San Jose Mercury News
SAN JOSE, Calif. — Amid mounting allegations of excessive police force, San Jose officials have agreed to pay a tire store owner and his nephew $97,500 to settle a lawsuit stemming from a 2006 confrontation that escalated from a minor traffic incident into an international dispute over officers’ treatment of Latinos.
The San Jose City Council Tuesday is expected to formally approve the settlement with businessman Ascencion Calderon and his nephew Samuel Santana. The pact had been tentatively approved in an earlier closed council session.
Reached at his Bascom Avenue shop, Calderon, 68, said he wanted to put the case behind him, but the settlement hasn’t repaired his trust in police.
“Before, I trusted the police, every officer,” Calderon said, at times with a son translating from Spanish. “Now, you never know what kind of person that officer is. I accept the settlement. But it’s not satisfying to me completely. The damage they did to me was pretty bad.”
The settlement similar in size to others the city has reached in recent years to resolve major civil suits comes as officials confront criticism over use of force in arrests involving relatively minor offenses and residents from immigrant communities.
Many in the city’s Vietnamese community have been outraged over the May fatal shooting of a knife-wielding, mentally ill man whose family called 911 for help. More recently, the apparent police beating of a college student captured on a roommate’s cell phone video has sparked concerns.
A Mercury News analysis in November found that each year, hundreds of routine encounters with San Jose officers escalate into violence and lead to resisting-arrest charges.
Weeks later, a council public safety committee unanimously ordered the city manager, the independent police auditor and the city auditor to review about 200 cases this year in which police charged people with resisting arrest and determine if excessive force had been used.
The settlement stemmed from a July 30, 2006, incident in which two officers pulled over Santana on Alum Rock Avenue at 7:30 p.m. because his Ford Excursion was missing the front license plate and because he wasn’t wearing a seat belt.
Calderon, 65 at the time, and his 11-year-old grandson were eating at a nearby taco stand, and he approached the officers to see what was happening with his then-25-year-old nephew.
Officer Terry Kepler reported that he told Calderon twice to back away, then pinned him against the police car to keep him from interfering with the other officer. That officer, Robert McAlavey, said he ordered Santana, who had stepped out of his vehicle, to return to the cab but that Santana instead uttered an expletive and indicated he needed to help “my boss.” McAlavey then pulled his gun and used pepper spray on Santana.
Calderon insisted he didn’t disobey the officer’s orders. But he alleged Kepler slammed his face into the hood of the patrol car, kicked him in the testicles and ground a baton into his face and neck even though he was not struggling or trying to escape. Santana alleged McAlavey called him a “Mexican wetback” and pepper-sprayed him even though he had already thrown up his hands in response to the officer’s pistol.
Police charged Calderon and Santana with misdemeanor resisting arrest. Their case ended in a mistrial, and prosecutors later dropped the charges.
The incident drew little attention until March 2007, when Bruno Figueroa, the Mexican consul general at the time, cited it as an example of police mistreatment and demanded that San Jose police show more accountability and respect toward Latinos.
“This unfortunate sequence of events ... shows that when dealing with the Latino community, some San Jose police officers will not hesitate to use force, no matter how unjustified it may be,” Figueroa wrote in a statement to the Mercury News.
Figueroa’s criticism drew a rebuke from the head of the officers’ union, Bobby Lopez, who suggested the Mexican government solve its own police problems “before he tries to solve ours.”
After the city rejected Calderon’s $1 million claim for damages against the officers and police department, he and Santana filed suit in June 2007.
City Attorney Rick Doyle said in a memorandum outlining the settlement that the offer was made “in light of the risks and costs” of proceeding to trial, including “exposure to substantial attorneys’ fees” if Calderon and Santana won in court.
The city and plaintiffs reached the settlement following mediation with Santa Clara County Superior Court Judge Hector Ramon, Doyle said. The city does not admit liability in the settlement.
Alfredo Morales, the attorney for Calderon and Santana, said he preferred to reserve comment until the council finalizes the settlement with Tuesday’s vote.
Copyright 2009 San Jose Mercury News