camera right now? A. Yes. I believe that's Officer Salvador Hernandez and Officer Mario Hernandez. Q. And the guy that they're escorting, who is that? A. That's the arrestee. MS. HAYWARD: Go ahead and play it now. (Video playing) Q. What are they doing here? A. At this point they're doing a quick put-down search before they put him inside the unit for him to be transported to the police department. Q. And how would you characterize the demeanor of the arrestee, which is later identified as Victor Aguirre? A. Obviously it seems to show that he's already handcuffed. The subject is being transported, escorted by two officers to the buck of one of the units so they can be able to place him in the back seat of the unit and he can get transported. Q. Would you consider him resisting at this point? 17 18 19 20 21 22 23 24 Ti 1 2 3 28 25 29 2 3 4 og 5 6 7 8 9 10 11 12 A. Not at this point. I don't see anything that he's resisting the transport. He's being escorted to the unit, and at this point! don't see him resisting at all. MS. HAYWARD: Go ahead and play it, Alan. (Video playing) Q. So they just walked away. Why did they walk away from that unit? A. They had already found out that Officer Mario Hernandez' unit did not have a cage, and I believe he had his weapon, a rifle or shotgun, in the backseat. When he responded, he had it there. So that's why they decided not to place him in the backseat of that unit, and they had called for another unit. Q. Okay. And again, what you just observed there, how would you characterize the arrestee, Mr. Aguirre's demeanor at this point? A. Nonaggressive. I do not see that he's pulling away, pushing, kicking, none of that. Q. Okay. MS. HAYWARD: Go ahead and play it. (Video playing) MS. HAYWARD: Can you go back a little bit, just a few seconds? (Video playing) re s 1 s 27 13 14 15 16 17 Pr 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Officer Galindo in the groin area. MS. HAYWARD: Go ahead and play it, Alan. (Video playing) Q. And all these officers running to the side, what are they responding to? A. They're responding to the other officer, the primary officer, who's still with a female, I believe, having difficulty with the female as well. So they're responding to assist that officer. Q. Okay. MS. HAYWARD: Go ahead and pause it, Alan. Bob, I know there's a lot more video left, but that's all I was really going to play here. I think the rest shows the transport of both the female and the male. We can continue to play it if you would like. If not, I'll just move on to the next camera MR. LEONARD: Can we just play it for just a few more minutes? MS. HAYWARD: Sure. (Video playing) MS. HAYWARD: Can we pause it here, Alan? Q. So what are we seeing here? A. You're seeing the female, that she is aggressively trying to pull away from the oft1cers while they're trying to escort the ft:male to another 8 (Pages 26 to 29) BRYANT & STINGLEY, INC. Harlingen (956) 428-0755 Electronically signed by maureen stlngley (001-221-768-7849) McAllen (956) 618-2366 291783f2-604B-49d6-8e22·3f825Bb9b7e2 32 30 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 7 8 9 10 11 12 13 14 15 A. I did not see that. PROFESSOR JENNINGS: Could we replay that tape again? MS. HAYWARD: Sure. (Video playing) MS. HAYWARD: Pause it. Q. How would you describe Aguirre's demeanor right here? A. Non aggressive, nonresistant. He's handcuffed, his hands behind his back. I do not sec anything, that he made any gestures or movement to assault any of the officers or do anything there that I could sec on the video that it was an intent to hann one of the officers. Q. And just for U1e record, who is that officer there off to the lefi? A. That's Officer Galindo. Q. And then I don't know if we can back up just a little bit to see Officer Hernandez. (Video playing) Q. Okay. I don't know if you could tell, but who's the officer there offto the right? A. That's Officer Hernandez. Q. And can you tell what he's doing at this moment? es 6 7 1 2 3 4 5 m 3 4 5 unit so that she can be transported. Q. Do you know if any of the officers struck her? A. No. MS. HAYWARD: Go ahead and play it. (Video playing) MS. HAYWARD: Bob, you tell me where you want to stop. MR. LEONARD: We're good right there. Q. Let's go ahead and play the other video. (Video playing) Q. Okay, whose body cam is this? A. I believe it's Officer Monroy's body cam. Q. Okay. (Video playing) Q. Is this the video that was also leaked to the media? A. l11at's correct. MS. HAYWARD: Pause it. Q. Okay. What did we just observe there? A. l11is is the actual officer arriving there backing up other officers, and three or four oflicers arc trying to subdue him. Eventually they handcuffed him and then they picked him up from the ground, and now he's being transported to the first unit that we saw in the other video. 16 17 18 19 20 21 Ti 1 2 22 23 24 25 33 5 6 7 og 8 9 10 11 12 13 14 MS. HAYWARD: Go ahead and play it. (Video playing) Q. Whose unit is coming up there? A. That's Officer Galindo's unit. Q. And are you able to see Victor Aguirre, the arrestee's demeanor through this video as well? A. Yes. Q. How would you characterize his behavior here? A. He is not resisting, aggressively resisting, pulling away, kicking, shouting at anybody. He's being escorted by one of the officers to that second unit. MS. HAYWARD: Go ahead and play it. (Video playing) MS. HAYWARD: Pause it, Alan. Q. I don't know if we need to play it back, but could you hear what was being said there? A. No. Q. Could you tell ifit was English or Spanish? A. It was Spanish. Q. But you couldn't understand what they were saying? A. That's correct. Q. So you wouldn't be able to determine whether Aguirre, the arrestee, was verbally antagonizing Galindo or not? re s 1 2 3 4 s 31 15 16 17 Pr 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes, he's about to do a pat-down search on the suspect. Q. And does that indicate anything to you in terms of the status of the·· A. Yes, that it was safe to do so, a pat-down search. Q. So at this point in time, again, how would you characterize Aguirre's demeanor? A. Nonaggressive. I did not see anything. Q. Would you do a pat-down on somebody who was actively resisting? A. No. Q. Okay. MS. HAYWARD: All right, go ahead. (Video playing) Q. What did we just observe there? A. You observed the prisoner·· the arrestee being taken to the second unit, about to be transported. You see one officer, Salvador Hernandez, doing a pat-down on the subject, standard protocol before we get inside the unit. And you see Officer Galindo place his right hand over the arrestee's shoulder, and then you see the strike in the groin area, a knee strike in the groin area. Q. And are you familiar with this technique, that 9 (Pages 30 to 33) BRYANT & STINGLEY, INC. Harlingen (956) 428-0755 Electronically signed by maureen stlngley (001 -2 21 -768-7849) McAllen (956) 618-2366 2917 8 3f2-604B-4 9d 6-8e22-3f8258b9b7 e2 34 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Hernandez, needed assistance? A. Well, they needed assistance to get him to the second unit. That's why the second unit was made available to them. Q. Okay. But did Officer Hernandez and Monroy have control over the subject at that time? A. I do believe they had control over the subject. Q. Now, in the dash earn video that we observed, we saw some commotion otT to the side, and it appears that that became the primary focus. What would you have preferred to have seen instead of what we just saw from Officer Galindo? A. As to his different actions toward,s the actual scene itself, one of the things, on(! of the options could have been the fact that when he got ofT the unit, if he believed that there was an actual other distress situation going on behind him, directly go to that distress situation, incident, and allow the officers to place the arrestee behind the unit, you know, in the backseat ofthc unit, and he himself attend to the other distress situation that was happening, you know, in front of him at a different angle. Q. So you're saying that Galindo didn't even need to stop in front of them at all? A. Well, he stopped because he saw the prisoner es 7 1 2 3 m 3 4 5 6 kind of strike? A. Sure. Q. Is that an actual technique that the police use? A. The target area-- there is a target area, yes, but it has to be in appropriate circumstances, an individual that's aggressively resisting, aggressively lighting the officers. And the whole purpose to strike in that area is to control an individual, subdue him and take him into custody, that's not handcuffed. Q. Okay. Arc there any instances where this strike would be warranted for someone who is handcuffed? A. Excuse me? Q. Would there be any instances where this type of strike would be warranted for someone who is handcuffed? A. Every instance and circumstance is different, but I believe that if the individual was attempting to head butt the officer, was attempting to strike the officer, was attempting to kick the officer, was attempting to harm the officer, any intent like that, then the officers are trained to take the appropriate action and stop that action fi·om the suspect. Q. And this technique, is this what you were 18 19 20 21 22 Ti 2 36 23 24 25 s 1 37 35 7 B 9 10 og 11 addressing earlier, the pressure point control tactic? A. That's correct. Q. And is that something that Officer Galindo is trained in? A. Yes, that's correct. Q. And is he also an instructor in this as well? A. Yes. Q. And what we just observed here, is that something that you would, as a trainer yourself, teach in this pressure point control tactics? A. No. Q. And why not? A. Because pressure point control tactics are for extreme circumstances, situations in which the individual is not under control. They're still fighting. Either they're resisting arrest, they're resisting a search, or they're resisting transport. Once the individual is handcuffed, and in this case you have multiple officers there, one on each side holding the prisoner. It doesn't seem that the prisoner was being aggressive towards any of those three officers there. I didn't sec any intent of the prisoner trying to harm the officers in any \Vay, shape or form, based on his physical actions towards them. Q. Did it appear that the two officers, Monroy and re s 1 2 3 4 5 6 12 13 14 15 16 17 Pr 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 being taken to his unit, but I don't think that there was a need for him to apply any type of tactical technique, because the officers there had the individual under control and they were about to place him in the backseat of the unit. Q. Okay. MS. HAYWARD: All right, go ahead and finish playing it. (Video playing) MS. HAYWARD: Pause it. Q. Is there a difference between her behavior and Aguirre's behavior? A. Yes. She is actively still continuing to resist. Even though she's handcuffed, she's still trying to get away from the officers. Q. So would you say her behavior is \vorse or not as bad as Aguirre? A. Her behavior is worse, yes. Q. Worse, okay. MS. HAYWARD: Go ahead and play it. (Video playing) MS. HAYWARD: Go ahead and pause it there. Q. Again, how would you characterizes her- was she resisting transport or was she resisting arrest, or all of the above? 10 (Pages 34 to 37} BRYANT & STINGLEY, INC . Harlingen (956) 428-0755 Electronically signed by maureen stlngiey (001-221 -768-7849) McAllen (956) 618-2366 291783f2-6048-49d6-Be22-3f8258b9b7e2 38 3 4 m 5 6 7 8 9 10 11 12 13 14 15 16 Q. And what in particular stayed with you in tem1s of when you ultimately made your decision? A. The entire circumstances showed to me that there was no immediate necessary reason for the officer to take the action that he took. Q. Did you review Officer Hernandez' statement? A. Yes, I did. Q. What did you take from that in tenns of making your decision? A. If Officer Hernandez was making a pat-down search on the individual and he believed it was safe to do so, then I took that into consideration, the fact that the individual was not being aggressive towards them or there was no intent or indication that he was going to harm any ofthe officers. Q. And was a statement taken from Officer Monroy? A. That's correct. Q. And what did you take from his statement? A. I found the same conclusion on that as well. Q. Okay. Let's go to TabS, page 50. A. Okay. Q. And what is that? A. This is Officer Juan Galindo's statement. Q. Okay. Then can you read from line 16, where it says "As I exited"? es 1 2 17 18 19 20 21 22 23 24 25 Ti A. She was resisting the escort itself to the vehicle to be transported. Q. Again, is that different from Aguirre's behavior? A. That's correct. Q. And do you know if she was struck in any way? A. No. MS. HAYWARD: I don't have any more to play on the video, Bob. If you want to continue to play it, it's not that long. MR. LEONARD: No, no. No, we're good. MS. HAYWARD: Okay. Then I can tum on the lights again. Q. All right, so earlier you testified that after the incident you became aware of the incident from Sergeant Garcia and perhaps some other individuals as well. A. I did, yes. Q. You did. A. Yes. Q. And after you became aware of this incident, what did you do next? A. I contacted my stuff, my captain and my internal affairs officer, so we could proceed with an inquil)' into it to see if there was any possible 40 s 1 2 3 4 5 6 7 B 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 41 39 2 3 4 5 og 6 7 8 9 10 11 12 13 misconduct of the officer. Q. And then it was assigned to internal affairs? A. That's correct. Q. And who is your internal affairs investigator? A. Jose Padilla. Q. And let's flip to Tab F. And can you explain to the hearing examiner what basically Tab F is? A. F. That's the offense/incident report that Officer Eli Lopez wrote in reference to this incident, and the additional supplemental reports are the additional officers that responded to the location and what they observed and actions that they took in this incident. Q. And basically the Tab F as a whole, and including Fl, that's the entire IA •• A. That's correct, that's correct. Q. -- investigation? A. Yes. Q. And were statements taken from officers that were on the scene? A. Yes, statements were taken from all the officers on the scene. Q. And did you take a look at those after the lA investigation was conducted? A. Yes, I did. re s 1 Pr 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1B 19 20 21 22 23 24 25 A. Okay. Q. Just go ahead and read it out loud, and I'll tell you when to stop. A. "As I exited my unit, the subject is being walked by the officers, and he is not walking of his own free will." Q. Did you observe that on the video? A. No, he was walking. Q. So it's not consistent with what was on the video? A. That's correct. Q. Go ahead and continue. A. "I did not see the handcuffs on the subject until he got closer. When I saw the officers walking towards my direction, it appeared they needed my help. As the officers proceeded to get the individual close to my unit, he said 'Ke onda,' and I believe I replied" -· Q. Just for the sake of the hearing examiner, can you translate what that means from Spanish to English? A. It can mean different things, but the way that I see that is, "Hey, what's up?" Or you could say, "What's up?" Q. Okay. Go ahead. A. "I had already seen that there was more people 11 (Pages 38 to 41) BRYANT & STINGLEY, INC. Harlingen ( 956) 4 28-07 55 Electronically signed by maureen stlngley (001-221-768-7849) McAllen ( 95 6) 618-23 66 291783 f2-6048-49d 6-8e22-3 f825Bb9b 7e2 42 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 concerns every police chief and every department in every community. So the fact of the matter that that video was out there caused great concem for me because it showed that one of our officers was involved in an incident and struck a handcuffed