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May 10, 2021

Merrick B. Garland, Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001

Pamela S. Karlan
Principal Deputy Assistant Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Office of the Assistant Attorney General, Main
Washington, D.C. 20530

Re: Death of Mario Gonzalez

Dear Attorney General Garland and Principal Deputy Karlan:

I am a civil rights lawyer in Oakland, California. My partner, Michael Haddad, and I represent Mario Gonzalez and his four-year-old son, little Mario. Mario Gonzalez was killed by Alameda, California, police on April 19, 2021. He was restrained in a prone position with two officers and a civilian putting weight on him, for over five minutes until he died. I am writing on behalf of Mario and his son, to request that you institute a federal civil rights investigation into Mario’s death and the policies and training of the Alameda Police Department.

Michael Haddad and I have handled many restraint asphyxial death-in-custody cases during the last two decades. I provided pro bono consultation and advice to Minnesota Attorney General Keith Ellison and his lead special prosecutor, Steve Schleicher, to assist them in prosecuting the Minneapolis police officers who killed George Floyd. Mario died as a result of the officers’ prone, weighted restraint of him.

In December 2018, another man, Iraq War veteran Shelby Gattenby, died at the hands of Alameda police officers when they also pinned him prone on the ground with weight on him, in addition to Tasing him multiple times. In that case, one of the officers even instructed another officer to use his body weight to hold Mr. Gattenby down. After Mr. Gattenby’s death, the Alameda Police Department should have overhauled its policies and training to bring them in line with the Constitution, and to prohibit prone, weighted restraint. If they had done that, Mario would still be alive.

Here is a little background about Mario Gonzalez and his death in the City of Alameda:

Alameda is a small island separated from Oakland, California, by a man-made estuary. Alameda was a peninsula connected to Oakland; but in 1902 the City of Alameda had a deep trench dug in the land, so it would be flooded with San Francisco Bay water to become an island and separate itself from Oakland. Today, the combined Black and Latino population of Oakland is more than 50%. The combined Black and Latino population of Alameda is only about 20%.

On April 16, 2021, Mario Gonzalez’s youngest brother Gerardo (“Jerry”) came home to Oakland from college in North Carolina, to spend his mother’s birthday, which was April 20, with the family. Birthdays are extremely important in Mario’s family:

Mario’s Mom, Edith Arenales, was very excited to have all of her sons together for another birthday.

Mario always loved Alameda because it was quiet, and he spent a lot of time there and also received his health care there. He often told his mother that he would like the family to move to Alameda. On the morning of April 19, 2021, Mario was in a small pocket park in Alameda, minding his own business and not hurting anyone.

The park is separated from a piece of private property by a sidewalk and then a fence surrounding the private property. The occupant of the home across the sidewalk from the park called Alameda police to complain about Mario. The caller admitted Mario wasn’t doing anything wrong, and Mario was outside the caller’s fence and not on the caller’s property. The caller said Mario appeared Hispanic, looked like he might be “tweaking” (intoxicated on methamphetamine), and appeared to be talking to himself. The caller said his dogs did not like Mario and were barking at him, and Mario was scaring the caller’s wife, even though Mario was not doing anything wrong.

A second person called the police about Mario, and said Mario appeared to be Hispanic or Indian. This caller said Mario had two shopping baskets from Walgreen’s drugstore with two bottles of alcohol that appeared to have security tags on them. This caller said Mario may have broken one of the security tags off the alcohol, and Mario had been “loitering” in the public park for half an hour.

The City of Alameda has not provided us, or the public, with the information its dispatcher gave to the police officers about Mario. The officers would not have received recordings of these two telephone calls, but instead just a very short summary from the dispatcher.

The first Alameda Police Officer to arrive on the scene appears to have believed this was not an important law enforcement matter, because he chose not to have both of his hands free and instead carried a pair of sunglasses in one hand when he exited his patrol vehicle to speak to Mario. Mario was clearly confused when he spoke with the officer, and he was saying things that did not make sense. Mario may have been intoxicated, or he may have been having a mental or behavioral health issue, or he may have been having a medical issue. We will know more when we receive the autopsy and toxicology reports.

