Marin judge nears key ruling on police misconduct charges

Closing arguments are set for Tuesday in a preliminary hearing to determine if two former San Rafael police officers will stand trial on criminal charges.

Brandon Nail and Daisy Mazariegos are charged with assault under color of authority and making false statements in a crime report. Monday was the third day of the hearing, which began on Oct. 2 and had to be postponed after Mazariegos’ attorney, Christopher Shea, died unexpectedly after the second day.

On Monday, the defense presented an expert witness who said the officers did not use excessive force.

The charges against Mazariegos and Nail stem from the July 2022 arrest of Julio Jimenez Lopez. Lopez testified on Oct. 3  that he suffered a concussion and injuries to both his shoulders, both his knees, nose and back during his arrest by the officers.

Sean McCann, a use-of-force expert and administration of justice professor at Napa Valley College, testified Monday that the former officers’ use of force “was not excessive.”

“It was consistent with industry standards,” McCann said.

McCann emphasized that people judging the officers’ behavior in retrospect know that Lopez didn’t pose a threat, but “the officers didn’t know that.

“You have to stand in their shoes,” he said.

McCann said he based 95% of his opinion on a careful examination of the videos taken by the officers’ body-worn cameras. He said other information included a report prepared by another expert, David Blake, who was hired by the Marin County District Attorney’s Office to evaluate the incident.

Superior Court Judge Beth Jordan prohibited further questions regarding Blake’s report. Prior to his death, Shea said that Blake also determined there was no unlawful use of force by the officers.

Deputy District Attorney Geoff Iida, who is prosecuting the case, asked McCann if other expert witnesses might disagree with his appraisal.

“I think that is highly unlikely,” McCann said.

Mazariegos, who took the stand previously in her own defense, also testified on Monday. Iida questioned her closely, attempting to establish that Lopez was cooperative throughout the incident and that the officers overreacted.

The encounter began with Mazariegos questioning Lopez and two other men who were drinking in public, which is an infraction in San Rafael. The officers have asserted that they decided to handcuff Lopez after he failed to remain seated despite repeated orders to do so.

Iida, however, said the commands to sit down came rapid fire and didn’t give Lopez time to respond.

“It didn’t take five times,” Iida said regarding the number of times Lopez was told to sit before he complied. “You simply said it five times.”

Iida asked Mazariegos how much warning she gave Lopez before teaming with Nail to handcuff him.

“In this particular circumstance, it was a fraction of a second?” he said. “Wouldn’t you agree?”

Mazariegos said that minutes before Nail had warned Lopez that if he didn’t obey that he would be placed in handcuffs. Nail used an expletive to order Lopez to sit down soon after arriving on the scene to provide backup for Mazariegos.

As to why a struggle ensued when they attempted to handcuff Lopez, Mazariegos said, “As we were trying to handcuff him, Julio tensed up.”

Iida asked if such a reaction would be normal given the speed with which the officers moved to detain him. Mazariegos, however, said Lopez also pulled his arms forward making it difficult to handcuff him.

Iida asked Mazariegos about the police report she filed on the incident. In her report, she stated that Lopez attempted to put Nail in a headlock.

“I wrote it because that is what Officer Nail told me happened,” Mazariegos said.

She explained that it was department policy for officers to include the observations of other officers at the scene in their reports along with their own. Iida observed that none of the body cameras worn by either officer show Lopez attempting to place Nail in a headlock.

Mazariegos said, “That doesn’t necessarily mean it didn’t happen.”

Iida was able to get some of the results of an internal investigation of the incident by a private investigator hired by San Rafael into evidence even though it is a confidential document. Under questioning by Iida, Mazariegos said the investigation determined that she failed to conduct a thorough investigation and failed to de-escalate the situation.

Julia Fox, who is representing Nail, attempted unsuccessfully to get into evidence the fact that the same investigation, by former Santa Rosa police lieutenant Paul Henry, also cleared both Nail and Mazariegos of using excessive force. The Independent Journal obtained the results of the investigation after suing the city.

Jordan said Fox could call Henry as a witness if she wanted the findings of his investigation included in the record.

McCann said Lopez demonstrated “active resistance” by taking so long to sit down and then standing back up.

“From an officer’s angle, that has to be concerning,” McCann said.

He said officers have suspects sit down because they are less able to launch an attack from a seated position.

As for Nail’s use of profanity, McCann said until very recently officers were taught that profanity could be used to de-escalate situations by achieving compliance without use of force. McCann said it is standard practice for officers to take suspects to the ground if they resist being handcuffed.

Iida asked McCann if he thought Lopez’s behavior warranted Nail’s level of force. “We’re talking about justifying a punch to the nose,” Iida said.

McCann said that officers sometimes use a distracting blow when attempting to handcuff a suspect who is resisting and in this case the video shows Lopez grabbing Nail’s vest, which contains weapons, with his right hand.

Iida pointed out that Lopez was still holding his identification in that hand at the time and his wallet in his left hand.