prisoner. The entire circumstances were something that I took into consideration, which included the fact that the video was leaked, and my concern is to make sure that I am responsible for the community and our relationship within the community and the relationship we have with the community and with surrounding agencies. So it was something that I did consider as well. Q. And if the video hadn't been released, how would your decision have changed, if anything? A. The final outcome of my decision would not have been changed. Taking everything into consideration, the entirety of circumstances, the officers' statements, Officer Galindo's own statement, the lack of taking any type of responsibility in that incident, the overall training that he has, his training and experience, obviously as an instructor, as an officer, obviously as somebody who has had many incidents U1at he has responded to, and many arrests as well. It wouldn't have changed the outcome. Q. And you mentioned that he was instructor and es 8 1 2 m 3 4 5 6 7 screaming and something else was going on by the apartments, which f then sec Officer Lopez on the ground with another person that appeared to be resisting. l then performed a trained control technique by PPCT and striked the subject on the inner thigh with my left leg. I am an instructor through PPCT and the training was brought down by the San Juan Police Department. I'm right handed and my left is my weak hand. I do not recall if I did say anything to the subject. I was calm and collect throughout the whole situation that I was trying to gain control of. When I grabbed the individual from the shoulder area was due to the reason when I performed the trained strike by PPCT, I know it was going to cause for him to buckle and I was going to prevent his fall." Q. Okay. So what is Officer Galindo basically saying here? A. He's saying that the technique that he performed was the appropriate technique and he was responding. Q. In order to do what with the arrestee? Why would he need to do a controlled strike? A. Because from his point of view, he believed that he needed to apply Umt technique in order to control the subject. Ti 1 2 44 45 og 11 Q. And from what you observed on the video, was the subject out of control? A. No. Q. And was he already in control? A. He was under control. Q. Under control. By whom? A. By two other officers that were escorting him to the unit. Q. And what would have been the appropriate response for Galindo in that situation? A. Not to strike him. Q. Okay. All right. So then a few days later, what happened with this video? A. A few days later, I believe it was on a Friday that video was leaked to a local media outlet. Q. And did this have any effect in terms of the lA investigation? A. Not the lA investigation itself. Q. So at the conclusion of the lA investigation and you making your decision, did it have any effect? A. Yes, it did. Q. Can you explain how it did? A. Well, nowadays, what's happening around the country and around the .area is that any incident involving law enforcement officers is something that re s 1 2 3 4 5 6 7 8 9 10 s 43 Pr 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 he's a seasoned officer. A. Yes. Q. Do you hold him to a higher standard than those that arc just one-year patrol officers? A. That is correct. Q. Now, did Mr. Aguirre ever file a complaint officially with the City of San Juan? A. Not until now. He has not filed an official complaint. Q. Docs that make a difference, whether he did or not? A. No. Q. And why not? A. Because we are the ones that, you know, investigate it. It was brought to my attention, and eventually that video, even if it was not brought up to me by officers, and Officer Galindo, you know, brought up the incident as well, we would have eventually seen that video and we would have taken appropriate action and investigated the actions of the officers involved. Q. Was there anything that you looked at in terms of the video where you-- did you apply any sort of mitigating circumstances? Did you take anything into consideration that maybe cut Mr. Galindo a break or anything like that? 12 (Pages 42 to 45) BRYANT & STINGLEY, INC. Harlingen (956) 428-0755 Electronically signed by maureen stlngley (001-221-768-7849) McAllen (956) 618-2366 291783f2-6048-49d6-8e22-3f825Bb9b7e2 46 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 A. The same thing. The incident was something that I believe he should have taken a different action. Q. And "General Conduct," No. 3, "Not violate any provisions of the rules and regulations of the City of San Juan," and those are addressed down the road. Now, No.4, "Be responsible for fulfilling the public's trust," what did you observe that violated that rule? A. Well, the mere fact that he struck n handcuffed prisoner, itself, you know, violates the public's trus~ and it had an impact on my decision. Q. And then No.6 is essentially conduct unbecoming. Again, what did you observe that violated these rules? A. The fact of the matter of him striking a handcuffed prisoner. Q. And let's go down to the PD rules, which would be page 4. No. 1 is basically PD rules, violations. But No. 2, "Incompetence," again, what did you observe there? A. Go back to the same, the entire circumstances of the incident itself. Q. Okay. And No. 3, "Immoral conduct brings discredi~ humiliation or embarrassment on the PD." A. That's correct. Q. Again, what did you observe that violated that? es 4 A. Yes, I sure did. I think that he's a seasoned officer. He was responsible. He was responsible for many different things. He was an investigator, assigned to investigations as well. That's why I applied the appropriate disciplinary action, because I believe that his actions were not consistent with what I believe that he should have done based on his training and experience. Q. Okay. And so why did you choose indefinite suspension? A. As the police chief, 1 do believe that the officers need corrective measures, and I know that under civil service I'm allowed to discipline the officer up to 15 days. If I want to discipline more than those days, then 1 have to come up with an agreed offer for the officer. But I do believe that this action itself~ looking at the entire circumstances - yes, I understand the fact that the officer called for-- that it was a distress call. There were some other factors involved in the circumstances, but the fact of the matter that he's a seasoned officer and his training and experience was above many of the officers in this department is something that to me-- it \Vas very concerning for me that -- 1 don't think and I don't m 2 3 48 17 18 19 20 21 22 23 24 Ti 1 25 49 7 Pr og 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 believe that there was any other additional training that I could provide the officer based on the fact that he was already a PPCT instructor and utilized this technique, even though he was already a training instructor in something that ·- I did not see this officer being more efficient or effective in this department. Q. And at the close of the IA investigation, did you feel that Officer Galindo took any responsibility for his behavior in this case? A No. Q. And why not? A That's how he felt. Q. All right. Let's go ahead and take a look at the charging instrument real quick, Tab A A. Okay. A? Q. Yes. A, for apple. Okay. And let's go to page 3, and it stru1s off with civil service rules, and it says 01 and then No.3, Acts of Incompetence. What specifically did you see that warranted that rule violation? A. I just think that his action in itself is not something that the department stands for. Q. And the "Act showing lack of good moral character," what did you observe there? re s 1 2 3 4 5 6 s 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. The fact of the matter that he struck a handcuffed prisoner brings discredit to the department and impacts the public's trust. Q. And No. 5, "Conduct prejudicial to good order," what did you observe that violated that rule? A. He did not follow the department's policy when it comes down to taking the appropriate action when dealing with prisoners, handcuffed prisoners. Q. And No. 6, "Mistreatment of an arrestee or private citizen." Again, what did you observe that violated that rule? A. Striking a prisoner. Q. Would you say that basically the rule violations that you've cited arc essentially documented in the videos and the statements? A. That's correct. Q. Let's go down to code of conduct. What did you observe that violated this particular rule? A. Which one is that? Q. 402, ''Code of Conduct," page 4. A. Okay. Just the fact that he violated the department's policies and procedures. Q. And No.4, 04, "Standards of Conduct." A. Not using the appropriate force necessary. Q. Okay. And 10.03, "Violation of rules," again, 13 (Pages 46 to 49) BRYANT & STINGLEY, INC. Harlingen (956) 428-0755 Electronically signed by maureen stlngley (001-2 21-768-7849) McAllen (956) 618-2366 · 2917 83f2-6048-4 9d6-Be22-3f8258b9 b7e2 50 5 6 7 8 9 10 11 12 13 14 15 CROSS-EXAMINATION BY MR. LEONARD: Q. Good morning, Chief. How are you? A. Good morning, yes, sir, good. Q. As you know, my name is Bob Leonard, and I'm representing Investigator Galindo in his appeal on the indefinite suspension that you issued. I'm going to be asking you some questions, sir, regarding this matter. A. Yes, sir. Q. Now, Chief, you stated that you've attended the PPCT training, correct? A. That's correct. Q. And the whole purpose of the PPCT training is pain compliance, in a nutshell? A. Yes, sir. Q. So it is acceptable to cause people pain in order to get them to comply? That's the training that PPCT offers? A. That's correct. Q. Now, in regards to the PPCT training, isn't it a fact that in that course you are taught or instructed that in today's video age, departments will be confronted with videos of officers using PPCT tactics and that there could be a lot of negative backlash from the public because of those videos? es 1 2 3 4 m it's the City of San Juan rules, 10.11, "Improper Conduct." What did you observe that violated these rules? A. Just following up on the rest of the policies and procedures and rules and regulations that he violated. Q. And 10.36, "Unbecoming Conduct," whnt did you observe that violated that rule? A. The overall incident itself. Q. And 13.02 "Necessary Force in Making Arrest"? A. That's our standard in which prisoners under control, that no further force is necessary once the prisoners arc under control. Q. And was that something that you observed in the video? A. That's correct. Q. Okay. And if you go to the beginning of the charging instrument, numbers I through 15, does that essentially lay out the factual allegations against Mr. Galindo? A. Yes, that's correct. Q. And if you go back to page 5, it has got your justification of level of discipline. Can you kind of explain that also to the hearing examiner? A. Yes. I took everything into consideration, all 16 17 18 19 20 Ti 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 52 21 22 23 24 25 s 51 re s the statements that were taken, the video itself, Officer Galindo's statement as well, and then I proceeded to proceed with my indefinite suspension. Q. And what are you asking the hearing examiner to do in this particular case? A. I'm asking the hearing examiner to uphold my indefinite suspension based on the things that-- the totality of the circumstances. Everything was taken into consideration as to all the officers that were present. It was a distress call. It was an officer needs assistance call, but officers arc bound to-they're bound to the policies and procedures of the department in a situation like that. I take into consideration their training, their experience, the assets as to what they've done in this department and what they continue to do. It's always not something that I take pleasure in terminating officers, but I do consider the fact that in this case, an indefinite suspension was something that-- it was necessary. MS. HAYWARD: I'm going to go ahead and pass the witness right now. But can we take a break so I can go to the restroom? MR. LEONARD: Sure. (Briefn:cess) PROFESSOR JENNINGS: Cross-examination. Pr og 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 53 A. That's correct. Q. So PPCT acknowledges that sometimes things look really bad on film. They teach you that in the course? A. Yes. Q. And they teach you that there could be public outlash, or to be prepared for the public's response, correct? A. That's correct. Q. But they also teach you to be prepared to explain your reasons or why you did what you did? A. Yes, that's correct. Q. In regards to this matter here, isn't it a fact, chief, that Officer-- I'm sorry- Investigator Galindo was up front and forward about everything that occurred? He told you about the incident and about issuing the compliance strike, correct? A. Yes, sir. Q. And he put it in his initial report. Even before the internal affairs investigation got off the ground, he wrote a report, correct? A. Yes. Q. And in that report, which I believe, if you will look at what's Tab F, and I believe it's page 23, that is a report that was generated by Investigator Galindo, correct? 14 (Pages 50 to 53) BRYANT & STINGLEY, INC . Harlingen (956) 428-0755 Electronically signed by maureen stlngley (001-221-768 -7849} McAllen (956) 618-2366 2917 83 f2·6048-4 9d6-Be22-3fB258b9b7 e2 54 15 16 17 18 19 20 21 22 23 24 25 6 7 B 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. That's correct. Q. And you started a separate investigation into who leaked that video? A. Yes. Q. You have officers who you believe were responsible for the leak of that video? A. Yes. Q. And isn't it a fact that you at some point issued them a polygraph examination regarding this matter? A. Yes. Q. And isn't it a fact that they all failed the polygraph examination? MS. HAYWARD: l'm going to object to this line of questioning since it's still an ongoing investigation. Technically this is file material. So to the extent that we can maybe not go into all the details of the lA investigation because it's still open. MR. LEONARD: Okay. I'll sum it up maybe with one question. Q. Chief, to this point you have not taken any disciplinary action against anybody for leaking that video, correct? A. It's an ongoing investigation, and at this es 14 1 2 3 4 5 m 6 7 8 9 10 11 12 13 A. That's correct. Q. And in that report he tells you that he did usc force on Mr. Aguirre. I believe that's the subject's name, correct, Mr. Aguirre? A. Yes, that's correct. Q. So there was no attempt by Investigator Galindo to cover up his actions? A. That's correct. Q. Now, you talked a little bit about the body cameras. You stated that when you first got here, the body cameras were already at the department, but you later upgraded or changed vendors and came in with new camerasA. Yes, that's correct. Q. --and that every officer is issued a camera? A. Yes. Q. But on this particular night, isn't it a fact that the majority of officers did not have a body camera on? A. There were some officers that didn't have a camera, that's correct. Q. And that only Officer Monroy's body camera was used in this investigation? A. Yes, that's correct. Q. Isn't it a fact that Investigator Galindo was Ti 1 2 3 4 5 56 7 8 9 10 og 11 actually never issued a body camera? A. 1 don't know about that, sir. Q. Now, you talked about the fact that you spoke with Sergeant Garcia in the morning regarding this matter, and Sergeant Garcia, I guess, was assisting Officer Monroy with a technical issue or something of that nature? A. 1 believe the night it happened, yes. Q. Okay. It's a fact that Sergeant Garcia docs not like Investigator Galindo, correct? A. There have been some issues between them, yes, that's correct. Q. And