music in the park san jose

It was a Valentine’s Day from hell.

According to a complaint filed Feb. 9 in federal court, Tom Mosgrove spent Valentine’s Day in 2022 in Santa Clara County jail after his then-wife called the police and reported that he pushed her into a closet and blocked her from leaving.

Tom Mosgrove claims that he was not an instigator of the incident and never touched his wife nor did anything of a violent or threatening nature that night, but the police arrested him anyway because of a county policy that allegedly requires someone to be arrested when police respond to a domestic violence incident, even if there is no probable cause to arrest.

Tom Mosgrove’s suit alleges that the county policy—set out in something called the “Domestic Violence Protocol”—is unconstitutional and what happened to him was a violation of the Fourth Amendment’s prohibition on unreasonable searches or seizure. 

Tom Mosgrove alleges that his 25-year marriage to Wendy Mosgrove had deteriorated by February of 2022 and the parties were discussing divorce. 

At that time, they lived together in a home on Chinook Court in Morgan Hill. Their 2,800-square-foot home had five bedrooms and was later sold for $1.9 million, according to the real estate website 

During the course of their marriage, Tom Mosgrove alleges, Wendy Mosgrove “generally demonstrated a violent temper and was often verbally and physically abusive to plaintiff.”

In one particular incident, Wendy Mosgrove allegedly “assaulted plaintiff with a pellet gun, threatened him with a knife, and threw his clothes out on the front lawn.” 

After Tom Mosgrove’s brother called the police, Wendy Mosgrove was allegedly arrested, charged with disorderly conduct, placed on probation for three years, and required to take anger management instruction. 

The incident was not an isolated occurrence; according to Tom Mosgrove, there were numerous other occasions in which she allegedly became violent and locked him out of their house, though those incidents were not reported to the police. 

The incident that precipitated the lawsuit arose against the background of the couple’s ongoing discussions concerning a divorce. According to Tom Mosgrove, he hoped for an amicable divorce and proposed they share an attorney. Wendy Mosgrove resisted meeting the attorney, but agreed to do so on Feb. 10, only after he advised her that he planned to engage the lawyer on Feb. 11. 

Marital dispute

On the evening of the 10th, when Wendy Mosgrove came in, Tom Mosgrove asked her about the meeting with the attorney. She allegedly became “verbally abusive” and then walked away upstairs. 

Still trying to talk to her, Tom Mosgrove joined her in their bedroom. 

The complaint says she went into a walk-in closet and continued to verbally abuse him. She told him to stay away from the closet and threatened to call the police. 

She then said, “let’s see how you like being arrested,” and she called the Morgan Hill Police, according to the complaint.

Several police officers arrived at the house around 8:15pm. The complaint alleges that the officers were dispatched to investigate her claims that Tom Mosgrove pushed her into the closet and blocked her from leaving. 

Tom Mosgrove went outside with one officer and two went in to talk with Wendy Mosgrove.

Tom Mosgrove claims that he explained that he was not physically or verbally abusive, never touched her, and didn’t block her from leaving the closet. He says there were no physical injuries nor signs of a fight or struggle.

He says the police told him that when there is a report of domestic violence, the police are required to arrest someone and in this case it was likely to be him. That proved to be true when he was deemed to be the “primary aggressor” and arrested. 

He was taken to jail where he was held until Feb. 15, when his sister bailed him out. 

Challenging confinement

Tom Mosgrove’s confinement was traumatic. He alleges that he had a number of medical conditions, including Parkinson’s disease, anxiety and seizures, for which he must take medication. 

For several days he wasn’t allowed access to his medication, he said, and when he was, it was not on the schedule that was prescribed by his doctors. 

After the third day without medication, Tom Mosgrove allegedly passed out inside his jail cell and was taken to the emergency room where he stayed overnight “handcuffed to a hospital bed.”

He was back in jail on Valentine’s Day, where he remained in his cell all day allegedly because of “problems with the cell door.”

He was released on Feb. 15 and thereafter all charges against him were dropped.

The lawsuit focuses on his contention that California state law allows a person to be arrested only when there is “probable” cause to do so. 

According to the complaint, Tom Mosgrove was arrested for two misdemeanors—“domestic violence battery of a spouse” and false imprisonment. He contends that based on the facts, no reasonable police officer could have believed that there was probable cause to arrest him the night of Feb. 10.  

Probable cause required for arrest? 

The reason he was arrested and jailed for five days, he contends, is because the Domestic Violence Protocol requires an arrest even if there is no probable cause to arrest the suspect.

The protocol was first developed in 1993 at the request of the Police Chiefs’ Association of Santa Clara County and the Domestic Violence Council.

The protocol is set out in writing and is annually updated. The 2022 version is 77 pages long and begins with a policy statement that says domestic violence is a serious community problem and that the law enforcement agencies in Santa Clara County “agree to respond to acts of domestic violence as crimes.”

Tom Mosgrove focuses his attention on a section that says, “When a misdemeanor assault or battery has been committed outside the officer’s presence, and the victim is the suspect’s spouse… a peace officer shall arrest the suspect…”

(Whether that section was really intended to dispense with the need for probable cause, as Tom Mosgrove alleges, seems open for debate because the next paragraph in the protocol refers to the particular Penal Code section that requires probable cause.) 

The protocol lays out how responders are to process reports of domestic violence. 

One section has detailed instructions for how an officer who arrives on the scene should assess what happened between the parties. 

The multiple considerations identified in the protocol illustrate how complicated such a situation may be. Among the things the officers are told to determine are whether children are present, whether there are weapons at the site, do all speak English or need an interpreter, are there physical injuries, is any person in pain, are there signs of strangulation or traumatic brain injury, was anyone forced to participate in sex acts, and whether anyone is subject to a restraining order. 

If there are indications that both parties used force, the officers are directed to determine who is the “dominant aggressor,” that is “the person who is the most significant, rather than the first, aggressor.”

Family court records from the Superior Court of Santa Clara County show that Wendy Mosgrove commenced divorce proceedings against Tom Mosgrove on Feb. 16, 2022, shortly after the incident, but whether a divorce has been entered is not clear.

BCN requested comment on the allegations in the complaint from the county attorney of Santa Clara County, the Morgan Hill City Attorney’s Office, the lawyer who represented Wendy Mosgrove in her divorce action, and the lawyer representing Tom Mosgrove in Friday’s suit. None responded Feb. 12 to requests for comment.

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