SAN JOSE — Between 2014 and 2018, San Jose police officers rarely faced discipline in cases where they inflicted serious injuries on civilians, including one 2015 case where an officer’s actions collapsed the lung of an 18-year-old man who was on the ground surrendering and complaining “he could not breathe.”

As the teen, Miguel Bucio, lay on a hospital gurney recovering from the injury, Officer Todd McMahon — who used his 260-pound frame to restrain the 135-pound Bucio after he initially tried to run from police — issued him a citation for resisting arrest, as well as for the original violation McMahon suspected Bucio of: drinking in public.

The case was detailed publicly for the first time in one of 49 internal-affairs investigative reports released to this news organization after its lawsuit against the city and San Jose Police Department over their failure to follow the police transparency law SB 1421. The records indicate that the department set a high bar for finding misconduct when officers caused injury, often citing the chaos and rapidly changing nature of police encounters. Between 2014 and 2018, just three officers were disciplined for serious uses of force.

The releases coincide with a push, in San Jose and nationwide, for internal-affairs investigations to be moved out of police departments. Locally, civic leaders, including Mayor Sam Liccardo, argue such investigations should be performed by the city’s Office of the Independent Police Auditor. And at the state level, Gov. Gavin Newsom recently signed a bill that would task the state Attorney General’s office with investigating fatal police shootings of unarmed civilians.

To be sure, the cases detailed in the IA records — a sliver of hundreds of thousands of police calls every year — lay bare grim truths about the dangers police face when called to violent situations, and how the department is overly relied upon to respond to mental-health crises for which its officers lack expertise. But they also reveal just how much latitude the department gives officers when meting out discipline, even in cases where their use of force was met with skepticism from their own commanders.

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It was July 18, 2015 when McMahon and another officer were patrolling the Washington neighborhood and spotted Bucio and another person drinking alcohol from an open container in an apartment stairwell. When the officers announced themselves, Bucio ran, but gave up after a few blocks. A healthcare worker who saw Bucio later filed a complaint, calling his injuries “unusual” and alleging excessive force.

According to an internal affairs report, McMahon justified his use of force in part by stating the neighborhood was known for gang activity, and said that Bucio’s yelling of gang slurs turned a stop for underage drinking into a “high-risk arrest” situation.

“Mr. Bucio’s injury occurred during a lawful arrest in which Mr. Bucio was actively resisting and Officer McMahon used a department approved technique to gain control, prevent escape and overcome Mr. Bucio’s resistance,” the report stated. But the report acknowledges that Bucio’s resistance appeared limited to his brief attempt to flee, and he did not appear to be combative by the time he was on the ground.

“You hear story after story of us being pulled over, or stopped, or fitting a description, and it goes down from there,” said the Rev. Jethroe Moore, president of the San Jose-Silicon Valley NAACP. “Even for something like drinking in public, there’s an inherent fear of what could happen.”

Raj Jayadev, director and co-founder of the San Jose-based social-justice organization Silicon Valley De-Bug, has been named a 2018 recipient of the prestigious MacArthur Fellowship, unofficially known as a “Genius Grant,” for his work in community organizing and pioneering “participatory defense,” helping criminal defendants and their families navigate the court process and better effect legal victories and reduced sentences. (Courtesy of John D. and Catherine T. MacArthur Foundation) (Courtesy of John D. and Catherine T. MacArthur Foundation)

Raj Jayadev, co-founder of the civil-rights group Silicon Valley De-Bug, added, “If you’re Black or brown, and get the sense they’ve already typecasted you, and if you don’t want a collapsed lung, or get your skull cracked, maybe the most rational thing is to think, ‘I need to get out of here.'”

Bucio’s “couldn’t breathe” moment came long before George Floyd died uttering similar words this past Memorial Day, as now-former officer Derek Chauvin pressed his knee on Floyd’s neck during an arrest over a counterfeit $20 bill. SJPD had long banned chokeholds and has banned carotid holds since Floyd’s death.

At least half the newly released San Jose records detail use-of-force cases have already been made public through media coverage or reports from the district attorney’s office. They encompass fatal shootings of suspects who had killed or injured people, and shootings in which officers were cleared of violations, but which resulted in settlements or payouts by the city for excessive-force lawsuits.

Since 2014, at least $15 million in city funds have been paid to plaintiffs in excessive force lawsuits against SJPD. But many of the other cases, especially those in which officers used force that caused serious injury without firing a gun, have received limited public scrutiny.

“When there are physical forms of violence, and there’s damage, we often don’t hear about it. You only find out when you see these large settlements,” Moore said. “Time and time again, the public didn’t see records because it wasn’t a shooting.”

Assistant Chief Dave Knopf said force-review policies have evolved over the past five years, including compulsory reviews by police commanders, and a public online dashboard that tracks, in aggregate, use-of-force trends.

