GILROY
– The mother of a Gilroy man who was beaten by Gilroy Police
while allegedly resisting arrest says she will file a civil suit
against the department even though separate investigations
completed this week by the county District Attorney’s office and
the Gilroy Police Department reveal no misconduc
t.
GILROY – The mother of a Gilroy man who was beaten by Gilroy Police while allegedly resisting arrest says she will file a civil suit against the department even though separate investigations completed this week by the county District Attorney’s office and the Gilroy Police Department reveal no misconduct.
Joann Vogel, mother of Gary Vogel, 34, claims Gilroy Police officers used excessive force when they arrested her son 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.
Gary Vogel was on probation for a misdemeanor drug charge at the time of the incident, and when he refused his consent to a search by two uniformed officers a brawl ensued where Vogel eventually sprayed pepper spray in the eyes of both officers, according to the police report.
Gary Vogel is currently in county jail on $50,000 bail and will go to court March 4 to face five felony charges and two misdemeanors stemming from the incident; the charges include resisting arrest, battery of a peace officer and unauthorized use of tear gas on an officer. If convicted of all charges he could be sentenced to six years in prison.
“He felt his life was in danger and used the pepper spray in self-defense,” Joann Vogel said. “This is a case of the police abusing their power, harassing my son for no reason and two officers losing their temper.”
During the scuffle, Vogel was clubbed several times by Officers Erik Tiner and Chad Gallacinao, and Tiner punched him in the face, according to the police report written by the officers. Vogel was treated for lacerations on his legs, cracked ribs, facial bruises and still has trouble seeing out of one eye, Joann Vogel said.
A bill Joann Vogel recently received from Saint Louise Regional Hospital, where police took Gary Vogel following his arrest, lists more than $2,000 in emergency room costs for her son following the incident.
“The case was carefully reviewed by three district attorneys, and they found no criminal conduct whatsoever by any of the officers – none,” said Karyn Sinunu, the assistant county district attorney who oversaw the investigation. “And you can capitalize none and underline it.”
Following a request by Joann Vogel, the GPD launched two separate investigations into the incident – one through its internal affairs unit and one criminal investigation – neither of which found any misconduct.
“The (criminal) investigation was monitored by the DA’s office and we talked to several witnesses before concluding that the officers acted accordingly,” said GPD Sgt. Jack Robinson, who headed the department’s criminal investigation of Tiner and Gallacinao. “We understand the mother’s concern for her son, but the facts are that Vogel assaulted two officers.”
According to the police report of the incident, Tiner and Gallacinao were working the patrol unit that day when they recognized Gary Vogel working landscape. Gallacinao knew Vogel was on probation from a misdemeanor methamphetamine conviction and decided to contact him.
“I noticed his appearance was dirty, his pupils appeared to be extremely constricted and was extremely nervous,” Gallacinao wrote in his report, noting that Vogel appeared to be under the influence of a stimulant; hospital blood tests would later conclude that Vogel was not under the influence of any drugs.
Gallacinao then 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. 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, Joann Vogel said.
Joann Vogel wasn’t allowed to see her son until the next day, and when she did she immediately called her lawyer.
“His clothes were soaked in blood and his whole body was bruised,” said Joann Vogel, who wants the GPD to pay her son’s hospital bill and wants the department to force Tiner and Gallacinao to enroll in anger management classes.
“The GPD crossed the line, and they shouldn’t be able to get away with it,” she said. “It’s not right. I’m not surprised (about the outcome) of the investigations, but we’re not giving up. If they get away with this beating, what’s next?”
