AMERICAN ARBITRATION ASSOCIATIONIN THE MATTER OF THE APPEAL HEARING

CHAPTER 143, TEXAS LOCAL GOVERNMENT CODETHIRD-PARTY HEARING EXAMINER PROCEEDING

POLICE OFFICER, § AAA NO. 70-390-00664-13ODV, §

APPELLANT § § BEFORE THE HONORABLE

AND § I. B. HELBURN,§ HEARING EXAMINER§

CITY OF MISSION, TEXAS, §EMPLOYER § JUNE 5 & 6, 2014

APPELLANT ODV’S POST HEARING BRIEF TO THE HEARING EXAMINER

TO THE THIRD PARTY HEARING EXAMINER:

Appellant ODV files this Post Hearing Brief in support of his request that his

appeal from the City of Mission’s indefinite suspension be granted in its entirety and that

the disciplinary actions imposed by the City of Mission’s Police Department be set aside.

CONTENTS

I. ISSUE………………………………………………………………… 2

II. NOTICE OF INDEFINITE SUSPENSION………………………….... 2

III. ARGUMENTS AND ANALYSIS OF EVIDENCE PRESENTED AT THE HEARING ……………………………………6

IV. CONCLUSION…………………………………………………............16

V. PRAYER………………………………………………………………..19

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I.ISSUE

Does the City have just cause to indefinitely suspend Officer ODV? If not, what

are the appropriate remedies?

II.NOTICE OF INDEFINITE SUSPENSION

On September 13, 2013, Mission Police Department served Officer ODV a notice

of Indefinite Suspension (See City Exhibit 20). In that notice, Officer De Villegas was

advised of the City’s version of the facts in the section of the notice titled “Statement of

Facts”. The statement of facts also advises Officer De Villegas how they arrived at the

Chief’s interpretation of the facts. The following are relevant allegations as they were

presented to Officer De Villegas in the Statement of Facts that pertain to the allegations

of excessive force against the suspect, Omar Pina.

1. “Mr. Pina claimed that the arresting officer had intentionally struck him on his head with his service weapon causing laceration to the top of his head area.

2. “Officer Ruben Garza, Palmview Police Dept., witnessed you strike Omar twice on the head with your service weapon. Officer Bryan Flores, Palmview Police Dept., also reported to Lt. Sanchez that he witnessed you grab Omar Pina from his arm and crotch area once he was handcuffed.

3. “Thereafter, Officer Garza then witnessed where you lifted Mr. Pina into the air, as you waited for someone to open the back door to your patrol unit. Then, from the position you had Mr. Pina in, (raised up in the air) you then threw him in the back seat of your patrol unit.

4. “You then transported him to the Mission Police Department where he refused medical treatment and you then transported him to the Palmview Police Department.

5. “Investigators interviewed Mr. Pina, who stated that he had been struck twice on the head with a gun by the arresting officer from the Mission Police Department.

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6. “He further stated that he had not resisted and had complied with all the verbal commands that were given to him during the arrest.

7. “Unit #228 video was reviewed and the camera was able to record when you are attempting to extract Mr. Pina from the vehicle.

8. “You are seen grabbing Mr. Pina from his shirt and took him down to the ground, where he lands on his knees. At that point you push him down to the ground where he landed on the side of his body facing the camera. You then turn him over on his stomach and positioned yourself on his back attempting to grab his hands.

9. “During this part of the arrest, you still had your service weapon in your right hand…

10. “…it is alleged by Mr. Pina and witnessed by Officer Garza of the Palmview Police Department that you struck Mr. Pina with your service weapon on the top of his head, causing his injuries.

11. “You then holstered your weapon in order to grab your handcuffs.

12. “With the assistance of Officer Ruben Garza from the Palmview Police Department, you were able to handcuff Mr. Pina.

13. “You then lifted Mr. Pina off the ground and carried him over to Palmview Police patrol unit PV-14, where you patted him down.

