Holly MatkinElk Grove, CA – The Elk Grove Police Department (EGPD) released only selective information to the public with regards to the firing of an officer who kicked an uncooperative robbery suspect in the head, according to the now-former officer’s attorney.
The EGPD released bodycam and dashcam footage of the 2019 altercation between Officer Bryan Schmidt and 23-year-old repeat offender Juan Mendoza on March 13.
In the recording, Elk Grove Police Chief Timothy Albright said that the department determined that Officer Schmidt’s use of force against the robbery suspect was “against department policy and not in line with any training provided by our department.”
“Following an extensive administrative investigation, I can tell you that both the supervisor and the officer are no longer employed with the Elk Grove Police Department,” Chief Albright said in the video release.
But attorney Sean Howell, whose firm is representing the now-former officer, said that EGPD’s video “omitted relevant facts” that were available to the officers who responded to deal with Mendoza and his accomplice that day.
“The Department released selective information regarding this incident prior to affording Officer Schmidt his due process rights,” Howell told Blue Lives Matter in a statement.
The firm has since released its own video of the incident, to include a breakdown of events explained by police tactics and training expert Sean McCann, a former Berkeley police officer.
“This video is being released to provide the public all relevant facts constituting the ‘totality of the circumstances’ and the legal justifications for force,” Howell told Blue Lives Matter.
According to AB 392, “totality of the circumstances” is defined as “all facts known to the peace officer at the time, including the conduct of the officer and the subject leading up to the use of deadly force,” the law firm noted in the video.
The incident began at approximately 8:43 p.m. on June 5, 2019, when a Burlington Coat Factory store employee called 911 to report that two robbery suspects had attacked the store’s loss prevention officer, The Sacramento Bee reported.
According to police dispatch records, responding officers were made aware that the suspects were trying to steal items and got into a physical altercation with store security when they were confronted, the law firm’s video showed.
At one point, the suspects left the business and went outside to the trunk of a vehicle, then returned and began “throwing gang signs,” according to dispatch records.
The caller did not know if the suspects grabbed weapons when they went out to the car.
The physical altercation with security personnel resumed when the robbery suspects reentered the store.
Howell’s office released store security footage that had not been released by the EGPD.
The video showed the suspects as they attempted to push their way past loss prevention personnel near the front doors of the store.
Mendoza’s accomplice punched one of the employees, at which point a fight broke out between the suspects and the workers.
Mendoza was struck and hit in the face by one of the loss prevention officers during the altercation, but got back to his feet and attacked them again, the video showed.
McCann noted that Officer Schmidt was learning about what was going on at the store as he was responding to the scene.
“Of particular note…is the nature of this crime itself,” McCann said. “The two suspects weren’t merely attempting to steal from the store. They were engaged in a violent struggle…with those loss prevention officers.”
McCann said that the fact the suspects left the store and returned was also a huge cause for concern.
“Typically, what you would think you would see would be the suspects to flee. They’ve clearly engaged in crimes, the cops are clearly coming – it’s time to run,” he explained. “But in this case, these two suspects apparently returned to a vehicle momentarily, and then reentered the store.”
“For an officer, that kind of behavior is extremely troubling,” he said. “The logical assumption with that kind of behavior is that the suspects were retrieving weapons to potentially use inside the store should the struggle not go their way.”
When Officer Schmidt arrived at the scene, two other officers already had their weapons drawn and pointed in Mendoza’s direction.
Although his accomplice had complied with commands to get onto the ground, Mendoza had not.
Officer Schmidt immediately focused his attention on the uncooperative suspect, who got down onto the pavement but ignored orders to put his arms out to the side, the videos showed.
Instead, the suspect kept his arms pinned close to his body, concealing his hands.
“Hands out man,” Officer Schmidt said as he approached Mendoza from the side. “Hey – this isn’t going to be a good day for you – hands out right now, son!”
McCann noted that it is common for suspects to conceal weapons in their waistband or pockets.
“His hands being there near his pockets and his waistband, he has access to any weapons that might be there,” the police training expert said. “This could – in a split-second – become a deadly-force scenario.”
As a result, holstering his weapon to free up his hands wasn’t an option for Officer Schmidt.
Mendoza, who was shirtless, raised his head to locate Officer Schmidt as he was advancing towards him issuing commands.
“That is a danger signal to the officer,” McCann said. “The threat posed by those hands being near the waistband is now amplified by the suspect looking around. In order to engage in a gunfight, the suspect would need to know where the officers are. It’s called target acquisition – visually acquiring the targets.”
By that time, Officer Schmidt was so close to Mendoza that his options were very limited.
“The suspect isn’t following the verbal commands, so those won’t work. The officer is too close now to turn around and try to retreat if the suspect were to deploy a firearm,” McCann explained. “The only thing that the officer has free at this point are his feet.”
Officer Schmidt then used his feet to negate both the suspect’s visual acquisition, and to move the suspect’s hands away from the sides of his body.
“His feet are really the only thing he has free,” McCann reiterated. “Until he can address those threats, he’s not going to be able to safely grab the suspect.”
All of the officers’ use of force immediately reduced as the suspect’s hands were secured in cuffs.
McCann said that the way the incident was handled was “consistent with a reasonable-force approach.”
Mendoza’s criminal history includes multiple assault and gun offenses from 2017 and 2018, according to the law firm.
Charges included assault with a deadly weapon or firearm on a person, possession of an assault weapon, obliterating the identification of a firearm, carrying a loaded firearm with intent to commit a felony, attempted burglary, and conspiracy to commit burglary.
Police noted that Mendoza had slurred speech, a bloodied face, and that he vomited after he was taken into custody, according to the video released by the EGPD.
Mendoza was arrested on charges of probation violation, resisting/obstructing arrest, conspiracy, and robbery.
He was initially taken to jail, but was ultimately transported to the hospital for treatment of a head injury, police said.
Chief Albright said that he was not made aware of the use-of-force incident until October of 2019, after Mendoza filed a lawsuit against the department.
He immediately placed Officer Schmidt on administrative leave and launched an internal investigation.
Officer Schmidt was subsequently fired, and his supervisor resigned from the force.
“Whenever we have a use-of-force incident, department policy calls for an internal review, beginning with the supervisor of the officer involved in the force, and culminating with a final review by me, the chief of police,” he added.
In this case, the supervisor failed to report and document the use of force, and thereby violated policy.
“This failure not only did not allow for a thorough review of the force, but exposed the city to unnecessary liability,” Chief Albright said. “It is a fact of this job that the use of force is at times necessary to protect the lives of the public and our officers. We do not take the use of force lightly, and when questions arise, we must investigate and take the appropriate action.”
Chief Albright said that Officer Schmidt’s actions were “not congruent” with the department’s mission and values, and that they do not represent the department as a whole.
Officer Schmidt, a four-year veteran-of-the-force, is appealing his firing, EGPD spokesperson Officer Jason Jimenez told The Sacramento Bee.
An outside agency will determine whether or not Officer Schmidt will face criminal charges in connection with the arrest, KOVR reported.
Mendoza’s attorney, Mark Merin, claimed that his client’s head injury was life-threatening and required emergency surgery, according to KOVR.
“The guy is defenseless on the ground, to come and just bang him in the head with a boot, I mean that’s just absolutely unjustified,” Merin said of the altercation. “At the time the surgery was performed, it was done on an emergency basis and he was given a 50-50 chance of survival.”
Mendoza is now serving time for unrelated assault and robbery cases, and is expected to make a full recovery, KOVR reported.
The city paid him $100,000 to settle the matter outside of court.