What cops already know: Tasers are unsafe

Tazer

Probably the most compelling argument to date that the use of Tasers should be banned is the fact that several large police departments — in Las Vegas, Phoenix and Scottsdale, Ariz. — have now prohibited testing them on fellow officers during training exercises. This is due to the proliferation of severe injuries and subsequent lawsuits by injured officers.

According to the most recent report issued on Tasers by the ACLU of Northern California, in August 2005 alone officers in five states filed lawsuits against the device’s manufacturer, Taser International.

Amazingly, the same police departments that now ban the use of Tasers on their own rank and file continue to use them on their citizenry — sometimes with fatal consequences.

Consider the conditions under which the Tasers’ shocks are administered to officers as compared with their use on the public. As part of the Taser training process it is routine for officers in most departments to undergo a one-second blast from the weapon to better understand its debilitating impact before using it on a citizen.

This blast is administered in a tightly controlled setting, with the officer standing on a mat while being spotted by two fellow officers.

Despite these precautions, the Taser proved too dangerous to continue to use on officers. No such precautions are taken when a citizen is the one being zapped.

The Mountain View Police Department, as well as others in the Bay Area, continues to subject its officers to these Taser demonstrations, although the practice is now voluntary. It is easy to imagine that, once an officer is injured during one of these training sessions, Mountain View will quickly join those other departments in banning their use on fellow officers.

On the streets, when a citizen is shot with a Taser, the blast lasts for five seconds instead of one, and can be administered multiple times. In the last year alone we have seen 15 people in Northern California die after being shot with Tasers, many of them after receiving multiple five-second blasts.

Of course the officers have no idea what vulnerabilities a citizen may have to the weapons before they inflict their 50,000-volt blast.

Too often we are seeing individuals hit by Tasers for the most innocuous of offenses before other truly non-lethal methods — like crisis intervention or conflict resolution — are even considered.

It is time we act responsibly as a community and ban Tasers in Mountain View, or at a minimum demand a moratorium on their use until adequate independent testing has been conducted to determine whether this weapon can ever be used in a truly safe and humane fashion.

Given that there have been more than 160 deaths by Tasers in the United States since 1999, nearly half of them in the last two years, once the testing has been completed an outright ban on Tasers is likely to be the only reasonable solution — absent an unbending rule that they only be used as an alternative to deadly force.

But given the fact that police are trained to use a gun when the suspect has a gun or a knife in close proximity, and given that Tasers only incapacitate their target 75 percent of the time, the likelihood that Tasers will ever be used as an alternative to deadly force is zero.  If Tasers are not safe to use on police in tightly controlled circumstances, then certainly they’re not safe to use on our citizens on the streets of Mountain View.

This piece originally appeared in the Mt View Voice

Ex-Palo Alto Fire Fighter Andrew Jentzsch sounds the 911 Fire Alarm

Former firefighter Andrew Jentzsch

And who responded to extinguish the fire? The police and probably for good reasons overt threats to cause injury should raise red flags and sound the alarms especially if guns are mentioned.

Andrew first contacted Palo Alto Free Press back in December of last year.  I’ve redacted his email address for privacy purposes.  His unhappiness or grudge with Palo Alto city government is well documented.

Andrew was a frequent presenter at city council meetings during oral communications.

As I listened to Andrew address city council one could immediately tell that Andrew had experienced some sort of painful episode in his life which prompted Andrew to reach out to city council and its leadership for help.

The following email is perhaps one of many, many alarms which sounded way, way before the police ever responded.

“From: Andrew J Jentzsch

Subject: Palo Alto City Government

Message Body:

Hello, It is hard for me to put into words what has happened to me at the hands of the City of Palo Alto. I post on Palo Alto Online and then have my postings removed almost every time.

I was a Firefighter and a Paramedic for the CPA for 20 years during that time I have seen millions of dollars wasted in more ways than one can describe, I have seen the citizens safety endangered, Employees who have tried to help attacked and abused. I being one of those.

The City of Palo Alto has become a city that is out of control, a very dangerous city. In my efforts to help I have become a victim of the politics of this city. Palo Alto was once a wonderful place, it has so very much to offer, however, it has turned into a place where the citizens can not get the truth.  I would like to offer my story to you if you are interested.

Thank you Andrew Jentzsch……I post under the name Fireman on PA Online”.

What is equally well documented is a total lack of concern by city council leadership to address issues involving individual complaints.

I can’t recall ever, any mention of any kind of favorable outcome or resolution on individual complaints.  Personal grievances simply fall on deaf ears only to be met later with patronizing comments in the press by police Chief Dennis Burns.

“I don’t think anyone has a real desire to see him punished as much as wanting to make sure he is OK, that he gets the help he needs, and that he refrains from making threatening comments,” Burns said.”

That help should have been received and provided perhaps years ago when the alarms were first sounded.   I don’t profess to be any sort of mental health professional but from this one email, one can only conclude or deduce from its contents ,“Houston, we have a problem”.

Stop and reflect for a moment, Andrew dedicated 20 years of professional life saving services to the city of Palo Alto and the community, and in return for this service, he received a felony conviction.

Something is not quite right with this picture.

Where was the intervention? Where was the help provide? What steps were provided to Andrew by the city of Palo Alto which could have prevented this tragic outcome?

Nowhere is that mentioned at all other than Burns mentioning further that Andrew “received incentive” pay.  What kind of a 911 response is that for all the years of dedicated service?  What he should have received was counseling and mediation.  Instead, he received another permanent injury, a felony conviction.

Perhaps we will never know what continues to lurk in the mind of Andrew, but one thing is clear he’s been suffering for a long, long time with no apparent post assistance provided which may have prevented this unfortunate outcome.

PAPD Officer Parham Runs a Stop Sign and The Making of a PAPD Complaint

Complaint of Rudeness and Intimidation #C 2010-006

PAPD officer Luis Parham

This feature article will be continually up-dated.   So please check back with us periodically as we expose the “Naked Truth”.

Synopsis: A community member riding a bicycle complained that two PAPD officers had driven an unmarked car past him in excess of the speed limit and made a “fast rolling stop” through a stop sign. He asserted that when he confronted the two officers at the coffee shop where they stopped, they both admitted their excessive speed and stated that they were in a hurry to get to a meeting.

The complainant averred that he was very sensitive about speeding because he frequently rides his bicycle. One of the officers paused to talk to the complainant in the parking lot of the coffee shop while the other officer went into the shop. When he came out, the complainant was still talking to the partner officer. Later that day, the complainant phoned a complaint into the Department.

Recommendation: The IPA reviewed the interviews of the complainant and the two involved officers in this case. There were no audio or video recordings of the incident. While there were a few uninvolved civilian witnesses in the coffee shop parking lot who evidently stopped to watch the conversation between the complainant and the officers, none were identified at the time.

This is understandable since the officers did not then know that the encounter would engender an administrative investigation. The case presents two starkly different views of the facts. The complainant said the car “flew past” him and “blew” the stop sign. The officers said they drove at a normal rate, did not ignore the stop sign, and that they did not see the complainant or his bicycle anywhere along the route.

The complainant saw a brown car. The officers say they were driving a red car. The officers said they were in no hurry to get to their meeting. The complainant said they both admitted to being in a hurry. The complainant said he had a “frank discussion” with one of the officers. The officers described him as very angry, spitting, and “going off.”

During his conversation with the officers, the complainant told the officers that they had “almost run him over.” The complainant did not, however, make any mention of direct danger to himself during his Internal Affairs interview or in his complaint call to the Department.

We also note that Internal Affairs arranged for a formal interview of the complainant on the same day that he phoned his complaint in to the Department and that this complaint investigation was completed in less than a month. We hope the Department can emulate this commendable swiftness with complaints of this type in the future.

Resolution/Corrective Action:

The Department concluded that the complaint is not sustained. In light of the diametrically opposed nature of the statements and the fact that there is no other ready source of evidence that can be explored in addition to the statements of the three participants, the IPA recommends that it would be more appropriate to categorize this complaint as unresolved.

Update: May 10th, 2011

There are many aspects concerning this complaint which are troubling.  First, it’s classification. Complaint of Rudeness and Intimidation #C 2010-006.  Were not sure if this is a reverse complaint about me or them…..LOL

None of these officers where rude.  In fact, Jesus Panada was very friendly and talkative when approached and apologized for his partner running the stop sign.  He stated, ‘were human too and we make mistakes’. Officer Jesus Panada was Parham’s passenger.

Mr. Miller, from the Office of Independent Review, on the other hand, characterized the events of this complaint and conversation as “confrontational”.  I was quick to point out that our conversation was consensual but truthful.

There was never a harsh word exchanged that would have even come remotely close to characterizing me by both officers as being “very angry, spitting, and “going off.”  One would think, such behavior would warrant, at the very least, a verbal warning for disturbing the peace.

When I first read the report, I just laughed but then realized both these officers were dishonest in their statements to internal affairs.

Mr. Miller along with Mr. Michael Genanco, were both hired by the city of Palo Alto to act as liaisons and police auditors to investigate police citizen complaints for their thoroughness and timeliness.

As I mentioned to Mr. Miller yesterday that I had made repeated phone calls,  follow-up emails, not only to the head of the Internal Affairs investigative team,  Lt. Sandra Brown, but,  Chief Dennis Burns, Doug Keith along with a presentation to city council which included the distribution and copy of the original complaint.

I never heard back from anyone.  So you can imagine, my reaction to one of Mr. Miller’s conclusions;

http://bit.ly/m87rqQ

Published on March 7th, 2011.

“We also note that Internal Affairs arranged for a formal interview of the complainant on the same day that he phoned his complaint in to the Department and that this complaint investigation was completed in less than a month. We hope the Department can emulate this commendable swiftness with complaints of this type in the future.”

Next the complaint timeline so stay tuned….

Update: May 11th, 2011

Will the California Public Records Act divulge the “Naked Truth”, as to the actual swiftness and handling of this complaint?

California Public Records Act Government Code Section 6250 – http://1.usa.gov/mlAwD1

 

To: Beth Minor” <Beth.Minor@CityofPaloAlto.org>Cc:molly.stump@cityofpaloalto.org, “Sandra Brown” <Sandra.Brown@CityofPaloAlto.org>, city.council@cityofpaloalto.org, james.keene@cityofpaloalto.org, “Dennis Burns” <Dennis.Burns@CityofPaloAlto.org>

 

The California Public Records Request Greetings!

Re: Complaint of Rudeness and Intimidation #C 2010-006

Please produce all of the following information on the above referenced citizen complaint.

 

  • Date PAPD received complaint.
  • Date PAPD imitated investigation.
  • Date PAPD completed investigation.
  • Date PAPD reviewed it’s investigation findings / analysis with complainant.
  • Date PAPD reviewed it’s investigation findings / analysis with IPA
  • Dates of all follow-ups initiated by PAPD with complainant.
  • Dates of all conversations initiated by PAPD with IPA on citizen complaint.
  • Dates of all emails initiated by PAPD with IPA on citizen complaint.
  • Dates of all emails initiated by PAPD with complainant.
  • Dates of all conversation i.e. phone calls initiated by PAPD with comlaintant

Must be received by: March 23rd, 2011 –  6255 of the Government code

The agency must provide assistance

by helping to identify records and information relevant to the request and suggesting ways to overcome any practical basis for denying access. (§ 6253.1)

see: Government Code & 6253 re time limits for said disclosure pursuant to the California Public Records Act.

See: Writings as defined in California Public Records Section 6252(f) and Evidence Code & 250.

If you believe I am not entitled to the requested records I am requesting that you justify your refusal within (ten) days in writing under & 6255 of the Government code. You may only refuse to give me these records if there is an express law prohibiting you from giving them to me.

In the case of California State University of Fresno Assn, Inc. V Superior Court McClatchy Co. (2001) 90 Cal App.4th 810, the court held that “The burden of proof is on the proponent of nondisclosure, who must demonstrate “clear overbalance” on the side of confidentiality.”

Please provide any additional legal authority you would like me to be aware of re this request . Please feel free to contact me to discuss this request if you have any questions or concerns.

Sincerely,

PaloAltoFreePress.com

Update: May 14th, 2011

Department Complaints / Internal Affairs Investigations/ IPA Process Highlights Explained

 

 

  • In person
  • By email on the Police Department’s website.
  • By telephone
  • [OIR] Through the Office of Independent Review
  • Internal timeline of 30 days to complete
  • Chief sign off
  • Complaint goes back to Lt. Sandra Brown
  • Copy is sent to OIR[Office of Independent Review] for their review.
  • Conference regarding the investigation / Lt. Sandra Brown – OIR
  • Complainant is then notified of the disposition.

Material source: Minutes from behind closed doors secret meetings.

http://bit.ly/m226iE

Editor’s note: Public and Press are forbidden from attending.

Update May 24th, 2011 – Results of California Public Records Request

——– Original Message ——–
Subject: RE: CPRA – Complaint of Rudeness and Intimidation #C 2010-006
From: “Brown, Sandra” <Sandra.Brown@CityofPaloAlto.org>;
Date: Thu, May 19, 2011 3:28 pm
To: <editor@paloaltofreepress.com>
Cc: <molly.stunp@cityofpaloalto.org>;, “Minor, Beth”
Beth.Minor@CityofPaloAlto.org>, “Teixeira, Barbara”
Barbara.Teixeira@CityofPaloAlto.org>

Good Morning Mark,

A. Date PAPD received complaint.

June 18, 2010

B. Date PAPD initiated investigation.

June 25, 2010

C.Date PAPD completed investigation.

August 30, 2010

D. Date PAPD reviewed its investigation findings / analysis with complainant.

October 14, 2010  (This claim is in dispute should read None)

E. Date PAPD reviewed its investigation findings / analysis with IPA

December 10, 2010 – Mailed Copy to IPA January 3, 2011

F. Dates of all follow-ups initiated by PAPD with complainant.

None

G. Dates of all conversations initiated by PAPD with IPA on citizen complaint.

None

H. Dates of all emails initiated by PAPD with IPA on citizen complaint.

None

I. Dates of all emails initiated by PAPD with complainant.

None

J. Dates of all conversation i.e. phone calls initiated by PAPD with complainant

None

Thank you,
Lieutenant Sandra C. Brown
Personnel & Training
Palo Alto Police Department
Phone:  (650) 329-2394
Voice:   (650) 617-3100 x2394

As noted in my original request. CPRA laws mandate responses to be received within 10 days of the initial request. I’m please to report this request was received ahead of schedule.

However, the answers to my request, are in fact candid and quite revealing far different from what was originally reported to city council leadership by the head of the PAPD’s Internal Affairs unit Lt. Sandra Brown and the Independent Police Auditors team of Michael Genanco contracted by the city of Palo Alto to insure police complaint protocols are adhered to as noted above.

This report as we all know, was collaboratively prepared by the PAPD’s Internal Affairs unit and the Independent Police Auditors team of Michael Genanco which seems to be seriously flawed and may in fact contain elements of fraud.

Keep in mind both agency’s are high skilled and trained in the art of deception.

Let’s regress for a moment and look back at the concluding remarks of Genanco’s highly skilled team of lawyers and compare how this actually measures up with the California Public Records request.

“We also note that Internal Affairs arranged for a formal interview of the complainant on the same day that he phoned his complaint in to the Department and that this complaint investigation was completed in less than a month. We hope the Department can emulate this commendable swiftness with complaints of this type in the future.”

