by Justin Buffington
On March 4, 2011, Oakland Police Officer Hector Jimenez learned via an arbitration award that he would be returning to work with full back-pay and benefits after a nearly two year struggle to get his job back.
This case involves a 24 year old officer who, in a mere two years with the Oakland Police Department, enjoyed a distinguished and decorated career. Oakland Police Officer Hector Jimenez grew up on the hardscrabble streets of Richmond, CA, where he fought through adversity to attend college and ultimately joined the Oakland Police Department as a cadet. From there, Officer Jimenez went on to complete the Oakland Police Academy and join the ranks in a department storied in rich history.
Officer Jimenez immediately developed a strong reputation based on his teamwork and dogged proactivity. Officer Jimenez developed an arrest rate that was four times his squad’s average. Officer Jimenez garnered an unheard-of three Captain’s Commendations, an award given for superior work product or valor, in his short two year career. However, accolades and selflessness would prove to be not enough for the Oakland Police Department to stand behind their young rising star after he most reasonably defended his life and the life of his partner in the wee hours of the morning on the mean streets of a war zone, otherwise known as East Oakland.
On July 25th, 2008, Officer Jimenez–a fairly new officer himself–was partnered up with Officer Joel Aylworth, an officer with less than a year experience to his credit. The two were patrolling East Oakland at around 3:40 a.m. when they observed a red Buick speeding in the opposite direction on Fruitvale Avenue. The officers elected to make a U-turn and follow the vehicle.
After positioning themselves behind the Buick and conducting a pace, the officers noticed that the Buick was speeding and weaving within its lane. Suspecting that the driver of the Buick might be intoxicated, Officer Jimenez activated the patrol vehicle’s lights and siren in an attempt to get the driver of the Buick to yield.
The Buick’s driver slowed and pulled to the right as if it was stopping for the officers; however, after a brief pause, the Buick made an abrupt U-turn and headed the other way. As the Buick passed the patrol vehicle, Officer Jimenez observed that the driver of the Buick had his window rolled down and he was sweating. Officer Jimenez found it odd that the driver was sweating as it was a cool early morning in East Oakland. Officer Jimenez became concerned the driver might have been under the influence of a controlled substance and thus likely less predictable and more erratic.
Officer Aylworth, who was driving the patrol car, mirrored the U-turn of the Buick and gave chase while Officer Jimenez conducted appropriate pursuit radio traffic. As the officers continued behind the Buick, they saw the driver of the Buick run two stoplights at major intersections. The Buick entered the intersection of East 17th and Fruitvale and came to a sudden and unexpected stop. The Buick stopped so quickly that Officer Aylworth was unable to stop the patrol car in a proper high-risk car stop position and, instead, brought the patrol vehicle to rest directly next to, and parallel, to the suspect vehicle. Officer Jimenez recalled, in his arbitration testimony, that he looked over to his immediate right and made eye contact with the driver of the Buick. The patrol vehicle was too close to the suspect vehicle for Officer Jimenez to exit his vehicle and, considering the inherent difficulty in accessing a duty weapon from a gunbelt in a confined space such as a patrol vehicle, Officer Jimenez was in a dangerous spot.
Fortunately, for Officer Jimenez and Officer Aylworth, the suspect driver apparently left the Buick in gear as it continued to roll forward ever so slowly. Seizing on opportunity, with the suspect vehicle’s movement providing clearance for his door to open, Officer Jimenez exited his patrol vehicle, drew his duty weapon, and pointed it at the driver. Officer Jimenez, anticipating a foot-chase, went around the passenger side door of the patrol vehicle and positioned himself between the crease of the passenger side door and the passenger’s side front wheel well. From there, Officer Jimenez began to shout commands for the driver to show his hands.
Officer Jimenez gave three to four commands for the suspect driver to show his hands and at that point, the driver’s side door swung open and the suspect bailed from the vehicle and began to run at a 45-degree angle, towards the driver’s side of the patrol vehicle. The suspect’s choice of path and direction alarmed Officer Jimenez as he had last seen his partner seated in the patrol vehicle, with the radio microphone, and struggling to get his seatbelt off. Officer Jimenez believed that his partner was in a vulnerable position, trapped in the patrol car with little cover.
As the driver took three to four sprinting strides towards the driver’s side of the patrol vehicle he looked over his left shoulder at Officer Jimenez, who was pointing his duty weapon at him and, instead of following commands to stop and show his hands, the driver did quite the opposite, diving his hands into his waistband area. Officer Jimenez discharged four to five rounds from his duty weapon at the suspect. Reassessing in a split second, seeing no evidence of surrender from the suspect nor any change in his course of travel, Officer Jimenez fired an additional four to five rounds until the suspect crumpled into a heap on the ground.
