Defense expert: Officer May broke rules

Alvarez was not a suspect; officer had no justified reason fro stop, baton strikes

A use-of-force expert for Alberto Alvarez, who is on trial for the murder of East Palo Alto Police Officer Richard May, testified Thursday there was no justifiable reason for the officer to stop Alvarez on Jan. 7, 2006.

May violated an East Palo Alto city ordinance against excessive use of force and a police department policy when he followed and attempted to detain Alvarez, 26, defense witness Winthrop Taylor said Thursday afternoon.

May was responding to a dispatch call about a fist fight in Villa Taqueria on Cooley Avenue when he saw Alvarez walking across the taqueria's parking lot.

A police Explorer on a ride-along with the officer testified Alvarez looked in the officer's direction as he crossed in front of the patrol car, then ran across University Avenue.

Alvarez admitted he shot the officer during nearly five hours of testimony Thursday, but said he did so in self defense after being shot in the leg by May and fearing the officer would kill him.

Taylor followed his testimony, saying May had no just cause to stop Alvarez under state and federal law.

Alvarez did not fit the description of the assailant in the taqueria fight, Taylor said.

A police dispatch call clearly noted the perpetrator was a Hispanic male, 22 years old, and wearing a black jacket and no shirt, said Taylor, a former Los Angeles Police Department police use-of-force policy trainer and retired Washington state police chief.

Alvarez was the same age as the perpetrator and wore a black jacket, but he wore two shirts, Taylor said after viewing surveillance videos taken the day of the incident.

The officer had a "clear identifier" that excluded Alvarez from the suspect profile, Taylor said.

"On a Saturday afternoon in January to see somebody wearing a black jacket and no shirt would stand out. It would be key," he said.

U.S. Supreme Court decisions have established an officer cannot detain a person simply for running away. Gut instincts are not reasonable causes, he said.

"There must be a reasonable cause for a lawful detention -- a set of articulable facts. ... Officers have to be able to articulate a set of facts that led that (officer) to believe a person was involved in a crime," he said. Those facts must be able to stand up under review, he added.

May also violated city ordinance and police policy when he struck Alvarez from behind twice with an ASP, an expandable metal baton, Taylor said.

The East Palo Alto Police Department has an escalation-and-continuum policy, which spells out the proscribed actions an officer should take in relation to a suspect's behavior, he said.

The use of a metal baton, considered a defensive weapon, is only to be used if a suspect is assaulting the officer, he said.

"When someone is running away, is that assaultive?" Eric Liberman, defense attorney, asked.

Taylor said it was not.

"Even assuming there was a lawful detention there was no justification for using the ASP and striking Mr. Alvarez in the back," he said.

Taylor's testimony starkly contrasted with the prosecution's expert, David Rose. Rose testified he considered running away resistance and therefore subject to the use of a baton.

"I understand what Mr. Rose said when he said running away is resisting -- that's active resistance. (But) it's different from being combative," he said.

An ASP can be displayed to get a resisting suspect to cooperate, he said. But "as a use of force, to use (it) to strike a person when fleeing, is not appropriate and is not in accordance with policy," he said.

Senior Deputy District Attorney Steve Wagstaffe pointed to discrepancies between Taylor's previous statements in a written February 2009 report and Thursday's testimony.

"In 2009, did you express the view that he had reasonable cause to detain Mr. Alvarez?" Wagstaffe said.

"I said he probably had reasonable cause," Taylor countered.

The earlier answer was based on information he had at the time, he said.

Police Explorer Marco Marquez said Alvarez had jaywalked in front of the patrol car. But videotapes Taylor later reviewed showed Alvarez had not committed any such violation.

He changed his opinion when nothing in the documents Taylor reviewed supported any probable cause for pursuing Alvarez, he said.

Wagstaffe also tried to discredit Taylor's training expertise in the use of batons. But Taylor said he did not train officers in the use of batons, only in the application of force.

Taylor admitted he was fired as police chief in 2004. Wagstaffe tried to link that firing to a no-faith vote police officers took.

But Taylor said he was terminated by the city mayor after launching a corruptions probe of city government and an insurance company found no link between the vote and his termination.

Cross examination of Taylor will continue Monday in San Mateo County Superior Court.

Related story: Alberto Alvarez testifies

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Like this comment
Posted by jimmy
a resident of Barron Park
on Nov 13, 2009 at 10:29 am

interesting this story ran directly above the story of a gun battle erupting in epa where 30 shots were fired

Like this comment
Posted by Mr. Ironic
a resident of Midtown
on Nov 13, 2009 at 12:01 pm

Wow my favorite quote's
" testified Thursday there was no justifiable reason for the officer to stop Alvarez on Jan. 7, 2006."

"U.S. Supreme Court decisions have established an officer cannot detain a person simply for running away. Gut instincts are not reasonable causes, he said."

"Police Explorer Marco Marquez said Alvarez had jaywalked in front of the patrol car. But videotapes Taylor later reviewed showed Alvarez had not committed any such violation."
-you're gonna hunt a man down for jay-walking lol

Wow you have to play by the rules. Cant just turn into John Wayne or Clint Eastwood and go with your gut.