Five Elements of Fraud – http://bit.ly/iXzKR0

1. First the person must make a false claim.

The reporting party Lt. Sandra Brown chief of the Internal Affairs unit knew that the complaint was not completed in less then 30 days as everyone was lead to be beleive, through the discovery of a CPRA thus paving the way to revealing their web of sophisticated deception.

2. Then they must know that the information they are submitting is wrong.

Both parties in this case knew the information was in fact wrongfully submitted and conspired to present misinformation to city council. None of the outlined citizen complaint protocols or processes were adhered to as noted above. (see Department Complaints / Internal Affairs Investigations/IPA Process Highlights Explained). Checks and balances were completely ignored and unconfirmed.

3. The person using the information has to have the intent to commit fraud.

Both parties were well equipped with a complete and thorough understanding of citizen complaint protocol guidelines.

These guideline were woefully neglected with the full knowledge and understanding by both reporting parties that the information was misrepresented. There joint actions demonstrate a total systemic quality failure for the sole purpose and intent of reporting expediency. “commendable swiftness”

4. The payout must be based on thinking the documents are truthful.

Messages were left with several city council members to determine whether or not members were in fact reading the reports submitted by the Genanco team of Lawyers. Council member Greg Schmid was the only person to respond.

We both agreed on the absence of any documented timelines as to when the citizen complaints were initiated and the time in which it was finalized. I also pointed out the misleading classification of this complaint as “unfounded” when it should have been classified and noted in the report, as “unresolved”.

5. There must be some damage, such as a monetary loss.

The actual losses to the city of Palo Alto in this case, is payment for services which were not truthfully rendered and may in fact only be the tip of the iceberg.

The spinning of this sophisticated web of deceit can be further highlighted and illustrated by the sheer facts as revealed, that both parties were relying on no particular person to question the validity of reports submitted by Genanco and his team of attorneys. Perhaps they were depending on getting away with the following disguise.

Plausible deniability

Refers to the denial of blame in loose and informal chains of command where upper rungs quarantine the blame to the lower rungs, and the lower rungs are often inaccessible, meaning confirming responsibility for the action is nearly impossible.

In the case that illegal or otherwise disreputable and unpopular activities become public, high-ranking officials may deny any awareness of such act or any connection to the agents used to carry out such acts.

In politics and espionage, deniability refers to the ability of a “powerful player” or actor to avoid “blowback” by secretly arranging for an action to be taken on their behalf by a third party—ostensibly unconnected with the major player.

In political campaigns, plausible deniability enables candidates to stay “clean” and denounce advertisements that use unethical approaches or innuendo based on opposition research.

More generally, “plausible deniability” can also apply to any act that leaves little or no evidence of wrongdoing or abuse. (As to the original submitted police auditors reports – Comment added.)

Examples of this are the use of electric shock, waterboarding or pain-compliance holds a means of torture or punishment, leaving few or no tangible signs that the abuse ever took place.

Plausible deniability is a legal concept. It refers to lack of evidence proving an allegation. Standards of proof vary in civil and criminal cases.

In civil cases, the standard of proof is “preponderance of the evidence” whereas in a criminal matter, the standard is “beyond a reasonable doubt.” If your opponent lacks incontrovertible proof (evidence) of their allegation, you can “plausibly deny” the allegation even though it may be true.

http://bit.ly/7V5F

For the moment, We will leave it up to our readers and to a jury of their peers to determine if in fact fraud was committed based on evidence submitted. But as it stands, we beleive community fraud has been committed and those responsible should be held accountable short of jail time or disbarment.

Locking Legal Horns – “I could keep going” – Tony Ciampi

Locking Legal Horns

Tony Ciampi has once again demonstrated the power of his legal prowess in a resent email exchange with city attorney Donald Larkin over the releasing of Ciampi’s tazer video to the media as playing dirty pool.

Mr. Ciampi did not receive an invitation to this event and for that matter either did I.

Note the absence of any legal arguments coming from TOP city attorney for the City of Palo Alto Donald Larkin.

Yea Tony – Looks like your getting ready to push him off the cliff…..Is it any wonder why city attorney Donald Larkin is so frustrated?  Has he met his match?

From: Tony Ciampi [mailto:t.ciampi@hotmail.com]
Sent: Thursday, January 20, 2011 10:15 AM
To: Larkin, Donald; City Attorney; Council, City; Keene, James; jrosen@da.sccgov.org
Subject: Palo Alto City Attorney Don Larkin To Hold Another Showing of the Videos with Ciampi Present?

Donald Larkin

Palo Alto City Attorney

Mr. Larkin,

Please provide some available dates to re-show the media the videos with me present so that I can defend myself against your manipulated presentation of the falsified videos and evidence.

We will start off with making another copy of Temores’ MAV video so that the PAPD can demonstrate how they need to remove the embedded watermark in order to make copies for the Court.

There is one condition, should I prove to those in attendance that any part of the evidence has been tampered with, you will personally file a report with the Santa Clara County District Attorney’s Office in order to bring forth criminal charges against the culpuble Palo Alto police officers for violating the various offenses including but not limited to:   PC 118, 181, 132, 134, and 141b.

You could also ask DA Jeff Rosen to send a representative to be present as well.

Tony Ciampi

650-248-1634

Subject: RE: Palo Alto City Attorney Don Larkin To Hold Another Showing of the Videos with Ciampi Present?
Date: Thu, 20 Jan 2011 15:34:35 -0800
From: Donald.Larkin@CityofPaloAlto.org
To: t.ciampi@hotmail.com

Mr. Ciampi,

As was reported, I showed several reporters the videos prepared by the Santa Clara County Crime Lab.  At this point, I do not intend to show them again.  You are (of course) free to show the videos yourself.

With regard to your request that I file a report with the District Attorney, at this point there is no evidence to show that the videos have been altered in any way.  All of the evidence points to the fact that the videos are true and correct depictions of the events.  However, if it was proven to me that the videos were intentionally altered, I would support criminal charges against the person who altered the videos.

Donald Larkin

Interim City Attorney

City of Palo Alto

(650) 329-2171

donald.larkin@cityofpaloalto.org
This e-mail may contain confidential and/or attorney-client privileged material. If you have received this message in error, please immediately notify the sender and delete this e-mail message from your computer.

from Tony Ciampi <t.ciampi@hotmail.com>
to donald.larkin@cityofpaloalto.org,
city.council@cityofpaloalto.org,
james.keene@cityofpaloalto.org,
jrosen@da.sccgov.org
cc loretta.king@usdoj.gov,
gerald.engler@doj.ca.gov,
nancy.brown@calbar.ca.gov
date Thu, Jan 20, 2011 at 8:38 PM
subject Mr. Larkin refuses to show the videos with Ciampi present
mailed-by hotmail.com
Jan 20 (2 days ago)

Donald Larkin

Palo Alto City Attorney

Mr. Larkin,

Please explain to the media why the PAPD needs to remove the embedded watermark on the MAV videos as directed by the Chief of Police and authorized by your office.

You already know that the officers violated the law as I have provided it to you in Court Documents 55 and 109.

Exhibit 45 from Court Document 55 of Case # C09-02655 proves that Office Kelly Burger committed perjury during my Pre-Trial Examination by stating that he placed his taser gun back in his holster when his own taser video contradicts his statement.  Burger viewed the video four days prior to giving his testimony.

Exhibit 46 from Court Document 55 of Case # C09-02655 proves that Manuel Temores, Natasha Powers and others either themselves or knowingly commissioned others to remove 4 to 5 seconds of video footage from Temores’ taser video which is a violation of PC 132, 134 and 182.

Exhibits 46 and 47 from Court Document 55 of Case # C09-02655 and Exhibits 162, 163, 166, 167, from Court Document 109 of Case # C09-02655 verify the Officers Manuel Temores fired his taser gun and that Manuel Temores, Kelly Burger and Natasha Powers removed Temores’ taser cartridge, probes, wires, blast doors and AFIDS from the crime scene and destroyed them in violation of PC 141b and 182.  Additionally, the video footage of Temores firing his taser gun has been removed from both his taser video and MAV video, another violation of PC 132 and 134 by Temores, Powers and others and or by whom they commissioned to remove the video footage.

Exhibit 172 from Court Document 109 of Case # C09-02655 proves that April Wagner violated 118 by making false statements in the police report contradicted by Temores’ MAV and Taser videos.

Exhibit 172 from Court Document 109 of Case # C09-02655 proves that Manuel Temores committed perjury during the Pre-Trial Examination.

Exhibits 164, 165, 169 and 170 from Court Document 109 of Case # C09-02655 prove that video footage is missing and has been edited from Manuel Temores MAV video verifying that Manuel Temores, Powers and others and or by whom Temores and Powers commissioned to remove the video footage violated PC 132 and 134.

Exhibit 171 from Court Document 109 of Case # C09-02655 proves that Kelly Burger’s taser guns data port has been tampered with, for his taser gun is seen discharging electricity several seconds after the data port documents that the discharge stopped.  Burger, Powers and others who helped them achieve this falsification of the evidence violated PC 132, 134 and 141(b).

Exhibits 178 and 179 from Court Document 109 of Case # C09-02655 proves that Chief Burns knowingly submitted falsified activation data from Burger’s and Temores’ Taser guns.

Exhibit 48 from Court Document 55 of Case # C09-02655 proves that the dialog recorded in Kelly Burger’s MAV has been edited and altered verifying the Burger, Powers and others and or whom they commissioned to edit the MAV recording violated PC 132 and 134.

I could keep going.

You yourself violated Palo Alto Use of Force Policy 308.9.9 by refusing to provide the taser guns’ activation data with the original police report.

You are knowingly concealing the crimes of Palo Alto Police Officers a violation of PC 32.  You probably actively engaged in the conspiracy to falsify and destroy all of the evidence in order to put me in prison by using a falsified video.

Tony Ciampi

32.  Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.

PC 118.  (a) Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury.

123.  It is no defense to a prosecution for perjury that the accused did not know the materiality of the false statement made by him; or that it did not, in fact, affect the proceeding in or for which it was made. It is sufficient that it was material, and might have been used to affect such proceeding.

PC 132.  Every person who upon any trial, proceeding, inquiry, or investigation whatever, authorized or permitted by law, offers in evidence, as genuine or true, any book, paper, document, record, or other instrument in writing, knowing the same to have been forged or fraudulently altered or ante-dated, is guilty of felony.

PC 134.  Every person guilty of preparing any false or ante-dated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding, or inquiry whatever, authorized by law, is guilty of felony.

PC 141.   (b) Any peace officer who knowingly, willfully, and intentionally alters, modifies, plants, places, manufactures, conceals, or moves any physical matter, with specific intent that the action will result in a person being charged with a crime or with the specific intent that the physical matter will be wrongfully produced as genuine or true upon any trial, proceeding, or inquiry whatever, is guilty of a felony punishable by two, three, or five years in the state prison.

PC 118.1.  Every peace officer who files any report with the agency which employs him or her regarding the commission of any crime or any investigation of any crime, if he or she knowingly and intentionally makes any statement regarding any material matter in the report which the officer knows to be false, whether or not the statement is certified or otherwise expressly reported as true, is guilty of filing a false report punishable by imprisonment in the county jail for up to one year, or in the state prison for one, two, or three years. This section shall not apply to the contents of any statement which the peace officer attributes in the report to any other person.

PC182.  (a) If two or more persons conspire:    (1) To commit any crime.  (2) Falsely and maliciously to indict another for any crime, or to procure another to be charged or arrested for any crime.  (3) Falsely to move or maintain any suit, action, or proceeding. (5) To commit any act injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws.

Palo Alto City Attorney Donald Larkin Frustrated

Tony Ciampi keeps throwing and landing legal punches’, motions and city attorney Donald Larkin is becoming increasingly frustrated as the city of Palo Alto’s top attorney attempts to recover from repeated blows.

All from a man with no formal legal experience or educational background in fact, his office is his van and his vast legal library is powered by Google.

This is a story against all odds.   As reported in the Daily Post Wednesday , Dec 15th Mr. Larkin is reported as saying, “The problem we run into is that he’s looking for things that don’t exist .  He wants the smoking gun that shows that we did things we didn’t do.  He’ll never be satisfied”.

In reality, what Mr. larkin is strongly objecting to is Mr. Ciampi’s unorthodox approach to lawful discoveries.

Any forensic audio investigator worth his salt will go the distance to uncover any traces of video, voice and or data manipulation as alleged by Mr. Ciampi.

Let’s not forget too, this is David against Goliath.  The city of Palo Alto has unlimited resources at their disposal and the powerful backing of whatever outside counsel of its choosing.

Mr. Ciampi has his mobile sleeper office, his van which Jay Thorwaldon of the Weekly in an editorial, was pushing the city of Palo Alto to have removed from its streets.   Conspiracy?  The Weekly has always been pro-police and has one of it’s reporters sitting on the commission of the Palo Alto human relations committee.

That is to say Jay feels the homeless (non-conventionally housed) , disenfranchised; those who sleep in their cars are the blight of the city and should drive elsewhere.

It would not surprise me if Mr. larkin decides to claim Mr. Ciampi to be vexatious in the filing of his motions.  But, let’s not forget one very important aspect of Mr. Ciampi’s motions.

Consider this.  After being filed and reviewed by a judge for sound reasonableness, they have been stamped – Motion Granted.    For that matter, I don’t believe any of Mr. Ciampi’s motions have been denied.

Perhaps this is the real root cause of Mr. Larkin’s frustration.

I left a voice mail message with Mr. Larkin requesting further comment on the Daily Posts story.   However, they continue to deny, access (“Blacklist”) PaloAltoFreePress. com from any news media follow-up.

Tazer Victim Tony Ciampi–Alledges willful destruction of evidence by Police Chiefs Johnson and Burns

The allegations

To the Honorable City Council of Palo Alto,

Below you will find the text of the Motion I filed with the Court regarding the suppression and destruction evidence committed by personnel within the Palo Alto Police Department.
You can find the entire Motion, (Document No. 55), along with the Exhibits on the Federal Court’s Website PACER system, https://ecf.cand.uscourts.gov/cgi-bin/login.pl, under case No. 5:09-cv-02655-LHK Ciampi v. City of Palo Alto, et al

Your Staff and Police Chief Dennis Burns admitted in their response to Discovery that they destroyed Palo Alto Police Officer Manuel Temores’ Taser cartridge, wires, probes and AFIDS.  Former Police Chief Lynne Johnson and current Police Chief Dennis Burns consented to, and as being the Department Heads who bear ultimate responsibility for the conduct and acts of their subordinate officers, participated in the deliberate destruction of Palo Alto Police Officer Manuel Temores’ taser cartridge, taser probes, taser wires and AFIDS.

It is clear that IPA Michael Gennaco does not want to perform the duties required of him outlined in his contract with the City of Palo Alto by his refusal to investigate my complaints.

Since you hired Mr. Gennaco to hold officers accountable and he refuses to that, I would like to know what you intend to do about Police Chief Dennis Burns and several subordinate officers’ willful violation of Department Policy and Government Code 34090 and 34090.5. by destroying this evidence.

