No Prosecution for CA Cop Who Handcuffed Teen Boy over Sex with Daughter

by hearit

The San Jose, CA, police officer—the scandal involving possible abuse of power by the cop who handcuffed a teenage boy who had sex with his 14-year-old daughter—won’t be prosecuted but still may lose his job. The DA claims the motorcycle traffic cop was “investigating” a sex crime—all this, while the police department scrambles to institute a policy barring officers from family-related cases.

"Police [officers] have wide latitude to investigate crimes, especially when it involves juveniles," claims Assistant District Attorney for Santa Clara County, CA, David TomkinsTomkins uses the analogy of a police officer pulling over drivers who are speeding, and letting them go with only a warning.

Um, yeah: a traffic cop can let speeding drivers go with a “warning” rather than a ticket or citation—the difference is that a traffic cop—when considering a speeding citation versus issuance of a warning--doesn’t tell the speeder that he’s going to arrest the driver. Nice red herring, Santa Clara DA’s office. That speeding stop worthy of a “warning” also falls into the category of an “infraction”, not a crime—an “apples and oranges” comparison. It would seem that an attorney’s office would know the difference between the two—oh, wait, it obviously has to know the difference. It seems the District Attorney simply isn’t counting on public knowledge.

Playing along the thin line of the DA’s “reasoning”--for just one moment--and basis of the District Attorney argument that the police officer had a right to “investigate” the sex act matter between juveniles: the analogy is most interesting, of a traffic stop, and even a bit “coincidental”. Well, maybe it’s just simply entertaining since—wow—this guy just happens to be a traffic officer. That’s right: the guy who busts into a neighbor’s house, handcuffs a teenage boy and threatens him for having sex with his daughter—he’s a motorcycle cop. That, of course, adds an interesting dynamic to the District Attorney’s argument: the officer isn’t a detective or on investigative patrol—he’s a traffic cop, so why is he “investigating” an underage sex crime and handcuffing a juvenile in his own home?

This isn’t something within this police officer’s normal scope of duty, DA. If he was performing an “investigation” of a traffic accident, you might have some (teeny, tiny) leeway in trying to make that argument. But he’s a traffic cop. How many traffic cops typically investigate sex crimes, pertaining to adults or juveniles?

But, perhaps, the better question: if in fact the cop actually maintained a right to investigate a sex act between minors, then doesn’t the police officer hold the obligation to uphold the law and file charges where a known crime has been revealed in that investigation? The teen boy admitted to the sex act, a crime known to the officer and further supported by video evidence of that knowledge. Aside from the fact that the cop lied to the teenager in telling him that he was filing charges, what make the cop exempt from not filing legal charges in a case where he had knowledge of a crime actually committed?

It would appear that the cop wrote no report of the incident , and never referred the sex crime to any another investigator, because of his own daughter’s involvement. Is there no California law that pertains to a police officer specifically covering up a crime which involves a cop’s own family members?

After the 15-year-old boy's parents reported the videotaped visit from the police officer to internal affairs, it seems that internal affairs did indeed deem it necessary to report a crime: both the 14-year-old girl and 15-year-old boy were cited for having underage sex, once internal affairs found out. Internal affairs’ filing of charges would kind of lead the average person to believe that the cop should have filed the charges from the get-go.

That leads to another interesting twist, and a key point which has been virtually skipped in all of the media coverage: the officer is not only abusing his role as a cop, but he’s also using his power to deliberately avoid criminal charges being filed against a family member of a police officer.

The Santa Clara County District Attorney's Office (CA) says: “Although the [police] officer will not be charged with any crime, he remains on paid administrative leave while the police department's internal affairs unit probes whether he broke police protocol. Command staff will then decide any discipline, which could range from extra training to termination.”

“Extra training”? Might that extra training involve “investigation” techniques?

The DA’s office claims that the cop isn’t being named in order “to protect the identify of his [the police officer’s] stepdaughter” involved in the underage sex. While police departments and law enforcement have no issue with widely circulating arrests and details pertaining to “actions” of the average civilian, kudos to the cops and DA: winner of the most creative way to protect the “boys in blue”.

It was only 7 weeks ago that the San Jose, CA, motorcycle cop went to his neighbor’s house—which also happened to be home of the 15-year-old boy whom he suspected of having sex with his daughter—on August 30, 2010. The police officer arrived at the teen boy’s house while dressed in full uniform, to verbally confront the teenager, simultaneously placing the teen in handcuffs for the duration. The boy’s not-too-happy parents took video, using a smartphone cell, of the cop’s tirade and handcuffing of their kid. The events all took place in the 15-year-old kids’ parents’ home.