The Fourth Amendment to the United States Constitution prohibits police officers from arresting any person unless the officers have “probable cause” to believe that the person has committed a specific crime. While the first responding officer was speaking to Mario, he radioed a fellow officer and asked him to go to the Walgreen’s store and see if they had had any “walk offs,” or people stealing merchandise. A few minutes later, that officer said “negative” on the radio, meaning Walgreen’s was not complaining about Mario, or anyone else, having stolen any merchandise. Therefore, the officers did not have probable cause to arrest Mario for stealing anything from Walgreen’s.

Under California Penal Code § 647(f), police officers are legally prohibited from arresting anyone for being drunk in public, unless that person is so intoxicated he can’t care for himself or he is blocking a public right-of-way, such as being passed out on the sidewalk. Mario clearly did not fit the legal standards to be arrested for being intoxicated in public.

The first responding officer asked Mario whether he felt like hurting himself and Mario said no. The officers did not have a legal basis to bring Mario into protective custody for being a danger to himself, danger to others, or gravely disabled due to a mental disorder under California Welfare & Institutions Code § 5150.

Therefore, the officers had no legal basis to arrest Mario or take him into custody. The officers’ attorney has told the press that the officers arrested Mario for his own safety, to keep him from tripping on a tree stump. That assertion is completely without any legal basis, and is frankly ridiculous. The United States Constitution prohibits the police from arresting anyone under such circumstances.

A reasonable police response at this point would have been to offer Mario a ride home if the officers wanted him to leave the park, or ask him if he had a family member they could call to come and give him a ride home. If the police had called Mario’s mother Edith, she would have come and driven Mario back to her home right away. Another reasonable police response would have been to tell the callers who complained about Mario that the police have investigated the matter and spoken to Mario, he hasn’t committed any crime, he is harmless and minding his own business, and he will leave the park on his own.

During his entire interaction with the police, Mario was peaceful and non-threatening. He never attempted to strike or injure anyone. The officers’ decision to arrest Mario and put handcuffs on him was a blatant violation of Mario’s Fourth Amendment constitutional rights, as well as California law.

In addition, the tactics deployed by the officers — forcing Mario facing down on the ground with two officers putting their weight on his back while they allowed a civilian to insert himself into the incident and hold Mario’s legs down — violated generally accepted police standards as well as the Constitution. One of the officers even stated that Mario was lifting the officer’s entire body weight while the officer was on top of him. You can see on the video the officer’s soles of his feet being fully visible, and sometimes his feet even completely off the ground, which means all of his body weight was on Mario while Mario was pinned face-down on the ground.

Additionally, Mario had a large belly. It has been well known in law enforcement for decades that officers should especially avoid putting overweight people into a prone position with any weight on them, as it impairs their ability to breathe.

Under the Fourth Amendment to the United States Constitution, law enforcement officers may only use force that is objectively reasonable under the circumstances. Graham v. Connor, 490 U.S. 386, 397 (1989). “The essence of the Graham objective reasonableness analysis is that the force which was applied must be balanced against the need for that force: it is the need for force which is at the heart of the Graham factors.” Headwaters Forest Defense v. Cnty. of Humboldt, 276 F.3d 1125, 1130 (9th Cir. 2002). “Thus, where there is no need for force, any force used is constitutionally unreasonable.” Lolli v. Cnty. of Orange, 351 F.3d 410, 417–418 (9th Cir. 2003) (emphasis in original).

Under Graham, factors to consider in evaluating the need for force include: “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 398. “The most important single element of the three specific factors” is “whether the suspect poses an immediate threat to the safety of the officers or others.” Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (en banc).

All three of the Graham factors weigh heavily against the officers using any force on Mario. First, Mario was committing no crime. Second, he posed no threat whatsoever, let alone an immediate threat, to the officers. And third, he was not actively trying to evade arrest by flight. Additionally, the officers’ forcing Mario to the ground and putting their weight on top of him has long been held excessive, and the risk of asphyxiation is well known in law enforcement.

In Drummond v. City of Anaheim, 343 F.3d 1062, 1056-1057 (9th Cir. 2003), cert. denied, 542 U.S. 918 (2004), the Ninth Circuit Court of Appeals, which governs the police officers’ conduct here, found constitutional violations “in what has come to be known as ‘compression asphyxia,’” where “prone and handcuffed individuals in an agitated state have suffocated under the weight of restraining officers.” 343 F.3d at 1056-57. The Court found such force was “severe and, under the circumstances, capable of causing death or serious injury.” Id.

