CASE N0.4

SLAMMED INTO CAR, DISABLED FOR LIFE

Surveillance cameras and a cellphone recorded events that led Hempstead Village police officers to arrest Abel Alvarenga with enough force to perforate his small intestine. The charge was dismissed, and he later received a $4.5 million settlement.

Ten surveillance cameras and one cellphone recorded predawn events that led Hempstead Village police officers to arrest a landscape worker with enough force to perforate his small intestine — a disabling injury that saddled taxpayers with paying $4.5 million in damages.

From different points of view, the civilian recordings captured images and, at a crucial point, sounds of officers subjecting Abel Alvarenga Vasquez to unjustified force while arresting him for alleged disorderly conduct, according to two law enforcement experts who reviewed the videos and case documents at Newsday’s request.

A third expert said that while he was unsure whether the force was justified, police should have ignored pestering by Alvarenga because it was clear he was drunk.

All three said that the recordings undercut Officer William Falk’s sworn statement that Alvarenga had interfered with efforts to render medical assistance to a friend of Alvarenga who had been injured in a bar fight — a central element of the disorderly conduct charge.

One expert sharply questioned Falk’s failure to bring Alvarenga to an ambulance that arrived on the scene after Falk slammed him against a car.

“He’s in your custody. If he needs medical attention, you’ve got to get it for him,” said Joseph Giacalone, a former New York City Police Department detective sergeant who teaches a course on the use of force at John Jay College of Criminal Justice.

No prosecution

After studying recordings, the Nassau District Attorney’s Office declined to prosecute Falk. An assistant district attorney concluded in a memo that the 6-foot-5, 220-pound Falk had used justified force while arresting the 5-foot-10, 165-pound Alvarenga.

Bennett Capers served for 10 years in the Manhattan U.S. Attorney’s Office, teaches criminal law at Fordham University Law School and directs Fordham’s Center on Race, Law & Justice. He challenged the DA’s finding that the arrest was lawful.

“They conveniently ignore that there must be probable cause for an arrest. Here, there was none, as evidenced not only by the video, but by the fact that the charges were dropped,” Capers wrote in an email.

Just all of the facts and circumstances lead you to believe that they violated the law… And to me, that’s assault.

Ayanna SorettFormer Manhattan assistant DA, fellow at Columbia University

Photo credit: Jeffrey Basinger

Ayanna Sorett, a fellow at Columbia University’s Center for Justice and former Manhattan assistant district attorney, agreed that Alvarenga’s actions were not criminal and said the DA’s office should have done a more thorough investigation of the police officers’ actions.

“Just all of the facts and circumstances lead you to believe that they violated the law,” Sorett said. “And to me, that’s assault. And a prosecution could be started minimally for an assault with respect to Alvarenga as the complainant.”

Nassau District Attorney Madeline Singas said through a spokesman: “In this matter, the officer in question is currently being prosecuted by this office and we’re precluded from discussing the facts of a past investigation. The matter was thoroughly investigated, and we defer to the final agency determination from October 2015 for any specifics with regards to this closed investigation.”

Falk, an 11-year veteran of the 119-officer Hempstead force, resigned in September 2019 and collects an annual pension of $84,726. He left the job amid a string of five arrests in which Nassau and Suffolk police charged him with criminal contempt for allegedly violating an order of protection that his wife secured during a contested divorce.

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Cameras and consequences

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Falk declined to speak with Newsday, except to deny that he had taunted the moaning Alvarenga after officers slammed him against a car. In court proceedings, Falk said he did not know that Alvarenga was injured and denied using excessive force. He did concede that he hadn’t administered medical aid to Alvarenga’s friend, Francisco Garcia.

Alvarenga declined to be interviewed through his lawyer.

Newsday reviewed Alvarenga’s arrest, injury and acquittal as one of four case histories documenting how video recordings have come into play in evaluating police actions at a time when Nassau and Suffolk county police departments are among a small minority of large U.S. police forces that do not equip large numbers of officers with body cameras.

In three of Newsday’s case histories, security or cellphone video captured evidence that contradicted police accounts, prompted judges and prosecutors to dismiss arrests and supported lawsuits that saddled taxpayers with paying more than $4.6 million in compensation so far.

Criminal justice experts concluded after reviewing recordings in the three cases for Newsday that the presence of body-worn cameras may have prevented officers from lodging charges that proved baseless.

