8/12/2014 1:02:00 PM,
SAN FRANCISCO (CN) - National Park Service Ranger Sarah Cavallaro said in federal court Monday that she stands by her decision to taser dog walker Gary Hesterberg two years ago.
The federal bench trial on Cavallaro's use of force against Hesterberg - an act that brought the ire of Congresswoman Jackie Speier, D-San Mateo, down on the National Park Service - began Thursday with more than four hours of testimony from the park ranger.
Cavallaro detained Hesterberg on January 29, 2012, after she admonished him for walking his dog off leash in Rancho Corral de Tierra near Montara, Calif. The park had recently transferred to the Golden Gate National Recreation Area's control, along with a new leash law. Rangers were told to give violators verbal warnings during the law's phase-in period.
Hesterberg leashed his dog and gave Cavallaro his correct address and date of birth, but when she asked his name, he told her it was Gary Lee Jones.
Dispatch could not verify his identity, so Cavallaro said she told him he was not free to go. Twice Hesterberg turned to leave and began jogging down the path, even tussling with Cavallaro before she pulled out her Taser and called for back-up, the ranger said.
"I remember him raising his hands at one point and saying 'I can't believe you're doing this for a dog off-leash," Cavallaro testified. "He was sort of side-stepping back and forth."
Cavallaro allegedly told him to turn around and put his hands behind his head, but he ignored her.
When Hesterberg turned away the third time, saying, "I'm leaving," Cavallaro tasered him in the back.
Cavallaro said she believed Hesterberg's refusal to comply with her orders constituted active-resistance. She also said she was contending with multiple distractions, including two passers-by who questioned her authority, as well as the dispatcher to whom she was trying to describe her location.
Hesterberg's lawyer Michael Haddad said Cavallaro never identified herself as a law enforcement officer, and that his client was confused about her authority because her badge wasn't visible under her jacket.
"I did not explicitly identify myself as a law enforcement officer," she testified, but added that she was wearing her uniform and duty belt.
Hesterberg was taken to jail and held for eight hours. In March 2013, he filed a $500,000 federal tort claim for false arrest and battery.
In his opening statement, Haddad said Hesterberg, a Montara resident, can no longer go running there without remembering what happened to him. "It was a life changing experience. In some ways his world view has changed."
Haddad said the Hesterbergs can no longer look out their window at the park without being reminded of Gary Hesterberg's ordeal. "It feels tainted to them," he said.
Haddad added, "It's not obvious that a person in a green uniform in a park is a law enforcement officer. He thought she was someone who could give him a ticket or warn him about a forest fire."
Haddad said the case should be analyzed under the "Graham factors," arising from Graham v. Connor, a Supreme Court case that held that when assessing excessive force claims, lower courts should always ask about the severity of the crime, whether the suspect presented an immediate threat to officers or others and whether the suspect attempted to resist arrest or tried to escape.
Haddad said Hesterberg was "leaving the scene of the most minor of crimes," which "does not justify an unlawful use of intermediate force that could have killed him."
The Taser incident prompted a complaint from Congresswoman Speier, who in a letter to GGNRA Superintendent Frank Dean, urged an independent investigation. "From the information I have to date, it does not appear that the use of a Taser was warranted," she wrote.
Cavarallo has since transferred to the Grand Canyon. During her testimony, she criticized the San Mateo District Attorney's decision not to criminally prosecute Hesterberg for resisting arrest and giving a false name to a law enforcement officer.
"I wasn't happy about the declination to prosecute," Cavallaro said "I didn't feel a hundred percent supported by the GGNRA at the time." According to Cavallaro, her supervisors said she should have just let Hesterberg run away. She was threatened with disciplinary action if she failed to comply with that wish in the future.
She admitted that she blamed the media coverage of the incident, which she thought put political pressure on the District Attorney not to prosecute. "I had a speculation media attention had something to do with Mr. Hesterberg not being criminally prosecuted.
She was also not happy with her supervisors. In an email to a colleague, she called Chief Ranger Kevin Cochary a "f**ing spineless a**hole." She also wrote, ". The way they handled this had a direct result on the amount of media attention this got and therefore the amount of political pressure there was for the justice system not to take the case."
Still, Cavarallo told Haddad that if she could relive the incident, she would again choose to taser Hesterberg. "I stand by my decision that day,"
As testimony wrapped for the day, government attorney Mark Conrad said he was worried that the three-day trial schedule would not leave him enough time to present his case. Haddad plans to call five witnesses tomorrow, and took up the better part of Monday questioning Cavallaro, well beyond what Conrad had anticipated.
U.S. Magistrate Judge Jacqueline Scott Corley said the trial may extend beyond the allotted three days if Haddad doesn't finish up on time.