During the arbitration of this case, Officer Jimenez provided a strong foundation for his use of deadly force. First, Officer Jimenez explained that he was trained that a fleeing suspect usually means that they are or have been engaged in more serious criminal activity than a mere traffic violation. Likewise, he had been trained that a suspect fleeing in a vehicle could likely be disposing of contraband or potentially arming themselves. Thus, when the suspect-driver fled, Officer Jimenez’s concern for his safety and the safety of his partner became elevated.
Furthermore, Officer Jimenez articulated that the Department’s high-risk car stop policy, which had been moved into evidence, in bold, on page 1, specifically requires its officers to “consider any high-risk car stop suspect armed until [the officer] personally assures themselves otherwise.” Therefore, Jimenez was required by policy to presume the suspect-driver to be armed.
What’s more, Officer Jimenez related that the driver eschewed other wide open avenues of escape, including three open lanes of traffic on Fruitvale Avenue, in favor of running directly towards the driver’s side of the patrol vehicle.
And finally, Jimenez testified that the driver jammed his hands in his waistband, an area that all witnesses testified, is synonymous with the secreting of weapons.
Those four factors were the lynchpins in creating a thick cloud of reasonableness as to Jimenez’s use of deadly force. What complicated the case were two main factors:
1. Officer Aylworth was, unbeknownst to Officer Jimenez outside the patrol vehicle, positioned behind the “V” of the driver’s side door, with his duty weapon pointed at the suspect-driver; from his vantage point Officer Aylworth was able to see the suspect-driver’s empty hands, after they were pulled from his waistband.
2. There was a fresh bullet strike mark on the trunk of the suspect vehicle that the Department tried to attribute to Jimenez and which, based on the angle would have indicated that Jimenez fired prematurely, while the suspect was still in the “V” of the driver’s side door.
However, the arbitrator clearly understood the implication of different vantage points in terms of what Aylworth could see versus what was visible to Jimenez.
Moreover, thanks to the Legal Defense Fund’s generous coverage, this author hired Certified Senior Crime Scene Analyst, Mr. Alexander Jason, to provide expert testimony in ballistics, among other areas. Mr. Jason suspected that the deep, non-perforating, bullet impression left on the trunk lid could not have come from a .40 caliber, 180 grain ordinance, the type Jimenez used. To test his hypothesis, Mr. Jason purchased two trunk lids of the same make and model and, over the course of two afternoons, fired numerous and various rounds at the trunk lids.
At the conclusion of his testing, Mr. Jason easily determined and documented with beautiful photo imagery that it was impossible for a .40 caliber, 180 grain round to have left the type of deep, non-perforating impact mark found on the suspect’s trunk lid. A .40 caliber, 180 grain round uniformly left an elongated strike mark and, at 3 degrees or less, perforated the trunk lid. Mr. Jason was able to replicate the strike mark with a .38, hollow point round and thus he opined that the strike mark was caused by a lower powered round such as a .32 or a .38. This testimony proved very persuasive at the arbitration as the arbitrator held that the Department’s theory, that Officer Jimenez fired prematurely, wholly lacked merit.
During the arbitration proceeding, the arbitrator foreshadowed his analysis of the case: did the evidence point to fight or flight?
The arbitrator ultimately agreed that the evidence pointed to fight. The arbitrator agreed that it was reasonable for Jimenez to perceive the suspect as posing a deadly threat because (1) the suspect evaded officers raising the threat level; (2) the Department’s high risk car stop policy requires officers to assume a high-risk car stop suspect is armed until the officer personally assures themselves otherwise; (3) the suspect eschewed other open avenues of escape; (4) the suspect failed to obey commands to show his hands; (5) the suspect looked over his shoulder at Jimenez, causing Jimenez to believe that the suspect saw that he had a gun pointed at him and; (5) instead of complying with commands, the suspect reached into his waistband, an area that, based on Jimenez’s training and experience was synonymous with the secreting of weapons.
The arbitrator noted in his award that, while not relevant, he was cognizant of the fact brought out at arbitration that the suspect had a long criminal history. Furthermore, the suspect had committed a murder during a robbery, which earned him $46, just five hours prior to Jimenez encountering him. Moreover, the arbitrator discussed the fact that the suspect was high on a cocktail of ecstasy, alcohol and cocaine.
Ultimately, the arbitrator, in his abundant wisdom, ordered the City to return Officer Jimenez to work with full back-pay and benefits within 14 days.
Officer Jimenez is thrilled to be going back to continue fulfilling his life-long dream of policing and he and this author are grateful for the support that the Legal Defense Fund provided throughout this case.