San Marcos Police Department headquarters. Photo by Andy Sevilla.
By ANDY SEVILLA
A San Marcos police officer who made national news because of a traffic stop involving the death of a dog was cleared of wrong doing in a separate act after being suspended last October.
San Marcos Police Department (SMPD) Chief Howard Williams indefinitely suspended Officer Paul Stephens from the force without pay effective October 2, 2009, six weeks after a large disturbance outside of Dillinger’s, a bar on the Hays County Courthouse Square. Williams said Stephens used excessive force, violated a general order and was dishonest during an administrative investigation of the incident.
However, after and months of reviewing videos and conversations, plus two days of testimony from 13 witnesses, Richard R. Brann, an independent hearing examiner out of Houston, found last month that charges against Stephens were not substantiated by a preponderance of credible evidence.
“…Stephens did not commit the primary offense at issue – violation of use of force policy – he was honest and forthcoming in the immediate aftermath of the incident,” Brann wrote in his report on the findings. “He may have displayed poor judgment with regard to the ‘do not discuss’ order — though there was clearly no intent to interfere with the investigation, and the Hearing Examiner (Brann) finds no deliberate intent to deceive.”
Williams claimed Stephens used excessive force when he shoved an unidentified woman onto the floor with his expandable baton during the disturbance on Aug. 18, 2009. According to several officers, the disturbance involved roughly 30 to 40 “belligerent” individuals crowding the sidewalk and street while arguing and fighting.
Williams also charged Stephens with violating a general order and being dishonest. Williams said in his Letter of Indefinite Suspension that Stephens spoke with other officers about the administrative investigation into his actions after being prohibited from speaking with anyone regarding the matter less than two hours earlier. Williams also said that Stephens failed to disclose those conversations when asked by Commander Terry Nichols, who was conducting the administrative investigation, whether Stephens had discussed anything related to the investigation with anyone.
Nichols knew Stephens had had those conversations before questioning him, but Nichols didn’t press Stephens further on the matter and instead marked Stephens’ answer as dishonest, according to the arbitration report.
Stephens testified to the hearing examiner that he was unclear on what exactly was prohibited in the “do not discuss” order. Stephens said he spoke with Officers Jesse Guerra and Erik Spriegel and told them that he was being investigated for pushing a girl, but Stephens said that was the extent of the conversation and no details were discussed. Therefore, Stephens said, he didn’t believe that he had discussed the matter, which would have violated the “do not discuss” order.
“This order is so that I don’t go speak to somebody about what happened and we get together what our testimony is going to be and interfere with the investigation,” Stephens testified to Brann. “… I put that I had not discussed (the investigation) because, in my mind, what I told (Spriegel), to me, did not interfere with the investigation in any way… I answered (Nichols question) the way I did, considering what I had told (Spriegel) did not discuss any details of the investigation and I didn’t feel it interfered with the investigation. So I didn’t disclose (the conversation) and I’ve never been asked since then about it.”
Brann recognized in his report that Stephens’ charge of “insubordination has been technically substantiated,” though it doesn’t constitute grounds for removal.
In justifying the use of force charge against Stephens, Williams cited the Police Department General Orders, which state that, “In any individual event, the use of force is restricted to that force necessary to control and terminate unlawful resistance, to effect a lawful arrest, to prevent injury to any person or to prevent the escape of a person in custody.” Williams went on to say that the unidentified female didn’t fit any of the criteria necessary for use of force.
Brann admitted in his report that upon first viewing of the dash cam video, he was “struck” by how quickly Stephens’ push against the unidentified female came about from him exiting the vehicle, about 10 seconds. However, Brann then said that upon viewing the video several times, including in frame-by-frame time, “it becomes clear that the unidentified female was agitated, quarreling, and non-compliant before and after Stephens exited the vehicle … She seems to be moving in (Stephens) direction – not to assault Stephens – but to advance upon, challenge, or ‘go after’ someone who is off camera to the right.”
Brann stated that the unidentified female Stephens pushed was engaged in “active aggression,” which includes physical action or assault against another person. Brann also stated that Stephens was holding the expandable baton with both hands and pushed the unidentified female, and did not strike her with the baton.
“SMPD is to be commended for scrupulously policing the behavior of its officers,” Brann stated. “No one wants a ‘rogue cop’ abusing law-abiding citizens. On the other hand, law-abiding citizens expect police officers, when confronted with a chaotic, increasingly violent situation, to try to (keep) something worse from happening. Based on her yelling, cursing and ‘running her mouth,’ coupled with her obviously aggressive body language, Stephens credibly says he thought the unidentified female was ‘going after’ the object of her wrath. In the heat of the moment, Stephens would have been remiss in doing nothing. He chose, instead, to push her away which resulted in her falling backward. The preponderance of credible evidence has not shown that (Stephens) used unnecessary force…”
Officer Don Lee, who instructs SMPD officers on use of force, said he was “disappointed” upon first viewing the video, though after carefully watching it over in frame-by-frame time at the hearing, he then said that Stephens’ use of force was not without reason.
According to Williams Letter of Indefinite Suspension to Stephens, the Aug. 18 incident was Stephens’ third disciplinary action in 14 months.
On Aug. 13, 2008, Stephens was given a written reprimand after violating the conduct beneficial to good order and violating the prohibited acts under individual responsibility when he addressed the driver of the vehicle and his passenger in harsh and belittling terms during a traffic stop.
On Oct. 23, 2008, Stephens was suspended for two days, effective Oct. 29, 2008, for violating the honesty subsection of the individual responsibilities under the code of conduct, when Stephens told Nichols he had driven to Dallas because of a death in the family, causing him to be late to court. Stephens later admitted there was not a death in his family, and that he had not driven to Dallas, but instead overslept.
Stephens was also in the midst of nationally discussed matter involving San Marcos on Aug. 5, 2008, when two San Marcos residents, Michael Gonzales and Krystal Hernandez, sped down Interstate-35 trying to rush their teacup poodle, Missy, to a 24-hour veterinary clinic in New Braunfels. Stephens pulled them over for driving at high speed. The traffic stop took 17 minutes from the beginning until the residents were released. Gonzales and Hernandez both said Missy was alive, but died during the traffic stop.
Officer Joyce Bender, who assisted Stephens with the stop, said Missy was not breathing and she believed Missy was already dead. Bender, at the time, did not have any veterinary training. Gonzales and Hernandez both complained that Stephens was insensitive after Gonzales said Stephens told him, “Dude you need to chill out. It’s just a dog. You can always get another one.” Stephens was ordered counseling for the incident, and Gonzales’ traffic violation was dropped.
“The substantiated charges against Officer Stephens do not justify him being indefinitely suspended, i.e., discharged from employment,” Brann concluded. “Rather, the substantiated charges justify, at most, a lesser penalty, which because of his prior discipline should be limited to a fifteen day unpaid suspension.”Email | Print