Joseph (Tony) Ciampi

P.O. Box 1681

Palo Alto, Ca 94302

650-468-3561

____________________________________________________________________________________________

 

 

PLAINTIFF’S MOTION FOR ORDER

TO COMPEL DEFENDANTS AND DEFENDANT BURNS

TO PRODUCE AND PROVIDE DISCOVERY

 

[FRCivP 37]

[Civil L.R. 37-2]

 

Judge:   The Honorable Magistrate Judge

Patricia V. Trumbull

Motion to Compel Discovery

Hearing Date:  October 26, 2010

Time:  10:00 AM

Court Room 5, 4th Floor

The Honorable Patricia V. Trumbull

TO EACH PARTY AND THEIR COUNSEL OF RECORD:

YOU ARE HERBY NOTIFIED of Plaintiff Joseph Ciampi’s Motion for Order to Compel Defendants and Defendant Burns to produce and provide Discovery under FRCivP 37 and Civil L.R. 37-2.  This Motion is to be adjudicated by the Honorable Patricia V. Trumbull in Court Room 5 on the 4th Floor on October 26, 2010 at 10:00am.

YOU ARE HERBY NOTIFIED THAT Plaintiff Joseph Ciampi moves the Court to issue an Order requiring Defendants and Defendant Burns to produce and provide Plaintiff the complete and unedited taser recordings from Defendant Burger’s taser cameras V06-015542 and V07-065373 and Defendant Temores’ taser camera V06-015551 that recorded the March 15, 2008 incident.

Furthermore, Plaintiff moves the Court to issue an Order requiring Defendants and Defendant Burns to recover, produce and provide Plaintiff any deleted, lost, overwritten, purged, missing taser recording files and video footage through the aid of a “Recovery” program or specialist.  Pl’s Decl. ¶ 46.

Plaintiff also moves the Court to issue an Order requiring Defendants and Defendant Burns to produce and provide Plaintiff  “live” taser camera and taser gun Data Port “sample” recordings in order to establish the factual method of documenting data on the Taser guns’ recordings devices.

Additionally Plaintiff moves the court to issue an Order requiring Defendants and Defendant Burns to produce and provide Plaintiff with a copy of Defendant Temores’ MAV recording that has the “date of last modification” of March 15, 2008 and a copy of Defendant Temores’ MAV recording that Defendants intend to submit to the Court by identifying the MAV recording by the “date of last modification,” the number of electronic files that make up the recording and the amount of memory contained on the electronic files.

Lastly, Plaintiff requests that the Court issue an Order requiring Defendants and Defendant Burns to produce and provide Plaintiff with a “sample” recording and copies of the recording of the MAV system in order to compare to MAV recordings of the March 15, 2008 incident and to factually resolve the dispute and discrepancies in the “dates of last modification” that exist on the MAV recordings.

Plaintiff has requested that Defendants and Defendant Burns produce and provide audio/video recordings of the March 15, 2008 incident that were recorded on two taser cameras by Defendants Burger and Temores.  Pl’s Decl. ¶ 2-26.  The taser recordings are missing audio/video footage; at least one is not in chronological order and has editing flaws. Pl’s Decl. ¶ 28-39.

Defendants and Defendant Burns refuse to provide the missing audio/video footage on the complete and unadulterated taser videos.  Pl’s Decl. Section 1 TASERS.  Plaintiff has requested that Defendants and Defendant Burns to produce and provide Defendant Temores’ MAV recording containing the “date of last modification” of March 15, 2008, the date that the MAV recording was created.  Pl’s Decl. Section 2 MAV.

Defendant Burns claimed he provided Temores’ MAV recording containing the “date of last modification” of March 15, 2008, however upon attempting to view the recording, the recording would not play because it lacked the memory on the video files necessary to play.  In addition, the MAV recording did not contain the “date of last modification” of March 15, 2008 as Defendant Burns asserted in his Discovery response.

Pl’s Decl. ¶ 54-56.  This motion is based on this notice of points and authorities, the declaration of Plaintiff Joseph Ciampi, with this motion, the exhibits, the files and records in this action, the Proposed  Order filed with this application, and any further evidence or argument that the Court may request, if necessary, at a hearing.

Requests and Responses for Discovery

PLAINTIFF JOSEPH CIAMPI’S REQUEST FOR PRODUCTION OF DOCUMENTS AND OTHER EVIDENCE PROPOUNDED TO DEFENDANT DENNNIS BURNS, SET 2 REQUEST FOR PRODUCTION OF DOCUMENTS AND EVIDENCE NO. 2:

Please produce and provide a copy of Defendant Burger’s taser Video of the March 15, 2008 incident created by taser camera V07-065373 on the tamper proof MPEG4 file format according to the Department of Justice Study and the manufacturer’s Taser International’s, specifications.  (Obviously the video  from this taser camera should not be the same as the video from taser camera V06-015542 that was sent to the Santa Clara County Crime).  (Export all of the video files at once from the taser camera to create a copy in the MPEG4 format).

DEFENDANT DENNIS BURNS PARTIAL RESPONSE TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS, SET TWO RESPONSE TO REQUEST FOR PRODUCTION NO 2:

Objection.  Defendant objects to this request in that the information sought has been previously provided pursuant to an earlier production demand as well as in Defendants’ Rule 26 Disclosure.  As such, Plaintiff is already in possession of such.

Additionally, as phrased the request may violate the attorney-client and/or attorney work-product privilege, and it may also seek items and/or information that are privileged and protected under the attorney work-product and/or attorney-client privilege.  It may also violate the litigation and the official information privileges.

Further, said request seeks items and information that are equally available to all parties and therefore it is burdensome and oppressive to this responding party.

Also, said request is compound and argumentative.  It is further unintelligible as presently phrased.

Additionally, said request is vague and ambiguous as to the words/terms “tamper proof MPEG4 file format”, tamper proof”, “MPEG4”, “according to the Department of Justice Study and the manufacturer’s, Taser International’s specifications”, “Specifications” and/or “on the tamper proof MPEG4 file format according to the Department of Justice Study and the manufacturer’s, Taser International’s specifications” so as to make any response speculative as to exactly what is being sought, thereby making this request burdensome and oppressive to the this responding party.

However, and without waiving said objections, Defendant once again encloses herewith a copy of the DVD containing the March 15, 2008, incident created by taser camera V07-065373 which was assigned to Officer Burger.

Also attached and previously provided is the Taser Download Report for 2008.  As can be seen, there is apparently no taser camera assigned to any officer with the serial number of V06-015542.  Taser camera V07-065373 was used by Officer Burger to record the events of March 15, 2008, and it was this camera that was taken into evidence by Chief Burns.

At some pint, it is believed that someone entered the wrong serial number (V06-015542) into the log and it was assumed that Officer Burger indeed had a camera with serial number V06-015542.  Apparently when the data was copied from Officer Burger’s camera onto a CD, the serial number was physically copied from the log rather than from the camera itself.

As such, the first time the crime lab reviewed the data, it was given a CD that indicated the recording was from V06-015542, which followed the mistake in the log.

However, it appears that the second time the lab reviewed the data it was given the actual taser camera itself, rather than a CD.  At that time, the lab properly documented that it came from serial number V07-065373 which is in fact the camera assigned to Officer Burger, and in fact one of two taser cameras which captured this incident, the other belonging to Officer Temores.  Discovery continuing.

DEFENDANT DENNIS BURNS AMENDED RESPONSE TO PLAINTIFF’S REQUEST FOR PRODUCTION NO 2:

Objection.  This discovery request is vague and ambiguous as to the phrases “taser camera V07-065373” and “tamper proof MPEG4 file format” which are undefined and require speculation as to their meaning and interpretation.  Further, this request is overbroad to the extent it seeks information within the possession, custody and control of third parties which is equally available to the requesting party.

Further, the request is argumentative, lacks foundation, requires assumptions to ascertain its meaning, and inappropriately imputes or seeks legal conclusions within the call of the request and, as phrased, may violate the attorney client privilege, the attorney work product doctrine, and the official information privilege.

However and without waiving said objections, Defendant states that on March 15, 2008, he was in possession of taser camera V06-015542, not V07-065373 as previously believed.  All responses provided previously stating this contrary information will be amended as further investigation has borne out the facts represented herein.

The Department is presently attempting to locate taser gun V07-065373 and once found, will agree to downloading its history before an independent neutral party.  Suffice it to say as it was not in Officer Burger’s possession on March 15, 2008, it will not contain information relevant to this lawsuit.

PLAINTIFF JOSEPH CIAMPI’S REQUEST FOR PRODUCTION OF DOCUMENTS AND OTHER EVIDENCE PROPOUNDED TO DEFENDANT DENNNIS BURNS, SET 2 REQUEST FOR PRODUCTION OF DOCUMENTS AND EVIDENCE  NO. 3

Please produce and provide a copy of Defendant Burger’s taser video of the March 15, 2008 incident created by taser camera V06-015542 on the tamper proof MPEG4 file format according to the Department of Justice Study and the manufacturer’s, Taser International’s specifications.  (Export all of the video files at once from the taser camera to create a copy in the MPEG4 format).

DEFENDANT DENNIS BURNS PARTIAL RESPONSE TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS, SET TWO RESPONSE TO REQUEST FOR PRODUCTION NO 3:

Defendant objects to this request in that as phrased the request it may violate the attorney-client and/or attorney work-product privilege, and it may also seek items and/or information that are privileged and protected under the attorney work-product and/or attorney-client privilege.  It may also violate the litigation and the official information privileges.

Further, said request seeks items and information that are equally available to all parties and therefore it is burdensome and oppressive to this responding party.

Also, said request is compound and argumentative.  It is further unintelligible as presently phrased.

Additionally, said request is vague and ambiguous as to the words/terms “tamper proof MPEG4 file format”, tamper proof”, “MPEG4”, “according to the Department of Justice Study and the manufacturer’s, Taser International’s specifications”, “Specifications” and/or “on the tamper proof MPEG4 file format according to the Department of Justice Study and the manufacturer’s, Taser International’s specifications” so as to make any response speculative as to exactly what is being sought, thereby making this request burdensome and oppressive to the this responding party.

However and without waiving said objections, please see response to No. 2 above.

In an abundance of caution and in an effort to resolve this issue, Defendant is in the process of reviewing all Palo Alto taser cameras activated in 2008 to insure that they were not involved in this incident, and never contained data from the March 15, 2008, incident.  This process is  obviously time consuming and Defendant will supplement this response should additional information/recordings be located.  Discovery continuing.

DEFENDANT DENNIS BURNS AMENDED RESPONSE TO PLAINTIFF’S REQUEST FOR PRODUCTION NO 3:

Objection.  This discovery request is vague and ambiguous as to the phrases “taser camera V06-015542” and “tamper proof MPEG4 file format” which are undefined and require speculation as to their meaning and interpretation.  Further, this request is overbroad to the extent it seeks information within the possession, custody and control of third parties which is equally available to the requesting party.  Further, the request is argumentative, lacks foundation, requires assumptions to ascertain its meaning and inappropriately imputes or seeks legal conclusions within the call of the request and, as phrased, may violate the attorney client privilege, the attorney work product doctrine, and  the official information privilege.

However and without waiving said objections, Defendant states that the Department does not have the physical capability to copy in MPEG4 format.  This has been verified with Taser International.  The only method the Department possesses for copying this type of recording is via streaming video.  Defendant ha previously provided a streaming copy of Defendant Burger’s taser video from March 15, 2008, however, if Plaintiff requires and additional copy such will be provided upon request.

PLAINTIFF JOSEPH CIAMPI’S REQUEST FOR PRODUCTION OF DOCUMENTS AND OTHER EVIDENCE PROPOUNDED TO DEFENDANT DENNNIS BURNS, SET 2 REQUEST FOR PRODUCTION OF DOCUMENTS AND EVIDENCE  NO. 4

`Please produce and provide a copy of Defendant Temores’ taser video of the March 15, 2008 incident created by taser camera V06-015530 on the tamper proof MPEG4 file format according to the Department of Justice Study and the manufacturer’s, Taser International’s specifications.  (Export all of the video files at once from the taser camera to create a copy in the MPEG4 format).

DEFENDANT DENNIS BURNS PARTIAL RESPONSE TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS, SET TWO RESPONSE TO REQUEST FOR  PRODUCTION NO 4:

Objection.  Defendant objects to this request in that the information sought has been previously provided pursuant to an earlier production demand as well as in Defendants’ Rule 26 Disclosure.  As such, Plaintiff is already in possession of such.

Additionally, said request is vague and ambiguous as to the words/terms “tamper proof MPEG4 file format”, tamper proof”, “MPEG4”, “according to the Department of Justice Study and the manufacturer’s, Taser International’s specifications”, “Specifications” and/or “on the tamper proof MPEG4 file format according to the Department of Justice Study and the manufacturer’s, Taser International’s specifications” so as to make any response speculative as to exactly what is being sought, thereby making this request burdensome and oppressive to the this responding party.

Further, said request seeks items and information that are equally available to all parties and therefore it is burdensome and oppressive to this responding party.

Also, said request is compound and argumentative.  It is further unintelligible as presently phrased.

Also, said request is compound and argumentative.  It is further unintelligible as presently phrased.

Additionally, said request is vague and ambiguous as to the words/terms “tamper proof MPEG4 file format”, tamper proof”, “MPEG4”, “according to the Department of Justice Study and the manufacturer’s, Taser International’s specifications”, “Specifications” and/or “on the tamper proof MPEG4 file format according to the Department of Justice Study and the manufacturer’s, Taser International’s specifications” so as to make any response speculative as to exactly what is being sought, thereby making this request burdensome and oppressive to the this responding party.

However, and without waiving said objections, Defendant attaches hereto another copy of a DVD containing the March 15, 2008, recording from Officer Temores’ taser cam which was downloaded pursuant to policy and taken into evidence.

DEFENDANT DENNIS BURNS AMENDED RESPONSE TO PLAINTIFF’S REQUEST FOR PRODUCTION NO 4:

Objection.  This discovery request is vague and ambiguous as to the phrases “taser camera V06-015530” and “tamper proof MPEG4 file format” which are undefined and require speculation as to their meaning and interpretation.  Further, this request is overbroad to the extent it seeks information within the possession, custody and control of third parties which is equally available to the requesting party.  Further, the request is argumentative, lacks foundation, requires assumptions to ascertain its meaning and inappropriately imputes or seeks legal conclusions within the call of the request and, as phrased, may violate the attorney client privilege, the attorney work product doctrine, and the official information privilege.

However and without waiving said objections, Defendant states that the Department does not have the physical capability to copy in MPEG4 format.  This has been verified with Taser International.  The only method the Department possesses for copying this type of recording is via streaming video.  Defendant ha previously provided a stream ing copy of Defendant Temores’ taser video from March 15, 2008, however, if Plaintiff requires and additional copy such will be provided upon request.

PLAINTIFF JOSEPH CIAMPI’S REQUEST FOR PRODUCTION OF DOCUMENTS AND OTHER EVIDENCE PROPOUNDED TO DEFENDANT DENNNIS BURNS, SET 2 REQUEST FOR PRODUCTION OF DOCUMENTS AND EVIDENCE NO. 1:

Please produce and provide a copy of Defendant Temores’ MAV recording that has a “date of last modification” of March 15, 2008, the date the recording was created.

AMENDED RESPONSE TO REQUEST FOR PRODUCTION NO 1:

Objection.  This discovery request is vague and ambiguous as to the phrases “MAV recording” and “date of last modification” which are undefined and require speculation as to their meaning and interpretation.  Further, the request is argumentative, lacks foundation, and requires assumptions to ascertain its meaning.

However and without waiving said objection, Defendant attaches hereto as Exhibit “1”, a copy of Officer Temores’ MAV recording with a “date of last modification” of March 15, 2008.