isn't Sergeant Garcia the president of the opposing union, the Texas Municipal Police Association? A. The last time I remember, yes. Q. And Sergeant Garcia in the past has attempted to get Investigator Galindo in trouble. He has reported things to you that eventually turned out to be unfounded or not the way the sergeant described them to you? A. That's correct. Q. And the video in this matter, you testified earlier that that video was leaked to the media even before the lA investigation got ofT the ground, correct? re s 1 2 3 4 5 6 s 55 Pr 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 57 point I have not taken disciplinary action, that's correct. Q. And we are now nearly five months into the investigation, correct? A. Four months. Q. Four months. Mid December to the end of April. Okay, four and a half months- okay, four months, Chief. But there's no disciplinary action? A. The investigation is still ongoing. Q. Okay. In the testimony that you provided earlier, you continuously made it a point to say that in your opinion the subject, Mr. Aguirre, was not resisting, was not offering up any resistance whatsoever; is that correct? A. Not actively resisting, that's correct. Q. But isn't it a fact, Chief, that-- withdrawn. You also testified on direct that you reviewed the entire internal affairs packet, including the statements from the officers that were present on the scene. A. Yes, sir. Q. Isn't it a fact that in Officer Monroy's and Officer Hernandez' statements, which are under F, Tub F -- I believe one is page 4 I and the other one is page 44 -- Officer Salvador Hernandez' statement begins 15 (Pages 54 to 57) BRYANT & STINGLEY, INC. Harlingen (956) 428-0755 Electronically signed by maureen stlngley (001-221-768-7849) McAllen (956) 618-2366 291783f2-6 04B-49d6-Be22-3f8258b9 b7 e2 58 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Investigator Galindo to issue a compliance strike? In other words, this was not retaliation for something that Mr. Aguirre said? A. I do not believe so, no. Q. Okay. Now, in regards to PPCT training, the instruction that they give you basically says that officers make the judgment cull on what level of force to use, correct? A. Based on their training and experience and also department policies. Q. And there's also something called one up, correct? A. Yes, that's correct. Q. So that you're allowed to use a greater amount of force than what's being exerted against you? A. That's correct. Q. And in a lot of these situations, isn't it true, Chief, that the officer making the decisionthat's a subjective decision, correct? The officer is assessing the situation, and while you may see it one way, a different officer may see it another way? A. Yes. Q. Now, when the strike is given on the video, initially this came across as a knee to the groin, correct? This was brought to you as Investigator es 6 7 1 2 3 m 4 5 on page 41, and in that statement, Officer Hernandez basically says that Mr. Aguirre \Vas resisting, that he basically was tensing up his body, that he was refusing to move forward. And that's also supported by the statement that was given by Jonathan Monroy, which begins on page 44. A. Yes. Q. So basically the two officers that were escorting Mr. Aguirre, the subject, their opinion was that he was resisting them taking him to the car. I direct your-- it starts at the end of line 19 and goes on to 20. A. Page what? Q. Page 41. A. Page 41, okay. Q. And then on page 44, I think it's line 16. A. On Officer Hernandez', he does mention that he was passively resisting, but he also mentions there that no greater force was necessary. Q. Okay, but he was passively resisting. Because earlier you testified that he was not. A. In his opinion, yes. Q. But he was holding him and you were just watching the video, correct? A. That's correct. Ti 1 2 3 60 4 5 6 7 8 9 og 10 11 12 13 Q. So the officer that was physically holding onto the subject said that he was passively resisting? A. Yes. Q. What about line 16 ofOfticcr Monroy's affidavit, starting at line 16, page 44. A. "While escorting, the male was yelling and making his body tense, but we still managed to escort him." Q. Okay. So there again, he was resisting them moving him to the car? A. In their opinion, yes. Q. Okay. Now, also on the video you stated that when the subject, Mr. Aguirre, and Investigator Galindo meet on the side oflnvestigator Galindo's vehicle, that you did not believe that Mr. Aguirre was antagonizing or saying anything antagonizing to Investigator Galindo, correct? A. That's correct. Q. So, therefore, he didn't piss Investigator Galindo off, correct? He didn't piss off investigator Galindo by insulting him or insulting his mother or his department? He basically was arguing that he shouldn't be the one arrested, correct? A. That's what I observed. Q. So that, in and of itself, wasn't a reason for re s 1 2 3 s 59 Pr 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 61 Galindo purposefully kneeing the subject in the groin, correct? A. In the groin area. Q. But it is true that under the PPCT training, that adjacent to the groin there is a femoral nerve cluster, u part of the inner thigh that is a strike zone taught by PPCT? A. That's correct. Q. And isn't it a fact that when that area is successfully struck, it causes intense immediate pain to the subject? A. Not all subjects, but, yes. Q. And that those subjects can cry out similar to how Mr. Aguirre cries out on the video? A. Different subjects have different reactions, yes. Q. So he can be struck in the thigh and cry out. It doesn't necessarily indicate that he was struck in the groin, correct, in the testicles? A. That's correct. MR. LEONARD: May I approach the witness? PROFESSOR JENNINGS: Yes. Q. Chief, would you please just take a look at this document? This document, do you recognize it? A. Yes. 16 (Pages 58 to 61) BRYANT & STINGLEY, INC. Harlingen (956) 428-0755 Electronically signed by maureen stlngley (001-221·768-7849) McAllen (956) 618-2366 291783f2-6048-49d6-8e22-3f8258b9b7e2 62 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. That's correct, Q. Including laser? A. That's correct. Q. HandcutTed prisoners have been !asered by San Juan ollicers? A. That's correct. Q. And they were not fired or terminated? A. An individual was suspended, yes. Q. So in regards to that issue, Chief-MR. LEONARD: May I approach the witness? PROFESSOR JENNfNGS: Yes, sir. MR. LEONARD: May I approach the arbitrator? PROFESSOR JENNINGS: Yes. MR. LEONARD: Thank you. Q. Chief, I would like to hand you a document for your review. Would you please take a look at that? PROFESSOR JENNINGS: We'll mark this as Union 3. MR. LEONARD: Yes, sir. PROFESSOR JENNfNGS: Okay. (Union 3 was marked) Q. Chief, do you recognize that document? A. Yes. Q. What do you recognize it to be? es 6 7 1 2 m 4 5 Q. What do you recognize it to be? A. This is a couple of pages of the instructive curriculum that was a course provided by San Juan PO io become an instructor on PPCT. Q. On the second page of that handout that I gave you, on the lower left-hand section there, it indicates a strike point in the PPCT training; is thai correct? A. That's correct. Q. And is that the area that we've been discussing, the femoral motor point on the inside of the thigh near the groin area? A. Yes. MR. LEONARD: I would request that this be admitted as Appellant's I. PROFESSOR JENNINGS: Any objection? MS. HAYWARD: No, but we have the entire book here. If we could admit the entire book, and we'll just give it to you. Is that okay, Bob? MR. LEONARD: I don't have a problem with that. I didn't have the book to -PROFESSOR JENNINGS: Okay, good. Now, what I'll do is I'll mark-- this is CLEAT I, and I'll call that Union 1. This will be Union I. And can I cull this Union 2? MR. LEONARD: Yes, sir. Ti 1 2 3 64 65 2 3 4 5 6 7 8 og 9 10 11 PROFESSOR JENNINGS: Okay, good. This will make good reading. MR. LEONARD: You might be a professor of PPCT when this is done. PROFESSOR JENNINGS: Yes, sir. Q. In that training, when you issue a compliance strike to an individual where you know that there's a probability that the subject would full, as the officer, isn't it true that you're responsible to ensure that that person doesn't hurt themselves? A. Yes. Q. So when Investigator Galindo gets ahold of Mr. Aguirre and Mr. Aguirre goes down, he is responsible to make sure that Mr. Aguirre just doesn't fall to the ground and hit his head or injure himself further, correct? A. That's what the training requires, yes. Q. Now, in regards to a handcuffed prisoner, isn't it true, Chief, that pain compliance can be used on a handcuffed prisoner? A. Depending on the situation. Q. As a matter of fact-· withdrawn. DiiTerent types of pain compliance have been used on prisoners in the care and custody of the San Juan Police Department, correct? re s 1 s 63 Pr 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. It's a document generated by me on an oliicer in the department that was suspended. Q. What's the date of this document? A. Murch 6th, 20I 5. Q. So it's approximately eight months, seven or eight months before the incident with Investigator Galindo? A. That's correct. Q. And isn't it a fact, Chief, that the officer listed in this document was issued a 15-day suspension for excessively lasing a handcuffed prisoner? A. That was one of the factors that was considered, yes. Q. And isn't it a fact that you also cite in this document that the officer antagonized the handcuffed subject? A. Yes, that's correct. Q. And isn't it also true, Chief, that during the multiple tasing of this handcuffed prisoner that another officer attempted to stop Officer Sanchez from lasing the handcuffed prisoner? A. That's correct. Q. So in that oliicer's opinion, the subject did not need to be tascd, correct? A. That's correct. 17 (Pages 62 to 65) BRYANT & STINGLEY 1 INC. Harlingen (956) 428-0755 Electronically signed by maureen stingley (001 -221-768-7849) McAllen (956) 618-2366 2917 a3f2-604B-49d6-8e22·3 fB 258 b9b7 e2 66 disagreed with the officers' decision in the use of force, correct? A. Yes. Q. But neither one of those officers was terminated? A. In those two cases, there were circumstances, entirely different circumstances, and I take·· every case is different, and I look at the entire circumstances and look at the fact that·· in those two cases, the actual incident itself, and then I decide what's the appropriate and correct measure to be taken at that point. Q. But you did not fire those two officers? A. Officer Chapa was later fired. Q. But for a different incident? A. For this incident as well. Q. Well, I understand that, using progressive discipline, you used this to support your decision to terminate him on another case. A. That's correct. Q. But in this case, he did not get terminated? A. That's correct. Q. Now, Chief, isn't it a fact that the other officers that were present on the scene, Officer Monroy, Officer Hernandez and some of the others, are es 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 m Q. And this incident occurred in front of the son of the handcuffed individual, correct? A. As I recall, yes. Q. The handcuffed individual was a woman who had been detained by the two oflicers. Her son was present. Isn't it a fact that the officer threatened the son with a lasing if he didn't stop asking them questions about his mother? A. I can't recall specifically that, but something to that effect, yes, sir. Q. So in March of20 15, Officer Ricardo Sanchez excessively lases a handcuffed prisoner in front of that person's family, then threatens the family with lasing for objecting to the treatment of their mother, and that person only received a IS-day suspension, correct? A. That's correct. Q. Chief·· MR. LEONARD: May I approach the witness? PROFESSOR JENNINGS: Yes. Q. Chief, would you please take a look at this document? Do you recognize it, Chief? A. Yes. Q. Do you remember this case? A. Yes. Ti 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 68 s 67 re s Q, In this particular instance, this involved an Officer Chapa, Investigator Chapa, who was involved in the pursuit of a vehicle, correct? A. Yes, sir. Q. And after the vehicle crashed out, the suspect, according to this document, raises his hands in a motion to surrender, and this document states that it appears that Investigator Chapa strikes the individual on the side of the head with his sidearm, correct? A. That's correct. Q. Another term for striking somebody in the head with your sideann is pistol whipping, correct? A. He struck him in the head. Q. Okay. So for striking this individual on the side of the head with his sideann, Investigator Chapa only received a two-day suspension, correct? A. That's correct. MR. LEONARD: I ask that this document be admitted as Union Exhibit 4. MS. HAYWARD: No objection. PROFESSOR JENNINGS: Okay, no objection? MS. HAYWARD: No objection. PROFESSOR JENNINGS: Just let the record reflect that Union Exhibits 3 and 4 are in the record. Q. Now, Chief, in those two situations, you Pr og 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 69 not trained in PPCT, correct, or at least at that time? A. I can't recall if they were or not. I can't recall that. Q. Okay. You also talked about Officer Hernandez and his decision to do a pat-down because he thought it was safe. But isn't it a fact, Chief, that as police officers, for officer's safety, a pat-down should always be done, whether the individual is resisting or acting out, because you're looking for weapons, you're looking for something that could hurt you or could cause injury to the subject themselves, correct? A. That's correct. Q. So it doesn't necessarily have to be a safe situation in order for an officer to do a pat-down for officer safety? A. That would be subjective on the officer, yes. Q. Okay. Now, in regards to the leak of the video, you testified that it was something that you took into consideration based on the outcry of the public, but then you said that it didn't atTect your decision to issue the indefinite suspension. The fact ofthe matter is, Chief, that the city, the department, city hall, received a lot of negative press regarding this matter, correct? A. Yes, there was some negative press. 