The police officer even pulled out a notepad for his “investigation”—and the officer certainly did get info, including solidification of full admission from the boy who had sex with his 14-year-old step-daughter. The cop told the 15-year-old kid that charges would probably be filed with the District Attorney, yet not even a report was actually filed--including the officer’s complete avoidance of filing charges against the boy, which in turn would have required the cop to file charges against his own daughter simultaneously.

While any angry parent, or father, can understand the emotion behind what the police officer did—and many dads may have fantasized about the exact scenario—the emotion seems to be exactly the red herring the San Jose, California, police department needs to deflect abuse of power by one of their officers. The public has been fed the idea that the officer was simply a dad, giving a good “talking to” directed toward the young boy. The real fact is that a cop, acting in full uniform, used his power in a capacity outside of the role of work—and abused the power of his duties and job.

Excerpts from the video transcript include the police officer referencing his role as a cop repeatedly: "Not a good thing that the person you had sex with is a cop's daughter," the officer tells the teenage boy on video. "The district attorney will probably file charges. A cop's daughter is not somebody you mess around with. You're stupid." The policeman’s attorney says that the veteran officer was simply trying to scare the boy, all of which has no relevance, since the true issue is whether the cop acted within the law and his job—or abused his role and power within law enforcement.

"I thought he [the police officer] would be a good dad by just showing up and talking to my parents [about the underage sex] rather than taking advantage of his position" as a cop, the teenage boy had said. "I was scared, very scared," says the handcuffed boy. Tony Boskovich, attorney for the boy's family, says he found it disturbing that "there is a man in a uniform with his hand on the gun towering over a kid and telling him that he was stupid to mess with a cop's daughter. "What right does he have to use his uniform, his gun, his handcuffs, if all he is is a dad?" said the 15-year-old boy’s lawyer.

A little-known fact, to the public at least—police officers seem more than well aware of it—is that cops are legally allowed to lie to suspects during a police investigation. That fact covers pretty much everything verbally said by the cop to the teenager during his “investigation”. What it doesn’t cover, however, would—or at least should be—the covering up a crime, like a crime that would involve charges against a cop’s daughter.

A crime is a crime, right? If, in fact, the cop was performing an “investigation” to which he was legally entitled, what happens with the information arising from such an investigation—it certainly seems there would be obligation involved. So, when a murderer admits to a police officer that he killed someone, is the cop allowed to simply look the other way and issue what the Santa Clara DA’s office refers to as the equivalent of a “warning”?

Parents of the handcuffed and threatened teenage boy, Paul Villarruel and Nicole Romero-Villarruel, have spoken publicly about the case involving their son and the cop’s visit to their home. There’s discussion of a lawsuit against the San Jose police officer and against the city of San Jose, California, itself. Since a lawsuit or two equals big money, it’s no surprise that the District Attorney is basically refusing to prosecute the cop. A guilty plea or finding would pretty much nail the coffin for both the cop and San Jose city, regarding future lawsuits.

"We are obviously disappointed with the decision [not to prosecute or charge the law enforcement officer] because it seems that the police officer is being treated differently by the system than both children," the 15-year-old teenage boy’s parents have said. "We were taught that police officers are held to a higher standard than average citizens, let alone children, but it is apparently exactly the opposite."

Really? A possible abuse of power by police or law enforcemenet? Someone better make the rest of the public aware of that scary fact.

The California police officer’s attorney, Terry Bowman, claims that prosecutors (i.e., the Santa Clara County District Attorney’s office) made the right decision. They’re kind of both on the same side—but that doesn’t mean they took the time to make their stories match up: the San Jose cop’s lawyer paints a picture of the officer as “concerned father” while, simultaneously, the district attorney’s office is specifically claiming that the reason it’s choosing not to prosecute the officer is his role in the line of duty and right to “investigate”.

Which is it guys?—“concerned” dad or cop “on duty”? You’re (kind of) supposed to be on the same side, remember?

"It is no crime to act as a concerned father," the California police officer’s attorney, Terry Bowman, says. "It's no crime to attempt to use a 'scared straight' tactic on a juvenile who was heading down the wrong path.'' Right: neither of those two things is a crime, but then both act as a red herring. The true issue is abuse of power in the role of a police officer.

California’s seen a lot of potential police abuse cases lately.