14. “After you were done, you then grabbed Mr. Pina from his arm area and crotch area and picked him up in the air. You then carried him to your patrol unit (PDB-266), where a Palmview Police officer assisted you in opening the unit door. You then threw Mr. Pina into the patrol unit and secured him by closing the unit door.

15. “Based on Officer Charles Lopez police report, he states that he observed you carrying Mr. Pina towards a marked Mission Police unit while he was handcuffed. Officer Charles Lopez report further states that he verbally told you twice to put Mr. Pina down, because Mr. Pina was not resisting, yet you continued carrying him to your police unit.

16. “During the entire process of the arrest, from the moment Mr. Omar Pina was handcuffed to the point that you lifted him off the ground and towards the marked Palmview unit; then from the Palmview unit when you lifted him in the air and held him up in the air; and then to the point that you threw Mr. Pina into the Mission Police marked police unit – the manner in which you treated Mr. Omar Pina was uncalled for and is clearly not the appropriate way to treat a persons in police custody.

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17. “During the course of the arrest (upon viewing the video recording from Police Unit #228), it is obvious that you were angry and not following appropriate professional police practices in securing and treating a prisoner.

18. “After you threw Mr. Pina into the back seat of your assigned police unit, you were seen leaving the area and out of the view of the camera system in Mission Police Patrol unit #228.

19. “I was later advised by Sgt. Rodriguez that he had discovered some hair follicles on the right side of your duty weapon and that the rear passenger area of your unit (PDB-266) had been photographed where blood was found.

20. “In reviewing Officer Ruben Garza’s affidavit, he states that he assisted you in taking Omar Pina out (sic) the vehicle through the front right passenger side door and while on the ground, he noticed that Omar Pina had his hands behind his back with his palms up. He further states in his affidavit that you then struck Omar Pina twice on the back of his head with your handgun. He also witnesses you grab Mr. Pina from his shirt and crotch area, where you then threw him in the back seat of a Mission Police patrol unit.

21. “In reviewing Officer Bryan Flores’ affidavit he describes you and Mr. Pina at the scene. He states that he saw you grab Omar Pina from his back and crotch area, where you then threw him into the back of Mission Police patrol unit.

22. “On July 10, 2013 contact was made with Omar Pina who provided an affidavit wishing to file a formal complaint against you for the events that transpired on April 19, 2013. He states that he stayed in the white Tahoe after the pursuit ended raising his hands up in the air and that he unlocked the front right passenger door of the Tahoe, after seeing you pointing your service weapon at him. He further states that you then grabbed him from his chest, where you then threw him to the ground and hit him over the head with your service weapon once or twice. He added that while he was on the ground being handcuffed, you then grabbed his balls and squeezed them causing him pain, at which point you told him “This is what you get” and threw him into a patrol unit.

23. “You then stated you ran up to the front passenger side door of the suspect vehicle with your service weapon drawn and that the front right passenger (Omar Pina) had his hands up in the air. You then stated that you gave him verbal commands to exit the vehicle, but you ultimately pulled him out of the vehicle from his clothing.

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24. “When Mr. Pina was moving his hands, you stated in the interview that you did not know if he had a weapon or anything so you wanted to Ki….(stutter). Based on the audio recording, it is my belief that the aforementioned sentence from your interview, you intended to say that based on the fact that Mr. Pina was moving his hand and that you did not know if he had a weapon or anything that you wanted to kill him. Upon hearing this, I am very concerned about your behavior towards Mr. Pina or for that matter, any defendant that you might come into contact with during your normal course of employment.

25. “You then stated that while you were trying to turn him over, you still had your service weapon in your hand and you might have struck him unintentionally with your service weapon.

(See City Exhibit 20)

On the last paragraph of the statement of facts the Chief states in part the

following:

“Based on the aforementioned incident and the facts relating to the events that led to an internal investigation, I find that you have violated the following rules under the City of Mission Personnel Policy, Mission Police Department General Manual, City of Mission Local Civil Service Commission Rules and Regulations and Chapter 143 of the Texas Local Government Code. (See Id.)