18 (Pages 66 to 69) BRYANT & STINGLEY, INC. Harlingen (956) 428-0755 Electronically signed by maureen stlngley (001-221-768-7849) McAllen (956) 618-2366 2917B3f2-6048-49d6-Be22·3f8258b9b7e2 70 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. All right, Chief, now, it is acceptable to cause pain to get those who are either attempting to be controlled or handcuffed ·- let me back up. Strike that. It's acceptable to cause pain to get a subject under control, in custody? A. That's correct. Q. Is that correct? A. That's correct. Q. But what about- was that needed in this case here? A. No, it was not. Q. And why not? A. I did not see that the officer-- that the suspect was in any way trying to harm the officers. There was no intent on his part to harm the officers in any way. So I do not believe, based on my training and experience as well, that this strike was necessary. Q. And opposing counsel mentioned that in some instances PPCT training if caught on camera is going to look bad. Is that something that you are familiar with as well in your training and experience? A. Yes. Q. How is that instruction different than what we viewed on the video? A. Can you repeat your question? es 1 2 3 m 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And that weighed very heavily on your decision to issue the indefinite suspension, didn't it? Correct? A. That was a factor that I did consider, yes. Q. And, in fact, it weighed so heavily on you that you tenninatcd Investigator Galindo less than two weeks after the incident occurred; is that not correct? A. That's not correct. Q. What date was the incident? A. On December 14th. Q. And what date was he issued the indefinite suspension? MR. OZUNA: Tab A? MR. LEONARD: Tab A. Q. Tab A, Chief. I'm sorry; I apologize. Tub A, please. A. December 31st. Q. But that was the date that he actually received the document. You didn't make your decision that morning and just hand him the document, did you? A. I believe I did, if I recall. I believe I did, yes. Q. So approximately two weeks after this incident, you tenninated his employment? A. That's correct. Ti 1 2 3 72 5 6 7 8 9 10 og 11 Q. You also stated that Investigator Galindo took no responsibility for his actions, and that weighed heavily on your decision, correct? A. In my point of view, yes. Q. But he admitted from day one that he issued the strike, correct? A. Yes. Q. He also explained to you why he felt the strike was necessary or appropriate, correct? A. Yes. Q. So, in effect, he owned up to the strike and why he did it? A. In his opinion, he felt that he did the right thing. Q. Okay. So even if he's wrong, he still acknowledged and accepted responsibility for a strike that he gave? A. Yes, that's correct. MR. LEONARD: A moment, please, Mr. Arbitrator. PROFESSOR JENNINGS: Okay. MR. LEONARD: Pass the witness. PROFESSOR JENNINGS: Okay. REDIRECT EXAMINA T!ON BY MS. HAYWARD: re s 1 2 3 4 s 71 12 13 14 15 Pr 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 73 Q. Well, sometimes it will look bad and sometimes it just is bad. A. Right. Q. How would you characterize what we saw on the video? A. We've still got to look at the video and we've still got to take statements of the officers that were there, present. I've still got to look at the entirety of the circumstances, and also the officer's actions, also review our department policy and procedures and our training and so forth to see if the actual strike, or any strike upon any handcuffed prisoner is necessary. Q. And are there- what PPCT strategies could you use·- if not the inner thigh strike, what PPCT strategies would you use for an individual who was arrested, ifany? A. If he was resisting, ifthe scenario was that the individual was actively resisting and I wanted to get him inside the vehicle, then the officers that are trained to apply those techniques are allowed to apply a multitude of techniques and tactics in trying to force the individual to get in the backseat of the unit. Q. And what kind of tactics would those be? 19 (Pages 70 to 73) BRYANT & STINGLEY, INC . Harlingen (956) 428-0755 Electronically signed by maureen stlngley (001-221-768-7849) McAllen (956) 618-2366 2917 B3f2-6 04 8-49d6-Be22-3f8258 b9b7e2 74 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And arc you looking into in terms of either W1 lA investigation or an inquiry as to why some of those officers didn't have their camera on? A. That is correct, yes. Q. Is that something that is still ongoing? A. It's still ongoing, yes. Q. We also heard some testimony that Sergeant Garcia is the president of the opposing union. Did that play any factor at all in your decision in disciplining Officer Galindo? A. No. Q. And has Officer Galindo also made complaints to you as well about other officers? A. Yes, that's correct. Q. And have you looked into those? A. Yes. Q. And have you taken them seriously? A. If they were serious allegations, yes. Q. Anything that has arisen out of those complaints that Galindo has made? A. No. Q. And anything that has come up out of the complaints that Sergeant Garcia has made? A. No. Q. All right. Now, you have also started W1 es 5 1 2 m 4 A. Still under the pressure point control tactics, there are some tactics that you can apply to the individual's ears and throat area, also a brachial stun, a common peroneal strike to the outside of the leg, as well. But those strikes are necessary only when the individuals are actively resisting. Q. Are there levels of pressure point control tactics, for instance, degrees of severity in pressure point control tactics, that you are aware of? A. Yes. There are hand strikes, knee strikes, and there are leg strikes. Q. Are hand strikes less severe than the leg strikes? A. It all depends on the area that you're striking. The hand can be -- you can do a brachial stun on the side of the neck, you can do a common peroneal strike on the outside of the leg or knees, or you can use your legs to strike the inner thigh and stuff like that. But, like I said, it has to be immediately necessary, and I don't believe in this case that was immediately necessary. Q. Okay. And one of the things that was brought up is that the plus one technique where you use a degree - a level up than what is being exerted by the subject. What, if at all, was being exerted by the Ti 1 2 3 76 77 3 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 og 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 subject that you observed? A. Nothing that would require a greater force than necessary. The two officers were already escorting the individual, and to me it appeared that he was already under control and that he was going to be placed in the backseat of the unit. The only reason they did not place him in the backseat of the first unit was because that unit did not have a cage. And I did not see there that the individual was refusing to get inside that unit. Q. If that unit had a cage, would you have foreseen any problem with Aguirre getting in that first unit? MR. LEONARD: I'm going to object to the witness as being highly speculative of the witness. MS. HAYWARD: We'll strike it. Q. All right. Let's go back to some of the officers not having a camera. Some officers -- I believe other officers that were on scene were assigned cameras but didn't h~ve them. Does that concern you at all? A. I can't recall exactly which oflhe of1icers that were assigned. I know the patrol officers were assigned cameras. I know that the primary officer there was assigned a camera. re s 1 2 s 75 17 Pr 18 19 20 21 22 23 I 24 25 investigation into the video release? A. That's correct. Q. Why has it taken so long? A. It's still an ongoing investigation, and we're still looking at different incidents or officers, them having information about that case, and we continue to look into it. Q. Okay. And is there a difference between the investigation that occurred with Officer Galindo and the investigation that's ongoing right now? A. Yes. Q. What's the diflerence between the two? A. Well, the main concern that I have in the incident with Officer Galindo is the fact that he struck a handcuffed prisoner, and that's something that was very concerning to me. This video leak is also of concern, but right now, you know, that was the incident that I believe needed to be addressed efficiently. Q. Okay. All right. So let's go back to Officer Hernandez' statement, page 41 of Tab F. A. Go ahead. MR. LEONARD: I'm sorry, what page was that? MS. HAYWARD: 41. MR. LEONARD: Under? 20 (Pages 74 to 77) BRYANT & STINGLEY, INC. Harlingen ( 95 6) 42 8-07 55 Electronically signed by maureen stlngley (001 -221·768-7849) McAllen ( 95 6) 618-23 66 291783f2·604849d6-Be22·3f8258b9b7e2 78 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. What does that tell you? A. That the officer did not expect that, or that officer did not expect that. Q. Okay. And, Chief, arc you disputing lhe fact that PPCT is a technique that's utilized by the department? A. No. Q. And that's something that is used by many officers in San Juan? A. That's correct. Q. And you believe that in some instances that it is warranted? A. Yes. Q. Whet about in this instance? Was it warranted in this instance here with Aguirre? A. No. Q. Okay. And then also we have here-- I believe it's Union Exhibit 3. This is a charginginstrument for Otlicer Sanchez. Was he given 15 days? A. That's correct. Q. What is the diflerence between this instance with Otlicer Sanchez and the instance with Otliccr Gal indo? Why did you impose 15 days for Sanchez and why an indefinite for Galindo? A. If! can recall, the female was resisting es 1 m 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. HAYWARD: Tab F. It's Officer Hernandez' statement. Q. Can you read where it says-- well, line 19, it says in the first beginning sentence, "I remember," and just read from line 19 to line 20. A. "I remember that the mule was passively resisting during this lime but just tensing his body, but his actions did not require to usc greater force." Q. What is the difference between passively resisting and actively resisting? A. ln my experience, the fact that-- someone that's on the ground and has his hands underneath him and he doesn't want the oflicers to atTest them, or someone that's sitting down and doesn't want to get up. Q. And so what you observed on the video, is that somebody who's actively resisting or passively resisting, Aguirre? A. I did not sec it. Q. You did not see it? A. No. Q. And docs the fact that Hernandez observed passively resisting, does that have any impact on your decision? A. No. Q. And also it says despite the fact lhat he was Ti 1 2 3 4 5 80 3 og 4 5 6 7 8 9 10 11 12 passively-- even if we take Hernandez' statement as true, you know, that he was passively resisting, would that still require the PPCT strike that was utilized by Galindo? THE WITNESS: Can I answer that? Let me just tell them, because the construction is causing some noise here. (Off the record) A. Can you rephrase your question or restate it? Q. Yes. So if you had considered Aguirre to be passively resisting, would that necessitate the strike that Galindo used? A. No. Q. So even if he was passively resisting, your opinion is that it wasn't warranted? A. That's correct. Q. All right. So let's go to page 44. And then on line 20, the very first sentence on line 20, toward the end of the line, it starts "At the time." Can you just read that all the way basically to the end of line 21? A. "At the time I thought Investigator Juan Galindo was going to put the male inside the police unit, but unexpectedly he gave a knee strike to the male's upper inner thigh." re s 1 2 s 79 13 14 15 16 Pr 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 81 transport. She was resisting transport, and lhat's why the officer proceeded to do a drive stun with a Taser on the female, something that was trained under Taser training protocol before they changed it last year. Q. And is it a technique to tase individuals who are handcuffed? A. Not anymore, not recommended by lhe manufacturer and by the training protocol. Q. Do you remember if she \vas fully in control at the time she was lased? A. No, she was not. Q. Did you have a problem with the initial tasing or the length of the tasing? A. It was the length of the lasing. Q. But the initial tase, you didn't have a problem with? A. 1 can't recall now. Q. That's fine. And was Officer Sanchez a seasoned officer? Had he been on the force for seven years at this time? A. No. Q. Was he an instructor? A. No. Q. And did that play any role in your determination? 21 (Pages 78 to 81) BRYANT & STINGLEY, INC. Harlingen ( 95 6) 4 2 8-07 55 Electronically signed by maureen stlngley (001-221-768-7849) McAllen ( 95 6) 618-23 66 291783f2-6048-49d6-8e22-3f8258b9b7e2 82 es department? A. No, he's not. Q. And do you know how he left the department? A. Not in good standing. Well, he was tcnninated, and then we had an agreed discipline. Q. What was that agreed discipline? A. Resignation. I can't recall the specifics of it, but resignation and no longer allowed to come to work or to be rehired by the department. Q. And his FS, what did you check on his FS when he left? A. I cannot remember. Q. But he eventually resigned'? A. Yes. Q. Now, the date of the incident is December 14th and the date of the charging instrument is December 31st, 2015. Did you feel that you had everything you needed when you made the decision? A. Yes, yes. Q. And what consisted of everything that you looked at? A. The video, the officers' statements. I don't think that there was any -- there was no need for me to further delay my actions, since we had completed the investigation. There was nothing further that I needed m 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ti A. Yes, yes. Q. And how so? A. !look at the experience and training of the officers before I decide to discipline them, and the amount of days or the amount or the action that I'm going to take against them. Q. And go to Union 4, which is the Officer Chapa. A. Okay. Q. Now, the top of the form there it says Discovery Review Board. What was that board? A. It was a board that I implemented for the fact that I wanted our sergeants and supervisors to be inclusive in disciplinary actions and recommendations on training and so forth. So it was composed of the department supervisors. Q. And at the time, is that what happened with Chapa's lA investigation? A. That is correct. Q. And who made the detennination for discipline at that time? A. The review board. Q. And you decided to go with that detennination'? A. That was part of it, yes. Q. And why did you decide to go with the review board's determination? s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 84 ,_ 85 83 2 3 4 5 6 7 8 9 Pr og 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. If I can recall, it was something that they had looked ut it, and their recommendation was to apply a two-duy suspension for the actions. It was a vehicle pursuit. The individual was a convicted felon, if] can recall, placing the public in danger down Raul Longoria and the expressway. They had to use a stop on the vehicle, and the officers then proceeded to make the arrest. The individual was not handcuflcd at that point. He was inside the vehicle, and they were trying to extract him from the vehicle, if! can recall. Q. If you hadn't had this review board in place, would you have preferred to impose a higher discipline? A. That's correct. Q. And why did you get rid of the review board? A. I believe that they became ineiTective, that the supervisors were not providing or looking at all the different angles, and so I decided to do away with it. Q. Okay. And how long has the review board not been in effect here in the City of San Juan? A. I think that this was one of the last incidents that they reviewed. I'm thinking that it might have been the last incident that they reviewed back in 20 14, ifi can remember the exact date. Q. And Officer Chapa, he is still with the re s 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to look at. Q. Okay. MS. 1-IA YWARD: I'm going to go ahead and pass the witness at this time recross. RECROSS-EXAMINATION BY MR. LEONARD: Q. Chief, just a couple of follow-up questions. During your initial statement to the press when this first, I guess, arose, you stated publicly that there was a personal issue between Investigator Galindo and Mr. Aguirre. But isn't it a fact, Chief, that no personal issue ·was ever discovered during the investigation? A. I don't remember saying-- I don't recall making the statement there was a personal issue. Q. Okay. But you never discovered a personal connection between Investigator Galindo and Mr. Aguirre, did you? A. No, we did not. That's correct. We did not. Q. Also publicly you staled that there were several law enforcement organizations reviewing this for possible criminal prosecution. You stated the DA's office, the Rangers, the Feds, the federal government-· I guess the Department of Justice-- but nobody accepted a criminal case on this matter, 22 (Pages 82 to 85) BRYANT & STINGLEY, INC. Harlingen (956) Electronically 428-0755 signed by maureen stlngley (001-221-768-7849) McAllen (956) 618-2366 291783f2-6048-49d6-Be22-3f8 258 b9b7 e2 88 86 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 8 9 10 11 12 13 14 es 6 7 4 5 6 made that comment? A. Which comment? Q. That