GILROY
– A 37-year-old Gilroy man who claims he was forced to use
pepper spray against Gilroy police officers in self-defense plead
no contest Friday to felony counts of battery of a peace officer
and resisting arrest, along with a new misdemeanor charge of being
under the influence of methamphetamine.
GILROY – A 37-year-old Gilroy man who claims he was forced to use pepper spray against Gilroy police officers in self-defense plead no contest Friday to felony counts of battery of a peace officer and resisting arrest, along with a new misdemeanor charge of being under the influence of methamphetamine.
The felony pleas had been expected as part of a deal between the public defender’s office and the district attorney, but the drug count, which was added as a last-minute charge by the prosecution, raised some eyebrows.
“We added the charge because we felt it was important to show that he was under the influence of methamphetamine at the time of the incident,” said Deputy District Attorney Vicki Gimetti. “Sometimes it takes a long period of time to get lab results back.”
The defendant, Gary Vogel, was arrested by Gilroy officers Dec. 4 while he was working a landscaping job in the front yard of a neighbor’s home in the 1200 block of Cypress Court.
GPD officers Erik Tiner and Chad Gallacinao were patrolling the area when they recognized Vogel – who was on probation for misdemeanor drug charges – and decided to contact and search him. Both parties dispute what happened next, but a scuffle between the three led to Vogel spraying pepper spray in the eyes of the two officers.
Vogel was eventually subdued and taken to Saint Louise Hospital to treat injuries resulting from the ensuing fight, which included fractured ribs and numerous facial bruises. Hospital documents showed that Vogel did not appear to be under the influence of any drugs, and the district attorney’s office did not include drug charges with the seven original counts filed against Vogel.
Following the incident Vogel’s mother filed a brutality complaint with the GPD, but separate investigations by the GPD’s internal affairs and the district attorney’s office cleared the officers of any wrongdoing.
“It’s pretty obvious that (the drug charge) is a trumped charge,” said Joann Vogel, Gary Vogel’s mother who is now planning to file a civil suit against the GPD for using excessive force when arresting her son, along with a list of other claims.
“Why would they wait three months before adding that charge, especially after (the GPD) had told Gary the tests were negative?” she said. “They didn’t like what was written about them in the newspaper articles so they decided to turn around the charges – that’s the type of irresponsible things I’ve come to expect from this department.”
Gary Vogel’s public defender Tim Fukai declined to comment on the amended drug charge, but he did say the blood test showing methamphetamine in Vogel’s system did come from a San Jose lab which is part of the county district attorney’s office.
Dressed in a green county jail jumpsuit at his court hearing in San Martin on Friday, Gary Vogel shook his head in disbelief while pleading no contest to the drug charge.
Gary Vogel will serve 21 months in state prison for pleading guilty to the three charges; if he plead not guilty he could’ve faced six years in prison. Vogel also was ordered to pay restitution to the two officers, Tiner and Gallacinao. No amount was set.
In a recent interview with The Dispatch, Gary Vogel said he was recommended by his attorney to accept the deal, although he still claims he is a victim of unprovoked police brutality and harassment. Vogel also remained adamant about not being under the influence of any drugs.
“He passed a drug test for his probation officer two days before (he was arrested),” Joann Vogel said.
According to the police report of the incident, the confrontation between Vogel and police began when Gallacinao noticed what he thought was a narcotics pipe in Vogel’s front pocket – it turned out to be the pepper spray – and asked to search Vogel. Vogel refused, asking if they could search him out of site of the neighbor’s home where he was employed as a landscaper, according to Vogel. When he refused, Gallacinao grabbed Vogel’s right arm and Vogel began to run, the report said.
Gallacinao and Tiner soon caught up to Vogel and were on top of him, although he continued to struggle and threw Tiner on his back, according to the report.
“I struck Vogel at least two times in his ribs with a closed police baton,” Gallacinao wrote. “It seemed to have no effect.”
Gallacinao then hit Vogel with the baton several more times in his legs, while Vogel and Tiner exchanged facial punches, according to the report. Gallacinao then saw Vogel reach for his right front pocket, pull out the pepper spray and spray it in the eyes of both officers.
Tiner continued to hit Vogel below the knees with a police baton until a third police officer arrived and handcuffed Vogel.
Tiner and Gallacinao could not open their eyes for five minutes and both were taken to the hospital to be treated for pepper spray and minor cuts and lacerations, the report said.
Possessing the pepper spray was a violation of Vogel’s probation, but he felt he needed to carry it when working in the neighborhood because of a stray dog who would often bark at him, he said.
“Gary made a mistake by carrying the pepper spray and his case would be a lot stronger if he wouldn’t have used it,” Joann Vogel said. “But he was being beaten and he was scared for his life. It’s too bad he was forced to make that choice.”
