This article is the third in a three-part series detailing the Palo Alto Police Department's actions to investigate a violent 2018 arrest by its officers, penalize those involved and then defend its actions when its decision was appealed. Read part 1 and part 2.

PART 3: THE ARBITRATION

Police watchdogs have long characterized binding arbitration as a barrier to police accountability.

The Racial and Identity Profiling Advisory (RIPA) Board, which consists of former law enforcement officials, civil rights advocates and other experts on the field, released a report earlier this month that concluded that arbitration used in cases of police discipline "almost exclusively reduces disciplinary penalties for officers guilty of misconduct."

"According to scholars, arbitrators can reinstate fired officers, sometimes with back pay," the RIPA report states. "Police chiefs have claimed to be undermined when arbitrators return officers to duty that have multiple incidents of misconduct. This decreases a chief's ability to manage their force and may demonstrate to officers a loss of authority, which can affect a chief's ability to lead.

"According to researchers, the tendency for arbitrators to side with officers is likely, because police officers and unions often have some level of influence over the selection of arbitrators," the report states. "Even when arbitrators side with police supervisors, their imposition of sanctions may be limited."

So in 2021, when Palo Alto's Chief Robert Jonsen and then-Assistant Chief Andrew Binder were convinced that one of their own should be fired, they had to clear a steep hurdle: a clause in the police union's contract that allows terminated employees to dispute the department's disciplinary decisions to an arbitrator, whose ruling would be legally binding.

Agent Thomas DeStefano had been investigated in connection with the violent, and videotaped, arrest of Gustavo Alvarez at his Buena Vista Mobile Home Park home in February 2018. During the arrest, Alvarez had been slammed against the hood and windshield of his car by Sgt. Wayne Benitez. DeStefano, who was participating in the arrest, was close by. An ensuing and lengthy internal investigation found DeStefano responsible for violating numerous departmental policies related to conduct.

DeStefano appealed the department's decision to fire him, setting the stage for a round of hearings in spring 2023 and a final verdict from the arbitrator in the following fall.

During the arbitration hearing, DeStefano's attorney William Hadden took issue with the department's assumption that his client actually saw Benitez slam Alvarez on the hood of the car. Hadden also challenged the department's conclusion that DeStefano was — or should have been — "totally focused on whether Sergeant Benitez may be committing some kind of offense or whatnot."

Hadden argued that as an officer responding to an incident in real time, DeStefano's main concern wasn't to see whether his sergeant was committing a violation but on determining whether the person was handcuffed. Hadden described the ensuing actions of Benitez and Alvarez as "banter back and forth."

"A reasonable person could look at that same video, in whatever time, and see that Sergeant Benitez may be adjusting for the resistance of the -- of the person being arrested; namely, Mr. Alvarez," Hadden wrote.

He also argued that the department's definition of "use of force" is too vague and that Palo Alto officers have a long practice of not filing reports when they "merely assisted in overcoming resistance to cuffing without pain or jury."

Hadden, who works at the firm Rains Lucia Stern St. Phalle & Silver, acknowledged that DeStefano made numerous mistakes during and after the arrest, most notably by failing to get more details from Benitez about what happened with Alvarez before approving his report.

"However, it is one thing to be actively involved in a cover up and quite another to inadequately perform given tasks that merely speak to negligence and human frailty," Hadden wrote. "(DeStefano) made human mistakes and deserves to be punished for them, but he did not on February 18, 2018 suddenly and inexplicably go from an outstanding officer and person to a disgrace to law enforcement and his good name."

In his closing argument on Sept. 23, Hadden also suggested that the growing climate of public distrust toward the police had contributed to the city's decision to terminate DeStefano.

"Gustavo's folks don't alert the City to the video until many, many months after that," Hadden testified, according to court transcripts. "And then, before the City really gets under way with its investigation, we have the George Floyd incident, so the City seems to be hypersensitive to virtually anything at this point."

The city's attorney, Suzanne Solomon from the firm Liebert Cassidy Whitmore, strongly disputed this characterization and argued in a September 2023 brief that anything short of termination would "cause great harm to the PAPD, whose employees are aware of the Alvarez video, the Alvarez lawsuit, and the criminal charges against Benitez, all of which have been extensively covered in local news stories."

"Reinstating DeStefano would send a message to PAPD officers that using unreasonable force on a handcuffed suspect is a laughing matter and that they can get away with covering it up by claiming not to have seen it," Solomon wrote in her closing brief.

On Oct. 19, 2023, David Weinberg released his decision and sided with the city. Much like Binder, he was convinced by the surveillance video that DeStefano both witnessed Benitez slamming Alvarez on the car and heard Alvarez say that he was bleeding.

"The Alvarez video clearly and convincingly shows the Appellant's head was facing directly towards Benitez and Alvarez at the time Benitez slammed Alvarez back down," Weinberg wrote. "The audio evidence also indicates that DeStefano would have heard Alvarez say he was bleeding and Benitez tell Alvarez 'You're going to be bleeding a whole lot more.'"

Weinberg concluded that the department was reasonable in its determination that DeStefano's conduct — most notably, his failure to report Benitez' use of force — violated the city's policy and that his conduct warrants termination.

"While the Appellant has a very good record as an officer as evident from his performance evaluations throughout his tenure with the Department, it cannot overcome his failure to report the conduct of Sergeant Benitez," Weinberg wrote.

"The City has made a reasonable argument that such failure to report caused great harm to the Palo Alto Police Department's reputation and relationship with the community."

This failure to report, he wrote, led to the incident being unknown to the department for more than a year, until a lawsuit and significant public exposure led to "an outcry and contentions that the Department will try to hide bad behavior by its Officers."

"Given these facts, the Department had just cause for its decision to terminate, and the grievance is denied," Weinberg wrote.