there was a personal connection. A. I'm positive I did not make that statement. Q. Okay. Now, what was just referenced was the highly seasoned supervisors involved in a lasing incident. Were they disciplined? A. Yes. Q. Was that an agreed-upon discipline, or did they appeal it? A. It was an agreed-upon discipline. Q. And all of those supervisors involved, did they take the agreed discipline? A. Yes. Q. And was there a suspension of days in that matter? A. Yes. Q. And what was kind of the basis of it? What was happening there? A. The incident itselr? Q. Yes. A. They were in t11e supervisors room and a civilian walked in employed by this departmcn~ and one officer grabs a taser, and the taser accidentally discharges. m 4 5 1 2 3 15 16 17 18 19 20 Ti 3 correct? A. Well, I did speak to those agencies and they have a certain protocol. Q. So no criminal charges were filed? A. Not at this point. Q. In regards to the board, the discipline review board, the discipline review board is not binding on the chief, though, correct? A. That's correct. Q. You could have raised the suspension or lowered the suspension? A. That is correct. Q. And additionally, the incident with Investigator Chapa, the strike to the side of the head with the firearm, isn't it a fact that, regardless of what that person did ··well, withdrawn. In this incident, prior to Investigator Galindo arriving on the scene, Mr. Aguirre attacked and assaulted Officer Eli Lopez, did he not? A. That's correct. Q. An unprovoked attack, ifl'm not mistaken? A. That's true. Q. He attacked Oflicer Lopez from behind? A. Yes, that's correct. Q. And in the incident with Investigator Chapa, 21 22 23 24 25 s 1 2 89 87 4 5 6 7 8 9 10 og 11 isn't it a fact that your own memo, which is Union 4, clearly states that the suspect was surrendering with his hands in the air? A. I can't recall exactly. Q. Okay, Chief. And just another incident that I want to ask you about. Chief, do you recall an incident where several highly seasoned supervisors tused a civilian employee or threatened a civilian employee with tasing? A. That's correct. Q. And you issued a suspension to those highly seasoned supervisors, correct? A That's correct. Q. But none ofthem were fired? A That's correct. MR. LEONARD: Pass the witness. REDIRECT EXAMINATION BY MS. HAYWARD: Q. Chief, did you cite in the charging instrument any personal connection with Aguirre and Galindo? A. I don't recall. Q. Is that a no? A. No, I do not sec anything like that. Q. Okay. Some of the comments that you made, was that prior to the close of the IA investigation, if you re s 1 2 3 12 13 14 15 16 Pr 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Were they like horsing around? A. Yes. Q. Is that something that you would expect to see in your supervisors? A. No. That's why they were disciplined. Q. Were some of those officers iliat were disciplined part of the review board back in 20 14? A. Tilat is correct. Q. Would you say that that kind of behavior played an impact in getting rid of the review board? MR. LEONARD: Objection. Oh, I'm sorry. Withdrawn. Withdrawn. A. Can you restate it? Q. Would you say ·· did that have an impact at all, that kind of behavior have an impact in you getting rid of the review board? A. Sure. MS. HAYWARD: I'll puss the witness. RECROSS-EXAMINATION BY MR. LEONARD: Q. One quick follow-up question, Chief. All those supervisors, they were all taser instructors, correct? A. Several of them were, yes. No longer laser instructors. MR. LEONARD: Nothing further. 23 (Pages 8~ to 89) BRYANT & STINGLEY, INC. Harlingen (956) 428-0755 Electronically signed by maureen stlngley (001-221-768-7849) McAllen (956) 618 - 2366 291783f2·6048-4 9d6-Be22·3f825Bb9b7e2 90 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 responsibilities? Well, withdrawn. How long were you with the San Juan Police Department? A. Approximately a little bit less than seven years. Q. And what were some of your job duties and responsibilities as an investigator with San Juan? A. I climbed up the ranks, handled burglaries at one point, and then went to Persons, and then I started doing major crimes, any robberies, home invasions, and at the same time being the team leader for our regional SWAT team. Q. And in regards to being the regional SWAT team leader, what do those duties or responsibilities encompass? A. I was responsible for from, say, 22 to 28 operators, from not just the City of San Juan but from other agencies that are affiliated with the regional SWAT team. Q. Do you like your job? A. Yes, I love it. Q. \Vhy did you go into policing? A. I started young. I started at the age of 19 as a correctional officer at the sheriffs office. I believe I needed to get my experience there, since I didn't really understand much of the lingo and gangs es 3 MS. HAYWARD: Nothing further, Judge. PROFESSOR JENNINGS: Okay. Is this all for your case? MS. HAYWARD: Save for any rebuttal, the city rests. PROFESSOR JENNINGS: Okay. Good. So now we tum to the union. MR. LEONARD: We call Investigator Juan Galindo. PROFESSOR JENNINGS: Okay. Let's take a break. (Brief recess) PROFESSOR JENNINGS: You can remind him that he has been sworn. MR.. LEONARD: Yes, sir. JUAN PABLO GALINDO, Grievant, having been duly sworn, testified as follows : DIRECT EXAMINATION BY MR. LEONARD: Q. Good morning, Investigator Galindo. I'm going to be asking you some questions in regard to this matter, and I just want to remind you that you still are under oath and are expected to answer truthfully. A. Yes, sir. Q. Would you please state your full name for the m 2 92 16 17 18 19 20 21 22 23 24 25 Ti 1 8 og 9 10 11 12 13 record? A. Juan Pablo Galindo. Q. Where do you reside? Just the city. A. Weslaco. Q. Are you currently married? A. Yes, sir. Q. Do you have any children? A. Two. Q. How old arc they? A. 13 and nine. Q. What is your educational background? A. Just graduated from high school. Q. And what about your training background, your police training background? A. I have several instructor certifications, such as the PPCT, taser, OCE, chemical munitions, PIT maneuver, ASP. Those are a few that I can recall. Q. Arc you currently employed? A. No, sir. Q. Where were you last employed? A. Here, by the City of San Juan . Q. And what was your position with the city? A. l was in major crimes and the team leader for the SWAT team. Q. And what were some of your duties and re s 3 4 5 6 7 s 91 1 2 14 15 16 17 Pr 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 93 and stuff like that. So I started learning how the different gangs that are associated out here in the Valley-- and once my wife finished school, college, l decided to go to the academy full-time. Q. During your tenure as a police officer with the San Juan Police Department, have you ever been disciplined for misconduct? A. No. Q. I want to direct your attention to the night of December 13th, the morning of December 14th, 2015. Were you working on that night? A. Yes. Q. And what was your assignment? A. I was working extra, overtime, which was the Stonegarden detail. Q. What were your duties or responsibilities working that overtime? A. I was doing some traffic stops, just trying to look at anything having to do with human smuggling or narcotics. Q. Were you in plain clothes or were you in uniform? A. I guess you could consider it like our classical uniform, which is our 51Js and polo shirts. Q. And who was your-- what was the supervisor on 24 (Pages 90 to 93) BRYANT & STINGLEY, INC. Harlingen (956) 428-0755 Electronically signed by maureen strngley (001-221-768-7849) McAllen (956) 618-2366 291783f2-6048-49d6-8e22-3f825Bb9b7e2 94 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 es 3 Q. And after you went to dispatch, what if anything did you do? A. I ran back to my office, I grabbed my vest, and !jumped into the unit that I was using that night. I started getting on the radio and started getting the locations for the officers that were rcspording, and at the same time dispatch was asking for status of Officer Lopez. Q. And did you respond to that location where he was at? A. Yes, I did. Q. While you were driving there, were you driving code? A. Yes, I was driving code. Q. And whut does code actually mean? A. Lights and siren. Q. When you first arrived on scene, what did you sec? A. I saw a large group of people gathered towards the left of me. I opened the door. I threw on my vest at the same time I was exiting my vehicle, and I observed Officer Hernandez and Officer Monroy walking with the individual. Q. And the individual that you saw the officers escorting, did you know that gentleman? m 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 Ti B duty that night, or who was your supervisor that night? A. There was no supervisor. Q. There was no supervisor on duty that night? A. No. Q. Okay. Is that a normal practice in the San Juan Police Department? A. Yes. Q. It's a frequent occurrence? A. Yes. Most of the supervisors work 8:00 to 5:00. You'll have one that might work graveyard. Q. On this night, there was no supervisor? A. No. Q. Did there come a time where you got involved or alerted to an incident that was occurring on the morning of December 14th? A. In regards to? Q. Did you become aware of a call involving an Officer Lopez? A. It was in the evening, I believe. Q. ll was in the evening? A. Yes. Q. And what was the nature of that call? A. I was in my office sitting down finishing up my paperwork, because I had had an arrest and I was finishing up my paperwork. I had already taken off my s 1 2 3 4 5 6 7 96 97 95 4 5 6 7 Pr og 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 vest and I had already told my wife it was going to take about another 30 minutes or an hour for me to finish up my paperwork and to leave for home. I always monitor the radio, whether it's during the day or at night. I always monitor the radio to see what's going on. Whi Ie I was there, all of a sudden you heur Officer Lopez screaming that he needed help. He was screaming for his life and yelling. He did say I0-18, and he just-- I really can't recall his exact words, but he was screaming for help. Q. And what does 10-18 signify? A. As soon as possible. Q. Is that a serious request from an officer? A. Yes. Q. And how did that make you feel? A. At that moment, I got anxious. I jumped out of my chair. I ran to dispatch to see what was going on. The dispatcher told me he didn't know, that he was at a runaway call. I kept on telling him, "Ask for status, ask for status," and he did, but on one of the transmissions you could hcur that he was either gurgling or gasping for air. Q. What did you think was happening at that point? A. That he was either very hurt or something bad had just happened to him. re s 1 2 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No. Q. Had you ever had any encounters with him before? Had you ever arrested him or responded to calls at that location before? A. Never. Not to my knowledge. Q. What did you do as they approached? A. As they approached- again, I exited my unit. I was putting on my vest. I was able to strap one of my straps for my outer vest. By that time, they were already to where my door was. As he got close to me, he started getting argumentative. I just remember he said, "Ke onda," and I was like, "Ke ond·a," like he kind of threw me off. And at that moment, I turned away. I could heur the screaming and shouting still going on. Nobody had said the status of Officer Lopez, so I still didn't know what his status was. I decided to strike the femoral nerve on the inner of his thigh and put him in his vehicle, because at that moment I couldn't have a second resisting going on by my unit due to the lack of manpower. Q. You've seen the video that was displayed curlier. A. Yes. Q. The individual, the subject, has been identified as Mr. Aguirre. 25 (Pages 94 to 97) BRYANT & STINGLEY, INC. Harlingen (956) 428-0755 Electronically signed by maureen stlngley (001 -221-768-7849) McAllen (956) 618-2366 291783 f2-6048-49d6-Be22-3 f8258b9b7 e2 98 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 their fall, and struck them. Q. So you actually received those strikes in the training yourself'? A. Yes. Q. Did you think that by issuing that strike you were causing long-term or permanent injury to Mr. Aguirre? A. No, not at all. Q. How long is the effects of that stri.ke supposed to last? A. It can be from 30 seconds to a couple of minutes, more or less. Q. Did Mr. Aguirre·· I'm sorry. Withdrawn. Did you have interactions with Mr. Aguirre later in the evening? A. Yes. I actually transported·· since he was in my unit, I transported him. On the way over here, he was upset at the officer for the officer punching him in the face several times. He said that- he admitted to taking the pepper spray and was trying to keep it away from the officer at the scene, and that's why I just started telling him, "Hey, you shouldn't have done that. It's not right." So we had a conversation going. And, again, when we took off he was kicking my window. So that was just a way for me to calm him es 8 9 1 2 3 m 6 7 100 Ti 2 3 4 5 A. Yes. Q. Mr. Aguirre is speaking with you. What was your belief or your understanding or your thinking at the time when he was talking to you? A. Again, sirens were going ott: I was trying to be calm and collected. At the same time, the sirens were going off. My adrenaline was high again from leaving the PD to getting to the location. To me, he wanted to argue or not get into the vehicle. Q. So what was the purpose of delivering this compliance strike to Mr. Aguirre? A. To get him into the vehicle without any incident or any·· to where now we're going to have two or three officers stuck by the unit while there's still another fight going on over here, and I didn't know how many·· that I knew of, it was just Investigator Hernandez, and I didn't know the status of Officer Lopez. So, really, I had thought there was only one officer over here where the crowd was. Q. And in delivering that strike, that compliance strike to Mr. Aguirre, what was the effect? A. Again, I struck him. I observed that it worked right away. He screamed loud in pain, and his legs buckled, which, as I was able to catch him, along with Officer Hernandez, we were able to put him in the unit 25 s 1 99 4 5 6 7 8 9 Pr og 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 with no incident. Q. I want to talk a little bit about this PPCT training that we've been discussing throughout this hearing. When did you attend the PPCT training? A. I can't recall. Maybe in 2014. I really can't recall the date. Q. And where was that course taught? A. Here in the City of San Juan. Q. Was it a course that was actually put on by the San Juan Police Department? A. Yes. Q. And who taught the course? A. The instructor from PPCT. Q. And the strike that you issued to Mr. Aguirre, was that a strike that was taught during the PPCT training? A. Yes. During the training, for us to know the effect of the strike, the instructor, all the students that were going through attending the class, he did a strike on us as an example of how the strike works and the eflects of the strike. He struck me on the inner thigh. He didn't strike me hard, but then when he went ahead and told me, "You know what, it's the same thing as hitting the outside of the thigh," that's where he did grab me, showed us how to grab the person to break re s 1 2 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 101 down, and just say, "Hey, you know what''·· start a conversation with him. Q. And in your interactions with him later in the evening, did he complain of any injuries or did he complain that, you know, he was still feeling the effects ofthe compliance strike that you had issued to him? A. No. I got him off the unit myself and escorted him into booking. We