1.  Taser Recordings

Defendants Burger and Temores recorded the March 15, 2008 incident with audio/video recording devices called Taser-Cams.  Pl’s Decl. ¶ 21.  Taser-Cams are essentially video cameras attached to taser guns.  Taser-Cams record audio/video footage whenever the safety switch on the taser gun is turned to the off and or “Armed,” position.  Both Defendant Burger and Defendant Temores recorded the March 15, 2008 incident onto their Taser-Cams.  Additionally, taser guns contain Data Ports that are memory devices that record the deployment and activation data whenever the safety switch is turned off and the trigger is pulled releasing electricity, the duration of an electrical discharge. Pl’s Decl. ¶ 18-19.

Defendants produced two taser recordings during Plaintiff’s criminal case BB833050.  Pl’s Decl. ¶ 2.  One taser recording was ostensibly from Defendant Burger’s taser camera and the other from Defendant Temores’ taser camera.  Subsequently, Defendants have produced copies of Defendants Temores’ and Burger’s taser recordings as a result of Disclosures and Discovery responses.   Pl’s Decl. ¶ 2.

Both Defendant Burger’s and Defendant Temores’ taser recordings have had audio/video footage removed and contain editing flaws.  Pl’s Decl. Section 1 Tasers and Pl’s Decl. ¶ 26-40 and 45.

Defendants altered and removed content from Burger’s and Temores’ taser recordings in order to falsely incriminate Plaintiff of a crime and to conceal their own criminal acts.  Defendants have resubmitted copies of the edited taser videos to Plaintiff as a part of Disclosures and Plaintiff’s Discovery requests related to Plaintiff’s civil action C09-02655.  Defendants Burger’s and Temores’ taser recordings have eliminated much of what occurred during the March 15, 2008 incident and therefore are presenting information that is out of context of what actually occurred. Pl’s Decl. Section 1 TASERS.

It is documented that at least Defendant Burger’s taser recording is not in chronological order and possibly Defendant Temores’ as well.  Pl’s Decl. ¶ 45.

There are editing flaws visible on the frames of video that remain and as such also will convey a false perception of the events that occurred on March 15, 2008.  Pl’s Decl. ¶ 61.

As they currently exist, Defendants Burger’s and Temores’ taser recordings will misinform and mislead the Court, jury and Trier of facts about what actually occurred on March 15, 2008.

By denying Plaintiff the ability to present complete and unadulterated recordings of the March 15, 2008 incident to the Court, jury and Triers of Facts, Defendants are violating Plaintiff’s right to Due Process under the Fourteenth Amendment of the U.S. Constitution

Federal Rule of Civil Procedure Rule 26 (b)(2)(B) states that a party need not provide electronically stored information if the party can demonstrate that the information is not reasonably accessible because of undue burden of cost.  Defendants have already provided copies of the videos and as such demonstrated that providing the information is not a burden.

Furthermore, if Defendants claim that the original recordings no longer exist, Defendants can recover the lost information by recovering the deleted and or purged recordings from the original recording devices by utilizing a recovery program or specialist. Pl’s Decl. ¶ 46.

Though this would require an expense that Defendants may justify as an undue burden, this expense would be unnecessary if it weren’t for the deliberate act of destroying the original videos and therefore the expense is a result of Defendants’ bad faith actions to deny Plaintiff Discovery, evidence and the facts of what occurred on March 15, 2008 resulting in violating Plaintiff’s right to Due Process under the Fourteenth Amendment of the United States.

Federal Rule of Civil Procedure 37 states that a motion to compel is authorized should a party fail to Disclose or provide Discovery.

Federal Rule of Civil Procedure 37(4) states that: “Evasive or Incomplete Disclosure, Answer, or Response.  For purposes of this subdivision (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.”

By definition, Defendants and Defendant Burns have provided an incomplete Disclosure and Response for the audio/video footage of Temores’ and Burger’s taser recordings and as such should be required to produce the missing footage in an unadulterated, unedited fashion especially when taken into consideration that Defendants removed audio/video footage that they did not want the Court, jury and Trier of Facts to view.

Investigators and Defendants have argued that the missing audio/video footage from taser recordings is the result of Defendants Temores and Burger turning the safety  switch on and off and thereby turning the camera on and off.  Pl’s Decl. ¶ 33.

Plaintiff can verify that Defendants’ position is false by requiring that Defendants produce a “live” test recording of the taser guns’ Taser-Cams and Data Ports which will be used to compare to the taser recordings of the March 15, 2008 incident verifying that the Taser-Cam recordings and Data Port recordings provided by the Defendants documenting the March 15, 2008 are missing audio/video footage.  Pl’s Decl. ¶ 33-51.

Defendant Burns has already acknowledged in his responses to Discovery that human error and or tampering can occur on the printout reports of the data retained on the taser guns’ memory devices and therefore any authentic rendering of the devices’ method of documenting data should be done in a manner in which all doubt is removed by utilizing a “live” test sample being provided.

By ordering the Defendants to provide  “live” test recordings of Defendant Burger’s and Temores’ taser cameras and Data Ports Plaintiff and thereby the Court will be provided the ability to scientifically and empirically determine the authenticity of the taser camera recordings and Data Port information removing any and all human error through direct manipulation or indirectly through speculative interpretation.

The “live” test recordings would include making one continuous recording on a taser gun Data Port and Taser camera downloading the information into the server and making a copy of those Data Port and taser camera recordings.  The second recording would replicate what the Defendants claimed happened to Defendants Burger’s and Temores’ taser guns’ Data Ports and taser cameras in that the arming mechanism, the safety switch, was turned on and off three separate times resulting in the camera being turned on and off three separate times creating the gaps in time.

As such, Plaintiff would like to create a second sample recording of the taser gun Data Ports and Taser camera recordings in which the arming mechanism, the safety switch, is turned on and off three times just as what Defendants claimed happened to Defendant Burger’s and Temores’ taser guns’ Data Ports and taser camera recordings of the March 15, 2008 incident.

Since the process of downloading the information from taser gun cameras and Data Ports is apart of the normal duties of personnel within the police department there should be no objection based upon the investigation and “live” test as being burdensome, oppressive or financially excessive and therefore including the above, the necessity of  providing the facts of what occurred on March 15, 2008 to the Court, jury and Triers of faxcts as a result of information derived from the “live” test sample recordings over rules the objections raised in FRCivP 26(b)(2).

Additionally, since Defendants have already provided the information sought from the taser guns and actually will be allowing Plaintiff to download the audio/video recordings of the March 15, 2008 incident from Defendants Burger’s and Temores’ Taser-Cams and Data Ports there should be no cause for an objection based upon the information being unprivileged, copyrighted, patented, etc. etc. which should result in refusal of providing a “live” test sample of the Taser-Cams and Data Ports.

Defendants contend that the MAV recordings contain any and all missing audio/video footage that the taser cameras did not capture and therefore it is unnecessary to provide the missing taser camera audio/video footage.  That argument is irrelevant as the fact is both Defendants Temores’ and Burger’s taser camera recordings are missing audio/video footage and Plaintiff has requested that Defendants produce the missing audio/video footage that corresponds to the MAV recordings.

When Defendants and Defendant Burns produce the missing audio/video footage Plaintiff will be able to demonstrate to the Court, the jury and the Triers of Facts that the audio/video footage from the taser camera recordings do not match the MAV recordings and thus expose the fact that the MAV recordings are nothing more than pieces of fiction created by personnel from the Palo Alto Police Department in order to incriminate Plaintiff of a crime he did not commit.  Pl’s Decl. ¶ 71.

As such Plaintiff shows good cause for being provided the missing audio/video footage from the taser gun data ports and taser cameras even by the necessity of a digital video file recovery program and or specialist as well as conducting a “sample” test recording of the taser cameras and taser gun Data Ports in order to empirically verify the factual operation of the recording mechanisms satisfying the requirement of and over ruling the objections raised in FRCivP 26(b)(2).

2.  MAV Recordings

On March 15, 2008 Defendants Temores and Burger recorded the March 15, 2008 incident which has resulted in this civil action onto their MAV recording devices.  Defendants initially provided Plaintiff with a copy of the MAV recordings during Plaintiff’s civil case then again as a result Disclosures and Discovery from this civil action.  Pl’s Decl. ¶ 54-55.

A MAV device is a digital Mobile Audio Video System in which the camera is located in a police officer’s patrol car and the microphone is located on the body of the police officer. Pl’s Decl. ¶ 52.  The MAV is used to record the interactions between officers and public.  Pl’s Decl. ¶ 52.

A MAV recording is essentially a digital audio/video recording.  As an electronic digital recording, the recording contains electronic files that are documented by the date they were created, “date of creation” and or the date the files were last modified, “date of last modification.”  Additionally the electronic files are made up of memory that establishes exactly how much electronic memory the files use.  Pl’s Decl. ¶ 54-55.

The “date of last modification’ establishes the last date and time that the file and or files were edited in some fashion.  An empirical fact of editing is when the “date of last modification” and the amount of memory making up the electronic file changes from one copy of the file to the next. Pl’s Decl. ¶ 54-55.

The date of the MAV recordings that created and captured the March 15, 2008 incident was March 15, 2008.  Therefore the “date of last modification” should be March 15, 2008 on the electronic files that make up Defendant Temores’ MAV recording.  Pl’s Decl. ¶ 54-55.  Defendants produced a copy of Defendant Burger’s MAV recording containing the “date of last modification” of March 15, 2008 as a part of their response to a Discovery request on February 11, 2010.

Defendants did not provide a copy Defendant Temores’ MAV recording with a “date of last modification” of March 15, 2008.  Defendants have produced two different copies of Defendant Temores’ MAV recording, one from Plaintiff’s criminal case which has a “date of last modification” of March 18, 2008 and one that has a “date of last modification of” October 12, 2008 as a result of Defendants’ response to an initial Discovery response on February 11, 2010.  Pl’s Decl. ¶ 54-56.  The amount of memory that makes up the electronic files of these two recordings are different from one recording to the other.  Pl’s Decl. ¶ 54-56.

As a result of not being provided a copy of Defendant Temores’ original MAV recording containing a “date of last modification” of March 15, 2008 Plaintiff re-requested a copy of Defendant Temores’ MAV recording from Defendant Burns in a follow up Discovery request.  Defendant Burns sent Plaintiff a copy of Defendant Temores’ MAV recording on September 3, 2010.

The copy of Defendant Temores’ MAV recording sent to Plaintiff does not work as a result of not containing the necessary files and or memory to function.  Additionally, the “date of last modification” is September 3, 2010.  Pl’s Decl. ¶ 56.  Thus, Defendants and Defendant Burns refuse to provide a copy of Defendant Temores’ original MAV recording containing a “date of last modification of March 15, 2008.

Plaintiff could reveal numerous editing flaws on the current copies of Defendant Temores’ MAV recording in Plaintiff’s possession to the Court in order to establish Plaintiff’s allegations that Defendant Temores’ MAV recording has been edited and falsified. Pl’s Decl. ¶ 57-71.   However, in doing so, Plaintiff will be revealing the flaws to the Defendants providing Defendants the opportunity to correct the flaws in a copy of Temores’ MAV recording that will ultimately be submitted to the Court for proceedings and the trial.

In order for Plaintiff to reveal the editing flaws contained on Defendant Temores’ MAV recording to the Court, jury and Triers of Facts, Plaintiff needs Defendants to provide Plaintiff with the copy of Defendant Temores’ MAV recording that Defendants intend to submit to the Court for proceedings and the trial by identifying in an official statement the version of Defendant Temores’ MAV recording that Defendants intend to submit to the court for proceedings and the trial.  This identification must include, “the date of last modification,” of the files, the number of files that make up the recording and the amount of memory contained on the files that make up the recording.

It is believed by Plaintiff that the “date of last modification” of the MAV recordings should not change once the MAV recording is created on the MAV hard drive in the patrol car.  It is believed by Plaintiff that the “date of last modification” should not change as a result of uploading the MAV recording from the MAV hard drive to the MAV server in the police station.

It is believed by Plaintiff that the “date of last modification” should not change as a result of making multiple copies from the MAV server in the police department.  Pl’s Decl. ¶52-56.  In order to establish this fact, Plaintiff is requesting that the Court order Defendants to allow Plaintiff to create a MAV recording by going through the entire process from beginning to end as a part of Plaintiff’s inspection of the MAV system to which Defendants have already granted.

Plaintiff has not officially requested this inspection as a part of Plaintiff’s former Discovery requests as it did not occur to Plaintiff until September 9, 2010 while reviewing Defendant Burns’ responses to Discovery requests, especially Defendant Temores’ MAV recording that should have had a “date of last modification,” of March 15, 2008 according to Defendant Burns but did not.

Therefore, Plaintiff contacted Defendant Burns’ attorney, Steven Sherman on September 9, requesting that Defendants allow Plaintiff to make “sample” recordings of recording devices.  Pl’s Decl. ¶ 56.  Cathy Sherman, Steven Sherman’s associate contacted Plaintiff on September 10, 2010 asking for clarification of what Plaintiff meant by making “sample” recordings.

On September 10, 2010 Plaintiff informed Defendants’ attorney Steven Sherman and Mr. Sherman’s associate Cathy Sherman precisely what Plaintiff’s inspection requires.  Defendants have not responded to Plaintiff’s request as of the date of this motion. Pl’s Decl. ¶ 56 and Pl’s Decl. ¶ 76-90.  Plaintiff would submit another Discovery request, however, by the time Plaintiff received Defendants’ response, the deadline by which to submit another motion to compel would expire should Defendants’ refuse Plaintiff’s request.

Creating sample recordings will empirically and scientifically resolve any dispute between Defendants and Plaintiff regarding the operating methods and functions of the MAV system in creating recordings and copies of recordings, specifically whether the “date of last modification” changes for the results of making the sample recordings will remove any subjective interpretation of the operating methods and functions of the MAV system resulting in the Court, jury and Triers of facts being presented complete and uncorrupted and unbiased facts.  Creating MAV recordings and copies of MAV recordings is a part of the normal duties that Palo Alto Police Officers must complete within their job description.

Plaintiff requests that the Court Order Defendants to permit Plaintiff to create one MAV recording and four copies of the MAV recording from the MAV server separated by a duration of time in order to establish whether or not the “date of last modification” actually changes or not.

Plaintiff’s Motion for an Order to Compel Defendants and Defendant Burns to produce and provide Plaintiff with a copy of Defendant Temores’ MAV recording with a “date of last modification” of March 15, 2008, a copy of Defendant Temores’ MAV recording that Defendants intend to submit to the Court and copies of a sample recording over rules any objections raised by FRCivP 26(b)(2).

Plaintiff has demonstrated good cause in acquiring the complete and unadulterated taser recordings in order to accurately present the facts of what occurred on March 15, 2008 to the Court, jury and Triers of facts.  Therefore Plaintiff respectfully requests that the Court order Defendants and Defendant Burns to produce and provide Plaintiff duplicate and complete copies of Defendants Temores’ and Burger’s taser recordings containing the missing video footage in chronological order all in an unedited and unadulterated form.

Additionally, showing good cause to obtain the missing audio/video footage, Plaintiff requests that the Court order Defendants and Defendant Burns to recover the deleted/purged/destroyed taser audio/video files from the original taser camera recording devices V07-065373, V06-015542 and V06-015530 and taser gun data ports.

In addition, Plaintiff has shown good cause in acquiring a “live” test recording of the Taser-Cams and Data Ports and therefore requests that the Court order Defendants and Defendant Burns to provide Plaintiff and the Court with  “live” test sample recordings of the Taser-Cams and Data Ports from Defendants Burger’s and Temores’ taser guns’ taser cameras and Data Ports in order to compare the “sample” recordings with the recordings that Defendants have already provided to Plaintiff and intend to submit to the Court for proceedings and the trial.

