Sean Webby, 12/21/10
Rejecting a more lenient recommendation from the San Jose Police Department, City Manager Debra Figone is moving to fire a cop for using “unnecessary and unreasonable” force during a secretly videotaped 2009 arrest of a Vietnamese college student, the Mercury News has learned.
The department had recommended veteran Officer Kenneth Siegel be suspended without pay for raining more than a dozen baton blows on Phuong Ho, an aspiring actuary studying at San Jose State. Acting police Chief Chris Moore said Tuesday that the decision was made by chief Rob Davis, who recently retired. Moore would not specify the length of the recommended suspension.
But in a rare move, Figone’s office sent an official notice this week that the city instead intends to take Siegel’s badge away for good, multiple sources told the newspaper, for “failing to properly assess the situation” and “using poor officer safety tactics.”
Figone also has decided to assess a harsher penalty for another officer involved in Ho’s arrest. Davis had recommended a letter of reprimand for Officer Steven Payne Jr. for reasons including not having his baton that day. Figone increased that to a weeklong suspension, sources said.
The issue is far from over.
Both officers, who were not criminally charged earlier this year, are expected to ask for administrative appeals and, if that doesn’t work, demand arbitration.
Figone would not comment for this article, citing the confidential nature of personnel disciplinary decisions.
Alex Gurza, the city’s director of employee relations, also declined to discuss the decision, but said: “Discipline isn’t only about punishment. A very important goal of discipline is to set a standard of public service.”
A critical time
The city manager’s decision comes at a critical juncture for the police department, when Figone is searching for a new chief to replace Davis and the popular Moore is considered a prime candidate for the job. Moore would not say what disciplinary action he favored.
Until now, Figone has publicly defended the department against excessive-force allegations: Just weeks ago, a committee she headed found no problems after examining a series of cases in which police used force as they arrested suspects for minor crimes.
Figone’s latest decision is already sparking major controversy, inside the department and out.
“The city manager had no business overturning the chief’s decision,” said Terry Bowman, Siegel’s attorney. “She substituted her layperson’s judgment for the judgment of recognized experts and a police command staff that regularly evaluate police use of force cases. If you trust them to know what it is, you have to trust them to know what it’s worth.”
Ho told the Mercury News that he did not want the officer to lose his job.
“We cannot fire all police officers that make mistakes,” he said. “Instead, we should be carefully reviewing the department’s training system for use of force.”
Ho, who is suing the city over the arrest, said he had recently met with the four officers that arrested him during a lawyer’s conference. The student said: “When I look at their faces, it’s over, no problems.”
But Richard Konda, executive director of the Asian Law Alliance, said he supported Figone’s decision and disagreed with the level of discipline originally proposed by the former chief.
“Maybe, in their view, it wasn’t that serious,” Konda said. “To me, it was really serious from what we observed in that grainy video. The termination sends a message to the whole department that this kind of behavior will not and cannot be tolerated.”
In September of last year, police busted Ho after a report that he threatened a roommate with a knife. During the arrest, Siegel repeatedly struck Ho with his metal baton and another officer shot him with a Taser. A roommate’s smartphone video of the arrest showed the officer striking the unarmed student for no other obvious resistance than groping around for his eyeglasses, which had been knocked off.
Criminal charges against Ho were later dropped.
The murky, barely audible video, with Ho’s yelps and the sharp sounds of the baton striking the student, was acquired and put online by the Mercury News.
For some, it became an iconic visual symbol for a police department already under heavy fire for allegations of racial profiling and overaggressive policing of low-level crimes.
Figone recently told union president George Beattie that she had watched the video of Ho’s arrest many times, union officials related, “agonized over it” and that “this was her call.”
Who’s in charge?
Union officials reportedly told Figone that some applicants for the city’s open police chief’s job had backed out “because it is well-known that the police chief does not run the department,” union vice president Jim Unland said. “The city manager runs the department.”
Unland called the city manager a “micromanager” who had made a faulty decision that would eventually be overturned through a civil service commission or an arbitrator.
Craig Brown, a lawyer who represents Payne Jr., called Figone’s decisions “offensive.”
“There is no question in my view that this decision was politically and media driven,” Brown said. “As police officers and lawyers know, the San Jose Police Department has taken a pretty hard line in terms of disciplinary matters. They take officer conduct and misconduct seriously and deal with it vigorously. There is no free lunch over there.”
This is the second controversial disciplinary case in recent weeks.
Two fired officers suspected of trying to cover up the drunken driving of a former officer were reinstated last month to their jobs by an arbitrator. Sgt. Will Manion and Patrick D’Arrigo had their terminations reduced to 11-month suspensions. Both are now back on the street.