Audit: Palo Alto officer disciplined for ‘coverup’ of violent Buena Vista arrest

Calling it a “low point” for the Palo Alto Police Department in a new report, the city’s independent police auditor sharply criticized the department’s response to the violent arrest of a Buena Vista Mobile Home resident in 2018 and concluded that one officer should have faced additional discipline for his role in covering up his colleagues’ unlawful actions.

The report, which focuses on use-of-force incidents and internal investigations that occurred in the second half of 2023, makes an exception for the Alvarez case, which occurred more than six years ago and which has been winding its way through the criminal justice system, the binding arbitration process and the department’s administrative review process for more than five years. The high-profile arrest, which was filmed on Alvarez’s surveillance camera, has already resulted in the termination of one officer, Thomas DeStefano, and the retirement of another, Sgt. Wayne Benitez, just before his planned termination and a conviction for assault and falsifying records. Facing a lawsuit, the city ultimately settled with Alvarez for $572,500.

The auditor, OIR Group, delayed its review of the Buena Vista arrest until now because the administrative and judicial proceedings against the involved officers did not conclude until late 2023, when Benitez pleaded guilty to the two misdemeanors, according to the report.

While this publication has previously reported on the city’s process for disciplining Benitez and DeStefano, the new audit reveals that they weren’t the only two officers whose conduct was scrutinized — and found lacking — by department leadership. The report indicates that the department was also considering terminating Officer Christopher Conde, who followed Alvarez as he was driving to Buena Vista, tried to pull him over and then called for backup when Alvarez went into his house. Conde and another officer, who is also not named, were among those who were disciplined for failing to report Benitez’s use of force in a timely fashion, a failure that significantly complicated the city’s review of the incident.

The audit does not name Conde, consistent with its normal practice (it makes an exception for DeStefano and Benitez, whose identities have already been widely publicized) and refers to him as “Officer 1.” But the actions that it attributes to the officer are consistent with those of Conde, as described by Alvarez in his complaint and as seen in video surveillance that Alvarez’s attorney released 14 months after the arrest. The video showed officers dragging Alvarez out of his home and handcuffing him. Benitez is then seen slamming Alvarez onto the hood and windshield of his car. When Alvarez complains that he is bleeding, Benitez responds “You’re going to be bleeding a whole lot more!”

The review scrutinizes a series of “procedural errors” that Conde had committed, starting with his decision to detain Alvarez without first confirming that his driver’s license was suspended. The court ultimately found that Conde lacked reasonable suspicion to detain Alvarez, a finding that results in dismissal of all criminal charges against Alvarez.

Later, as Alvarez was being transported to the police station, he reportedly complained to Conde and another officer about being hit and told them that the assault was captured on surveillance video. Neither officer asked Alvarez about the assault or reported it to a supervisor.

“Had they done either, it would have likely spurred further inquiry of Mr. Alvarez and the discovery of the surveillance camera,” the audit states. “That could have led to accessing the footage of the incident and a timely investigation.”

During the subsequent internal affairs investigation, Conde told a police supervisor that he did not see the assault, according to transcripts obtained by this publication through a Public Records Act request.

According to the audit, the department had provided Conde with a notice of its intent to terminate him from employment for violating policies that require notification after a use of force, for failing to report that Alvarez told him that he had been hit and for failure to report that he had offered Alvarez medical assistance, which Alvarez refused.

The department had determined that Conde’s failure to notify a supervisor of Alvarez’s allegations and his failure document his refusal of medical treatment “grave impact on the Department’s ability to ensure a timely review of the incident” and constituted a “deliberate effort to make sure the use of force was covered up.”

Conde ultimately avoided getting fired by exercising his right to a “Skelly process,” which affords officers the right to have their discipline reconsidered by another officer within the agency. That officer agreed that the violations should be sustained but recommended a “serious suspension” rather than a termination, according to the audit. The department accepted this recommendation.

Conde’s punishment was reduced further after he took the decision to binding arbitration, a process that typically favors police officers. In this case, the arbitrator sustained the department’s findings but reduced the suspension by five-fold, according to the audit. In calling for the reduction, the arbitrator cited the fact that Conde was relatively inexperienced at the time of the incident, that he wasn’t familiar with all the department rules and the had “accepted responsibility” and was “remorseful,” according to the audit.

The OIR Group audit blasted this decision and called the arbitrator’s logic “misplaced” and argued that the arbitrator did not adequately consider the damage that Conde’s failure to document Alvarez’s statements about being assaulted had done to the reputation of the police department.

The arbitrator decided to reduce the discipline “perhaps more than coincidentally” to the amount suggested by the police union lawyer who represented Conde, an outcome that the audit called “especially notable and disappointing.” The OIR Group noted that the factors that the arbitrator cited in reducing the suspension are the exact same factors that the department had already considered when it decided to suspend rather than terminate Conde.

“In short and in essence, the arbitrator substituted his judgment about the inappropriate outcome over the judgment of the leadership of the Palo Alto Police Department,” the audit states.

The other officer who had failed to report Alvarez’s allegation of injury was also slated to be terminated. But rather than appealing, the officer retired from the Police Department, according to the audit.

The episode, the auditors wrote, “underscores the limitations of binding arbitration as a valid form of appeal and raises many of the issues identified by the RIPA (Racial and Identity Profiling Advisory) Board, legal scholars, and progressive policing professionals.” The auditors recommend that in future negotiations with the police union, the city should “consider the viability of other options than binding arbitration for appealing officer discipline.”

The audit also recommends that the department in the future assign administrative investigations with complicating factors to outside investigators, which would have eliminated the dynamic in which a reviewer within the police department countermands a department’s initial findings. It also calls for better coordination with the District Attorney for cases that involve criminal charges and protocols to ensure that every claim that alleges misconduct is thoroughly reviewed and investigated.

“This incident, in which a veteran sergeant dishonored his oath to uphold the Constitution by engaging in excessive force on a handcuffed detainee, stands as a low point for the PAPD,” the audit concluded. “Nor did the deplorable conduct end with the sergeant: the Department also was and remains properly disappointed in the failures of the other on-scene officers to report the incident fully and accurately.”

The report notes that six years have passed since the Buena Vista arrest and, given the change in leadership that has occurred since then, states that it is “understandable that there is a sentiment among some in the City to move on and leave this matter behind.”

“However, law enforcement organizations have an obligation to learn from past mistakes, and to recall them as part of an ongoing process of course correction and refinement,” the audit states.