Plaintiff has shown good cause in acquiring a copy of Defendant Temores’ MAV recording that has a “date of last modification” of March 15, 2008, therefore Plaintiff request that the Court order Defendants and or Defendant Burns to produce and provide Plaintiff with a copy of Defendant Temores’ MAV recording containing the “date of last modification” of March 15, 2008.

Plaintiff has shown good cause in obtaining a copy of the version of Defendant Temores’ MAV recording that the Defendants intend to submit to the Court for proceedings and the trial by identifying the copy that Defendants intend to submit to the Court by specifying the “date of last modification,” the number of electronic files that make up the recording and the amount of memory contained on the electronic files.

Showing good cause, Plaintiff requests that the Court order Defendants and or Defendant Burns to identify the version of Defendant Temores’ MAV recording that Defendants intend to submit to the Court by identifying Defendant Temores’ MAV recording by the recording’s “date of last modification,” the number of electronic files that make up the recording and the amount of memory contained on the files that make up the recording.

Plaintiff cannot prove that Defendant Burns did not provide a copy of Temores’ MAV recording containing a “date of last modification” of March 15, 2008 as it is impossible to provide a negative.  Therefore, Plaintiff requests that the Court order Defendants and or Defendant Burns to produce and provide Plaintiff a copy of Defendant Temores’ MAV recording containing the “date of last modification” of March 15, 2008 and a copy of Defendant Temores’ MAV recording that Defendants intend on submitting to the Court in the presence of a neutral third party who can document the transfer of the recordings.

Plaintiff has shown good cause in acquiring a “sample” recording of the MAV system’s recording ability in order to compare the sample recording to the recordings that Defendants have provided Plaintiff and intend to submit to the Court for proceedings and the trial.  Showing good cause, Plaintiff requests that the Court order Defendants to permit Plaintiff to make a “sample” recording from the MAV system that created Defendants Temores’ and Burger’s MAV recordings and then make four copies of the “sample” recording from the MAV server separated by a length of time.

Plaintiff certifies that he attempted to confer in good faith to resolve the dispute regarding the production of Discovery listed in this motion.  Pl’s Decl. ¶ 76-90.

3.  Conclusion

Showing and demonstrating good cause of the foregoing Plaintiff respectfully requests that this Court issue an Order requiring Defendants and Defendant Burns to produce, to provide and or permit Plaintiff the following Discovery prior to the Discovery Cutoff deadline of November 5, 2010:

1.  To produce and provide Plaintiff an original unadulterated copy of Defendants Burger’s and Temores’ taser recordings on the MPEG4 file format containing the missing audio/video footage from taser cameras V07-065373, V06-015542 and V06-015530;

2.  To recover the deleted/purged/destroyed taser audio/video files from the original taser camera recording devices V07-065373, V06-015542 and V06-015530 and taser gun data ports and provide Plaintiff a copy of those recovered video and data files;

3.  To permit Plaintiff to create two sample copies of a Taser recording.  One sample copy that is a continuous recording and a second sample copy that re-creates the act of turning the taser gun and camera on and off two separate times re-creating the actions that took place on Defendants Temores’ and Burger’s taser guns and taser cameras during the March 15, 2008 incident;

4.  To produce and provide Plaintiff with a copy of Defendant Temores’ MAV recording that has a “date of last modification” of March 15, 2008 in the presence of a neutral, third party who will document the transfer;

5.  To produce and provide Plaintiff with a copy of Defendant Temores’ MAV recording that Defendants intend to submit to the Court for proceedings and the trial by identifying the recording by the recording’s “date of last modification,” the number of electronic files that the make up the recording and the amount of memory that is contained on the electronic files in the presence of a neutral, third party who will document the transfer;

6.  To permit Plaintiff to make sample MAV recordings by going through the complete process of inserting a hard drive into a patrol car’s MAV system, making a recording, removing the hard drive from the patrol car’s MAV system, uploading the recording into the MAV server whereupon four different copies will be made separated by a duration of time in order to empirically document whether or not the “date/time of last modification” changes.

DECLARATION OF PLAINTIFF JOSEPH CIAMPI

IN SUPPORT OF PLAINTIFF’S MOTION FOR ORDER

TO COMPEL DEFENDANTS AND DEFENDANT BURNS

TO PRODUCE AND PROVIDE DISCOVERY

I, Joseph Ciampi, hereby declare as follows:

1.  On March 15, 2008 Palo Alto Police Officers, Defendants, Manuel Temores and Kelly Burger subjected me to electricity from their taser guns.  Defendants Temores and Burger recorded the March 15, 2008 incident on their taser guns’ Data Ports, taser cameras and MAV recording systems.

SECTION 1 TASERS:

2. Defendant Temores’ taser camera recording is Exhibit 20.  Defendant Burger’s taser camera recording is Exhibit 21.  Defendant Burger’s taser gun’s Data Port and Taser camera  deployment and activation report is Exhibit 22.  Defendant Temores’ taser gun’s Data Port and Taser camera deployment and activation report is Exhibit 23.  Through the Discovery process of this case, No. C09-02655, Defendants have reproduced Exhibits 20 through 23.

3.  There exists a genuine lack of legitimacy to the authenticity of Defendant Burger’s taser camera recordings as Defendants keep changing their mind as to which taser camera actually recorded Defendant Burger’s taser camera recording.

4.  On February 11, 2010 Defendant City of Palo Alto acknowledged in its DEFENDANT CITY OF PALO ALTO’S RESPONSE TO PLAINTIFF’S DEMAND FOR PRODUCTION OF DOCUMENTS, SET ONE: RESPONSE TO REQUEST FOR PRODUCTION NO. 125 that Plaintiff could inspect Defendant Burger’s taser camera V06-015542, (see Exhibit 24).

5.  In the same February 11, 2010 production of documents request as above, Defendant City of Palo Alto provided an internal memo, (Def. Exh. 241), in which Defendant Burns states that he took possession of Defendant Burger’s taser camera and sent it to the Santa Clara County Crime Lab, (see Exhibit 25).

6.  In the same February 11, 2010 production of documents request as above, Defendant City of Palo Alto provided a County of Santa Clara Crime Laboratory Report, (Def. Exh. 192) which documents Defendant Burger’s taser camera V06-015542 as being the taser camera attached to Defendant Burger’s taser gun X00-292463, (see Exhibit 26).

7.  In the same February 11, 2010 production of documents request as above, Defendant City of Palo Alto provided the Palo Alto Police Taser Download Report 2008, (Def. Exh 197, 198 and 199), which documents that the taser camera issued to Defendant Burger when he recorded the March 15, 2008 incident was taser camera V07-065373, (see page 2 of Exhibit 27).

8.  I sent a follow up Discovery request to Defendant Burns on June 9, 2010 requesting a recording from both of Burger’s taser cameras V06-015542 and V07-065373 as documented in the Motion that this Declaration supports.

9.  Defendant Burns responded on July 12, 2010 by stating that the camera assigned to Defendant Burger that recorded the March 15, 2008 incident was taser camera V07-065373 and provided another recording from taser camera V07-065373.

10.  On July 12, 2010 Defendant Burns stated that Defendant Burger’s taser camera V07-065373 was the taser camera that he took into his possession under lock and key as evidence and sent it to the Santa Clara County Crime Lab to which the Santa Clara County Crime Lab documented taser camera serial number V06-015542 as the taser camera that it received as a part of its investigation, (see page 2 of Exhibit 26).

11.  On July 12, 2010 Defendant Burns stated that someone entered the wrong serial number, V06-015542, into the video log and therefore when the Santa Clara County Crime Lab received CD’s of the recording the Crime Lab documented the wrong serial number V06-015542 from the mistake made by department personnel and that when the Crime Lab received the actual taser camera it recorded the accurate taser camera serial number of V07-065373.

12.  On July 12, 2010 Defendant Burns stated that no officer in the Palo Alto Police Department had been issued taser camera V06-015542 and therefore taser camera V06-015542 does not exist.

13.  Crime Lab Analyst John Bourke documented in his report, (Exhibit 26), that Defendant Burger’s taser camera was attached to Defendant Burger’s taser gun and that the taser camera’s serial number is V06-015542 contradicting the 2008 Taser Download Report and Defendant Burns’ assertion that the taser camera is V07-065373.

14.  On July 18, 2008 I informed Defendant Burns’ attorney, Steven Sherman, that Defendants had admitted to two different taser cameras as being issued to Defendant Burger and recorded the March 15, 2008 incident.

15.  On September 3, 2010 less than two months from stating that Defendant Burger used taser camera V07-065373 to record the March 15, 2008 incident, Defendant Burns changed his mind and stated that actually taser camera V06-015542 was the taser camera that recorded the March 15, 2008 incident.  Keep in mind, two months previously, Defendant Burns stated that taser camera V06-015542 did not exist and that he physically had in his possession taser camera V07-065373.

16.  On September 3, 2010 Defendant Burns stated that he does not know where taser camera V07-065373 is but will allow me to inspect it and download its history if it is found.

17.  Previously, Defendant Burns stated that someone wrote down the wrong serial number into the video log which is why there was a discrepancy, yet now Defendant Burns does not explain why the Palo Alto Police 2008 Taser Download Report documents Defendant Burger’s taser camera as being V07-065373, (see Exhibit 29).

18.  A taser gun is a weapon used by police officers that emits 50,000 Volts of electricity in order to subdue suspects.  The taser gun uses two different methods of discharging electricity.  The first method is by discharging two probes at a suspect in order to subject the suspect with a low voltage high amperage electrical current in order to cause every muscle in the suspect’s body to seize up.  The second method is by discharging an electrical arc from two leads on the end of the taser gun in order to use the electricity as a pain compliance weapon, (see Exhibit 28).

19.  Taser guns contain memory devices called Data Ports that record the deployment and activation data of the taser gun.  The Data Ports record the information in an electronic PDF format which is not easily tampered with, (see Exhibit 30).

20.  I have requested multiple times for a copy of Defendant Burger’s and Temores’ taser gun activation reports in the PDF file format however Defendants refuse to provide me with this information.  On September 3, 2010 Defendant Burns sent me paper printouts of the taser gun activation reports but not the electronic PDF files which would contain the Dates of Last Modification to the documented data.

See Exhibits 23 and 24 the taser gun deployment and activation reports.  See Exhibit 31 Defendant Burns’ Discovery response.

21.  In addition to the Data Ports, Defendants Burger’s and Temores’ taser guns had taser cameras attached to their taser guns in order to record audio/video footage of the deployments and activations of their taser guns, (see Exhibit 32).

22.  I have requested multiple times for the original taser videos created on the MPEG4 file format, however Defendants and Defendant Burns refuse to provide the taser videos on the original MPEG4 file format.

23.  On June 9, 2010 in my Discovery request I informed Defendant Burns exactly how to provide a duplicate of original taser camera video files on the MPEG4 file format from Defendant Burger’s and Temores’ taser cameras, (see page 2 of Exhibit 33).

24.  Defendant Burns responded by stating that he contacted Taser International and was informed by Taser International that it was technically impossible to export the video files from the taser camera in a MPEG4 file format, (see pages 3 through 5 of Exhibit 33).

25.  Taser Internationals’ Manual for Taser cameras states that if the Single File Export option is enabled, then the file is exported in an ASF format.  Taser Internationals’ Manual for Taser cameras states that if the Single File Export option is not enabled, then multiple video files (MPEG) will be exported in the sequence in which they were recorded, (see page 5 of Exhibit 32).  Defendant Burns intentionally and knowingly made a false statement in his Discovery response regarding the ability to provide duplicates of Defendant Burger’s and Temores’ taser videos on the MPEG4 file formats.  As such, Defendant Burns is refusing to provide duplicates of Defendants Burger’s and Temores’ taser recordings on the original MPEG4 file formats.

26.  As a part of Defendant Burns’ response to Plaintiff’s Request for Production of Documents Set 2 Numbers 2, 3 and 4 Defendant Burns provided another a set of taser videos from Defendant Burger’s and Temores’ taser cameras that were put together by Santa Clara County crime lab analyst Christopher Coprora.

27.  In his attempt to justify the missing audio/video footage, Santa Clara County Crime Lab Analyst Christopher Corpora adds filler to Defendants Temores’ and Burger’s taser recordings, see Exhibits 34 and 35 and page 3 of Exhibit 37.

28.  The dialog within the recordings is fixed in “real” time.  Therefore the dialog can be used as fixed markers of “real” time.  Though it is unsure what the “real” time is, by using the fixed markers to compare one recording to another it can be scientifically and empirically determined if the recordings are consistent or if one recording contradicts the other.  This is what Santa Clara County Crime LAB Analyst Christopher Corpora accomplishes by adding the missing time to Defendant Burger’s and Temores’ taser recordings.

29.  By adding the filler, Corpora reveals that Defendant Temores’ taser recording is missing 5 seconds of audio/video footage when compared to Defendant Burger’s taser video, see page 2 of Exhibit 46.  By adding the filler, Corpora reveals that the date/time stamp on Temores’ taser recording is missing 4 seconds of audio/video time when compared to Defendant Burger’s taser recording, see page 3 of Exhibit 46.

30.  Defendant Temores’ taser camera recording is missing audio/video footage.  Santa Clara County Crime Lab Analyst John Bourke documented that Temores’ taser recording of the March 15, 2008 incident contained on Temores’ taser camera is one continuous 33 second recording, see page 2 of Exhibit 26.  Santa Clara County Crime Lab Analyst John Bourke documented that Burger’s the taser recording of the March 15, 2008 incident contained on Burger’s taser camera is one continuous 37 second recording, see page 2 of Exhibit 26.

31.  Defendant Temores’ taser camera recording which has a date of last modification of March 15, 2008, Exhibit 20, that was provided to me during my criminal case as well as a result of my Discovery requests in this case C09-02655 is missing a minimum of 13 seconds of audio/video footage, see page 2 of Exhibit 38.

32.  Defendant Burger’s taser camera recording which has a date of last modification of March 15, 2008, Exhibit 21, that was provided to me during my criminal case as well as a result of my Discovery requests in this case C09-02655 is missing a minimum of 17 seconds of audio/video footage, see page 3 of Exhibit 38.

33.  Defendants claim that the missing audio/video footage form Defendants Temores’ and Burger’s taser camera recordings are the result of turning the cameras off and the back on by turning the arming mechanism on and off, see page 7 of Exhibit 39.  Defendants position does not have any merit for if the arming mechanisms, the safety switches, were turned on and off and thus turned the cameras on and off the cameras would have recorded three separate recordings each of the March 15, 2008 incident, however, the cameras’ only recorded one recording each confirming that there should be no jumps in time within the date/time stamp on the recordings.

34.  Santa Clara Count Crime Lab Analyst John Bourke documented that Defendant Temores’ taser recording is one continuous recording of 33 seconds in length and Defendant Burger’s taser recording is one continuous recording of 37 seconds in length, see page 2 of Exhibit 26.

35.  If Defendants Temores’ and Burger’s taser cameras recorded three separate recordings then it would not have been necessary for Santa Clara County Crime Lab Analyst Christopher Corpora to insert blank filler time in order to get the “video time” to match the “date/time stamp” in the videos as he did, see page 3 of Exhibit 37 and the actual recordings Exhibits 34, 35 and 36.  Additionally, analyst Corpora was not able to align the ASF files based upon the display further corroborating the fact that there are unaccounted discrepancies in the actual elapsed time, see page 3 of Exhibit 37.