The media’s kind of skipped over a major part of this whole mess—a fact which adds an interesting twist. Listen closely to the video’s audio, because the handcuffing incident isn’t the police officer’s first interaction with the 15-year-old teen: “The cop met with you one-on-one and said, dude, don’t have any contact with my daughter. Correct? And what did you do? Totally went against what I said.” The translation seems obvious: I’m a cop, so fear me.

After all the handcuffing and threats, what exactly is the penal code to which the San Jose police officer’s referring? From the sound of it, it’s serious—or, maybe, not. The 15-year-old boy is only a year apart in age from the sex partner in his “crime”, nowhere near the equivalent of an adult having sex with a minor. The applicable parts of the penal code would make any legal charges no higher than a misdemeanor, and the fine about $70:

California Penal Code Section 261.5 (Unlawful Sexual Intercourse)

“(b) Any person who engages in an act of unlawful sexual
intercourse with a minor who is not more than three years older or
three years younger than the perpetrator, is guilty of a misdemeanor.”

(3) In addition to any punishment imposed under this section, the
judge may assess a fine not to exceed seventy dollars ($70) against
any person who violates this section with the proceeds of this fine
to be used in accordance with Section 1463.23. The court shall,
however, take into consideration the defendant's ability to pay, and
no defendant shall be denied probation because of his or her
inability to pay the fine permitted under this subdivision.

San Jose area prosecutors have taken a few weeks to probe the cop’s actions and handcuffing incident--to see whether the officer committed a criminal “false imprisonment”, and maybe the hope that the flames would extinguished a bit after the handcuff video went viral. That weeks-long investigation time doesn’t seem to be too worthwhile of an “investment”. The Santa Clara County District Attorney's Office says it can’t back the “false imprisonment” idea and, strangely, the charge seems to be the only one considered against the officer. While the average civilian rarely sees the possibility of only one charge levied against him, that doesn’t seem to apply in cases concerning police officers.

Interestingly, the one charge being considered against the police officer also seems to be the “charge” most likely to be unenforceable. The District Attorney’s office’s reason for not prosecuting the California cop:

“the police officer had reasonable cause to believe that his minor stepdaughter had sexual intercourse with another minor, he [the cop] had the authority to take the young man into temporary custody, which can include handcuffing, during the investigation.” So it’s an “investigation”—good thing someone explained that part, or the whole situation might have been confusing. Now, if it is deemed an investigation, and a crime is therefore uncovered, what is a police officer obligated to do with that information? Ignore the crime?

"Regardless of whether [the police officer] knew beforehand that he was not going to pursue criminal [sex] charges, or whether he previously informed the young man's parents of his intentions, the [California] law gave him [the police officer] the discretion to resolve the matter with a warning,'' claims the Santa Clara District Attorney's office. "The decision not to file criminal charges [against the California police officer] is in no way intended to condone" the police officer’s "decision to become involved in a potential criminal matter involving a family member while on duty."

Well, glad that got cleared up: apparently a “warning” can be issued for a crime. That’s better than a “get out of jail free” card.

That is interesting reasoning from the Santa Clara County District Attorney’s office. The “warning” concept must intrigue the San Jose Police Department too—so interesting as to cause police department heads to quickly draft a new policy, over the past few weeks. That new policy that would specifically prohibit police officers from handling cases involving their own family members. So, top San Jose police brass are in a tizzy, creating a policy barring cops from handling cases related to family members, apparently for no reason—since the DA’s office is claiming no crime committed by the officer.

Neighboring Oakland Police Department's already had such a policy in place--which directs officers to recuse themselves from cases involving family, friends, lovers or business partners.

Wait, the police department for the neighboring area already has a policy in place? That kind of insinuates that San Jose should’ve also had a similar type of policy instituted.

The San Jose California Police Chief, Rob Davis, isn’t saying a whole lot. The department’s pretty much acknowledging only that the case is being “investigated internally”—that, of course, doesn’t exactly assure the public that their PD is operating on the “up and up”. To Police Chief Davis’ credit, however, San Jose’s law enforcement head might have just made one of the truest statements throughout history: "Sometimes [police] officers mix their emotions and common sense, and common sense doesn't always win.

On a completely separate note, role of the police officer as “concerned father” might have been a topic that his attorney would have done better to avoid: watch the video of the incident, to hear remarks by the cop in regard to his stepdaughter—including:

“Are you aware that that girl is not even old enough to remember how to take care of herself when she has her womanly thing every month?” , “she had to be reminded to take a frickin’ shower a couple of times a week” and the close-to-grand finale of, “You make me sick, both of you guys”.

Yeah, definitely “concerned father”.