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March 23, 2005

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Palo Alto Online

Publication Date: Wednesday, March 23, 2005

Police conduct takes center stage at trial Police conduct takes center stage at trial (March 23, 2005)

Opening statements argue whether officers acted rashly

by Bill D'Agostino

When Palo Alto police officers Craig Lee and Michael Kan encountered Albert Hopkins on July 13, 2003, did they have the legal right to do anything more than talk?

This is one of the central questions raised Monday in the police brutality trial against the two officers.

The incident could be seen as a clear-cut case of officers using escalating force as a situation intensified.

First, they ordered Hopkins out of his gray Honda. Then they tried to pull him out. Finally, they shot pepper-spray at his eyes and beat him with their steel batons.

But did Lee, 42, and Kan, 27, ever have enough "reasonable suspicion" to lawfully "detain" Hopkins that night? (Once police "detain" a suspect, officers have the legal right to demand identification and force the person to stay in place.)

In his opening statements Monday, Deputy District Attorney Peter Waite argued they did not. Hopkins never committed a crime, so he could leave the area whenever he wanted, Waite noted.

The "incompetent" rookie officers beat and pepper-sprayed Hopkins, 61, without just cause and later "lied" and made up reasons for the detention and subsequent assault, Waite argued. "They let their emotions get away with them."

Kan and Lee are accused of battery and assault under color of authority, a misdemeanor and felony respectively. They could each face three years in prison if convicted. Hopkins was never charged with a crime, and said he required knee surgery as a result of the beating.

In their own opening statements Monday, defense attorneys said the two officers had a right to detain Hopkins based on an array of relevant data: Hopkins was belligerent and seemed shifty; two residents complained to police about his parked car; and the officers knew of recent burglaries in the area.

Throughout the incident, the officers acted with discretion, starting with the "lowest level" of force but eventually resorting to their batons when Hopkins refused to hand over identification or listen to orders, their attorneys argued.

"If Albert Hopkins had obeyed the reasonable commands, they wouldn't have used force,'' said attorney Harry Stern, who is representing Kan.

The incident began around 10:30 p.m., when Lee spotted Hopkins parked under a tree on the corner of El Camino Real and Oxford Avenue in Palo Alto. Lee thought Hopkins was suspicious and watched him for a while.

Both sides agree Hopkins was quarrelsome, cursing numerous times, when Lee approached. But Waite said Hopkins had acted similarly with other officers in the past and was still treated respectfully.

Hopkins also vehemently accused both officers of racially profiling him. He is black; they are Asian-American.

Attorney Craig Brown, who is representing Lee, said the allegation of racial discrimination is the "smokiest of smoke screens" and the "reddest of red herrings."

"It is thrown out by Albert Hopkins to avoid taking responsibility for his conduct," Brown said.

The case has gained notoriety in Palo Alto as the flashpoint for the community's concern over whether the local police department has a racial bias. The City Council recently appointed a commission to act as the city's police review board.

The two sides' opening statements lasted most of the day Monday, the first day of the trail after last week's jury selection. The trial is expected to last three weeks. Numerous other Palo Alto officers, including Police Chief Lynne Johnson, will likely be called to testify, along with witnesses and police experts.

Both officers were in court Monday, wearing dark suits and looking pensive. In the audience were a few local police watchdogs, other fellow and retired Palo Alto police officers supporting Kan and Lee, and friends and family.

Ultimately, the eight-woman, four-man jury will have to sift through a number of different versions of the evening's events.

All the people in the area that evening -- the two officers, Hopkins and two witnesses -- have given various accounts of what happened. In fact, according to the attorneys' opening statements, each man has contradicted himself.

After the conclusion of opening statements, an emergency room doctor who treated Hopkins that night testified. Then Hopkins himself took the stand, and said he now works for Gunn High School, running a homework/tutoring center.

When the district attorney asked Hopkins if he hated police, he replied "no" and chuckled. Hopkins' testimony was expected to continue on Tuesday, after the Weekly went to press.

Staff Writer Bill D'Agostino can be e-mailed at [email protected]

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