Nearly a year after Palo Alto settled a lawsuit over an arrest in Barron Park in which an officer slammed a man's head on a car windshield, the City Council finds itself in a familiar position, with another resident suing the city over another violent arrest in the same neighborhood.
The council met in a closed session on Monday night to discuss the ongoing lawsuit from Julio Arevalo, whose violent arrest in front of Happy Donuts by police Agent Thomas DeStefano was captured by both body cameras and a surveillance camera. Video footage showed DeStefano approaching Arevalo, asking him to stop. When Arevalo tried to walk away, the officer followed him, grabbed him and, after a brief struggle, flipped him onto the ground in a move that shattered Arevalo's orbital bone, according to the federal complaint.
The council did not take any reportable action after the closed session, Vice Mayor Tom DuBois said after the meeting. But even as the council considers its next move, the city's attorneys are trying to get the lawsuit dismissed on the grounds that the 199-page claim filed by Arevalo's attorney is, among other qualities, too long and too sarcastic.
That's the argument that the city's team of lawyers, which includes Jon Heaberlin, Marc Davis, Eric Bengtson, Steven Dippell, Patrick Malloy, Dale Allen, Kevin Allen and Todd Master, is trying to advance in a Sept. 8 filing in the U.S. District Court for the Northern District of California. The attorneys specifically allege that the claim filed by Arevalo's attorney, Cody Salfen, violates Rule 8 of the Federal Rules of Civil Procedures, which calls for a "short and plain statement of claim showing that the pleader is entitled to relief" and that requires each allegation to be "simply concise and direct."
While the argument from the city's attorneys says little about DeStefano's conduct on the night July 10, 2019, it focuses largely on the style of Salfen's complaint. It also claims that the defendants would be facing an "unfair burden" if they were compelled to "try to decipher the allegations in the Complaint that may apply to them, and craft answers to the 807 numbered paragraphs, multiple photographs, sarcasm, inflammatory warnings, rhetorical questions, etc."
The city's motion to dismiss Arevalo's complaint also quotes several cases in the 199-page document that feature slang and colloquialisms. The claim, for instance, states "Nope, we're not in Kansas (anymore)" in the introduction, after showing a photo of Arevalo (whom it described as a "donut-wielding Latino male") with a black eye. The claim also uses phrases like "Back to the donut shop" during the narrative as it transitions from describing Arevalo's injury to talking about DeStefano's involvement in the violent arrest of Gustavo Alvarez in 2018, which led to a $572,500 settlement from the city. It also led to a letter of apology from former Sgt. Wayne Benitez, who is now facing misdemeanor charges of assault under the color of authority and lying on a police report for allegedly slamming Alvarez on the windshield of a vehicle and then not reporting the use of force.
While the complaint submitted by Salfen and Samuel J. Gordon attempts to paint a picture of a Police Department engaging in a pattern of excessive force and cover-up, the city's attorneys assert that the claim attempts to "expand the scope of relevant and admissible evidence" and that it is "filled with superfluous material."
Sarcasm and slang, sensationalized warnings to the public, rhetorical questions and colloquialisms "may increase the odds of media coverage, but are an affront to the solemnity of the judicial process and have no place in a United States District Court complaint," the city's motion states.
In responding to the charge, Arevalo's attorneys assert that the city's "characterizations are far more overstated than anything in the Complaint."
"It should be remembered that Defendants are accused here of a civil conspiracy, borne of a culture of violence and corrupt self-protection," Salfen wrote. "The so-called 'sensationalized warnings' are in fact reasonable summaries of implicit messages, to employees and the public by the Department's pattern of misconduct and cover-up."
In addressing accusations of using too many rhetorical devices, Arevalo's attorneys write that the "use of occasional words which help bind the document cohesively together does nothing to confuse or otherwise prejudice the Defendants in their quest to understand the claims stated."
The city's attorneys also assert that Arevalo's claim is too broad and that it fails to prove that some of the Palo Alto Police Department employees that are named in the lawsuit were involved in anything illegal. This includes Sgt. Sascha Priess, Lt. Ben Becchetti, Officer Brian Connelly, Sgt. John Alaniz and Lisa Scheff, the department's records manager.
Salfen and Gordon argue in their response that all of the named defendants have either participated in the attack on Arevalo or in the subsequent cover-up and maintain that the city's "broad attack" on the claim is without merit. They also request that if the court finds any part of the complaint deficient, that they be allowed to amend it.