36.  Furthermore, Temores’ taser guns’ data port and taser camera deployment and activation report documents the fact that Temores’ taser camera recorded only ONE continuous recording of 33 seconds in length during the March 15, 2008 incident at approximately 10:15 in the morning, see Exhibit 42 and page 2 of Exhibit 23.  Burger’s taser guns’ data port and taser camera deployment and activation report documents the fact that Burger’s taser camera recorded only ONE continuous recording of 37 seconds in length during the March 15, 2008 incident at approximately 10:04 in the morning, see Exhibit 42 and page 2 of Exhibit 22.

37.  If Temores had turned his taser camera on and off three separate times as claimed by the Defendants and their experts then Temores’ taser gun data port and taser camera deployment and activation report would have documented three separate recordings during the 10:05 am March 15, 2008 incident, see page 3 of Exhibit 40 and Exhibt 42.  If Burger had turned his taser camera on and off three separate times as claimed by the Defendants and their experts then Burger’s taser gun data port and taser camera deployment and activation report would have documented three separate recordings during the 10:15am March 15, 2008 incident, see page 2 of Exhibit 40 and Exhibit 42.  If Defendants Temores and Burger had turned their taser cameras on and off three separate times then Santa Clara County Crime Lab Analyst John Bourke would have documented three separate recordings and not the one recording he documented, see pages 2 and 3 of Exhibit 41 and page 2 of Exhibit 26.

38.  Defendant Temores’ taser gun’s deployment and activation report states that he discharged electricity for five seconds, however his taser camera recording only records Temores discharging electricity for two seconds.  Temores’ taser recording is missing a minimum of 3 seconds of audio/video footage of Temores discharging electricity, see Exhibit 43.

39.  A taser camera records all discharges of electricity from a taser gun.  Defendant Burger’s taser camera video fails to record the last second of his discharge of electricity from his taser gun, thus, a portion of the audio/video footage of  Burger discharging electricity is missing from Burger’s taser video, see page 2 of Exhibit 44.

40.  Electricity is seen running through Defendant Burger’s taser gun’s wire 8 to 10 seconds after his taser gun’s deployment and activation report states that his taser gun stopped discharging electricity during the March 15, 2008 incident, see pages 3 through 5 of Exhibit 44.

41.  Defendant Temores testified under penalty of perjury during my Preliminary Examination that he discharged electricity two separate times, see page 3 of Exhibit 45.   Defendant Temores’ taser recording captures him discharging electricity only one time for approximately two seconds and Temores’ taser gun’s activation report states that he discharged electricity one time for five seconds, see Exhibits 20 and 23.

According to Temores’ testimony, his taser recording and taser gun activation report are missing one recording of a discharge of electricity.

42.  Defendant Temores testified under penalty of perjury during my Preliminary Examination that he discharged electricity three separate times, see page 4 of Exhibit 45. Defendant Temores’ taser recording captures him discharging electricity only one time for approximately two seconds and Temores’ taser gun’s activation report states that he discharged electricity one time for five seconds, see Exhibits 20 and 23.  According to Temores’ testimony, his taser recording and taser gun activation report are missing two recordings of discharges of electricity.

43.  Defendant Temores testified under penalty of perjury during my Preliminary Examination as well as in his statement in the Police Report that he turned his taser gun and taser camera on as documented by the red laser dot on my chest and recorded me stating that I wasn’t going to exit the van while I was in the back of the van, see pages 5 and 6 of Exhibit 45.  Temores’ taser recording does not record me in the back of the van stating that I am not going to exit the van, see Exhibit 20.  Temores’ taser recording is missing audio and video footage according to Temores.

44.  Defendant Burger testified under penalty of perjury during my Preliminary Examination that he drew his taser gun two separate times during the March 15, 2008 incident prior to firing, discharging electricity for the first and only time, see pages 8 and 9 of Exhibit 45.

Defendant Burger’s taser recording records continuously from the moment he draws his taser gun the first time up to and beyond when he first fires his taser gun and discharges electricity from his taser gun Exhibit 21 and page 11 of Exhibit 45.  Defendant Burger knowingly made a false statement

45.  According to Santa Clara County Crime Lab Analyst John Bourke, the frames of video from the taser recordings are improperly indexed, see page 3 of Exhibit 26.  Improperly indexed essentially means that the frames are not in chronological order.  At the 10:04:49 mark of Defendant Burger’s taser recording, Burger’s electrically charged taser wire is visible 3 seconds prior to Burger firing his taser gun at the 10:04:52 mark, thus Burger’s taser recording is not in chronological order, see Exhibit 21 and page 12 of Exhibit 45.

46.  A portion of my motion is to have the Defendants recovery the deleted and or purged video files from the recording devices.  The process of recovery the deleted, purged and or overwritten video files from the taser cameras exists and is not very expensive, see pages 2 and 3 of Exhibit 54.

47.  Santa Clara County Crime Lab Analyst Mario Soto compared the hash values of the taser recordings from the compact disks and the hard drive which the recordings were downloaded into.  According to Soto, hash values are commonly used to check the integrity of files.  When files have different hash values, the contents of the files are different.  Soto concluded that the hash values of the taser recordings on the compact disk were different than the hash values of the taser recordings on the hard drive, see pages 5 and 6 of Exhibit 37.

48.  Defendants claim that only one taser gun fired probes.  Defendant Burger’s taser recording depicts him firing his taser gun one time.  Defendant Temores’ recording does not depict him firing his taser gun and only depicts him using his taser gun in the drive-stun mode one time.  Defendant Burger admits that two taser guns fired probes at approximately the 10:19:00 mark of his MAV recording Exhibit 49 and lines 21 and 22 of page 10 of his MAV transcript Exhibit 50, see page 3 of Exhibit 47.  Defendant Burger further corroborates this by confirming with the medics at the scene that 4 taser probes were fired from two firings see pages 4 and 5 of Exhibit 47, pages 12 and 13 of Exhibit 50 and approximately the 10:27:00 mark to the 10:29:00 mark of Burger’s MAV recording Exhibit 49.

49.  Defendants claim that Defendant Temores’ taser cartridge broke during the March 15, 2008 incident and therefore threw his taser cartridge away as documented in Defendant Burns’ Response To Request For Production No. 36 of Set 2.  Defendant threw Defendant Temores’ taser cartridge away without documenting his taser cartridge into evidence in violation of the Palo Police Department’s Policy on Property Procedures 610, see page 9 and 10 of Exhibit 47.

50.  As confirmed by Defendant Burger, two taser firings occurred discharging four taser probes during the March 15, 2008 incident.  There is only audio/video footage of one taser gun firing two probes from the recordings.  Conclusion, a second firing of a taser gun discharging 2 probes has been removed from one and or both taser camera recordings and both MAV recordings.

51.  Burger testified under oath during my Preliminary Examination that he fired his taser gun at me while I was standing against the fence facing him.  That imagery is not captured on Burger’s taser recording; see pages 9 and 10 of Exhibit 45 and Exhibit 21.  Defendant Burger admits that I was bleeding from my back side, see page 6 of Exhibit 47, line 25 of page 9 of Burger’s MAV transcript Exhibit 50 and approximately the 10:16:00 mark to the 10:17:00 mark of Burger’s MAV recording Exhibit 49.   I had a puncture wound to my left forearm and another puncture wound to my buttocks, see pages 6, 7 and 8 of Exhibit 47.  It would be impossible to obtain a puncture wound to my buttocks if Burger fired his taser gun at me while I am facing him, thus, there had to have been a second firing of taser probes which is not recorded on any of the recording devices.

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SECTION 2 MAV:

52.  A MAV device is a Mobile Audio Video System in which the camera is located in a police officer’s patrol car and the microphone is located on the body of the police officer.  The MAV is used to record the interactions between officers and the public.

53.  Defendant Burger’s MAV recording is missing the dialog “you’re not making it easy and “Oh God,” see pages 2 and 3 of Exhibit 48, Exhibit 21 and Exhibit 49.  Defendant Burger is heard stating two words simultaneously on his taser recording and MAV recording indicating that dialog was added to the recording sometime after the recording was initially created, see pages 4 and 5 of Exhibit 48 and Exhibits 20, 49 and 50.

54.  On approximately April 24, 2008 I was provided Defendant Temores’ MAV recording of the March 15, 2008 incident, which did not contain any audio just video from the Santa Clara County District Attorney’s Office.  I found out in January of 2009 that the “date of modification” on the files of Temores’ MAV recording which indicates the date that the video was last edited stated that the recording was edited on March 18, 2008 three days after the recording was created on March 15, 2008.

55.  On approximately February 11, 2010 I was provided a duplicate of Defendant Temores’ MAV recording of the March 15, 2008 incident from the Defendants as a result of a Discovery request.  This recording had a “date of last modification” of October 12, 2009 on the electronic files that make up recording.  The amount of memory contained within the files of the two different copies of Temores’ MAV recording is different.  This discrepancy of different “dates of last modification” and different amounts of memory that make up the electronic files indicates that one or both recordings have been edited in some fashion, see pages 2 through 5 of Exhibit 51.

56.  I requested Defendant Temores’ MAV video containing the “date of last modification” of March 15, 2008 once again in a June 9, 2010 Discovery request from Defendant Burns.  After providing Defendant Burns two extensions to the Discovery deadline, Defendant Burns responded in his discovery request that he included Defendant Temores’ MAV recording containing the “date of last modification” of March 15, 2008, see page 2 of Exhibit 52.  Upon inspection of the MAV recording provided by Defendant Burns I discovered that the recording would not play.

Further inspection revealed that the DVD that Defendant Burns provided did not contain enough memory or files to operate correctly as compared to the MAV recording that has a “date of last modification” of October 12, 2008.  In addition I discovered that the DVD that Defendant Burns had sent contained a  “date of last modification” of September 3, 2010 the date that the DVD was mailed along with the other Discovery responses, see pages 2 and 3 of Exhibit.

I cannot prove that Defendant Burns did not send Defendant Temores’ MAV recording containing the “date of last modification” of March 15, 2008 as it is not possible to prove a negative and there is no mechanism in place to document the transfer of Discovery as being that what is claimed any party.

With that said I inquired of Defendant Burns’ attorney, Steven Sherman, as to whose handwriting was on the DVDs that were sent to me by sending him an email on September 10, 2010.  Cathy Sherman, Steven Sherman’s assistant, replied by stating that it was her handwriting on the DVD that indicates that the DVD contains Defendant Temores’ MAV recording with a “date of last modification” of March 15, 2008.

I in turn informed Mr. Sherman and his assistant Cathy that the DVD they sent me was not what was claimed, that the DVD did not contain Temores’ MAV recording and did not contain the March 15, 2008  “dates of last modification” on the electronic files.  I asked Mr. Sherman if he would be sending me Temores’ MAV recording containing a “date of last modification” of March 15, 2008, however Mr. Sherman has not responded to me, see pages 4 through 7 of Exhibit 52.  Knowing that I cannot prove a negative,  I do not include the DVD in question, but I will bring it to the Hearing on this Motion in order for the Court to inspect the DVD in question.

57.  Plaintiff requested that Defendants produce the “real time” radio communication’s calls between the officers and the dispatchers during the March 15, 2008 incident.  Defendant City of Palo Alto responded in its DEFENDANT CITY OF PALO ALTO’S RESPONSE TO PLAINTIFF’S DEMAND FOR PRODUCTION OF DOCUMENTS, SET ONE: RESPONSE TO REQUEST FOR PRODUCTION NO.47  by claiming that it had provided the “real time” communication’s calls between the officers, however upon review and inspection of the recording, it is clear that Defendants did not provide the “real time” communications call’s between the officers and dispatchers involved in the March 15, 2008 incident, see pages 2 through 7 of Exhibit 53.

58.  Defendant Temores stated in his police report that the March 15, 2008 call was about a man looking at a woman and her young daughters in a strange way.  Defendant Temores solidifies his assertion that the call was about a man looking at a woman and daughter by testifying under penalty of perjury during my Preliminary Examination that the radio dispatcher told him over the radio that the call was about man, see pages 8 through 12, 14 and 15 of Exhibit 53.  First, the radio dispatcher never states over the radio that the call was about a man looking at a woman and daughters, or anyone for that matter.

Two, the reporting party, Mr. Alsman, never states to the dispatcher during his call for service that the man, Ciampi, was watching  his wife and daughters, but actually states that neither  one was home at the time, his wife away on vacation and his daughter away at school, see Exhibit 55.

Three, Mr. Alsman’s official statement in the police report is that I make his wife and daughter’s uncomfortable because they do not know what I am doing completely contradicting everything that Defendant Temores states in the police report and during my Preliminary Examination, see page 8 of Exhibit 53.  Lastly, Defendant Temores testified that I was looking at a woman and daughter from inside the van, see page 12 of Exhibit 53.  Yet, Defendant Temores also testified that you could not see into the van, see page 13 of Exhibit 53.

59.  Defendants Johnson and Burns asserted in the City of Palo Alto’s TASER UPDATE AND SECOND QUARTERLY REPORT that call for service on March 15, 2008 was about a subject who “leered at his wife and young children,” see pages 16 through 19 of Exhibit

53. Judge Thang Barrett who presided over my criminal case ruled on December 17, 2008 during my Preliminary Examination that the complaint was not about a subject, me, who was looking at a woman and daughter, see page 20 of Exhibit 53.  Furthermore, Judge Barrett also determined that Defendants Wagner accused me not of looking at a woman and daughter but of sleeping in a vehicle in violation of a local municipal code and that Defendants Wagner and Temores were threatening to tow my vehicle for violating that ordinance.

Judge Barrett determined that no such sleeping ordinance existed and determined and ruled that Defendants accused me of violating a non-existent ordinance and acted as if they were going to tow my vehicle for violating that non-existent ordinance in order to violate my rights not engage in a consensual contact and therefore violated the law by detaining me for violating a non-existent ordinance, see pages 20 through 24 of Exhibit 53.

60.  Defendants Johnson and Burns also assert in the City of Palo Alto’s TASER UPDATE AND SECOND QUARTERLY REPORT that only one taser gun was used one time, see pages 16 through 29 of Exhibit 53.  This assertion made in an official City report by Defendants Johnson and Burns is contradicted by the taser camera recordings and the taser guns’ and taser cameras’ deployment and activation reports, see Exhibits 20 through 23.

61.  Interestingly, Defendant Johnson states in an email that two taser guns were used on the very same day that her report was submitted to the City council which states that only one taser gun was used.  Defendant Johnson goes on even further to state that the probes missed me and were ineffective.  Defendant Johnson’s assertion is supported by Defendant Power’s, “Use of Force Report,” in which Powers also claims that the probes missed and were ineffective, see pages 2 and 3 of Exhibit 59.

The problem with Defendants Johnson Power’s assertion is Defendant Burger’s taser recording depicts me being shocked with electricity from a taser probe that lodged into my arm which the Defendants clearly attempted to edit out of Burger’s taser recording, see pages 4 of Exhibit 59 and Exhibit 47.

62.  In an attempt to justify their detainment of me, Defendants Temores’, Wagner’s and Burger’s falsely accused me of being under the influence of drugs.  Their main articulable fact was the size of my pupils.  Defendants Temores and Burger stood approximately 3 and 4 feet away from me for over 40 continuous seconds during which time Temores concluded and stated in his statement in the police report that my pupils were dilated while Defendant Burger concluded and stated in his statement in the police report that my eyes were constricted.

