The D.A.’s Critical Incident Team report

By now, everyone who is following the investigation into the death of Mario Gonzalez knows the bottom line:  Alameda County District Attorney Nancy O’Malley has concluded, as she put it in her letter to Alameda Police Chief Nishant Joshi, that “the evidence does not justify criminal charges” against any of the three A.P.D. officers involved in the case.

But the report written by the D.A.’s Critical Incident Team and released by Ms. O’Malley contains more than just this basic finding.  In the course of its analysis, the team addressed three questions about the Alameda cops’ role in the Gonzalez incident:

  • Was Mr. Gonzalez’s detention and arrest unreasonable?
  • Was the cops’ use of force excessive?
  • Was their conduct the cause of Mr. Gonzalez’s death?

For each question, the Critical Incident Team gave what amounts to a negative answer.

The veteran prosecutors and inspectors making up the team reached their conclusions after assembling the facts and applying the law.  They examined all of the body camera footage taken by the three officers and prepared a detailed chronology of events; interviewed each of cops as well as a parking technician who was riding along with one of them; and reviewed the report of the Chief Forensic Pathologist who conducted the autopsy.  This evidence was evaluated in light of not only the A.P.D. policy manual but also the applicable statutes and case law.

Our purpose today is to summarize the factual basis shown in the report for the negative answers to the three questions.  We realize that there are some “activists” to whom evidence doesn’t matter:  they took to the streets denouncing the cops long before any investigative agency had finished its work.  If any of those people are reading this column, they can stop here.

For those interested in the facts, we’ll start with the detention and arrest.

The narrative begins with a call from a citizen reporting that a person was “acting strangely and talking to himself” outside the caller’s front yard on Oak Street.  (The caller also stated that this conduct “scared his wife,” a comment that has led the Twitter trolls to condemn the caller – fortunately, still anonymous – as a paranoid white racist, even though his race was never stated.)

Officer Eric McKinley responded to the call, followed shortly thereafter by Officer James Fisher.  The officers found a man standing next to two shopping baskets, one of which contained two bottles of alcohol.  One bottle had a black store security cap on it, and another was open, with pieces of another black store security cap on the ground.  About two cups of its contents already had been consumed.

(The report reveals that the subsequent investigation by the Alameda County Sheriff’s Office identified the likely source of one of these bottles.  A video camera located at the CVS store on Santa Clara Avenue captured Mr. Gonzalez on the previous day “taking an alcohol bottle from the store shelves without paying for it.  The brand of this alcohol bottle with security cap matches one found at the scene. . . .”)

For more than nine minutes, the two officers spoke with the man, who “appeared to be under the influence of alcohol or a drug and could not care for himself,” but they were “repeatedly unsuccessful in identifying him or getting any information from him.”  (For example, according to the chronology, Officer McKinley asked the man four times for his name before getting a response:  “Something Mario, that’s it.”  A few seconds later, when Officer McKinley attempted to confirm that the man’s name was Mario, the man responded, “No, sorry, it’s not that.”  He did not reply when the officer then asked, “What is your name then?”)  In addition, while speaking with the officers, the man, who had not been searched, “began to move around and started putting his hands in the pockets of his short[s], even after the officers repeatedly requested that he not do so.”

The Critical Incident Team identified two primary reasons justifying the officers’ decision to detain and arrest Mr. Gonzalez:

  • The officers had “reasonable suspicion to detain Mr. Gonzalez, as well as sufficient probable cause to arrest Mr. Gonzalez for multiple criminal offenses”:  violations of Penal Code sections 484 (theft), 496 (receiving stolen property), and 647(f) (public intoxication);
  • The officers “had reasonable and articulable reasons to be concerned about their safety given Mr. Gonzalez’s intoxication, lack of ability to articulate himself, his failure to comply with the officers’ requests, and his furtive motions towards the pockets of his shorts.”

“We cannot conclude,” the report states, that the officers’ decision was “unreasonable” (lawyers love their double negatives) “in light of the number of possible criminal offenses observed, the inability to obtain any information from Mr. Gonzalez, and his unusual conduct.”   Moreover, it notes, a decision to walk away rather than to detain Mr. Gonzalez would not have been “safe for him or safe for the public because Mr. Gonzalez could likely consume more alcohol.  This could result in Mr. Gonzalez possibly continuing or escalating conduct that was the basis for the original citizen call.”