On the last section of the notice under the subtitle “Right to Appeal” it states in

part the following:

“Based on the violations of the aforementioned rules/policies and civil service law, you are hereby indefinitely suspended… (See Id.)

Officer De Villegas was served with this indefinite suspension and these were the

relevant facts as viewed by the City used as the cause for the indefinite suspension. Of

course, other alleged facts were presented in the notice but I have limited this summary to

the alleged facts presented to Officer De Villegas that pertain to the allegations of (1)

intentionally striking Mr. Pina in the head with his service weapon; (2) squeezing Mr.

Pina’s testicles; and (3) picking up and throwing Mr. Pina into a patrol unit.

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III.ARGUMENTS AND ANALYSIS

Does the City have just cause to indefinitely suspend Officer ODV? If not, what are the appropriate remedies?

A. Burden of Proof is on the Department and the Appropriate Standard of Review of the Examiner is Preponderance of the Evidence

At this juncture the City has to prove that Officer De Villegas was indefinitely

suspended for the reasons stated in the Charging Letter, Chief’s Notice of Indefinite

Suspension, and to prove that the findings and the respective suspension was an

appropriate remedy. See, Waller v. Bexar County Sheriff’s Civil Service Commission,

131 S.W.3d, 125 (Tex. App.–San Antonio 2004, page 127-128). If this were not the case,

the City would not have the benefit of presenting its evidence first during the hearing.

The proper standard is set by Section 143.057(f) of the Local Government Code

which states that the hearing examiner has the same powers as the commission. Section

143.053 of the Local Government Code clearly gives the commission clear authority,

without limitation, over matters concerning the department head’s charges including

dismissals, suspensions, restoration to positions, and compensation concerning officers.

In fact, the language in 143.053(f) even uses language which states that if the commission

finds that the period of disciplinary suspension “should” be reduced, the commission

“may” reduce the period of suspension. Thus, there is no standard of abuse discretion

specified by the statute, and the appropriate standard of review for the hearing examiner

is that of the preponderance of the evidence. To hold otherwise would place an

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unreasonable burden on the officer to disprove the Chief’s case which the legislature did

not intend to do based on the permissive language it and in the statistics.

The notion of independent review is reflected in various cases which have gone

on appeal. See Waller v. Bexar County Sheriff Civil Service Commission, 131 S.W.3d,

125 (Tex. App.–San Antonio 2004, page 127-128) (indicating that the County must

introduce evidence to justify the termination and that the appellant did not have the

burden of proof at the hearing nor did she need to prove the County’s adverse action

should not be upheld). See also, City of Laredo v. Rodriguez, 791 S.W.2d, 567 (Tex.

App.–San Antonio 1990 at 568). Ann Skates v. City of Paris, 363 S.W.2d, 425 (Tex.

1963 at 426), both stating that the commission must simply make a finding of truth for

the specific charges against the employee.

In this case, this honorable hearing examiner must simply make a finding of

whether or not the charges, in this case, [1] intentionally striking Omar Pina with the

service weapon on the head; [2] squeezing Omar Pina’s testicles; and [3] picking up and

throwing Omar Pina into the patrol unit are sustained or not, based on the credible

evidence presented. All in all, the commission, and in this case the honorable hearing

examiner, has been given broad discretion to make an independent review of the case

presented.

B. Intentionally striking Omar Pina with the service weapon on the head.

As the City’s attorney repeatedly stated at the hearing, “The video speaks for

itself”, the video from Unit 228 dashcam does speak for itself. (See pg. 177:7, 192:3-4)

This entire hearing could have been reduced to the video, as the video clearly shows that

Officer De Villegas never struck Mr. Pina with his service weapon. This allegation boils

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down to whether Officer De Villegas intentionally used his service weapon to “thump”

(as the City’s counsel stated) Mr. Pina on the head and the City was unable to prove that

allegation.