Defendants Temores and Burger contradict each other in the police report regarding the size of my pupils.  Defendant Burger would later change his assumption to that my eyes were dilated while giving testimony during my Preliminary Examination contradicting his statement in the police report.  During my Preliminary Examination Palo Alto Paramedic Eric Heller who along with other Paramedics evaluated my pupil size 12 minutes after Defendants Temores and Burger did and concluded that my pupils were normal and reacted well to light according to his testimony.

Paramedic Heller would also determine that I was not under the influence drugs or alcohol while evaluating me at the scene of the March 15, 2008 incident, pages 2 through 5 of Exhibit 56.  Additionally, the toxicology results from the blood sample taken on March 15, 2008 came back negative on both alcohol and drugs, see page 6 of Exhibit 56.

63.  The reason why this is brought up is because the Defendants significantly edited and altered the audio dialog of Burger’s MAV recording through out the recording but most specifically the first two minutes of the recording when they falsely claimed that I was under the influence of drugs.

64.  First it should be pointed out that Defendant Temores’ MAV recording did not have any audio because he claims the battery which powers the microphone on his person ran out of power during his testimony during my Preliminary Examination.  However, according to the specifications of the City of Palo Alto’s MAV systems, the battery for the microphone should be able to power the microphone for a minimum of 8 continuous hours, pages 7 through 11 of Exhibit 56.

It is reasonable to conclude that the battery to Defendant Temores’ MAV microphone did not run out of power as he claims and testified to, which would mean that the Audio from his MAV recording was intentionally removed to conceal the dialog that Temores, Wagner and I had prior to me exiting the van the first time as well as the information about the altercation that I was explaining to the Paramedics.

65.  Defendant Burger’s audio begins recording when he exits his patrol car as you can hear the dialog between Defendants Temores, Wagner and myself from a distance on Burger’s MAV recording, see Exhibit 49.  Defendant Wagner states in the police report that she asked for my identification and that I replied by stating I did not have to give it because I wasn’t doing anything wrong after Defendant Burger arrived, see page 12 of Exhibit 56.  Defendant Burger should have recorded this dialog on his MAV recording but it is not there, see Exhibit 49 and pages 2 and 3 of Exhibit 50.  The dialog “stop, stop hassling us,” is heard within the first minute on Burger’s MAV recording.  That sentence does not make sense at all.  Whose, doing the hassling?

66.  When Defendant Temores falsely accused me of being a heroin addict, as heard on Burger’s MAV recording, Exhibit 49 and page 2 of Exhibit 50, he pointed to the sores on my arms.  I did not respond by stating, “bull shit” as heard on Burger’s MAV audio.  I turned my arms over to show Temores my veins and stated, “drug users don’t shoot into the tops of their arms they shoot into their veins dumb fuck.”

Now I was highly offended at his false accusation, as I have been suffering from a skin condition for years trying everything to cure the problem with no success, see pages 2 through 28 of Exhibit 60.  For Temores to assume that he could make a diagnosis of my health problem within a minute of looking at me was extremely disrespectful and offensive given the suffering I have endured for several years.

67.  In addition, when Temores asked me whether I was on probation or parole, I did not reply by stating “fuck you” as heard on Burger’s MAV recording, Exhibit 49 and page 2 of Exhibit 50, I responded by stating “no,” because I was not on probation or parole.  I could cover several pages in pointing out editing flaws in Defendant Burger’s MAV audio like the flaws on page 15 of Exhibit 50 lines 1 through 10 there are four sentences of dialog that are cut off in mid sentence and then the dialog picks up again at the beginning of a new sentence.

68.  I have to imagine and I actually hope that the Defendants will submit Defendant Temores’ MAV recording as a part of their opposition response to this motion for then Defendant Temores’ MAV recording will be secure from any further editing by locking in place the “date of last modification,” and the amount of memory used by the files.

I will then be given the opportunity to go over their submitted recording and able to reveal the editing flaws on the recording that the Defendants have submitted to the court for there will no longer exist any opportunity for the Defendants to correct the flaws between now and when the trial begins.  With that said I can provide of few examples of the editing flaws of Temores MAV recording for the Courts benefit should the Defendants decide to submit Temores’ MAV recording.

69.  Defendant Wagner states in her statement in the police report that I ended up on the ground two separate times getting up off the ground in between during the March 15, 2008 incident.  Defendant Temores testified during my Preliminary Examination that I ended up on the ground two separate times getting up off the ground in between during the March 15, 2008 incident, see pages 2 through 4 of Exhibit 57.

The fact is, I am not seen going down to the ground two separate times and getting up off the ground in between on Defendant Temores’ MAV recording, hence the video footage of me getting up off the ground and going down to the ground a second time is missing from Temores’ MAV recording.

70.  Furthermore, Defendant Wagner states in her statement in the police report that all three officers fell to the ground prior to any taser gun being fired and that Defendant Burger fired his taser gun while I was on the ground and Defendant Temores fired his taser  gun while  I was standing, see page 4 of Exhibit 57.  Not one of the audio/video recordings depicts what Defendant Wagner stated in the police report that she saw.

71.  There are two frames of video from Defendant Temores’ taser camera recording which capture footage that is not seen on Defendant Temores’ MAV recording, see page 2 of Exhibit 58.  There is one frame of video footage from Defendant Burger’s taser camera recording which captures footage from an angle which would place Defendant Burger at a specific location in Defendant Temores’ MAV recording, yet Defendant Burger is never seen at that location in Defendant Temores’ MAV recording, thus, there is video footage missing from Defendant Temores’ MAV recording, see pages 3 and 4 of Exhibit 58.

72.  I respectfully request that the Court issue an Order requiring Defendants and Defendant Burns to produce and provide the missing video footage from Defendants Burger’s and Temores’ taser camera recordings on the original MPEG4 file format.

73.  I respectfully request that the Court issue an Order requiring Defendants and Defendant Burns to produce and provide Defendant Temores’ MAV recording containing the “date of last modification” of March 15, 2008.

74.  I respectfully request that the Court issue an Order requiring Defendants and Defendant Burns produce and provide a copy of the version of Defendant Temores’ MAV recording that Defendants intend to submit to the Court by identifying the “date of last modification,” the number of files that make up the recording and the amount of memory contained within the files.

75.  I respectfully request that the Court order Defendants and Defendant Burns to allow Plaintiff to make “live” sample recordings of the taser guns’ Data Ports, taser cameras and MAV systems.

CERTIFICATION OF CONFERRING IN GOOD FAITH

76.  I Joseph Ciampi certify that I attempted to meet and confer with Defendants in good faith to resolve the dispute regarding the Discovery listed in Plaintiff’s Motion for Order to Compel Defendants and Defendnat Burns to Produce and Provide Discovery.

77.  On July 12, 2010 I, Plaintiff Joseph Ciampi, met and conferred with Defendants attorney Stephen Sherman regarding the Discovery disputes.

On July 16, 2010 I, Plaintiff Joseph Ciampi informed Defendants’ attorney Stephen Sherman that there were problems with the Discovery and would need to file a Motion to Compel in order to obtain the Discovery sought.  I asked Mr. Sherman to meet and confer regarding these problems.

78.  On July 16, 2010 I, Plaintiff Joseph Ciampi, informed Defendants’ attorney Stephen Sherman that I had not been provided the Discovery sought, specifically the taser guns’ activation data as well as a duplicate of Temores’ MAV recording.  I, Plaintiff Joseph Ciampi, also informed Mr. Sherman that Defendant Burns’ assertion that one of Defendant Burger’s taser cameras did not exist was false as the Santa Clara County Crime Lab documented the existence of the taser camera.

79.  On August 4, 2010 I, Plaintiff Joseph Ciampi, met and conferred with Defendants attorney Stephen Sherman regarding the Discover disputes.  Mr. Sherman assured me that he would provide the Discovery by September 3, 2010.

80.  On August 20, 2010 I, Plaintiff Joseph Ciampi, informed Defendants’ attorney Stephen Sherman that I would have to file a Motion to Compel if Defendants did not produce the Discovery.

81.  On August 23, 2010, Cathy Sherman, Mr. Sherman’s assistant provided duplicate copies of the taser guns’ and taser cameras deployment and activation data print outs.

82.  On August 23, 2010 I informed Mr. Sherman that the taser gun and taser camera activation data printouts he and the Defendants provided were not the Discovery I requested.  In addition, I informed Mr Sherman that I would need to file a motion to compel as I had repeatedly attempted to work this out with Mr. Sherman providing Mr. Sherman with copious amounts of evidence and materials specifying the problems with the Discovery he and the Defendants were providing as well as the Discovery that he and the Defendants were not providing.

83.  In compliance with the Courts standing orders, I requested that Mr. Sherman provide dates for a Motion to Compel Hearing that were compatible with his schedule in order not to cause him and the Defendants any undue prejudice.

84.  On August 24, 2010 I provided Mr. Sherman more materials outlining the problems with the Discovery that the Defendants provided pointing out that the Defendants were not providing the Discovery sought including the missing video footage from Defendants Temores’ and Burger’s taser videos.

85.  In reply to my August 23 and 24, 2010 email communications Cathy Sherman, Mr. Sherman’s assistant, contacted me, Plaintiff Joseph Ciampi, and stated that October 19 or 26, 2010 work best for Mr. Sherman to conduct a hearing regarding the Motions to Compel.  In addition, Mrs. Sherman stated that I, Plaintiff Joseph Ciampi, will more than likely have issues with the Defendants’ responses.  Mrs. Sherman requested that I, Plaintiff Joseph Ciampi hold off on filing the Motion to Compel until I had received the outstanding Discovery.

I informed Mrs. Sherman that I would hold off on filing the Motion to Compel until after I had received the outstanding Discovery.  Mrs. Sherman also stated to me that Motions to Compel are joint filings according to federal rules.  I asked Mrs. Sherman to direct me to the federal rules of which she was referring to, as I could not find that rule anywhere, however she refused to respond to my inquiry.

86.  On August 31, 2010 I, Plaintiff Joseph Ciampi once again attempted to set up a meet and confer with Mr. Sherman regarding the viewing of the taser gun Data Ports however Mr. Sherman refused to respond by informing me that the outstanding discovery would allow me to view the data retained on the taser gun Data Ports directly.

87.  On September 3, 2010 Cathy Sherman, Mr. Sherman’s assistant informed me, Plaintiff Joseph Ciampi, that she mailed the outstanding Discovery on September 3, 2010 even though the Discovery was due on September 3, 2010.

88.  On September 4, 2010 I, Plaintiff Joseph Ciampi, informed the Defendants’ Attorney, Mr. Sherman, that there was very little time to waste as the Discovery cutoff was November 5, 2010 and took his response through his assistant Mrs. Sherman, as a no especially since Mr. Sherman had already agreed to a Motion to Compel hearing dates of October 19 and 26, 2010 regarding all of the other Discovery that Mr. Sherman and the Defendants have been denying me, Plaintiff Joseph Ciampi.

89.  On September 8, 2010 I, Plaintiff Joseph Ciampi, received a significant portion of Discovery sought by Defendants.  Among this Discovery was permission to inspect much of the technical data and devices at the police station.  In addition, Defendant Burns provided three DVD’s titled as “MAV March 15, 2008 Date of Last Modification.”  Ostensibly these DVD’s were to be original duplicates of the MAV recordings, however upon inspection, the DVD’s contained Dates of Last Modification of September 3, 2010 and did not contain the MAV recordings.

90.  As of September 20, 2010 Defendants have not provided a duplicate copy of Defendant Temores’ original MAV recording containing a date of last modification of March 15, 2008, the date that the video was originally created.  Furthermore, Defendant Burns and other Defendants continue to refuse to provide the complete unadulterated taser videos containing the missing video footage or the taser gun and taser camera activation data retained on the PDF file format.

REPLY BRIEF IN SUPPORT OF PLAINTIFF’S MOTION

FOR ORDER TO COMPEL DEFENDANTS AND DEFENDANT BURNS

TO PRODUCE AND PROVIDE DISCOVERY

TO EACH PARTY AND THEIR COUNSEL OF RECORD:

Plaintiff filed a Motion to Compel Defendants and Defendant Burns to produce Discovery on September 20, 2010 requesting that the Court issue an Order requiring Defendants produce and provide Plaintiff with the Discovery sought.

The Discovery consists of: providing Plaintiff the missing audio/video footage from Defendants Temores’ and Burger’s taser recordings by utilizing an electronic audio/video recovery program and or specialist; permitting Plaintiff to make sample recordings and copies of the taser cameras recordings; providing Plaintiff with a copy of Defendant Temores’ MAV recording containing a date of last modification within the electronic files of March 15, 2008, the date of the incident and the date which the recording was created; providing Plaintiff with a copy of Defendant Temores’ MAV recording that Defendants intend to submit to the Court for proceedings and the trial by identifying the recording by the recording’s date of last modification, the number of electronic files that make up the recording and the amount of memory contained on the electronic files that make up the recording and to permit Plaintiff to make sample MAV recordings and copies.

Plaintiff has proven that audio/video footage is missing from the taser recordings and therefore Defendants have not provided all of the audio/video footage to Plaintiff.  Defendants have not refuted any of the facts presented by Plaintiff that verifies that audio/video footage is missing from the taser recordings.

Plaintiff has shown good cause to corroborate Plaintiff’s evidence with sample recordings from the taser cameras in order to empirically and scientifically establish that the taser recordings and taser guns’ deployment and activation reports have been edited, tampered with and falsified.  Plaintiff has proven that the original taser recordings are recorded on to MPEG4 electronic files and that Defendants are capable of providing a copy of the original taser recordings on the MPEG4 electronic files but have chosen not to.  Plaintiff has demonstrated and can demonstrate that Defendants are able to provide Plaintiff with a copy of  Defendant Temores’ MAV recording containing the date of last modification of March 15, 2008, the date that the recording was created, yet Defendants choose not to provide Plaintiff with such a copy.

Plaintiff has shown good cause to require that Defendants provide a copy of Defendant Temores’ MAV recording that Defendants intend to use during the trial so that Defendants will be denied the opportunity to edit the recording between the present date and the trial.  Plaintiff has shown good cause to permit Plaintiff to make sample MAV recordings and copies in order to empirically and scientifically corroborate Plaintiff’s evidence that the date of last modification does not change from one copy to the next as falsely claimed by Defendants.

As stated in Plaintiff’s Motion to Compel, on June 9, 2010 Plaintiff requested that Defendant Burns produce and provide through the Discovery process the unedited and complete taser recordings contained on the original MPEG4 electronic files from taser cameras V07-065373, V06-015542, and V06-015530 as well as Defendant Temores’ MAV recording containing the original date of last modification of the date of the incident, the date that the recording was created, March 15, 2008.

Plaintiff met and conferred with Defendants’ attorney twice, on July 12, 2010 and August 4, 2010 in order to resolve the dispute over the Discovery requests.  On September 3, 2010 Defendant Burns once again sent copies of the edited taser recordings which were missing audio/video footage and were not on the original MPEG4 files as requested in Plaintiff’s Discovery request, (Plt. Mtn. To Comp. 3:21-10:23).  On September 3, 2010 Defendant Burns once again sent a copy of Defendant Temores’ MAV recording that was not a copy of the date of the incident, the date the recording was created, March 15, 2008, verified by the “date of last modification” contained on the recording’s electronic files.

After repeated denials of the Discovery and requests for over eight months from Defendants initial response to Discovery on February 11, 2010 and over three months from Plaintiff’s follow up Discovery requests of June 9, 2010 did Plaintiff finally file a Motion to Compel Defendants to produce the Discovery requested.