Next, the use of force.

The report breaks down the incident into three stages.

First, it describes how, for two minutes and 38 seconds, Officers McKinley and Fisher attempted to handcuff Mr. Gonzalez while he was in a standing position.

The two officers “repeatedly and calmly requested” that Mr. Gonzalez place his hands behind his back, but he did not comply.  Officer Fisher then grabbed Mr. Gonzalez’s right arm and Officer McKinley his left.  But Mr. Gonzalez “continually stiffened his left arm and brought it towards the front of his body away from Officer McKinley, preventing the officers from applying handcuffs.”  He also “brought his right elbow up quickly towards Officer Fisher in resistance.”

The officers then decided to bring Mr. Gonzalez to the ground on his stomach so that they could put on the handcuffs.  They first moved him away from the pavement to an area covered by wood chips.  Once there, they attempted to get his hands behind his back, but Mr. Gonzalez “resisted these attempts by moving his upper and lower body, causing the officers to struggle to get his hands behind his back and into handcuffs.  At times his resistance lifted officers off the ground or caused them to reposition themselves to control his body.”

The parking technician arrived to assist by holding down Mr. Gonzalez’s legs.  After a minute and 28 seconds, the officers succeeded in securing the handcuffs.

Even after having been cuffed, Mr. Gonzalez “did not stop resisting.”  Instead, he “continued to forcefully move his upper and lower body, so the officers continued to take steps to hold him down.”  Officer McKinley put his elbow in the crook of Mr. Gonzalez’s left elbow and his hand on his left shoulder.  Officer Fisher put his arm and knee on Mr. Gonzalez’s right shoulder.  Officer Cameron Leahy arrived on the scene and took over the parking technician’s hold on Mr. Gonzalez’s legs.

The officers were well aware, the report states, of the need to avoid placing body weight or pressure on Mr. Gonzalez’s neck or back, which might interfere with his ability to breathe, and they acted to minimize this risk.  Officer McKinley estimated that he used 20 percent of his body weight to hold Mr. Gonzalez down.  Officer Fisher stated he made sure to keep the majority of his weight on the balls of his feet.  Moreover, according to the chronology, when Officer McKinley briefly placed his right shin on Mr. Gonzalez’s lower left rib cage, Officer Fisher immediately stated, “No, no, no.  No weight. No weight.  No weight.”  Officer McKinley then returned to his place at Mr. Gonzalez’s left side.

The Critical Incident Team identified several reasons for concluding that the Alameda cops had not used excessive force:

  • Once the officers had “lawfully attempted to detain Mr. Gonzalez,” he “physically resisted their efforts the entire time until he ultimately became unresponsive.”
  • After Mr. Gonzalez was handcuffed, the officers “took additional steps” to “lessen any harm” to him.  For example, Officer McKinley tried to “distract” Mr. Gonzalez from resisting by asking questions and made sure he still had room to breathe.  Both officers took care to avoid putting weight on his neck or back.
  • Throughout the incident, the officers “repeatedly attempted to deescalate the interactions with Mr. Gonzalez and did not escalate their physical interactions with Mr. Gonzalez beyond what was necessary to detain and arrest him.”
  • In fact, Officers McKinley and Fisher “calmly and exercised patience during their interactions with [Mr. Gonzalez]” and “never raised their voices beyond what was necessary during the struggle.”
  • In addition, the officers “used only their physical strength to attempt to control Mr. Gonzalez.” They did not strike him or employ any weapons.  They did not use choke holds or put any pressure on his neck and limited the weight placed on his back.

For these reasons, the report concludes, “The officers’ approach to Mr. Gonzalez detention and arrest, and their use of force appeared reasonable under the circumstances.”  This finding, it goes on, is supported by the autopsy report.  The pathologist found no “significant injuries” in the areas where the officers used control holds and body weight to control Mr. Gonzalez’s resistance.  Moreover, she found no evidence of any injuries in the neck area, nor any evidence that Mr. Gonzalez’s death was caused by positional asphyxiation.  To the contrary, the autopsy findings “are all consistent with the lack of trauma imposed by the officers on Mr. Gonzalez’s person and the reasonable steps that the officers took to avoid any holds or weight‑bearing techniques involving Mr. Gonzalez’s neck, even though he was physically resisting their efforts.”