spoke. I asked him for information and what was going on. He was laughing, joking around. We even took his handcuffs ofl'and we gave him water because he was thirsty. We gave him a gallon of water. He was drinking water. I asked him if he needed any type of medical attention, and he stated no. MR. LEONARD: I would like to ploy a clip from the video, the booking video, if we may. I don't know·· it's on a different video that I have. It was part 2 of discovery. MS. HAYWARD: It should be labeled "Booking Video" if that's what you're playing. MR. LEONARD: Yes. Mr. Arbitrator, I would like to play what has been marked as Joint Exhibit I, Tab F I. PROFESSOR JENNINGS: Okay, sir. 26 (Pages 98 to 101) BRYANT & STINGLEY, INC. Harlingen (956) 428-0755 Electronically signed by maureen stlngley (001-221-768-7849) McAllen (956) 618-2366 291783f2-6048-49d6-8e22-3f8258b9b7e2 102 14 15 16 17 18 19 20 21 22 23 24 25 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you regurding what was on the video? A. A lot of people contacted me. Again, some people·· since the news media only showed the striking of the individual, they didn't show anything else, u lot of people did assume that I did wrong right away, but a Jot of people that knew me also called and·· called me for support, that they were there for me. Q. Is it fair to say that this was the talk of the town for a while? A. The talk of the Val!ey. Q. The Valley? A. Yeah. Q. So was there a lot of negative press n:gurding this? A. Yes. Q. And the video, the leaking of the video, do you believe it had a negative impact on how you were disciplined in this matter? A. Yes, it did. Q. Now, going back to your interaction with Mr. Aguirre, was it your intention during this event at any point to purposefully or intentionally inflict pain or harm on Mr. Aguirre? A. No. Q. Did you intentionally try to hurt him? es 9 10 11 12 13 1 2 3 4 5 6 7 8 9 10 m 8 (Off the record) (Video playing) Q. Mr. Galindo, can you please describe what's being shown? A. We're booking him. He's already calm. We've been talking on the way over here. He's pretty much telling us that he has gotten along with Phurr PD and San Juan PD in the past and that •• he kept complaining over and over about Officer Lopez hitting him in the face. Q. And during this booking procedure or processing of the prisoner, again, did he complain or show any signs of injury from the strike that you had given him? A. No. That I reca!!, no. There's a part on the booking form where it asks if they need any medica! attention or anything, and I believe he signed off on it. (Video playing) A. He's talking about how he started assaulting Officer Lopez there. Q. And at any time did you have to assist him with walking? Did he need help? Did anybody have to hold him up while he was walking into the booking room or into the police station or anything? A. No, not at all. He exited the vehicle on his Ti 2 3 4 5 6 7 104 s l 105 103 6 7 8 9 10 og 11 own and he walked into booking on his own. MR. LEONARD: I don't need to show any more of the video, but if you guys want to keep it running·· MS. HAYWARD: That's okay. Q. Now, regarding the video, how soon after this incident occurred did the video get leaked to the media? A. I was actually at my wife's Christmas purty when l started getting text messages that it was all over the media and Facebook. Q. And to the best of your knowledge, was that video released with the permission •• A. That same week. I'm sorry. Q. Go ahead. A. It was on that same week of the incident. Q. Okay. To the best of your knowledge, was that video released with the permission of the chief or the department? A. No. Q. And as far as the releasing of the video, was there a lot of public discussion or a lot of public discourse regarding the contents of the video? A. Yes. Q. And did other people in the community contact re s 1 2 3 4 5 Pr 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No. Q. This strike that you issued, what made you decide on that strike at that time? A. Again, I always say we always full back to our training. That's a strike that Chief Gonzalez had even taught us prior to PPCT. So I believe I fell back to my training. I'm right-handed and that week, the week prior, I had sprained my ankle pretty bad that I was limping, and when I struck him, I struck him with my weak leg due to the reason that I knew l couldn't stand on my ankle to even strike with my right leg. Q. And when you issued the strike, what was the purpose of grabbing Mr. Aguirre's arm? A. Again, it's always to control them and break U1eir fall. Again, whether he's handcuffed or not handcuffed, that strike is going to be painful. We don't know what their reaction is going to be, whether he's going to fall for.vurd or backwards. Again, I did see that he was handcuffed. I did grab him to break his fall, and then again just to put him in the vehicle. Q. And after you issued the strike, what was the physical reaction from Mr. Aguirre ago? A. As soon as I put him in the vehicle, again, I had already heard screaming and yelling and I knew 27 (Pages 102 to 105) BRYANT & STINGLEY, INC. Harlingen (956) 428-0755 Electronically signed by maureen stingiey (001-221-768-7849) McAllen (956) 618-2366 2917 83f2-6048-4 9d 6-Be22-3f8258 b9b7 e2 106 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes. I'm a mobile video instructor as well, so I've always known that anything I do nt any moment can be videotaped, whether it's by citizens or ourselves. I had in writing the mobile video policy in the department. I never leave anything out of my reports. I put it on there. I explained what I did and why l did it, and I never hid anything from anybody. Q. The strike itself, again, weren't there other options available that you could have used or tried prior to issuing that strike? A. Yeah. The chief brought up the brachial stun. If£ would have a brachial stun, his head would have tlown and probably hit my vehicle. There's a lot of other stuff that could have been done. At that moment, I had a split-second decision. Again, I fell back on my training, and I knew it worked because it worked on me when the instructor did it on me, and r didn't have any incident putting him in the vehicle. Q. To the best of your knowledge- well, were you ever criminally charged in this matter? A. No. Q. Have you ever seen other officers in the department receive discipline for allegations of excessive force or violation of policy where they didn't get fired? es 1 2 3 4 5 m 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there was a fight going on. As I start running towards it, I'm starting to pass officers, I hear Mr. Aguirre kicking the window of my unit. As I hear the kicking of the window, right away I thought that he was going to break that window. As I tum back to sec whether I was going to need help or restraints or whatever, I realized and saw that we have those bars on our units, wh ich is something new that we didn't have when I was on patrol. Q. Go ahead. A. And as soon as I saw that, then I turned back around and started running and started telling everybody, "Go, go, go." Q. Now, in regards to the fight or the commotion that you heard in the yard, you stated that you thought officers were involved in that. But did you actually physically see who was involved in the fight at the time you issued the strike? A. No, I didn't. Q. Did you later learn the identity of people who were involved in this? A. Yes. Later !learned that one of the screams that was being-· or one of the ladies that screamed out was the runaway's sister, because they were restraining the runaway. She was already under Ti 1 2 3 4 5 6 7 8 9 10 108 109 re s handcuffs. While they were restraining her, the runaway bit her cheek, and that was the scream that I believe I heard. Q. And did any officers receive any injuries as a result of that struggle with the female? A. Officer Lopez got bit, I believe in the chest or in the arm or somewhere, but I !mow he got bit. Q. And in regards to this incident, did you write a report on the day of the incident? A. The next morning. Again, we had a rosary that I had to go to that night. A friend had passed away. So I had already called my wife. I had finished my report for the actual arrest that I had done. I had called every supervisor. I had called supervisors to see if they could come in earlier to help out due to sending Officer Lopez to the hospital and going out looking for his body cam that he stated he was wearing. Again, it's a high crime area. There was a lot of people, and I took it upon myself to call supervisors to see if I could get more officers in earlier from their shift. Q. And when you wrote that report, did you basically include that you were involved in this incident with Mr. Aguirre and that you had issued this strike to him? og 1 2 3 4 5 6 7 8 9 10 11 12 13 s 107 14 Pr 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes. Q. Again, at the time that you issued the strike, was it your intention to purposefully harm or injure Mr. Aguirre? A. No, not at all. MR. LEONARD: Pass the witness. CROSS-EXAMINATION BY MR. OZUNA: Q. Officer, Mr. My name is Alan Ozuna, and I'm going to be asking a few questions, not very many, but basically I just want to make sure that the hearing examiner has a clear understanding of what your position is with regard to the strike. Now, earlier you heard your attorney ask the chief about whether or not you had accepted responsibility for your conduct here. A. Yes. Q. And he said you've owned up the strike. You've never, you know, misrepresented or shied away from the fact that you did deliver a strike to the suspect, Mr. Aguirre, right? Is that correct? A. Yes. Q. Okay. All right. Have you ever acknowledged any misconduct? A. No. 28 (Pages 106 to 109) BRYANT & STINGLEY, INC. Harlingen (956) 428-0755 Electronically signed by maureen stlngley (001·221-768-7849) McAllen (956) 618-2366 291783f2·6048-49d 6-8e22·3 f8258 b9b 7e2 112 110 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 111 4 Pr og 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. OZUNA: Tab F as in Frank. Q. And then flip to-- the page number is on the bottom right. You'll see a bunch of zeros, but the last two digits will be 50. A. Okay. PROFESSOR JENNINGS: What was that page number? MR. OZUNA: 50. PROFESSOR JENNINGS: 52? MR. OZUNA: 50. PROFESSOR JENNINGS: Okay. Yes, sir, I have it. rvm.. OZUNA: Okay. Q. Now, do you recognize this document? A. Yes. Q. Okay. Can you tell the hearing examiner what this document is? A. It's my affidavit from the lA. Q. Okay. So this was a statement that you gave to IA investigators? A. Yes, sir. Q. Okay. Did you present this on your own, or were you ordered to give this statement? A. I was ordered to give the statement. Q, Okay. Let me have you flip to one more page. re s 1 2 3 Keep your finger on page 50, but I just want to talk about that order. It's on page 34. PROFESSOR JENNINGS: 34? MR. OZUNA: A few pages before. Q. And just briefly, do you recognize page 34 as the order to you to give a statement to lA investigators? A. Yes, sir. Q. Okay. And when did you receive that order? A. It states December 15th. Q. Okay. Does that sound correct? A. Yeah. Q. All right. We're back to page 50. A. Okay. Q. 50. When did you give this statement to IA investigators? A. December 21st. Q. And do you remember that's the date that you gave it to the investigators? A. Yes, sir. Q. Okay. So that looks like it was about six days later? A. Uh-huh. Q. So you had plenty of time to compose your thoughts and put it in a statement, right? es 4 1 2 3 4 5 6 7 B 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 m 3 Q. All right. Is it your position to the hearing examiner that you did not commit any misconduct on that night? A. No. Well, wait a minute. Q. I asked a bud question because I required a double negative. Are you saying that you-- arc you telling the hearing examiner that you committed any misconduct that night? A. No, I didn't commit any misconduct. Q. You did not commit any misconduct? A. Right. Q. That's clear, right? A. Right. Q. Okay. So if the chief said that you did not accept any responsibility for any misconduct, that's correct, right? A. Yes. Q. Okay. According to you, everything you did that night was proper, right? A. In my view of that night, when I had that split-second decision, yes. Q. Okay. Now, why don't you go ahead and grab that notebook right there. I want you to open up to Tab F, and-PROFESSOR JENNINGS: Which tab? Ti 2 s 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 113 A. Yes. Q. Do you acknowledge that? A. Yes. Q. Without telling me what you talked to an attorney about, did you get any advice from counsel regarding the preparation ofthis statement? Did you have the benefit of counsel in preparing this statement? A. Yes. Q. Okay. All right. Do you remember what you wrote in this statement? I know it's in front of you, but do you recall generally what you put in here? A. Pretty much what happened on that night. Q. Between December 21st, when you gave this statement, and now, have you changed your mind about anything? Is there anything in here you wish you had stated differently? A. Yeah. Q. Okay. A. Since the discovery has been done, I've been able to actually watch the videos now. I've been able to refresh my memory on some stuff. Q. You're talking about the videos that we saw today? A. Yes, those and others. 29 (Pages 110 to 113) BRYANT & STINGLEY, INC. McAllen (956) 618-2366 Harlingen (956) 428-0755 Electronically signed by maureen stlngley (001-221-768-7849) 291783f2·6048-49d6·8e22-3fB258b9b7e2 114 116 1 2 3 4 5 6 7 8 9 10 11 12 13 escorted from and where is he being escorted to? A. From Investigator Hernandez' unit to my unit. Q. Okay. So when we saw Officer Monroy's dash camera and we see those two officers start to put him in that unit and then stop, change their minds, and start moving him to another unit, you were present for that, right? A. Yes. Q. Okay. So -MR. LEONARD: I'm sorry. That-- I'm going to object because that's a misstatement of the evidence. The video clearly shows that when he's first initially put into the first vehicle, or as they go to plit him in the first vehicle, they then turn and start walking towards Investigator Galindo's vehicle, which is just arriving on the scene. So you said he was present on the scene. MR. OZUNA: Yes. I want Officer Galindo to tell us whether or not what we saw on Officer Monroy's dash camera, where they were first attempting to put him in one vehicle, changed their minds and walked somewhere else-Q. Were you there yet, or not? m 14 A. Yes. Q. Okay. When you get there, where is he being es Q. Okay. Is there anything in here that now strikes you as being incorrect or that you wish you had said di ITerently? A. On 21 -Q. Arc you talking about line 21? A. Yes, line 21. Q. Okay. A. It says, "...by the apartments, which I then see Officer Lopez on the ground with another person that appeared to be resisting." As I exited my vehicle, again, they were pretty much right there real quick. This happened within seconds. My back was turned. I did perform the strike, but when I turned back, and again -- I put him in the vehicle and I turned back. I presumed that it was Officer Lopez the whole time, because when l turned back I saw Officer Lopez involved in the actual struggle with the female. Q. Okay. So what about your statement here doesn't match up with your recollection now? A. Just that I had actually seen Officer Lopez on the ground. Q. Okay. All right. So you're saying that at the time, you weren't necessarily aware that it was Officer Lopez? Ti 15 16 17 18 19 20 21 22 23 24 25 s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 117 115 re s A. No, l just presumed, because when I turned, that was the first -Q. Okay. So