“Force is ugly,” Knopf acknowledged. “Unfortunately it’s reality in a police officer’s job. But just because there’s a serious use of force, it doesn’t mean it wasn’t justified and reasonable in that circumstance.”

“The data shows the system we have in place is working,” he added. “But these are healthy discussions to have. We want to make the department better, especially during this time in our country.”

San Jose Police Assistant Chief Dave Knopf greets community members during “Working Together For Stronger Communities” meeting at the Washington United Youth Center in San Jose, Calif., on Monday, April 2, 2018. (Nhat V. Meyer/Bay Area News Group) 

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That ugliness includes the May 2015 arrest of a car occupant who fled a DUI stop, where Officer Alan Yee hit Tomas Barrios twice in the back of the head with his elbow, knocking him unconscious for nearly a minute. The officer, who was exonerated, according to the IA records, justified striking the suspect’s head — an area of the body that officers are instructed to avoid — by stating that it was “the only part of his body that was exposed.”

However when completing a medical intake form that asked whether the suspect was unconscious, San Jose police officers marked “no.”

An IPA audit found that “problematic,” and said the officer “did not take sufficient account of the proportionality of the force used against the level of resistance.”

In another case detailed in the newly released records, then-54-year-old Gary Holmes was in Backesto Park on December 26, 2015, when he was approached by officers Joseph Sipiora and Anthony Barajas. The officers had responded to a nearby burglary call, and determined that Holmes matched the suspect description.

As Holmes ran, a trailing Barajas hit him in the legs with a baton, causing Holmes to fall. In an ensuing ground scramble where Holmes was described as kicking and flailing, Sipiora hit Holmes several times with his baton, and Barajas punched Holmes in the ribs multiple times before they subdued him.

Holmes suffered a fractured and dislocated right elbow, and fractures to his left knee, right tibia and spine, and was significantly hobbled for months after.

The corresponding IA report exonerates the officers in part by citing past encounters the department had with a drug-influenced Holmes and stating he “regularly demonstrates threatening, violent and unpredictable behavior.”

That report also included a common rationale officers gave after violent confrontations with people they believe are unhoused. Barajas told investigators he “was concerned because he suspected Mr. Holmes was homeless and in his experience homeless people tend to carry knives or other weapons to protect themselves.” There is no mention of Holmes showing or having a weapon in the report.

After a violent arrest two years later, Sipiora told IA investigators that he used force on another unhoused man allegedly trespassing on railroad tracks — causing a brain hemorrhage and resulting in six staples to the back of the man’s head — describing danger based on his experience that “every transient citizen he had contacted carries a weapon (knife, razor blade or guns) for protection.”

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Shivaun Nurre, the city’s Independent Police Auditor, said it’s fair to question the judgment of internal affairs investigators given their shared experiences with the officers they’re evaluating.

“We talk about implicit bias with race and gender, but one bias happens because you’re in the same group and employed by the same people,” Nurre said. “That’s a bias I think we can’t discount.”

The city’s IPA office audits IA reports on public complaints and makes policy recommendations, but has no enforcement power. A ballot measure this November would expand the office’s footprint to include internal police complaints and increase access to use-of-force investigations, and a clause would allow the city council “to assign other duties to the IPA” could further open the door.

Nurre, who has worked in the IPA office since 2007, said such a move would only be one step toward the kind of change that reform advocates want.

“Moving investigations out of internal affairs to an external body would perhaps solve the perception problem, but would it solve actual bias? I’m not sure about that, especially if the public sees little difference in the outcome,” Nurre said. “A lot would turn on the quality of investigations and the culture of the department, and the reviewer.”

Paul Kelly, president of the San Jose Police Officers’ Association, said he doesn’t see a need for a change, noting that complaints have decreased since 2015, and the IPA has signed off on a minimum of 94% of IA findings going back several years.

“SJPD is headed in the right direction,” Kelly said in a statement. “We have strong use of force policies in place, robust oversight and a successful early warning system that identifies officers in need of additional training and mentoring.”

The police department is under heavy scrutiny over officers’ aggression and use of rubber bullets and tear gas on protesters during George Floyd demonstrations this past summer. Then in late July, Officer Matthew Rodriguez kicked and dragged a woman during a stop in a McDonald’s parking lot. Rodriguez was later charged with assault, which community leaders attest came from the outcry over a witness video.

San Jose Mayor Sam Liccardo (Nhat V. Meyer/Bay Area News Group) 

“We’re well past the point in which Americans will continue to believe that in a democratic society, we should expect the police to police themselves,” Liccardo said in an interview. “The release of these records goes to the core of the belief of many Americans that internal affairs should never be considered internal at all.”

Jayadev said the fight to bring these cases to light is itself an argument for a new system.

“These are incidents that should have been in the public debate all along,” he said. “It took legislative change in the law, and it took news agencies to file a lawsuit.”