Finally, cause of death.

This section may contain the most significant aspect of the Critical Incident Team’s analysis.  The specific legal issue it considered was whether a prosecutor could prove “causation,” which is an element of a criminal offense, beyond a reasonable doubt.  But proof of causation also is a prerequisite for civil liability (albeit by a lesser burden of proof).  And even the most vindictive layperson should balk at holding someone “accountable” for a result his or her conduct did not “cause.”

Moreover, in the Gonzalez case, this is an issue where, even today, even reputable publications get their facts wrong.  The story initially posted by the East Bay Times contained this sentence:  “Last December, an Alameda County Sheriff’s Office coroner’s division report called Gonzalez’s death a homicide, saying that he had suffered a heart attack brought on [by] the stress of the altercation, as well as morbid obesity, methamphetamine use and alcoholism.”  That statement makes it appear as if the “stress of the altercation” was the primary cause of death.  But, as we will see shortly, that’s not what the report actually said, and the story posted the next morning had to clean it up.

The Critical Inquiry Team’s description of the autopsy findings was accurate:  Dr. Vivian Snyder, the County forensic pathologist, concluded the “Cause of Death” was “Toxic effects of methamphetamine.”  She then listed, in a separate category, “Other Significant Conditions Contributing to Death”:  “Physiologic stress of altercation and restraint; Morbid obesity; Alcoholism.”

As the report points out, Dr. Snyder went on to state in her summary conclusion that “[t]he methamphetamine detected in [Mr. Gonzalez’s] blood combined with his enlarged and dilated heart could have together resulted in a fatal cardiac arrhythmia.”  This, the report states, “suggests that even without the interactions with the A.P.D. officers, the toxic levels of methamphetamine and Mr. Gonzalez’s heart conditions due to morbid obesity could have caused his death.”  If so, the element of causation would be “difficult” – lawyers also love understatements – “to prove against the officers.”

Nevertheless, the team went ahead with the legal analysis.  To “find criminal liability when there may be more than one cause of death,” the report recites, the officers’ actions must be a “substantial factor” causing death and the death must be a “direct, natural, and probable consequence” of those actions.  In the Gonzalez case, the autopsy report undermines both requirements.

For one thing, Dr. Snyder offered her opinion that the toxic effects of methamphetamine, in combination with Mr. Gonzalez’s enlarged and dilated heart, “could have together” caused cardiac arrest.  If so, “factors not attributable to the officers would have caused Mr. Gonzalez’s death, and the officers’ conduct could not be a substantial factor causing death.”  Moreover, Dr. Snyder identified only one “cause of death”:  toxic effects of methamphetamine.  “An argument can be made,” the report notes, “that [since] there was only one cause of death . . . the substantial factor analysis should not even begin.”

But even if one assumed that the “substantial factor” test was met, the report states, the evidence did not support a finding that Mr. Gonzalez’s death was the “direct, natural, and probable” result of the officers’ conduct.

A “natural and probable consequence” of an action is “one that a reasonable person would know is likely to happen if nothing unusual intervenes.”  But a reasonable person “could not be expected to know that Mr. Gonzalez had toxic levels of methamphetamine in his system, or that his heart and liver were compromised physically due to morbid obesity and alcoholism” – i.e., the conditions that “caused and contributed to Mr. Gonzalez’s cardiac arrest.”  Accordingly, “it is difficult to conclude that the direct, natural, and probable consequences of the officers’ act of lawfully detaining and arresting a resisting Mr. Gonzalez would be death, particularly when the sole cause of death was determined to be the toxicity of methamphetamine, and the other contributing factors were morbid obesity and alcoholism.”

Likewise, reasonable persons “would not know that their conduct of lawfully taking a person into custody who is actively resisting would result in death.”  Where, as here, “the officers were taking care to deescalate the situation, to limit the weight placed on Mr. Gonzalez’s back, to avoid any sort of hold that would restrict Mr. Gonzalez’s airways, and to not strike Mr. Gonzalez or use weapons on him, we cannot conclude the officers were the direct, natural, and probable cause of Mr. Gonzalez’s death.”

