Sean Webby, 10/21/10
The Santa Clara County District Attorney’s Office will file no criminal charges against a San Jose police officer who pretended to arrest a 15-year-old boy who had sex with his 14-year-old stepdaughter.
Prosecutors, who reviewed the nationally publicized case and analyzed a smartphone video of the incident secretly shot by the boy’s father, said this week that the officer was within his legal rights to investigate the potential crime of unlawful sex between minors.
This, despite the fact that the officer wrote no report on the incident and didn’t refer it to another investigator.
“Police have wide latitude to investigate crimes, especially when it involves juveniles,” Assistant District Attorney David Tomkins said. Tomkins used an analogy of an officer pulling over drivers who are speeding and letting them go with a warning.
Although the officer will not be charged with any crime, he remains on paid administrative leave while the police department’s internal affairs unit probes whether he broke police protocol. Command staff will then decide any discipline, which could range from extra training to termination. The Mercury News is not naming the officer to protect the identify of his stepdaughter.
The case of the mock arrest by the angry dad instantly went viral, with police and pundits weighing in on whether it was a righteous parenting moment or an abuse of power.
On Aug. 30, the officer — a neighbor of the boy and his family — arrived from work in full uniform to confront and handcuff the boy.
“Not a good thing that the person you had sex with is a cop’s daughter,” the officer told the teenage boy, as seen on the video. “The district attorney will probably file charges. “… A cop’s daughter is not somebody you mess around with. You’re stupid.”
He later uncuffed the teenager. The veteran officer was simply trying to scare the boy, according to his lawyer, and later drove his crying stepdaughter most of the way to juvenile hall using a similar “scared straight” tactic.
Both the boy and girl were later cited by police for having unlawful intercourse.
The parents of the teenage boy, Paul Villarruel and Nicole Romero-Villarruel, have spoken publicly about the case and are exploring a lawsuit against the officer and city.
“We are obviously disappointed with the decision because it seems that the police officer is being treated differently by the system than both children,” they said in a statement. “We were taught that police officers are held to a higher standard than average citizens, let alone children, but it is apparently exactly the opposite.”
But attorney Terry Bowman, who is representing the officer, said the prosecutors made the right decision using the right legal analysis.
“It is no crime to act as a concerned father,” Bowman said. “It’s no crime to attempt to use a ‘scared straight’ tactic on a juvenile who was heading down the wrong path.”
Prosecutors took several weeks to probe the incident to see whether the officer committed a criminal false imprisonment.
They decided that because the officer had reasonable cause to believe that his minor stepdaughter had sexual intercourse with another minor, he had the authority to take the young man into temporary custody, which can include handcuffing, during the investigation.
“Regardless of whether (the officer) knew beforehand that he was not going to pursue criminal charges, or whether he previously informed the young man’s parents of his intentions, the law gave him the discretion to resolve the matter with a warning,” the district attorney’s news release stated. “The decision not to file criminal charges is in no way intended to condone” the officer’s “decision to become involved in a potential criminal matter involving a family member while on duty.”
Meanwhile, in the past few weeks, police brass have been drafting a new policy that would prohibit officers from handling most cases involving their family members.
The policy is expected to closely mirror the Oakland Police Department’s, which directs officers to recuse themselves from cases involving family, friends, lovers or business partners.
Police Chief Rob Davis declined to comment, other than to say the case is being investigated internally.
But, Davis said: “Sometimes officers mix their emotions and common sense, and common sense doesn’t always win.”