Like this comment
Posted by Anon
a resident of Adobe-Meadow
on Nov 13, 2009 at 12:09 pm

Where does this so called defense witness work? The Arem James school of growing up to be anti police???

Like this comment
Posted by Gang Banger Land
a resident of another community
on Nov 13, 2009 at 2:16 pm

OK, let's just take the police out and let the drug dealers and gang bangers run amok. Turn whole swaths of our cities over to them so their activities. Then maybe all their apologists will be content in seeing and hearing all the gunfire, explosions, and smoke rising from "Gang Banger Land".

Like this comment
Posted by Rick May
a resident of East Palo Alto
on Nov 13, 2009 at 2:22 pm

How about a more accurate version of Thursday..

The Murder of Officer Richard May took the stand on Thursday. There was no defense of his actions. He admitted to the killing of a police officer. He spoke clearly about his full time job – a drug seller. But spoke vaguely about his killing of Rich. He spoke about his sale of meth during the morning and what he ordered to eat at the taqueria that afternoon. Alvarez knew he had a thousand dollars in his pocket. But could not explain how he stepped up to Rich on the ground and fired shots again – in execution style.

We know from the evidence that Alvarez fired first and fired several times. Rich was able to get his gun out and fire one shot as he fell backward, hitting Alvarez in the leg.

Alberto Alvarez did his best to look meek and quiet on the stand. He amazingly stated that Rich shot first, hitting him in the leg. Then he described how Rich simply stood there pointing his gun at Alvarez doing nothing while Alvarez fired many times in “self defense”. The prosecutor, Steve Wagstaffe, spent three hours showing the jury that Alvarez lied about everything he described.

My opinion of the surprise placement of Alvarez on the stand – the defense had nowhere to go but up. The defense team was looking for a sympathetic juror. To date, the defense has been very weak in their attempt to save Alvarez from the death penalty. Alvarez was coached well before he took the stand. He was quiet, and continued to say that he could not remember much.

The second witness of the day was the defense’s Use of Force “expert”. This “expert” stated that in his opinion, Rich should not have tried to stop Alvarez in the manner that he did. We do not know what words were exchanged between Alvarez and Rich during the short period that Alvarez (an armed Felon) was running from Rich, and then turned on Rich with his gun, and then firing. The prosecutor, Steve Wagstaffe, had the “expert” admit that his knowledge of the use of force was limited. In addition, the “expert” witness admitted that he was fired from his last job as Police Chief in a small town in Washington State, for cause. A key reason was a full vote of Non Confidence by the police and city personnel. It seems that he is not really an expert – but a person the defense had to go far to find to support their opinion. Probably the most damaging statement from the “expert” witness for the defense was when he admitted his first report to the defense attorneys stated that Rich “probably” used the wrong choice of force in attempting to stop Alvarez. Once the Defense team reviewed the report, it was returned and changed by the “expert” to state that Rich “did” use the wrong choice of tactics. Amazing – for an “expert”. This witness returns on Monday morning for further questioning by Wagstaffe.

Like this comment
Posted by Bill
a resident of Barron Park
on Nov 13, 2009 at 2:54 pm

The fact remains that Alvarez approached May who was lying on the ground and at short range fired at him. Apparently he meant to kill May since he directed his aim at the head where May had no protection. How can this be firing in self defense?

Like this comment
Posted by Mr. Ironic
a resident of Midtown
on Nov 13, 2009 at 4:16 pm

@ Bill and Rick May

What are you guys reading. Did I miss something?

May fallowed Alvarez (a guy who didnt even fit the description given to May) for blocks. May didn't turn his siren or lights on nor even use his megaphone (isn't that what real police do if you want a guy to stop)he just fallowed him for blocks (didnt radio in that he might have a suspect and request more info required to make the bust). May got out of his car and Alvarez took off running. May got back in the car fallowed Alvarez to a location and as Alvarez was fumbling with his keys to open the gate May struck him with the baton twice in the back (which is also against police policy). Alvarez once again got away and May fired the single shot that hit Alvarez in the leg and Alvarez then turned around and shot May multiple times. May sounds like a thug that hunted this guy down and tried to execute him. If Alvarez was such a monster why didnt he shoot the teenager in the car. Because the teenager didnt shoot him so he has no conflicts with the Jr trooper, who by the way is setting a record for lying on the stand.

If you want citizens to play by the rules, shouldn't cops have to play by the rules also.

I work for a law firm and all the lawyers agree if the cops played by the book this would be an open a shut case. Alvarez would be back in prison and May would still be alive.

Like this comment
Posted by We need more police corruption
a resident of Another Palo Alto neighborhood
on Nov 13, 2009 at 4:37 pm

Mr. Ironic,

A man runs away from the cops. That's enough of a reason for the cop to pursue him. I vote for more police corruption. Criminals have no rights when they are running around, breaking laws. Alvarez knew May was in pursuit and should have stopped. A police officer should be allowed to use force to stop a person from running from them. Isn't it true that a police officer cannot shoot a criminal unless they fear their own life? Meaning, the officer has to wait until the criminal pulls a gun on him before the officer can shoot him. . . so the criminal has a clear shot before the officer even has a chance. Nice laws there.