The fourth case history demonstrated the limitations of interpreting police actions based on civilian videos, which can be taken at any distance or angle and generally do not include sound. Still, the recording captured the events that led the Nassau County Police Department to issue a false stolen vehicle alarm. The events convinced a retired Suffolk lieutenant at the center of the case to call for body cameras as standard police equipment.

Suffolk County Executive Steve Bellone in early March called for equipping large numbers of officers with cameras after one of the few devices worn on the force captured officers kicking a handcuffed alleged car thief. Two officers were suspended; three were placed on modified duty. Bellone has since included body cameras in the county’s police reform plan.

In a police reform plan approved by lawmakers Monday, Nassau County Executive Laura Curran endorsed widespread body camera use.

“The defendant, Abel Alvarenga Vasquez…interfered with emergency ambulance personnel…”

Disorderly conduct complaint filed against Alvarenga.

The night’s events

This account of the events that took place after a night of heavy drinking by Alvarenga and a friend is drawn from testimony in legal proceedings and the contents of a Nassau district attorney’s summary of the case, as well as from Newsday’s compilation of recordings.

What the police saw, and most of what they said, are missing because the officers were not equipped with body cams — perhaps shaping their conduct.

“Overall, if there were body cameras, none of this would have happened,” Sorett said. “The police officers wouldn’t have responded in the way they did.”

Following is Newsday’s reconstruction of what happened, along with expert opinions about it:

Shortly before 2 a.m. on March 5, 2015, Alvarenga and his friend Garcia arrive at El Tucanazo, a since-shuttered bar located in a Hempstead strip mall bordered by Front Street and Fulton Avenue. The mall also includes a delicatessen and a Dunkin’ Donuts.

Surveillance cameras operated by the bar, the Dunkin’ Donuts, the delicatessen and a gas station across the street capture the scene from multiple angles in silent videos.

At almost 4 a.m., Alvarenga and Garcia are side by side at the bar. Alvarenga holds the hand of a woman bartender while a fight breaks out between Garcia and another man. Extremely intoxicated, as evidenced by later blood alcohol readings, Alvarenga does not notice the man wrestle Garcia to the floor and punch him at least seven times.

Bouncers drag and push the fighters out the door. Alvarenga appears to fall asleep over the bar. Outside, Garcia stands in a parking lot in front of the club. He is bleeding from the head. Two bouncers stand in the club’s doorway, then go in and come out, at one point bringing Garcia what appears to be paper toweling that he uses to dab his head.

A little less than two minutes later, Alvarenga comes out of the club. Over the next 10 minutes, he talks with the bouncers both outside and inside the bar until a bouncer walks him out.

Working an overnight shift, Falk happens on the scene about two minutes later. He was on his way to a meal break at the strip mall’s deli. The bouncers, Alvarenga and Garcia approach Falk in the parking lot. Garcia appears to have blood on his shirt. Falk provides no first aid.

Officer Adam Wade and a third officer arrive, also on their meal break. Falk, two bouncers, Alvarenga and Garcia gather near the doorway. Garcia and Alvarenga talk with the bouncers for roughly two minutes.

Falk emerges into view from inside the doorway, appears to say something to Alvarenga, spins Alvarenga around and marches him away. After a last shove, Alvarenga ends up about 40 feet from the club door.

Alvarenga approaches and begins recording with his cellphone camera from a distance of about 30 feet away.

The voice of a female officer calls Alvarenga “Amigo.”

He says, “No, nothing,” and continues recording.

“Listen, go,” the officer says, but then she tells Alvarenga, “Tape all you want. Tape all you want.”

Alvarenga continues to record. The officer says, “I told you to go. We’re telling you to go.” She takes no action to enforce the commands.

‘This guy needs to leave’

Alvarenga continues recording. Falk ignores him and talks to the bouncers. A bouncer tells Falk that Garcia must have fallen on the dance floor.

“Yeah, right,” Alvarenga says.

Falk tells a bouncer to inform Garcia that an ambulance is coming for him. The bouncer speaks to Garcia in Spanish. Garcia says that he doesn’t want to go.

“He’s gotta go. He’s got a massive cut on his head,” Falk says.

For about another minute, the bouncers tell Falk they don’t know how Garcia got injured. They ignore Alvarenga.

After a few moments, a male voice says, “[unintelligible] video.”

Falk looks at Alvarenga and says, “This guy needs to leave.”

Alvarenga used his cellphone to take these photos of Falk before his arrest.

A bouncer moves toward Alvarenga, tells him to stop doing what he’s doing and tries to grab his cellphone.

“If he doesn’t leave, he’s going to get arrested,” Falk says.