The city relies on two things to try and prove that Officer De Villegas

intentionally hit Mr. Pina over the head with his service weapon, (1) Omar Pina’s

accusations; and (2) Palmview Officer Ruben Garza’s supposed eye witness recollection.

Any assertion, affidavit, statement and/or testimony of Omar Pina regarding this

incident should be questionable at best. The evidence is overwhelming that Mr. Pina was

under the influence of very strong and potent narcotics which were mixed together. He

testified that he had taken Xanax shortly before the high speed chase and consumed

cocaine and marihuana during the early morning hours. He admits that he was “partying”

with some girls, presumably all night, when Rosales, the driver of the stolen SUV, picked

him up. He confesses that Rosales had a lot of cocaine (an 8 ball) and that Omar Pina

took two or three BOMBS of cocaine. Several officers testified that he showed signs of

intoxication and that an eight ball of cocaine is a lot of cocaine. (V. Ochoa testimony, pg.

51:13-14) The investigators refused to have him sign an affidavit because of the

narcotics he had ingested and the signs of intoxication. (T. Rodriguez testimony, pg.

284). Additionally, several of the statements he made on his two affidavits and his

testimony from prison are either contradictory or outright lies, as the following reflect:

1. “Today, early in the morning my friend, Roel, whose last name I do not know picked me up around the area of a pawn shop in Palmview. (See City Exhibit 14)

2. “In the early morning of April 19, 2013 my friend, Roel Rosales, picked me up around the area of Business 83 in Palmview” (See City Exhibit 14a)

Two contradictory statements.

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3. “He picked me up in a white Chevy or GMC truck while I was walking on the road. He was just driving by and he saw me.” (See City Exhibit 14)

4. “He picked me up in a white Chevy or GMC Tahoe from a friend’s house where I was hanging out with some girls.” (Exh. 14a)Two contradictory statements.

5. “He then got in the high speed pursuit and we were nervous. Roel kept driving and we were NOT talking.” (Exh. 14 and 14a)

6. Q(City Counsel): What were you telling him as you were driving—as he was driving at such a high speed?

A(Mr. Pina): I was telling him that I wasn’t responsible for anything that was going to happen because I didn’t know it was stolen and I was just—you know, I was riding passenger. I let him know that what could happen if we were going at such a high speed rate that we could crash or something.” (See Testimony of Omar Pina, Pg. 161:12-22)

Again, two different versions of the facts.

7. “I do not remember from where he grabbed me but I was thrown to the ground real hard.” (Exh. 14)

8. “The Mission police officer then grabbed me from my chest area and threw me to the ground real hard.” (Exh. 14a)

Two different version of facts.

9. “I then started feeling about five other people hitting me and I was telling me (sic) them that I was not resisting.” (Exh. 14 and 14a)

10. “They punched me like—I would say like seven times on the side of my legs and on the side of my body. While I was still on the ground, sir. I wasn’t handcuffed yet.” (O. Pina testimony, pg. 173:16-22)

The video contradicts these statements from Pina, and reveals they are outright lies.

11. “That same person then told me, ‘Now I got you little fucker’.” (Exh. 14)

12. “He then told me, “This is what you get”. (Exh. 14a)

He is lying on one or both of these statements. He forgets how his lie was told. We are, both.

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13. “I started calling him a pig…The officer began telling me bad words because I was calling him names.” (Exh. 14)

14. “The officer then began cussing at me because I was telling him that he was going to get in trouble for hitting me over the head with his gun.” (Exh. 14a)

15. “…at first he was telling , he was telling me things about—like he was telling me angry stuff about me and the high speed chase and stuff, and that’s what I deserve and all that. (O. Pina testimony, pg. 166:1-4)

At the hearing, the truth comes out.

16. “During the whole time, my hand were at my side.”

Outright lie according to the video.

17. “I believe it was his left hand, he got my arms that were handcuffed, and with his right hand picked me up like that and squeezed my testicles and told me this is what you get. And—And then he threw me—they opened the cop car and he threw me….” (O. Pina Testimony, pg. 165:3-10)

Another outright lie, according to the video.