other than the fact that you were presuming it was Officer Lopez and you weren't sure that it was Officer Lopez, is everything else pretty much the way you remember it? A. I believe so. Q. Okay. I want to ask you a couple of questions about some of the statements you make in here. A. Okay. Q. Let's start on line 15. At the end of that sentence there, you state "As 1arrived, the subject is being escorted by Officer Salvador Hernandez and Officer Jonathan Monroy." By "the subject," who are we talking about? A. Mr. Aguirre. Q. That's the person we saw on the video being escorted by these two officers? A. Yes, sir. Q. Okay. So now that we've looked at the video, that statement is true, correct? A. Yes. Q. Okay. They're being escorted by Hernandez and -- I mean, sorry -- Aguirre is being escorted by Hernandez and Monroy? og 1 2 3 4 5 6 7 8 9 10 11 12 13 Pr 14 15 16 17 18 19 20 21 22 23 24 25 II 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. If it caught it on my dash cum, then IQ. It wasn't your dash cam that we looked at. It was Officer Monroy's dash cum. I just want you to state to the hearing examiner whether you remember being there when those two officers tried to get him in the first unit and then changed their minds? A. I don't remember. Q. You don't remember one way or the other? A. No. I remember once they started from that unit to my unit. Q. Okay. So did you see them attempt to put him in the first unit? A. No. Q. You just saw them walking from the first unit to you? A. Yes. Q. All right. So then you state, "As I exit my unit, the subject is being walked by the officers." And that's true, right? A. Yes. Q. "And he was not walking of his own free will." What do you mean by that? A. Anytime any officer has to interlock their arms onto them- when we escort somebody that's walking of their own free will, we'll just grab them from their 30 (Pages 114 to 117) BRYANT & STINGLEY, INC. Harlingen (956) 428 ~ 0755 Electronically signed by maureen stlngley (001-221-768-7849) McAllen (956) 618-2366 291783f2-6048-49d6-Be22-3fB 258 b9b7 e2 118 3 4 c. .J 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. To me, they needed my help to -- one, because it is my unit, and, 1\VO, to get him in my unit. Why, again, they chose my unit instead of the other two units that were closer to them, I assumed they were coming to me because they needed my assistance. Q. That doesn't quite answer my question. And if my question doesn't have an answer or you're not sure, just tell me. A. Okay. Q. You stated that one of the aspects of help that you think they needed was they wanted to put him in your unit, and that's your unit and you're responsible for it, so they needed your general help doing that, right? A. Yes. Q. But my next question is whether or not you also mean that they needed some kind of physical help, restraining him, getting him under control, or doing any other kind of tactics so that he's not a problem anymore? MR. LEONARD: I'm going to object, because the question has already been answered. The witness already said specifically, "They needed my help, yes, because it was my unit, and, yes, because they needed my help getting him in the vehicle." So that question es 2 m 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Ti 6 7 ann or their elbow area and they'll be walking of their · m~n free will. In this case, it was two officers that had their anns interlocked with his, and, to me, they were making him walk. Q. Okay. Were they having any dil1iculty doing that? A. No. They were escorting him. Q. So they weren't having ditliculty getting him to walk fully? A. No. Q. All right. And you state-- in your next sentence, you say, "I did not sec the handcuffs on the subject until he got closer." A. Yes. Q. Is that true? A. Yes. Q. You couldn't tell whether he was cuffed or not when you tirst got there? A. Yes. Q. When did you become aware that he was cuffed? A. Once he got closer to me-- again, we kind of shifted. I turned my back towards the scene, and us soon us they brought him over, I actually saw the handcuffs. Q. Your next sentence is, "When I saw the officers 120 s 1 2 3 4 5 119 2 3 4 5 6 7 8 9 Pr og 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 walking toward my direction, it appeared they needed my help." What did you mean by that? A. Again, there were units closer. Why didn't they put him in a unit for whatever reason, I have no idea To me, I assumed - they were coming straight to me. There was unoU1er unit closer to them that they could have put him in, but they decided to come to the furthest one away, which was my unit. Q. So what help did they need? A. They needed assistance with him. That's what I assumed at that moment. Q. Having looked at the video and having had all the discussions that we've had here today, are you still of the opinion that they needed your help? A, Again, they needed my help, and I'm also responsible for that unit. So if we didn't get him in or if he went in there with a weapon or something, that was my unit Umt I was responsible for. Q. And that's what I'm getting at, Officer. I want you to clarify the statement "They needed my help." Are you telling the hearing examiner that they needed your help because it was your unit and you were responsible fori~ or are you telling the hearing exan1iner that they needed some kind of physical help in restraining Mr. Aguirre? re s 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 121 has been answered. Mr. Ozuna keeps asking the same question over and over, just trying to confuse the witness into giving him the response that be's seeking, but he has already answered the question. MR. OZUNA: I promise I'm not trying to confuse the witness, but I do want to make clear that his position is that he thought the officers needed physical help restraining Mr. Aguirre. MR. LEONARD: And he's already answered that in the affinnative. PROFESSOR JENNINGS: I'm going to- we need to move away from that, yes, sir. MR. OZUNA: I'm satisfied with that answer. PROFESSOR JENNINGS: All right. Q. Now, you're aware that Officers Hernandez and Monroy disagree with that assessment, right? A. Yes. Q. According to them, they didn't need any further help in restraining Mr. Aguirre, according to their statements; is that right? A. Yes. MR. LEONARD: I'm going to object and just ask where specifically they say "We did not need any other help with this subject." 31 (Pages 118 to 121) BRYANT & STINGLEY, INC. Ha r 1 in g en ( 9 5 6 ) 4 2 8 - 0 7 5 5 Electronically signed by maureen stlngley (001-221-768-7849) McA 11 en ( 9 5 6 ) 618 - 2 3 6 6 2917B3f2-6048-49d6-8e22-3 fB25Bb9b7 e2 12 2 4 5 6 7 B 9 10 11 12 13 14 15 16 17 PROFESSOR JENNINGS: Okay. MR. OZUNA: There should be a page 43 on there. We'll print it out and we'll make sure it gets in your book. MS. HAYWARD: I have a feeling it's Hernandez' supplemental statement, bui I'm not sure. We'll make sure everybody gets a copy. MR. LEONARD: I just want to make sure that we all have the same missing 43. MS. HAYWARD: We do. MR. OZUNA: Okay. Q. So on page 44, on line 16, Officer Monroy states -- that's the other officer escorting Mr. Aguirre. He states, "While escorting, the male was yelling and making his body tense, but we still managed to escort him." Do you see that? A. Yes. Q. All right. Let's go back to your statement. Okay. On line 19, you state that, "As the officers proceeded to get the individual closer to my unit, he said, 'Keonda,' and I believe I replied 'Pos ke onda.'" I know that you testified, when your attorney was asking you, that there were probably some other things being said, but it was very loud. But you es 1 2 3 m MR. OZUNA: Let's turn to page 41. MR. LEONARD: Under the same F? MR. OZUNA: Also under F, yes, just a few pages before. Q. Okay. Let's start at line 19. Yeah, I think it's 19, Okay. At the end of line 19, Officer Hernandez states in his statement"! remember that the male was passively resisting during this time by just tensing his body, but his actions did not require to use greater force." Do you see that? A. Uh-huh. Q. Okay. So Officer Hernandez doesn't think it was necessary to do anything else, right? A. Right. MR. LEONARD: Again I'm going to renew my objection as to a mischaracterization of his testimony when Mr. Ozuna states that they said "We don't need anybody else's help." PROFESSOR JENNINGS: I understand, I understand. Yes, sir. And so I will uphold your objection, yes. Let the record show that, yes, ma'am. Q. Did either Officer Hernandez or Oflicer Monroy ask you for additional help? A. No. Q. So nothing came out of their mouths saying, 18 19 20 21 22 23 24 25 Ti 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 124 125 2 3 4 5 6 7 8 Pr og 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "Galindo, hdp us," right? A. No. Q. All right. Let's turn to Officer Monroy's statement. That's just two pages later. PROFESSOR JENNINGS: What page is that on, sir? MR. OZUNA: 44. PROFESSOR JENNINGS: Okay. MR. LEONARD: I have a question just in regards to this document, the evidence document. I just noticed now that there is u missing page 43. Am 1 correct on that? Does everybody's copy have a missing page 43? MS. HAYWARD: There shouldn't be a missing page 43, but mine doesn't have a 43. PROFESSOR JENNINGS: I don't have a 43 either. MR. LEONARD: As long as we're all on the same page. MS. BA YWARD: It shouldn't be missing 43, but-PROFESSOR JENNINGS: I don't have a 43 . MR. OZUNA: What we'll do-- what we'll do is we'll pull up the computer-- the electronic version of this document. re s 1 s 123 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 definitely heard "Ke onda"? A. Yes. Q. Okay. Do you know what -- we heard the chief say that that could mean several things. Do you know what it meant in that context? A. Again, it could mean several things. To me, I took it as he's confronting me. He kind of caught me ofT guard, because I wasn't expecting him to just blurt out and start telling me anything, and he goes, "Ke onda,'' and I kind of stated "Paske onda," like "What's going on?" Q. So you know what you meant by "Pos ke onda," right? A. Yes. Q. Okay. What did you mean? A. Like asking him, "What are you talking about? I have no idea what you're talking about." Q. Okay. So you don't know what he meant? A. No. Q. Did you perceive it as a verbal threat? A. Pretty much, yeah, the way he was acting. Q. What was he threatening you with? A. Again, when we say it in those terms, especially in Spanish, in our Mexican culture, it's pretty much you're confronting somebody. It can be the 32 (Pages 122 to 125) BRYANT & STINGLEY, INC . Ha r 1 in g en ( 9 5 6 ) 4 2 8- 0 7 55 Electronically signed by maureen stlngley (001 -221-768-7849) McA 11 en ( 9 5 6 ) 61 8 --2 3 6 6 291783f2-6048-49d6-8e22-3f8258b9b7e2 126 21 22 23 24 25 B 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 because, at the same time, I'm exiting tht: vehi cle, I'm putting on my vest, they're approaching with Mr. Aguirre, and that's wht:n I'm talking about, that as I turned back, I then see Officer Lopez on the floor. Q. And you don't know what's happening to him, · right? A. No. Q. Did you have fears or concerns about something bad happening to Officer Lopez? A. Yes, 1 feared for his life. Q. And that ft:ar, was that developed when you got there or did you already have that going when you were driving there? A. I already had it going since I heard his scream out for help. Q. So when you get there, why not address the situation with Lopez immediately? A. Again, this happened within seconds. It wasn't minutes. This happened within seconds of me going and running over there towards where Lopez was at. I can't say how many seconds it was, but it was a split-second decision that I decided to say, "You know what," and get him in there. Once I heard the screaming and everything, that's-- nobody was running until they heard me start es 9 10 11 12 13 14 15 16 17 18 19 20 1 2 3 4 5 6 7 m B beginning of a fight. It can be said in so many ways. But I took it in a confrontational way. Q. So you're telling the hearing examiner that by him saying "Ke onda," he was wanting to start a fight with you? A. Again, that's the way I took it, that he was confronting me. Q. What level of fighting did you image he was going to do handcuffed and escorted by two officers? A. Again, as hi! approached me and he said that, when I put my arm, my right arm on his shoulder, I already had control of him. Otlicer Monroy never had control of him at that moment. At that moment, Officer Monroy released his control on to me, and OtTicer Hernandez-- I didn't see, but he states that he began a pat-down. That's when I believe that if he's releasing him to me, he needed my help for one reason; he wouldn't be releasing him over to me just to hand him off. Q. Officer, are you telling the hearing examiner that Officer Monroy indicated he needed additional help from you by letting go? A. No, he's handing off the individual to me. Q. That's an indication that he needs more help? A. No, that's the indication that he's handing him Ti 1 2 3 4 5 6 7 12 8 c: ..J 6 7 8 Pr og 9 10 11 12 13 14 15 16 17 18 19 20 21 off over to me, and what the reason for the help is, I have no idea. He would have to be asked. But, again, if somebody hands an individual over, they need assistance or-- I wouldn't know why he -- what other reason he would just hand him off over to me. Q. You don't know why he released him to you, do you? A. No. Q. Are you telling the hearing examiner that Officer Monroy letting go of the suspect, turning him over to you, was an indication that you needed to apply greater force? A. No, I'm stating that once Officer Monroy let go of him, when I put my arm on him, Officer Monroy released his custody to me. Q. Okay. All right. After we get through the verbal exchange between you and Aguirre, you state that "I had already seen that there was mort: people screaming and something dse was going on by the apartments." Now, is this what you were referring to earlier when you said that Lopez appeared to have some other situation that he was dealing with? A. Yes. Again, when I exited my unit, there was a large crowd, again, by the apartment area. I didn't know the status ofOtTicer Lopez. I turned away re s 1 2 3 4 s 127 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 9 "Go, go, go, go," and they started running after that. Q. Didn't you just say that you already knew that Lopez was in some kind of trouble? A. Ycs, from the minute the radio transmission came out. Q. So then why stop and concern yourself with a suspect whose in the custody of two officers before getting into what appeared to you to be a more serious situation with Lopez? A. I have no reason. I mean, it was just a split-second decision. 1 didn't have time to really think about it. Q. Okay. I want to skip a few lines down and ask you about line 25. You state, "I was calm and collected throughout the whole situation that I was trying to gain control of." Is that where that sentence ends? I know there's no punctuation there, but is that right? A. Yes. MR. LEONARD: I'm sorry. Could you-MR. OZUNA: Yeah. Line 25MR. LEONARD: Right. MR. OZUNA: There doesn't appear to be any punctuation, but I think I'm identifying the end of the sentence correctly. 