All those who disagree prefer to sit behind your computers and allow law enforcement to risk their lives for YOU. Later, you call the police for help and are happy to see them show up. Hypocrites.

Like this comment
Posted by Rick May
a resident of East Palo Alto
on Nov 13, 2009 at 5:00 pm

Mr. Ironic:

The difference between what you write and what I write - you read some press notes or hear incorrect information - I sit in the court every day, having already seen all the evidence.

Let’s just correct your notes here without going into anything else. May was called to a fight. He saw one person leaving the fight, wearing the black jacket as described by the caller/restaurant owner. When Alvarez saw May, he started running. He ran across the street to a gate for which he had keys. To ANY officer, this is an individual that needs to be contacted. May turned the car away from the restaurant and over to the gate. May called in stating he was following a person running from the fight. When May opened the door of the car, Alvarez, who could not get his key to work, started running again, away from the officer. May told him to stop. We know today that Alvarez was an armed felon who, if stopped and found with a hand gun, could have gone back to prison. Exactly the same event which happened in Oakland when officers stopped an armed felon for a minor traffic infraction – leaving four officers dead. We do not know what information was traded between May and Alvarez while Alvarez was trying to keep from getting caught with a gun. May did, or did not, know Alvarez was a felon. If he did know Alvarez was a felon, then he knew that Alvarez must stop for any officer or parole officer – at any time for any request. We know that Alvarez took off running faster. May took a baton (asp) and struck Alvarez just as Alvarez was entering a private property across the street where three cars were parked at a private residence. We could assume that May exercised one of his responsibilities and tried to stop a person doing everything he could to not be stopped - from entering a residence and expanding whatever was happening. At the same time May hit Alvarez on the outside of his shoulder to get him to stop running, Alvarez turned and started firing at May. As May fell, he was able to produce his weapon and fire at Alvarez. All this from Alvarez's mouth on Thursday - other than the shooting description. Forensics, which include shell casing location, stray bullet strikes, hand prints, several witnesses who each saw different parts of the whole event, clearly define what happened.

You asked about the teenager ridding in May’s car – Alvarez stated in court on Thursday that he was a young kid and not involved – and felt there was no need to kill him.

Your statement that the lawyers agree that if the cop did his job he would still be alive. How naive. May did his job. And he died doing exactly what he was supposed to do.

If you question his character, you will find everyone that knows him, including those he arrested; he was a kind and good person. You would also learn that he devoted his full time supporting youth projects to keep young people from getting into trouble. For his kindness and youth efforts, he was killed by a young gang member who sold drugs and did not want to go back to jail.

Like this comment
Posted by Hmmm
a resident of East Palo Alto
on Nov 13, 2009 at 6:03 pm

Thank you, Rick May, for all of your input. I offer you my paltry but heartfelt condolences on your loss. I lost a relative to a murder, still unsolved. I understand how devastating it is. Please take care and know many are thinking of your and yours.

Like this comment
Posted by silly
a resident of South of Midtown
on Nov 13, 2009 at 9:10 pm

Mr. Ironic, because you work for a law firm, does not make you correct. Nor does being a retired police chief. Escalation of force continuums as described by the "expert" chief were removed from standard police practices and policies years ago. Description? People change clothes all the time, crooks wear more than one shirt for a reason. Get out of your office or cubicle and you may learn this. Same jacket, age, leaving the scene running? sounds like he fit it well enough to establish reasonable suspicion to justify a detention to me. Look up reasonable suspicion. Note the part about "similar knowledge, training and circumstances known to the officer at the time, etc" part, about deciding whether force was justified. You have none of them, so don't second guess.

Like this comment
Posted by peninsula resident
a resident of Another Palo Alto neighborhood
on Nov 15, 2009 at 12:12 pm

I think Sue Dreman should be reporting the facts on the case, since she actually has supplied misinformation. Though Alvarez stated May had fired first, after further questioning it was clear that ALVAREZ HAD FIRED FIRST. Sue, please offer a response to this.

Like this comment
Posted by Thanks, Rick
a resident of Meadow Park
on Nov 17, 2009 at 5:43 am

Rick...thank you very much. I have gotten to the age where I am always on the side of the cops..period,..and always certain that the story is completely wrong and slanted toward the criminal thug in the papers. I am not surprised to find this true, as usual.

Even if justice prevails, it will have destroyed one part of a good cop's life and tainted it forever. This sucks.

Good luck, EPA, getting cops to help ya out, there.

Like this comment
Posted by Thanks, Rick
a resident of Meadow Park
on Nov 17, 2009 at 5:44 am

BTW, who comes out on the side of the cop and says "defense expert says criminal broke the rules of civilized behavior" and how much does a soul cost, Mr. Defense Expert?

Sorry, but further commenting on this topic has been closed.

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