Assessing Omar Pina’s credibility, the hearing officer can just look at the record

and the evidence presented to determine that Mr. Pina cannot be relied upon to prove the

City’s case. Even if Mr. Pina’s testimony about Officer De Villegas intentionally striking

him with his weapon is believable, which we contend is not, Mr. Pina’s accusation stems

from him feeling the hit to his head in the struggle and turning toward Officer De

Villegas and seeing the gun. (See O. Pina testimony, pg. 179:24). The City is unable to

show that Officer De Villegas intentionally struck Mr. Pina with his weapon.

As for Officer Ruben Garza, he was falling out of the stolen SUV as he look in

the direction of Officer De Villegas and Omar Pina and states he saw Officer De Villegas

strike Mr. Pina twice in the head. He states that Officer De Villegas did not raise his

weapon but that the strikes were short, at most five inches. (See R. Garza testimony, pg.

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45:8-13). This is in direct contradiction to the motion that the City’s attorney did in her

opening when she was attempting to describe the alleged striking with the weapon. She

picked up her hand over her head and moved her hand up and down in a “thumping”

fashion which is not what the evidence revealed.

There is no reason for Officer Garza to lie, he is just saying what he thinks he

saw. Officer De Villegas does not believe that Officer Garza is misrepresenting the truth

intentionally, but luckily the video catches what actually happened. What he actually

saw and what the video, which is the best evidence in the case, shows, is Officer De

Villegas holding his weapon in his hand as he is trying to turn over the suspect with both

hands. He sees the movement of Officer De Villegas’ hands and assumes they are strikes

to the head after he see the blood on the head. There is no proof of strikes, let alone

intentional strike to the head. Unlike what the City would like the hearing examiner to

believe, it is not the burden of Officer De Villegas to prove where the cut and blood came

from, whether the cut on the head was a result of the impact with the cement drainage

pipe or the abrupt fall to the ground. It is the City’s burden to show that Officer De

Villegas took his weapon and intentionally struck Mr. Pina in the head.

The investigation into Officer De Villegas was conducted by Officer Vicente

Ochoa of Internal Affairs. First of all it is odd that the city waits three months to

interview Officer De Villegas after they place him on leave the day of the incident. They

ask him questions of things he did and said knowing how much time had passed instead

of doing it shortly after the incident. What is interesting is that the City’s attitude about

the alleged blow to the head of Omar Pina with the gun by Officer De Villegas is

revealed during the interview. Inv. Ochoa states:

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“Mr. Pina is alleging that there was excessive force, namely being hit over the

head with a. Well not being hit over the head, but just being struck with the

service weapon. And the other one is the Mission Police mishandling of the

prisoner.”

(Emphasis added, See City Exhibit 17, transcript of IA Interview, pg. 31)

The City and its IA investigator assigned to investigate this alleged “thumping in

the head” (as the City’s counsel was so delighted in saying repeatedly) do not even

believe it themselves. Inv. Ochoa had to correct himself by saying, “not hit over the

head” when IN FACT, that is exactly what Omar Pina, the convicted felon, was accusing

Officer De Villegas of doing. Both of Omar Pina’s affidavits, one from the day of the

arrest and the other on July 10th, accuse Officer De Villegas of “hit(ting) me over the

head with a gun”. (See City Exhibits 14 and 14a).

There is no other reason why the Investigator would intentionally correct himself

and say “NOT hit over the head, but JUST being struck with the service weapon”

(emphasis added) other than he does NOT believe that any contact on Mr. Pina’s body

with the service weapon was intentional. Why would Inv. Ochoa add “just” to his

statement? Because, he as a representative of the city and the individual assigned to do

the fact finding in this case is not convinced of any intentional striking of the head by

Officer De Villegas with his service weapon. The video and Inv. Ochoa’s words speak

for themselves.