33 (Pages 126 to 129) BRYANT & STINGLEY, INC. Ha r lingen ( 956) 4 2 8-07 55 Electronically signed by maureen stlngley (001 -221 -768-7849) McAllen ( 95 6) 618-2366 291783f2-6048-49d6-8e22-3f8258b9b7e2 132 130 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 accept me making a mistake in issuing that strike. Q. Okay. And this is kind of the point of my question. I promise you I'm not trying to trick you, and if you or your attorney think I urn, please jump in or please look to your attorney for help on this. I just want you to tell the hearing examiner whether or not you're acknowledging any misconduct, any excessive force, anything wrong with what you did that night, or not. MR. LEONARD: I'm going to object, only because this is the third or fourth time that Mr. Ozuna has asked the exact same question. And he has answered it. He's looking to see if the witness will change what he said previously. He's asked him two or three times. We can do a read-back if necessary, but I believe the question has been answered. MR. OZUNA: And the only reason I'm asking it again is because Mr. Galindo's last response had -he indicated "I'll accept responsibility for some kind of mistake," and I just- again, I don't want to change his answer, I don't want him to answer any differently, but I want the hearing examiner to leave this hearing with a clear idea about whether or not Mr. Galindo accepts that what he did was appropriate in any way, or not. es 4 5 Q. Right? Well, you tell me, Officer Galindo. A. Yeah, I think so. Q. "I was calm and collected throughout the whole situation that I was trying to gain control of." A. I believe so. Q. Is that where that ends? A. Yes. Q. Okay. All right. You state you were calm and collected, or cool and collected? A. Uh-huh. Q. I'm sorry, calm and collected, okay. Now, is that still true today? Do you still believe you were calm and collected there? A. Yes. Q. And I think your attorney asked tht: chief some questions about whether or not you had any reason to be angry with Mr. Aguirre, and you said that you weren't. A. No. Q. And do you still stand by that today? A. Yes. Q. Okay. Now, let me ask about the chiers decision. Obviously the chief has made the decision that you needed to be terminated from the police department, right? A. Yes. m 2 3 Ti 1 23 24 25 133 2 3 4 5 6 7 8 9 10 telling the hearing examiner that you acknowledge any misconduct that day, right? A. No, I'm not. Q. Are you familiar with the doctrine, the disciplinary doctrine that if an officer is accused of misconduct and he accepts responsibility and admits misconduct, that sometimes the chief or maybe even an arbitrator will cut an officer a break because of that, kind of like throwing yourself on the mercy of the court? Are you familiar with that? A. No. Q. You've never heard ofthat? A. No, sir. Q. But what's clear is you're not doing that now, right? You're not saying, "Chief, I messed up, I'm sorry, but I don't deserve to get fired." A. No, I'm here saying that I might have made a mistake, and I'll admit to my mistake. It was a split-second decision that I had to make at that moment. 1l1at I did it maliciously or to injure somebody or on purpose, that's what I consider misconduct. That I might have made a mistake, I'll og 11 12 13 Q. You disagree with that? A. Yes. Q. But we've already covered that you're not re s 1 s 131 14 Pr 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LEONARD: I'm going to object, only because the question has been answered by the witness. Additionally PROFESSOR JENNINGS: I'm going to uphold his objection. So we need to move away from that one, counsel. MR. OZUNA: Okay. Q. So are you familiar with the concept that the chief making a disciplinary decision oftentimes should go through a progressive disciplinary process or consider whether some lesser punishment would suffice in any particular case? A. I didn't understand the question. Q. Are you familiar with the idea that a chief shouldn't go directly to the worst form of punishment, should probably consider maybe some steps along the way? A. Oh, yes. Q. All right. Now, do you know or are you familiar with the idea that one of those things that the chief should sometimes consider is whether or not additional training might correct an officer's misconduct? A. Yes. Q. You're aware of that? 34 (Pages 130 to 133) BRYANT & STINGLEY, INC. Harlin gen (956) 428-07 55 Electronical ly signed by maureen stlngley (001-221-768-7849) McAlle n (956) . 618-23 66 29178 3f2-6048-49d6-8e22-3f825B b9b7 e2 134 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. When did you have this conversation with the chief'? A. The day of my termination. Q. What are you saying the chief said? A. When we were there, he stated that the reason that I was getting terminated, again, it was a leaked video, and he knew the leaked video was being leaked out because there was individuals here that didn't like him. Q. Didn't like who? A. The chief. Q. The video was leaked because people didn't like the chief'? A. Yes. Q. And you're saying that the chief explained that's why he had to fire you? A. Yeah. The chief and I have been friends for quite a while. He knew he needed to do something or else they would come buck and say that he let me go without any punishment or anything, whether I was right or wrong. Q. You've been friends with the chief'? A. Yes. Q. You said quite a while. About how long? A. Maybe eight, nine years. es 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 m 7 A. Yes. Q. Are you aware of the possibility that a chief should sometimes apply a requirement to go to counseling or to seek help with anger management issues as opposed to a severe form of discipline? MR. LEONARD: Objection as to relevance. There has been no anger management issue -PROFESSOR JENNINGS: Yeah. And I'm kind of curious about this line of questioning that you're talking to the witness about. I'm having a hard time understanding --you know, following where you're taking us on that. MR. OZUNA: I'll tell you that the chief testified about whether or not he would have considered any other form of addressing this situation to correct what he believes to be officer misconduct. And Officer Galindo is telling us that he is not accepting responsibility for any misconduct, he wasn't angry, he wasn't upset. And so the chief- I want to address what I'm perceiving to be the defense of the chief failing to address those issues by ordering him to additional training or ordering him to some kind of counseling or some kind of anger management. PROFESSOR JENNINGS: I don't think he can answer that. He just can't do that. He can't look Ti 1 2 3 4 5 6 136 137 into the chiefs mind to see why he did that. He can't answer that. MR. OZUNA: Well, and whnt I'm trying to address here is whether or not Officer Galindo believes that any of those lesser forms of addressing the situation, the chief should have done. PROFESSOR JENNINGS: And I would say that he would normally take that position, I would think. MR. OZUNA: Okay. I think I understand. PROFESSOR JENNINGS: Yes, sir. Q. Now, your attorney asked you about the issue with the video having been released. A. YeS, Q. Now, you acknowledge that that was a public issue, right? A. Yes. Q. And would you agree with the chief that the balance of what was out there in the media was pretty negative? A. Yes. Q. Is it unreasonable for the chief to want to address that? A. Between the conversation that he and I had, it was -- he stated he had to do something and he knew it was being done because the individuals didn't like him. Pr og re s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 s 135 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. All right. Do you have any reason to believe that the chief would want to single you out for worse punishment than someone else? A. Yeah, so they wouldn't say he's covering up for me or lying for me or anything. Q. I don't think I understood your answer. Because you've been friends with the chief, would the chief have any reason to treat you worse than other officers? A. Yes. So people here in the department won't say that he's favoring me or anything. Q. Okay. These other officers that your attorney asked the chief and asked you about, who have also been in situations where they've been accused of excessive force, but not been fired, are you aware of anything that would cause the chief to treat those people better than you? A. No, I'm not aware of anything. MR. OZUNA: I'll pass the witness. MR. LEONARD: Nothing further. PROFESSOR JENNINGS: Okay. Do you have other witnesses? MR. LEONARD: No, sir. We rest. PROFESSOR JENNINGS: Okay. So both parties now have rested. Is that correct? 35 (Pages 134 to 137} BRYANT & STINGLEY, INC. Harlingen (956) 428-0755 Electronically signed by maureen stlngley (001-221·768·7849) McAllen (956) 618-2366 291783f2·6048-49d6-Be22· 3fB25Bb9b7e2 138 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 time I'm tem1inating an officer, I tell them, you know, "I'm about to make a very hard decision." Some of these ofl1cers have spent a lot of time with us. In his case, he had a lot of training and experience, and he was an asset to the department. So I did advise him that it was a hard decision. And 1 know him personally and I know his family personally, but it was some of the things that I comment to the officers when I terminate them. I don't take pleasure in terminating any officer, because I know that it's going to affect their livelihood. Q. Okay. And did you indicate to him at any point in time that the release ofthe video was what forced your hand to terminate him? A. I did tell him it was part of it, and I testified before that it played a role in my decision. Q. But that the release itself was not the sole reason? A. No. That is correct. MR. OZUNA: l pass the witness. CROSS-EXAMINATION BY MR. LEONARD: Q. Chief, just a couple of quick follow-ups. Isn't it true that officers have accused you in the past of not-- of favoring Investigator Galindo due to es 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 m 11 MR. OZUNA: !think so. MS. HAYWARD: Let's take a real quick break. We may cull the chief on rebuttal. PROFESSOR JENNINGS: Yes, ma'am. I understand. (Brief recess) MR. OZUNA: We'll just cull the chief in rebuttal on that last line of questioning. PROFESSOR JENNINGS: Okay. DIRECT EXAMINATION BY MS. HAYWARD: Q. Chief, you were listening to Galindo's cross-examination. A. Yes. Q. And he mentioned having a conversation with you on the day he was terminated. Do you remember talking with him on the day he was tcnminated? A. That's correct. Q. Did you tell him that you needed to fire him-strike that. Did you tell him that the video was released because somebody did not like you? MR. LEONARD: I'm going to object, only because that's a mischuractcrization of the testimony. I think that what was said was that the video being released was hurtful to the chief. I don't think that Ti 1 2 3 4 5 6 7 8 9 10 140 4 5 6 7 8 9 10 11 Pr og 12 13 14 15 16 17 18 19 20 21 22 23 24 25 he said it exactly the way the question is being posed. MS. 1-IAYWARD: Based on testimony from Galindo, it would seem that somebody \Vas specifically trying to hurt the chief by releasing the video. MR. LEONARD: Okay. I think I get what you're saying now. Okay. Q. Did you have a conversation with Galindo on the day he was terminated? A. Yes. Q. About the video being released? A. That's correct. Q.. Did you give him any indication that the video being released was directed at you in any way? A. I did advise him that the video leak was going to be investigated and I needed to find out the angle, why it was leaked. Q. But at the time did you know why it leaked specifically? A. Not specifically at the time, no. Q. And did you have a conversation with Galindo advising him that you did not want to tem1inate him? A. Yes. That's a conversation that I have with every person I come across that I'm about to tenminate. I think that a decision like that is going to affect their livelihood, and I think that's always- every re s 1 2 3 s 139 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 141 your friendship? A. That's correct. Q. And isn't it a fact that one incident in particular, a SWAT operation, isn't it true that you compelled Investigator Galindo to take a urinalysis test, telling him at the time that you didn't want anybody to believe that you were showing him preferential treatment or favoritism? A. No, that's not correct. All the SWAT officers get randomly tested. Q. No, this was particularly after an incident that he was involved in where you made him take a drug test and that part of the conversation was that you didn't want people saying that you were giving him preferential treatment. A. I don't recall that incident. I don't recall. MR. LEONARD: Nothing further. PROFESSOR JENNINGS: Okay. MS. HAYWARD: Nothing further. PROFESSOR JENNINGS: Okay. Do you have anything else for the chief? MR. LEONARD: No, sir. PROFESSOR JENNINGS : Okay. Can we talk about how the parties wish to handle their closing arguments? 36 (Pages 138 to 141) BRYANT & STINGLEY, INC . Harlingen (956) 428-0755 Electronically signed by maureen stlngley (001-221-768-7849) McAllen (956) 618-2366 291783f2-6048-49d6-8e22-3 f8258 b9b 7 e 2 142 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the briefs. MR. LEONARD: Yes, sir. PROFESSOR JENNINGS: Okay. Very good. And so with that, we're otT the record. (Hearing concluded) 1 2 3 4 5 6 7 8 es 3 4 5 MS. HAYWARD: Yes. Typicnllywedo closing briefs. PROFESSOR JENNINGS: Okny. Do you want to do a closing brier? MR. LEONARD: Yes, sir. PROFESSOR JENNINGS: Very good. One of the things I need to do is now - I know it's contingent on when the court repor1er has that done, but what I would like to do is to have a dnte cer1nin, so mnny days beyond when they get the transcripl MR. LEONARD: Normally, it's 30 dnys after we receive the transcript. PROFESSOR JENNINGS: Okny. MR. LEONARD: So unless there's something thllt •• 1HE REPORTER: A week. MR. LEONARD: A week? That's even better. I thought it was two to three \\leeks. PROFESSOR JENNINGS: 30 days after receipt of the transcript? MR. LEONARD: Yes, sir. We can send you Em email saying that we've gotten the transcript nnd that our clock starts this dny. PROFESSOR JENNINGS: Okay. If you would, do that. 9 10 11 12 13 14 15 m 2 144 16 17 18 19 20 21 22 23 Ti 1 24 25 145 2 3 4 5 6 7 og 8 9 10 11 MS. HAYWARD: Yeah, we can do thal PROFESSOR JENNINGS: Very good. MR. LEONARD: Do you have a page limit on your briefs? PROFESSOR JENNINGS: No. MR. LEONARD : I know the new thing lately is arbitrators want to enforce the word "brief." PROFESSOR JENNINGS: No, I don't have any page limit, no. I'll read everything that you send me. MR. LEONARD: Okny, sir. PROFESSOR JENNINGS: One of the things, Jet me just say in regards to a brief, l'm n member of the National Academy of Arbitrators, and we go to meetings, and sometimes people will say "What is the value of a brief to an arbitrator?" And normally the brief does have significant value to the parties and to the arbitrator, because whnt it does, it gives you one more opportunity to present your case, number one. Number two, sometimes what happens is that it refreshes - when you write your brief and you include things in there, it refreshes the arbitrator's mind. So to this arbitrator, post-hearing briefs are important. And let me just say one thing about those briefs. It's a one-shot deal. There's no rebuttnl on re s 1 s 143 12 13 14 15 16 Pr 17 18 19 20 21 22 23 24 25 AMERICAN ARBITRATION ASSOOATJON CHAPTER 141, TEXAS LOCAL GOVERNMENI' CODE nDRO PARTY HEARING EXAMINER PROCEEDING X In the Malter of The Appcol Betw=l X X omCERJUANOAUNDO X XAAA NO. Ol-16-0000-1520 Grievant X X (lnddirutc Suspcnsioo) and X CtTY OF SAN JUAN, TEXAS ~ )(Bcfarc Han. Daniel Jennings X REPORTER'S CERTIFlCATION ARBITRATION HEARING BEFORE HON. DANIEL JENNINGS APRIL 26,2016 L MAUREEN STINGLEY, Certified Court Rcponor io and for the Slate ofTexa~, hm:by=tlfy th!l the prn:cdiug 14S pages repr=l a true and llCCiltlll.e tnmsaiplion of the h=in~ held in the above·refc:n::nced c = ~fen: HONORABLE DANIEL JENNINGS. Arl>itrzll!JT, on April 26, 20 16, said )lfOCC1:1lilllJS ro:por1cd llcnogrwpbically by m: and transcribed Wld:r my di=ti on: I furthet certify tblll I am neitlu:r cout~J