Jury decision over Richmond officer's duty to intervene sparks debate

A Bay Area jury has found a Richmond police officer failed to intervene and stop what jurors believe was excessive force by a Contra Costa County Sheriff’s deputy during a traffic stop.

The civil court verdict, decided upon in March, calls for the alleged victim, Ricardo Hernandez, to receive more than $500,000 for the 2018 incident. A judge still has to enter a judgment.

What started as a traffic stop, led to a car chase that ended on S. Eighth Street in Richmond on May 5, 2018. The car was reported stolen, which came as a surprise to a group of friends in the backseat, said Hernandez who was one of them.

"I don’t feel I did anything wrong," he said. "I was a little scared because there were a lot of officers."

Body camera video captured Richmond Officer Brandon Hodges calling each suspect out of the car. Hernandez was last.

Court documents allege that seconds later, deputies attempt to restrain Hernandez on the ground. One of them told him to stop resisting, while another deputy is seen holding Hernandez with his arm around his neck.

After a deputy shouts, "he’s out, he’s out, he’s out," they attempt to cuff him, the video shows.

Then, according to civil rights attorneys, Deputy Brandon Battles struck Hernandez several times with his flashlight shouting "give me your hands!" He is then seen pulling out his gun and putting it to Hernandez’s head and said "I will f-ing shoot you!"

While Hernandez did have to be taken to the hospital, he sustained no life-changing physical injuries.

"Thank God I’m still alive," Hernandez said. "He was there protecting me because in my perspective I would have been dead."

Incident reports show none of the people inside the car, including Hernandez, had any weapons or drugs.

Deputies charged him with resisting arrest – a charge that was later dropped.

It wasn’t soon thereafter that civil right attorneys filed a lawsuit against the law enforcement agencies claiming excessive force and a failure to intervene.

"There is no way to whitewash this," attorney Fulvio Cajina who said. "What Deputy Battles did was wrong and egregious and the fact that no one, including officers from Richmond PD did anything to stop him shows that they’re liable for this conduct."

Contra Costa County settled the case for more than $260,000, however the city of Richmond fought it.

Police use of force has been highly scrutinized across the county, but recently so have officers who fail to intervene or report excessive force incidents involving fellow officers.

New laws in numerous states now require law enforcement officers to step in when witnessing unnecessary actions or else they too may be held responsible for any harm caused to a person.

Attorney Josh Parker with The Policing Project at New York University said even before those laws were put in place, officers were trained they have a federal constitutional duty to intervene.

Still, he said new strides to revise use of force policies and strengthen requirements to intervene is a step in the right direction.

But only time will tell if they have teeth.

"It’s vital that agencies follow the law and have this policy but also that they adhere to it," Parker said. "Consistently imposing serious discipline including potentially terminating employment of those officers who fail to intervene when they’re obliged to do so."

According to the National Conference of State Legislatures, at least 18 states, including California, now have laws on the books.

Research shows, however, that is only part of the solution – suggesting police culture, anti-retaliation and training has to change or be updated, too.

The Council on Criminal Justice, a nonpartisan think tank, found officers are more likely to step in when encouraged by a supervisor, seeing fellow officers intervening in similar cases or when witnessing peers rewarded for stopping unnecessary force.

It calls into question incidents like the one involving Hernandez where he and his attorney claim Officer Hodges did nothing to stop excessive force.

Richmond Police would not provide an interview or comment on the case. But department policy states an officer "shall, when in a position to do so, intercede to prevent the use of unreasonable force" and report observations to a supervisor.

Jurors ruled that didn’t happen and the officer’s conduct caused Hernandez injury and harm.

But retired police officer and longtime law enforcement trainer Don Cameron said Hodges didn’t have the knowledge or enough time to act.

"Without all of the facts of what’s going on and you’ve got a lot of officers, you’ve got a guy obviously fighting, and don’t know whether he’s armed or not, would I want to step in and say, ‘hey, stop that,’" said Cameron. "And pull the guy away and then have the guy come up with a gun and shoot both of us. It’s just something you can’t do. You can’t second guess what’s going on."

Court documents say that officer Hodges is also entitled to qualified immunity, which case law describes as giving him "breathing room to make reasonable but mistaken judgments."

Defense lawyers argue Hodges wasn’t aware of a need to intervene or didn’t have a realistic opportunity to do so.

"From my perspective, they know what they did," said Hernandez. "I did tell him [Hodges] I forgive him for not intervening."

Brooks Jarosz is an investigative reporter for KTVU. Email him at brooks.jarosz@fox.com and follow him on Facebook and Twitter: @BrooksKTVU