The evidence is clear and convincing that Officer De Villegas did not violate any

rules or policies regarding this specific charge, and has always been up front stating that

he had his service weapon in his right hand when he took down Mr. Pina and that if his

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weapon made contact with Mr. Pina is was purely unintentional, which is what the video

(which “speaks for itself”) confirms.

C. Squeezing Omar Pina’s testicles.

Again, the best evidence come from Unit 228’s dashcam video. At no time, does

it show Officer De Villegas squeezing Omar Pina’s testicles. The entire time that Officer

De Villegas has contact with Omar Pina from the time he extracts the suspect from the

SUV until Mr. Pina is in the patrol unit can be accounted for.

As for the span of time from taking Mr. Pina out of the SUV until he is picked

and put against a Palmview police unit. The dashcam video from Unit #228 is the best

evidence. The video shows Officer De Villegas taking Mr. Pina out of the stolen SUV

and dropping him to the floor. There is no dispute that during this time, Officer De

Villegas did not grab and squeeze Mr. Pina’s testicles. Then the video shows Officer De

Villegas on the ground with Mr. Pina and it is clear and undisputed that Officer De

Villegas did not grab and squeeze Mr. Pina’s testicles during the struggle on the ground.

The video then shows Officer De Villegas pick up Mr. Pina from the ground and take

him over to a Palmview police unit closest to them. During this time, it is abundantly

clear that Officer De Villegas does not grab and squeeze Omar Pina’s testicles.

The span of time when Officer De Villegas has Omar Pina up against the

Palmview police unit is relatively a short amount of time but is out of camera view. At

this time, when Officer De Villegas put Mr. Pina against the vehicle to check him for

weapons, they are not in the view of the dashcam video, but there are plenty of Palmview

and Mission police officers around. None of them, state that Officer De Villegas grabbed

and squeezed Omar Pina’s testicles at that time while he is frisking him. Officer De

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Villegas has always stated that he conducted a standard frisk of Omar Pina at the time he

had him up against the car which includes checking the crotch area, we have all seen it on

TV. (See pg. 194:10-13, 195:10-18) Just like most persons, Mr. Pina took offense to

having his inner thighs and crotch area touched by a police officer, but that is what

officers do to make sure that the safety of ALL is assured. By no means, does conducting

a standard frisk on Mr. Pina equal grabbing and squeezing his testicles.

The span of time from when Officer De Villegas picks up Mr. Pina and carries

him from the Palmview police unit to the Mission police unit that transports Mr. Pina is

evidence from dashcam video from Unit #228. During this time some very important

evidence was discovered from the video to contradict Mr. Pina’s accusations of testicle

grabbing and squeezing. The evidence is clear that Mr. Pina is using his trousers where

the waistband is not actually on the person’s waist, like you and I would wear a pair of

pants. The pants are worn very loosely and waistband is actually cinched to the person’s

lower hip area, closer to the crotch area where you can see the person’s underwear and

dragging on the floor by the feet. The type of person that wears trousers very loosely like

this, does it to conceal weapons, drugs, and/or merchandise they steal from stores and so

that they have “street cred” from other criminals. This manner of dress by Mr. Pina is

very important because the video clearly shows Officer De Villegas carrying Mr. Pina

from the inner thigh area since the crotch area of the trouser would logically not be on

Mr. Pina’s crotch since he wears his pants in this gangster type of way. This would make

the pant crotch be probably about half a foot from Mr. Pina testicles. The video is clear

evidence of this. It shows where the trousers are in relation to Mr. Pina’s anatomy, and

Officer De Villegas hand placement.

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The evidence presented at the hearing, namely the dashcam video makes it clear

that Officer De Villegas did not squeeze Omar Pina’s testicles. Officer De Villegas has

ALWAYS stated that he conducted a standard frisk. Additionally, when he was

interviewed for the first time by IA investigators approximately 3 months after the

incident and after he had been placed on leave he advised the investigator that if his hand

made contact with Omar Pina’s crotch area it was purely unintentional which is what the

best evidence in the case, the video, reveals. As counsel for the city maintains, “the video

speaks for itself”.