Further more, Defendants have not identified the copy of recordings that they intend on submitting to the Court as evidence during the trial, thus Plaintiff does not know whether the copies provided to him would actually be the copies used during the trial by Defendants.  Therefore, Plaintiff also requested as a part of his Motion to Compel Discovery that Defendants identify the recordings by their date of last modification and the amount of memory contained on the electronic files that make up those recordings to ensure that the copies provided to Plaintiff will in fact be the copies that they intend to use during the trial.

Plaintiff acknowledges that he did not request permission to create sample recordings and copies through the official Discovery process, however Plaintiff did contact Defendants’ attorney prior to submitting his Motion to Compel Discovery requesting permission to make sample recordings and copies to which Defendants’ attorney refused to respond to Plaintiff’s request.  Subsequently, Defendants have made it clear in their Opposition to Plaintiff’s Motion to Compel Discovery that had Plaintiff submitted an official Discovery request Defendants would have denied Plaintiff’s request to make sample copies, (Def. Opp. To Plt. Mot. To Comp. Disc. 5:1-6:14 & 8:1-9:5).

Plaintiff demonstrated good faith and effort in obtaining the Discovery of sample recordings prior to submitting his Motion to Compel and Defendants made it clear that they have denied Plaintiff’s request both of which should satisfy the rules of Discovery.

In Defendant Burns’ Response to Plaintiff’s request for Production of Documents, Set Two, Response to Request for Production No. 2, Defendant Burns states that no officer was assigned taser camera V06-015542 citing that taser camera V06-015542 was not listed anywhere is the inventory of the Police Department as documented in the Taser Download Report for 2008.

Defendant Burns continues by asserting that Defendant Burger was issued taser camera V07-065373  and used taser camera V07-065373 to record the March 15, 2008 incident and that this camera was this taser camera that Defendant Burns took into his possession and turned over the Santa Clara County Crime Lab.

Defendant Burns then states that actually taser camera V06-015542 was the taser camera used by Defendant Burger to record the March 15, 2008 incident even though it was not listed anywhere in the inventory of the Taser Download Report for 2008.  Initially, Defendant Burns stated that someone wrote down the wrong taser camera serial number, V06-015542, giving rise to the discrepancy, however Defendant Burns does not explain how or why taser camera V07-065373 is documented in the Taser Download Report for 2008 as being the taser camera issued to Defendant Burger and used to record the March 15, 2008 incident, (Plt. Mot. To Comp. Disc. 5:1-6:14, Exhibits 27 and 29).

On March 15, 2008 Defendants Burger and Temores turned their taser cameras on and recorded audio/video footage onto their taser cameras while in the presence of Plaintiff and then provided Plaintiff with copies of that audio/video footage.  It was not a burden for Defendants Burger and Temores to record audio/video footage onto their taser cameras in the presence of Plaintiff on March 15, 2008 and then provide Plaintiff a copy of those recordings and therefore should not be a burden to turn their cameras on and make another recording with their taser cameras in the presence of Plaintiff.

Defendants claim the Defendants Burger and Temores turned their taser cameras on and off which caused the jumps in time.  Plaintiff disputes this assertion.  By recreating the act of making a taser camera recording by turning the camera on and off Plaintiff will be able to empirically prove that Defendants did not turn their taser cameras on and off as they have asserted.

As such, the technical devices themselves which were used at the scene of the March 15, 2008 incident, the taser guns’ data ports and taser cameras, and how they operate are relevant Discovery and evidence, for the very operation of these devices is in dispute.  There is no Federal Rule of Civil Procedure or case law that excludes the inspection of the operation of devices that are used to record and store electronic information.

If Defendants desire to refute Plaintiff’s evidence cited in Plaintiff’s Motion to Compel Discovery, Defendants could bring a taser camera to the October 26, 2010 hearing regarding this Motion and make sample recordings for the Court and show the Court the evidence directly.  See Exhibits 30, 30-8 and 32 from Plaintiff’s Motion to Compel).

Defendants choose not to provide the Plaintiff and the Court with sample recordings because Defendants know that the evidence will corroborate Plaintiff’s evidence and empirically substantiate that audio/video footage is missing from the taser recordings.

Defendants’ attorney, Steven Sherman, states that when a copy is made of a MAV recording onto a DVD the date of last modification of the recording’s electronic files changes to the date that the copy is made, (Def. Opp. To Plt. Mot. to Comp. Disc. 6:25-7:7).  If this assertion by Defendants’ attorney were true, why did Defendant Burns assert in his Amended Response for Production No. 1 of Plaintiff’s Request for Production of Documents and Other Evidence to Defendant Burns Set 2 that he sent Plaintiff a copy of Defendant Temores’ MAV recording containing the date of last modification of March 15, 2008, (Plt. Mot. to Comp. Disc. 10:23-11:8 & Exhibit 52)?

If Defendants and Defendants’ attorney, Steven Sherman’s assertion that the date of last modification changes to the date that the copy was made were true, Defendant Burns and Defendants’ attorney Steven Sherman would not have pretended to have sent Plaintiff a copy Defendant Temores’ MAV recording containing the date of last modification of the date of the incident, March 15, 2008 when the copy in fact did not have the date of last modification of the date of the incident.

Further more, Defendants’ attorney, Steven Sherman, mailed the copy of Defendant Temores’ MAV recording containing the date/time of last modification of September 3, 2010 10:42 PM from Santa Ana, California at approximately 1pm to Plaintiff approximately 388 miles away in Palo Alto, California on September 3, 2010.

Mr. Sherman infers that this copy of Temores’ MAV recording was made from the MAV server, the computer that maintains the original recordings, located in the Palo Alto Police Department in Palo Alto, California which is why it contained the date of last modification of September 3, 2010, the date that the copy was made and not the original date of March 15, 2008.

Given the information provided by Mr. Sherman, the Defendants’ attorney, it would be physically impossible for Defendant Burns and personnel within the Palo Alto Police Department to make of copy of Defendant Temores’ MAV recording from the MAV server located in Palo Alto at 10:42 PM on September 3, 2010 and send that copy to Santa Ana, California in time for Mr. Sherman to mail the copy of Defendant Temores MAV recording to Plaintiff at approximately 1:00 PM on September 3, 2010, (Def. Opp. To Plt. Mot. To Comp. Disc. 6:25-7:7, Exhibits 52 & 100).

As can be clearly seen from the discrepancy between the date/time of the copy of Temores’ MAV recording that was mailed and the date/time that Temores’ MAV recording was created from the MAV server it is impossible for the date time on the recording to be the actual time that the recording was created as the time of 10:42 PM is 9 hours and 42 minutes after the recording was mailed 388 miles away from where the recording was mailed.

Based upon this evidence it appears that Defendant Burns, Defendants and Defendants’ attorney have actually manipulated the date/time stamp contained on Temores’ MAV recording in order to mislead the Plaintiff and the Court.  California Penal Codes 132, 134 and 141B prohibits the alteration, falsification and submission of falsified information into any legal inquiry, proceeding or trial.

Steven Sherman’s, Defendants’ Attorney’s, assertion that the date of last modification of the MAV recording changes upon making a copy onto a DVD is false.

Additionally, Defendants’ attorney, Steven Sherman’s confusing explanation that the size of the files on the various copies of the MAV recordings changes is also false, (Def. Opp. To Plt. Mot. to Comp. Disc. 6:19-7:15).

Plaintiff exported the files from the copy of Defendant Temores’ MAV recording that was provided to Plaintiff on September 3, 2010 onto a computer and then exported the files onto several DVDs making several copies of Temores’ MAV recording separated by dates and time.

The date of last modification of the electronic files that make up Temores’ MAV recording remained the same regardless of the date or time separating the original recording from the copy that the electronic files are exported to, (See Exhibits 100 through 105).  The amount of memory that makes up the electronic files that create Temores’ MAV recording remained the same regardless of the date or time separating the original recording from the copy that the electronic files are exported to, (See Exhibits 100 through 105).

There is no explanation or justification why Defendants and Defendant Burns cannot provide Plaintiff with a copy of Defendant Temores’ MAV recording containing electronic files with the date of last modification as the same date of the incident and the same date that the recording was created on, March 15, 2008.

There is no explanation or justification why Defendants and Defendant Burns cannot identify Defendant Temores’ MAV recording by the “date of last modification” of the electronic files that make up the recording, the number of files that make up the recording and the amount of memory contained on the files that makes up Temores’ MAV recording as requested in Plaintiff’s [Proposed] Order Number 5.

Defendant Temores’ MAV recording provided to Plaintiff on September 3, 2010 by Defendant Burns is identified by Defendants’ attorney’s secretary, Cathy Sherman and Defendant’s attorney Steven Sherman as a legitimate copy of Defendant Temores’ MAV recording. (Def. Opp. To Plt. Mot. to Comp. Disc. 7:3- 7:7 and Exhibit 52).

Steven Sherman states that the data from exporting the files from the Original to the Copy provided to Plaintiff remains constant, (Def. Opp. To Plt. Mot. to Comp. Disc. 7:6- 7:7).  Steven Sherman states that each copy of Temores’ MAV recording has the same information, (Def. Opp. To Plt. Mot. to Comp. Disc. 7:16- 7:18).

Showing good cause and sufficient reasons to prevent Defendants from tampering with Defendant Temores’ MAV recording in the future Plaintiff moves to amend Plaintiff’s Motion and Proposed Order by including the following:

7.  In order to fulfill Plaintiff’s request and [PROPOSED] ORDER FOR PLAINTIFF’S MOTION FOR ORDER TO COMPEL DEFENDANTS AND DEFENDANT BURNS TO PRODUCE AND PROVIDE DISCOVERY NO. 5, Plaintiff requests that the Court Order Defendants and Defendant Burns to designate the copy of Defendant Temores’ MAV recording provided to Plaintiff on September 3, 2010 by Defendant Burns as a part of Defendant Burns’ response to Discovery, (Plt. Mot. To Comp. 10:23-11:8), as the official and only copy to be submitted in all future proceedings and the trial in this case, C 09 02655 LHK (PVT), identified by this copy’s date/time of last modification of “September 3, 2010 10:42 PM” and the number of electronic files “5” and the amount of memory contained on the files “52 KB” prior to November 5, 2010.

Palo Alto Police – The “Gang’s” all here!

PAPD Tatoo

When I asked this PAPD officer if he had ever been arrested he had that quizzical look upon his face.   I thought it was an appropriate question given the fact that many notorious “gang” members bare the marking of their trade.

When I questioned him further he said it was for “religious” reasons.  Okay, I can except that besides in reality it’s an expression of one’s First Amendment right.

Artistic expression comes to my mind.  Well I decided to do a little digging not far, I Googled like the most of us and found that the notorious “El Sereno gang” makes use of a similar marking.

I’m not sure of the appropriateness of displaying Tattoos only because of their gang related links or ties.

There’s something to be said about the proper attire of law enforcement officials given ones place in our community.  Does it send the wrong message?  Some would argue a resounding no!!

Well consider this.  Would we question or say anything if President Obama had the US Constitution tattooed on his chest as he uncovered it all during a national news conference?

I think there’s a time and place for tattoos.  But certain tattoos are just too close to gang related activities.

A Nazi lightning bolt on your neck or a swastika on your forehead for some, is a sure giveaway when picking someone out of a police line up.

Well I spotted this officer or gang member right off. And I think for anyone this would have been the logical choice.

I tried to interview Ray Bacchetti – HRC (City of Palo Alto Human Relations Committee) and police volunteer for comment.  He stated the following:

“Dear Mark:

I’ve changed my mind.  Don’t want to play gotcha.
Ray”

I recall years ago I complained about the conduct of a certain officer Dan Ryan to another officer and she responded by saying, well that maybe true, but I can’t speak out against the PAPD “Brotherhood”.

That being said, what do our surrounding policing agency’s have to say on the subject of Tattoos and police officers?  Just Google!

CITY OF EAST PALO ALTO RONALD L.DAVIS

POLICE DEPARTMENT CHIEF OF POLICE 141 Demeter Street (650) 853-3125

East Palo Alto, CA 94303 rdavis@cityofepa.org

_________________________________________________________________

Police Department to Publish Operating Policies Online

“No Visible Tattoo Policy First on Website”

July 27 – Effective August 1, 2007, the East Palo Alto Police Department will publish its operating policies online for public view and access.

By providing unfettered access to policies that govern officers’ actions, the Department will enhance its professionalism and be more open, accessible and accountable to the community.

“I believe this information will assist the community to better evaluate the Department, understand the legal actions of officers, and identify actions that are not in accordance with established policies”, according to Chief Davis.

The Department will start the program by posting a new policy that prohibits officers from visibly displaying tattoos and body art while in uniform. Future postings include a policy that governs the Department’s acceptance, processing and investigation of citizen complaints, and a policy that prohibits racial profiling and requires data collection for all stops made by officers.

The Department recently had all of its policies reviewed and updated by a legal expert. These policies are under final review by the Chief of Police and will be posted on the website after they have been finalized and published.

CITY OF EAST PALO ALTO POLICE DEPARTMENT POLICIES AND PROCEDURES

Chapter:

Subject: Tattoos and Body Art Prohibition for Employees Supersedes: Signature of Issuing Authority: Chief Ronald L. Davis Body Art and Tattoo Prohibition for Employees

It is the policy of the East Palo Alto Police Department that all uniformed employees and explorers maintain the highest standards of professional appearance when interacting with the public and representing the Department.

I. CORE VALUES

Maintaining a professional appearance is critically important to fostering public trust and confidence in law enforcement, and to exceeding the standards of the profession.

This order incorporates the Department’s core values of Service, Teamwork, Respect, Integrity, Vision, and Excellence (STRIVE).

II. GENERAL POLICY

A. All uniformed employees and explorers are prohibited from displaying any body art, tattoo(s), intentional scarring, mutilation, or dental ornamentation while on duty or representing the department in any official capacity.

B. Any currently employed uniformed employee and explorer with existing body art, tattoo(s), intentional scarring, or mutilation that is visible shall have the following options:

1. Uniformed employee shall cover existing body art, tattoo(s), intentional scarring, or mutilation by wearing the long-sleeve shirt and/or uniform pants/breeches.

2. Cover the existing body art, tattoo(s), intentional scarring, or mutilation with a skin tone patch or make-up.

3. Have the tattoo(s) or brand(s) removed at the employee’s expense.

C. Body art, tattoo(s), brand(s), intentional scarring, and/or mutilation that is not able to be covered or concealed is prohibited. This includes, but is not limited to; foreign

Policy Number: No. of Pages: 2 Effective Date: 1 Aug 07 Date Revised: N/A

objects inserted under the skin, pierced, split or forked tongue, and/or stretched out holes in the ears.

D. Uniformed employees and explorers shall not have any dental ornamentation. The use of gold, platinum, silver, or other veneer caps for the purposes of ornamentation are prohibited. Teeth, whether natural, capped, or veneered, shall not be ornamented with designs, jewels, initials, etc.

By order of Ronald L. Davis

Chief of Police

East Palo Alto Police Tattoo Policy

Up-date:  http://bit.ly/cIrSJX

EAST PALO ALTO / Chief draws plan to destroy gang / FBI among agencies joining fight to stem longtime problem

Davis is also seeking help from state parole officials. He wants restrictions on paroled gang members’ movements in the city, a requirement that paroled members have their gang-related tattoos removed, and mandatory community service for parolees. The question is, should police officers also have there “gang” related tats removed?