The Critical Incident Team ends the report with a section that suggests that they (or Ms. O’Malley) have been paying attention to social media.  The report notes that Dr. Snyder classified the “manner” of Mr. Gonzalez’s death as a “homicide.”  To those eager to condemn the police, this statement supports, indeed demands, a murder charge against the A.P.D. officers.  But the members of the D.A.’s team, who actually know, and are bound to follow, the law, are not so foolish.

The definition of homicide “in the context of the Coroner’s determination of manner of death for a death certificate,” they write, “is a wholly distinct process from determining whether an unlawful homicide has occurred in the criminal context.”  In fact, the relevant guide for medical examiners provides only five classifications for the manner of death, of which, as we have previously noted, “homicide” is the only even arguably possible choice in this case.  In any event, “the classification of homicide by the Coroner’s Bureau is a neutral term and does not in any way affect the District Attorney’s Office’s determination in the criminal context. . . .”  The “homicide” label applied by a coroner by no means proves, or even suggests, that a death was a murder.

Let us close this way:  You haven’t read here that the District Attorney “exonerated” the three Alameda cops involved in the Gonzalez incident – because she didn’t.  Indeed, the report never says that criminal charges would be frivolous, but only that such charges couldn’t be proven beyond a reasonable doubt.  And, of course, none of the witnesses has been cross‑examined by the Gonzalez family’s lawyers, nor has any of the evidence been scrutinized by experts retained by them.

Nevertheless, the report released by the D.A. reflects a careful analysis of the relevant evidence and applicable law by a team of experienced criminal lawyers and investigators.  To us, their work product carries far more gravitas than the bloviations of the Twitter trolls and blog commenters – or even the news articles posted by legitimate reporters.

Source: District Attorney’s report

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
This entry was posted in City Hall and tagged , , , , , , . Bookmark the permalink.

8 Responses to The D.A.’s Critical Incident Team report

  1. Eric Strimling says:

    In case you want to help Mario Gonzales’ family- https://www.gofundme.com/f/justice-4-mario-family/donate

  2. Publius says:

    No one who watched the video would have concluded otherwise.

    • Who Polices the Police? says:

      If only that were true. Your declaration does not make it so. The video made national news for a reason. Many police experts and experts on use of force have said it was excessive response. The state of California, since this incident, has now made it illegal to arrest someone the way Mario Gonzalez was arrested. In the video, Gonzalez was mostly cooperative and things only got hostile when he had trouble keeping his hands out of his pocket. One officer can be heard saying “no weight on him,” scolding another officer for applying too much pressure on Mario’s back. Mario was on his stomach with weight for over 5 minutes. The department policy clearly says a restrained individual should not be kept in a prone position for a prolonged period of time. So absolutely yes, many who watched the video would have concluded otherwise.

      A jury should have made this determination, not Nancy O’Malley. By the way, Nancy O’Malley has ever filed charges against only 1 police officer during her 14 years of service, and in a county with 14,000 peace officers. That’s a little suspect, don’t you think?

      • Publius says:

        “Mostly compliant” is a funny way to spell “resist arrest” but ok. Perhaps we watched different videos.

        And I don’t know how many peace officers there are in Alameda County, but I feel fairly certain they don’t amount to one every 120 people. If APD was staffed at that ratio we’d have more than 600 cops (and then maybe we’d finally get the 25mph that the signs post)

      • Who Polices the Police? says:

        So you think “resisting arrest” should result in a death sentence and you find nothing wrong with that. Then I have nothing more to say to you.

      • Publius says:

        If you watch he video and read the report, you might well have something more to say. Possibilities include “you’re right, Publius,” or “sadly, he did resist arrest” or any number of statements that would indicate you’ve informed yourself.

  3. Ron Curtis says:

    Kudos to the Merrygoround…excellent job of unbiased factual reporting.

  4. Alameda/NYC says:

    I’m late to the comment party here — but what a glorious piece of writing. Clearly presented and wickedly funny. “Even the most vindictive layperson” . . . love it. Thank you Mr. Sullwold.

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