D. Picking up and throwing Omar Pina into the patrol unit.

This happened, but it does not merit the loss of Officer De Villegas job with

Mission Police Department and his career in law enforcement. When first confronted

with the complaint of carrying Omar Pina and throwing him in the unit, Officer De

Villegas admitted to the investigator that he should not have tossed Mr. Pina the manner

he did. He learned from the incident and would be a better officer for it.

Evidence was introduced that the job description for a police patrol officer at

Mission Police Dept. states that one of the physical demands of a patrol police officer is

the ability to lift an adult to remove him from danger or TO RESTRAIN HIM. (See

Appellant Exhibit A-10, pg. 7). So to give Officer De Villegas that job description, make

him sign it acknowledging that he received it and then complaining about Officer De

Villegas of picking the suspect up is illogical. Nonetheless, officer De Villegas and his

counsel understand that picking Mr. Pina up combined with throwing him “like a sack of

potatoes” (as City’s counsel mentioned several times) goes beyond what Officer De

Villegas should have done.

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Based on all the evidence presented, the hearing examiner should rule that the two

allegations: 1). Intentionally striking (“thumping”) the head of Mr. Pina with his service

weapon; and 2) Squeezing the testicles of Mr. Pina, were false and set aside the indefinite

suspension. As for the allegation of picking up and throwing Mr. Pina into the patrol

unit, discipline should be imposed but not an indefinite suspension.

Therefore, the indefinite suspension should be set aside.

IV.CONCLUSION

Taking the entire true facts and evidence into consideration in this disciplinary

action, it should be clear that two of the charges against Officer De Villegas are without

merit and should not have been sustained. The City of Mission had an affirmative duty

and responsibility to allege and prove with a reasonable degree of certainty the wrongful

acts alleged to have been committed by Officer De Villegas and the specific rules

violated. Additionally, if the City had proved those allegations, which we contend, they

did not because they did not present any competent evidence to prove any alleged

misconduct, then the City must then go forward and constructively prove that the

disciplinary sanctions selectively imposed on Officer De Villegas were

nondiscriminatory, just, and proportionate based on the relevant circumstances involved.

Ever since Officer De Villegas was confronted with the allegation that he violated

policy when he picked up and threw Omar Pina into the patrol unit, he has agreed and

acknowledged that he should not have done so. Those actions alone based on the totality

of the circumstances do no merit an indefinite suspension. Indefinitely suspending

Officer De Villegas for this would not be just and proportionate based on the totality of

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the circumstances but Officer De Villegas does acknowledge that some other discipline is

merited, but not an indefinite suspension.

The evidence at the hearing, in particular the dashcam video from Unit 228 is

very compelling to show what really happened. As the evidence presented at the hearing

reflects, the “eye witness” testimony of Omar Pina and Officer Ruben Garza is like a lot

of eye witness testimony, unreliable. The best evidence of what happened in this case IS

dashcam video from Unit 228 and it “speaks for itself” as the City’s attorney stated and

as IA Investigator Vicente Ochoa told Officer De Villegas on July 17, 2013, three months

after the incident. (pg. 177:7, 192:3-4; City Exhibit 17, 1st IA Interview of Omar De

Villegas on July 17, 2013, pg. 30)

After a high speed chase through two cities, the suspects take a route commonly

used by alien and drug traffickers along the border. (see Javier Ramon testimony, pg.

223) The area where the chase ended is in a route commonly used be Mexican cartels to

get to the river and is considered a high Mexican cartel crime area. (See Adan Barrera

testimony, pg. 253). This area is not like any other area in Texas now. Officer are

dealing with the same type of violence, corruption and crime that had plagued Mexico for

years, but is now on our borders.

