BY ALLISON LEVITSKY
Daily Post Staff Writer
Five Palo Alto police officers took a shoplifting suspect to the ground and potentially broke his eye socket as he resisted and yelled “You wouldn’t do this if I wasn’t black,” according to newly released police records.
The violent incident on Dec. 23, 2015 was not publicized before yesterday. Senate Bill 1421 requires police departments to release records related to sustained findings of police use of force, dishonesty and sexual assault.
The law went into effect Jan. 1, but the Palo Alto police refused to release these records until this month, citing Attorney General Xavier Becerra’s position that the law only applies to records beginning Jan. 1, 2019.
But last month, a judge sided with transparency advocates, and the Palo Alto police agreed to release their SB1421 records.
The confrontation started when Sgt. Brian Philip and Officer Daniel Fino were working plainclothes surveillance at Stanford Shopping Center, hoping to bust a drug dealer in an unrelated case.
Philip and Fino came across three black men outside the east door of Macy’s Men’s store.
The men walked inside the store after seeing Philip and Fino in a silver undercover car, according to an account of the incident documented in a police report.
Philip and Fino parked, walked inside and talked with a security guard who told them there may have been some shoplifting, pointing to one of the men.
The two officers went to detain the unnamed man, but he refused to stop and started to yell at them, so the officers placed him in a control hold.
Lt. James Reifschneider and officers Jeremy Schmidt and Paul Burgio arrived for backup. Then the five took the man to the ground as he resisted by keeping his hands underneath him and trying to push himself up.
At one point, the man said “I can’t breathe,” but a witness said it seemed like he was able to breathe based on how he was moving.
He also called the officers “weak motherf*****s.”
Reifschneider delivered several blows to the man’s hip area to try to get his hands. Burgio said he thought the man was reaching for his gun, so he punched the man in the head.
It’s unclear whether Burgio broke the man’s eye socket because a witness said he was also scraping his face on the pavement while resisting police.
Both Philip and the suspect were treated for injuries at the hospital, and the man was booked into Santa Clara County Jail on suspicion of resisting arrest. Police found that he had paid for the Polo sweat suit he had with him and hadn’t shoplifted. Prosecutors declined to file charges against the suspect.
In May 2016, Assistant Chief Patty Lum recommended that Philip be given a “documented oral counseling memo” on the requirement that he use his mobile audio-video (MAV) recording device. Lum also recommended that Fino receive training on the same subject.
Neither Philip nor Fino was wearing the device.
Lum found the use of force in the case “appropriate based on the facts available at the time,” and said the “biggest lesson learned” in the case was the lack of a recorded statement because officers didn’t use their mobile audio-video recorders.
Without a recording, it makes it difficult to know all the details of the case. A security guard at Macy’s Men told police after the arrest that she didn’t say she thought the man was a theft suspect, only that he was suspicious. He and his friends had been playing music in the store, distracting employees and riding a scooter in the store, she told police.
She also told police after the fact that she saw one of the men rip a price tag off a shirt outside the store while looking at her, which she found suspicious. Later, police found that the man paid for the sweat suit he was carrying.
But police claim the guard said the man and his friends were potential shoplifters, which led them to detain him.
The man, who was on probation, told police that he didn’t stop for the officers because he did nothing wrong. He also claimed that Philip and Fino didn’t identify themselves as police at first, contrary to what they said.