The man whose violent arrest by San Rafael police last year sparked a public outcry testified Tuesday in a preliminary hearing to determine if the two officers who arrested him will be put on trial.
Brandon Nail and Daisy Mazariegos have been charged with assault under color of authority and making false statements in a crime report. The San Rafael Police Department fired Nail and discontinued the employment of Mazariegos, a relatively new employee who was still in her probationary period.
The hearing, which began Monday, concluded its second full day Tuesday and will resume on Oct. 10.
The arrestee, Julio Jimenez Lopez, testified Tuesday that he suffered a concussion and injuries to both his shoulders, both his knees, nose and back during his arrest by the officers.
Lopez, 37, of San Rafael said he underwent surgery on his left shoulder in January and has continuing pain in his knees that prevents him from playing soccer as he did prior to the encounter.
Mazariegos’ attorney, Christopher Shea, asked Lopez, “All those injuries are included in your claims that you have made against the city of San Rafael, correct?”
Lopez, through an interpreter, replied, “I have to pay my medical bills.”
“You expect the city of San Rafael to pay your medical bills, don’t you?” Shea said.
Lopez said, “I never thought about the money.”
Recounting the incident in July 2022, Lopez said that he, his brother, a cousin and some other friends went to Windward Way in San Rafael to drink some beer after work. He said they chose to drink outside in a public place even though doing so is against the law in San Rafael because they wanted to avoid bothering neighbors who have children.
Lopez said he had drunk three or four beers when Mazariegos arrived. She began questioning him and two other men who remained drinking.
Shea asked Lopez what his level of intoxication was.
“I was feeling happy,” Lopez said.
Lopez was questioned closely about what happened after that. Mazariegos told Lopez and the three men to sit down numerous times. They complied, but Lopez soon stood up, saying he needed to do so to remove his wallet to get his identification.
At this point, Nail, who had arrived to back up Mazariegos, told Lopez to sit down and used an expletive.
Lopez replied, “You don’t have to talk to me that way.”
Deputy District Attorney Geoff Iida, who is prosecuting the case, asked Lopez how Nail’s profanity made him feel.
“Humiliated,” Lopez said.
Lopez, who was now holding his wallet in one hand and his identification in the other, sat down. But shortly after that he stood up again, and Nail and Mazariegos decided to handcuff him. A struggle ensued.
Mazariegos, who grew up in the Canal neighborhood near the incident site, also testified on Tuesday. Mazariegos said her superiors had let her know they were concerned about public drinking on Windward Way.
“It was an ongoing issue,” Mazariegos said. “They wanted us to do extra patrolling in that area.”
Mazariegos said her intention was to check to see if any of the men had been cited previously for public drinking, and if they hadn’t, to release them with a warning. She said having suspects sit down is important for officer safety reasons.
“You have more time to respond if the suspect wants to do something to potentially harm you,” she said.
Mazariegos said that Lopez stiffened his arms and moved them forward when she and Nail each grabbed one of his arms to handcuff him. Mazariegos said she lost her grip on Lopez’s right arm when he and the two officers fell to the ground.
She said that after that she saw Lopez grab the front of Nail’s vest, which contained his baton, stun gun and pepper spray. At that point, Mazariegos said she noticed that Nail’s face went blank just before he punched Lopez on the nose.
Mazariegos testified that by stiffening his arms and not placing them behind his back as ordered, Lopez was resisting. As a result, she said, use of force was justified according to her training.
York Tsuruta, an investigator for the Marin County District Attorney’s Office, also testified Tuesday. In November 2022, Tsuruta, in concert with an FBI agent, questioned Lopez’s cousin and the other suspect present during the incident.
Tsuruta testified that both men said that Lopez did not resist. However, Tsuruta said the man who is unrelated to Lopez told him that Lopez stiffened his arms and held them close to his body when the officers attempted to handcuff him.
On Monday, lawyers questioned San Rafael police Cpl. Oscar O’Con, the supervisor who approved the two officers’ reports and prepared a use-of-force analysis of the incident.
O’Con testified that he approved both officers’ reports and reached the conclusion in his use-of-force analysis that no further review of the incident was required.
Iida screened video from the officers’ body-worn cameras. Under questioning, O’Con agreed that none of the images in the video substantiated the officers’ claims that Lopez tried to put Nail in a headlock during the struggle.
Iida also used transcripts from the questioning of the other two suspects during the event to bolster his argument that the attempted headlock and other details of Lopez’s resistance included in the officers’ reports were unsubstantiated.
“So the basis for approving that statement in the report, is it because you took Officer Nail’s word for it?” Iida said.
“Yes,” said O’Con.
Under questioning by the defense attorneys, however, O’Con said that body-worn cameras are fallible and don’t always provide a full picture of an encounter. O’Con said the camera’s eye can be blocked or it might lack the proper angle to capture certain actions.
O’Con agreed with the defense’s assertion that although the video doesn’t show Lopez attempting to put Nail in a headlock, that doesn’t mean it didn’t happen.
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During several hours of questioning, O’Con said it took him two or three weeks to complete his use-of-force analysis report. O’Con was somewhat vague regarding how much of the body-worn camera footage he watched before approving the officers’ reports and preparing the use-of-force analysis.
“I didn’t watch the whole thing,” O’Con said.
O’Con also testified that he had conversations with Nail and Mazariegos at the scene that weren’t recorded on his body-worn camera. O’Con said that the San Rafael Police Department’s policy on whether officers must have their cameras switched on during such discussions is flexible.
Shea asked if Nail’s use of an expletive in ordering Lopez to sit down and the use of his fist to punch him were in line with police procedures.
O’Con said officers are taught to sometimes employ strong language in an attempt to avoid using force and to use their hands as weapons if necessary to protect themselves.
O’Con testified that he believed the officers’ decision to take Lopez to the ground to handcuff him was appropriate because he was resisting.