The video show’s exactly what happened. Officer De Villegas drew his weapon

just like other officers at the scene did. He went “hands on” on Omar Pina, just like

Officer Ruben Garza did. Officer De Villegas made a split second decision to take Omar

Pina to the ground since the other suspect had already fled on foot. Coincidentally, the

other suspect was also taken down to the ground when he was tackled by two officers

while one of the officers still had his gun in his hand. Officer De Villegas struggles to

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get the suspect on his stomach to gain positive control of him and handcuff him, since no

one is helping him yet. During this struggle Officer De Villegas still has his weapon in

his hand. Unlike the other officer that put the weapon on the street next to him, Officer

De Villegas still does not have assistance. As soon as he is covered by Officer Ruben

Garza, Officer De Villegas holsters his weapon. Officer Garza leaves Officer De

Villegas once Mr. Pina is handcuffed and so Officer De Villegas is left alone to take the

suspect to the unit. At this time, the video show Officer De Villegas pick up Mr. Pina

and throw him in the unit, which was not necessary.

But for the mishandling of Omar Pina in throwing him into the unit, the City does

not have credible evidence sufficient to sustain the allegations against Officer De

Villegas. The City’s main witnesses, Omar Pina and Officer Ruben Garza, do not

produce evidence of any intentional striking of the head with the weapon or squeezing of

testicles. The alleged violations against Officer De Villegas were not proven.

The City’s case is based on pure assumptions, but fortunately, dash cam video

from Unit 228 can be viewed and the true facts are revealed. In addition to the

assumptions addressed in this brief, an additional assumption made by the Chief in the

notice of indefinite suspension referenced above in number 24 of Exhibit 20 is ludicrous.

The statement in the interview was as follows:

“From those moments he was moving his hands and I didn’t know if he had a

weapon or anything so I wanted to ki…(stutters), I complete control of his hands and

where they were moving.” (See City Exhibit 17, pg. 14)

The Chief interpreted that as Officer De Villegas saying “I wanted to kill him” as

opposed to “I did not know if he had a weapon or anything so I wanted to keep complete

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control of his hand…”. They could have just asked Officer De Villegas to repeat his

statement or asked him about it, instead of making another assumption.

It is quite interesting to note that on direct examination by the City’s own

attorney, IA Inv. Ochoa is asked directly about his observations from the video of Unit

228 and what he saw when he reviewed it. He was asked what if anything did he see the

he “felt” was important with regard to the complaint Mr. Pina had made against Officer

De Villegas and Inv. Ochoa went on to list all of his evidentiary observations from the

video….except any striking/hit of the head with the service weapon by Officer De

Villegas. (See Inv. Ochoa testimony, pg. 15:16-25, pg. 16:1-25). He never mentions it,

even with the guidance of the City’s attorney.

The overwhelming evidence demonstrates that the Chief’s decision was arbitrary,

capricious or unreasonable when he indefinitely suspended Officer De Villegas and

therefore, the indefinite suspension should be set aside and Officer De Villegas should be

made whole. The hearing officer should reduce the indefinite suspension to a

disciplinary action (for the throwing of the suspect into the patrol unit) that allows Officer

De Villegas to continue serving the City of Mission.

V.PRAYER

Based on the allegations listed in Officer ODV’ Notice of Indefinite Suspension,

Appellant prays for the following:

a. That his appeal be granted;

b. That his indefinite suspension be set aside;

c. That he be made whole in all things entitled to, including that he be awarded back pay and benefits; and

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d. For such other relief that is just and equitable.

Respectfully submitted,

LOPEZ LAW FIRM2007 E. Griffin ParkwayMission, Texas 78572Tel. (956) 581-7070Fax (956) 581-7072

_ Miguel Lopez Jr. ___________ Miguel Lopez, Jr.State Bar No. 24025499Attorney for Appellant

CERTIFICATE OF SERVICE

This is to certify that, in accordance with accordance sent to the parties by the AAA, copy of the Appellant’s Post Hearing Brief has been via electronic mail to:

American Arbitration Association (AAAMaryJara@adr.org)

Ms. Bettye Lynn (lynn@laborcounsel.net)

_ Miguel Lopez, Jr. ___________ Miguel Lopez, Jr.

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