Other cases have reiterated the holding of Drummond that forcing a person face down on the ground and putting weight on him is excessive force in violation of the Constitution. In another restraint asphyxiation case handled by my firm, Martinez v. City of Pittsburg, 809 Fed. Appx. 439, 441 (9th Cir. 2020), the Ninth Circuit recently reaffirmed the Drummond court’s holding that “‘squeezing the breath from a compliant, prone, and handcuffed individual despite his pleas for air involves a degree of force that is greater than reasonable.’” See also, Slater v. Deasey, 776 Fed.Appx 942, 944-45 (9th Cir. 2019); Abston v. City of Merced, 506 Fed.Appx. 650, 653 (9th Cir. 2013) (“It was clearly established that defendants’ use of body compression to restrain a prone and bound suspect, who was in no position to offer any meaningful resistance, would violate the rule established by Drummond.”); Agster v. Maricopa County, 144 Fed.Appx. 594, 596 (9th Cir. 2005) (law was clearly established since Drummond that force causing positional asphyxia to small, drug-depleted, non-threatening inmate was unlawful); Arce v. Blackwell, 294 Fed.Appx 259, 261 (9th Cir. 2008) (“Drummond is well-settled law and any reasonable officer should have known that [holding man to floor with pressure on his back despite his cries for air] was unlawful”); Sandoval v. Hish, 461 Fed.Appx. 568, 569 (9th Cir. 2011) (use of physical restraints causing positional asphyxia to individual violated clearly established law); Zelaya v. Las Vegas Metro. Police Dep’t., 682 Fed.Appx. 565 (9th Cir. 2017) (jailers’ restraint of drug intoxicated man causing restraint asphyxia violated clearly established law of Drummond).

Non-compliance with an officer’s order or refusal to facilitate one’s own arrest, when resistance is “not particularly bellicose,” do not justify the use of significant force. See, e.g., Mattos v. Agarano, 661 F.3d 433, 450 (9th Cir. 2011)(en banc)(“A failure to fully or immediately comply with an officer’s orders neither rises to the level of active resistance nor justifies the application of a non-trivial amount of force”).

There was absolutely no justification for the Alameda police officers to use any force whatsoever on Mario.

Mario was killed the day before his mother Edith’s birthday, and four days before his severely disabled brother Efrain’s twenty-third birthday. Efrain was diagnosed as autistic non-verbal when he was less than three years old. Mario was Efrain’s caregiver, and very devoted to Efrain:

Mario Gonzalez and Effrain

Mario was Edith’s first-born of four sons. When Mario was about twelve years old, the boys’ father left the family, and Edith became a single mother. Mario felt it was his duty to become protector of his family, because he was the oldest boy. He was very intelligent and a good student. Mario graduated from Coliseum College Prep Academy in Oakland in 2013:

Mario Gonzalez Prep School GraduationMario decided to postpone his plans to go to college so he could get a job and help support the family. He worked as a chef and cook at restaurants, at an auto parts store, and for two years worked with Edith. Edith has managed the café at a local gas station for 15 years. Here is Mario on a catering assignment for an Italian restaurant:

Mario Gonzalez CateringIn addition to being a devoted son and brother, Mario was an extremely devoted father to his son, little Mario, who is four years old:

Mario Gonzalez with Little Mario

Mario and his son’s mother, Andrea Cortez, ended their romantic relationship a few years ago but have been committed and devoted co-parents to little Mario since then.

When Covid restrictions were issued in California in March 2020, the restaurant where Mario worked closed and like millions of people in this country, he became unemployed. He looked for work but could not find employment. On Mother’s Day last year, Mario told his Mom he didn’t have money to buy her a fancy gift, but he could play songs for her on his guitar as his gift to her:

Mario Gonzalez on Mother's Day

Mario Gonzalez was not some hardened criminal. He was a loving, peaceful, hardworking man and a devoted father, son, and brother. On April 19, 2021, Mario was clearly confused, but he was committing no crime. And he was the gentle, quiet man his family has always known. His death was completely unnecessary.

We are extremely concerned about the training and supervision the police department provided to the officers who killed Mario, and to the dispatcher who sent the police to the scene in the first place. We request not only an investigation into the officers’ violation of 18 U.S.C. § 242, but also an investigation of the Alameda Police Department’s policies, training, and supervision of officers and dispatchers. We request that this investigation occur concurrently with the homicide investigation being conducted by Alameda County. On behalf of Mario’s family, thank you for your time and attention.

Sincerely,

 

Julia Sherwin

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