Alvarenga holds the phone while backing up. The recording stops.

Exterior surveillance cameras pick up the cops and bouncers milling near the bar’s front door. Alvarenga stays at a distance. After about four minutes, Falk chases Alvarenga. Alvarenga runs with his arms up. Falk and Wade move toward him. Alvarenga runs to a spot about 90 feet from the bar front door. Falk and Wade return to the group in front of the bar.

Alvarenga walks in their direction. Still more than 60 feet away, he appears to be using his cellphone to record the scene.

“I got you,” he calls.

“I’m going to arrest you,” an officer says.

“Yeah right, I got you. I got you. I got you, mother [expletive],” Alvarenga says.

Taken into custody

Falk and Wade chase again. Falk catches Alvarenga and slams him against a car. Alvarenga’s torso hits a driver’s side mirror. Wade presses against him. Alvarenga’s phone wedges between the car’s hood and windshield. It continues to record sound.

Alvarenga moans loudly. The impact has perforated his small intestine.

“We got you,” a cop’s voice says.

Alvarenga continues to moan.

“How does that feel, huh?” a cop’s voice asks.

Alvarenga still moans. Police cuff his hands behind his back. Falk walks him to a police car and shuts him in the rear seat. About six minutes later, an ambulance arrives in response to Falk’s call for aid for Garcia.

Falk charged Alvarenga with disorderly conduct, under New York law a noncriminal violation that is less serious than the lowest level misdemeanor and often results in a summons.

To support the accusation, he stated in a sworn complaint that Alvarenga had “interfered” with “numerous” officers and emergency ambulance personnel who were trying to assist Garcia.

He also stated that Alvarenga had become “belligerent and flailed arms at officers” and had “congregated with other persons in a public place and refused to comply with a lawful order of the police to disperse.”

Under questioning at Alvarenga’s trial, he conceded that Alvarenga could not have interfered with medical personnel because the ambulance arrived after Alvarenga was handcuffed in the police car. He said that he considered himself medical personnel, while acknowledging that he didn’t render aid to Garcia.

Charge dismissed

After conducting a trial, Judge Ayesha Brantley dismissed the charge against Alvarenga. She noted that no ambulance or medical personnel were present at the time Alvarenga allegedly interfered with their efforts. She also concluded from the video that Alvarenga had not come between the police and Garcia and that he had stayed several feet away from the officers at the scene.

Video that showed Alvarenga retreating from the police was “actually more indicative of an attempt to avoid direct contact with the officers,” Brantley found.

There is nothing to suggest that [Alvarenga’s] actions were menacing or likely to incite his audience.

Judge Ayesha Brantley

Photo credit: James Escher

“There is nothing to suggest that [Alvarenga’s] actions were menacing or likely to incite his audience,” she wrote.

Giacalone said that Alvarenga’s shouting probably annoyed the police but wasn’t sufficient cause to chase or arrest him.

“Most people are aggravating out there, and you just have to rise above it. Just ignore it,” he said.

Capers said he found the video “tough to watch” and that he saw no evidence justifying Alvarenga’s arrest or the use of force against him.

“If anything, it seems the violent arrest was in response to Alvarenga’s videotaping the police,” he wrote in an email.

Both Sorett and Giacalone focused on the fact that an internal Nassau District Attorney’s Office memo stated that an investigator had “restored” videos recorded by Alvarenga’s phone. His lawyer said the videos had been deleted.

“How did it get deleted in the first place?” Sorett said. “I take that as knowledge on the part of the officers that what they did was wrong.”

Constitutional law experts say that the members of the public generally have a First Amendment right to record police as long as they do not hinder officers. Taunting or commenting on an arrest that takes place in public typically does not justify taking someone into custody.

“What’s clear is that police can’t just demand someone stop recording. There has to be some kind of interference by the person recording,” said Stephen D. Solomon, a New York University professor of First Amendment law. He was not speaking specifically about Alvarenga’s case.

Dangerous injury

The impact of slamming against the car perforated Alvarenga’s small intestine, Dr. Michael S. Drew concluded in a report after examining Alvarenga and reviewing videos as an expert witness for Alvarenga in his civil suit against the police department.

Drew reported that a CT scan showed evidence of chest wall contusion and bowel hemorrhaging consistent with blunt trauma.

Dr. Alexander Axelrad, trauma medical director at Mount Sinai South Nassau Hospital, said in an interview that perforation of the small intestine is a potentially fatal injury, especially if there is a delay of more than 12 hours before treatment. Axelrad played no role in Alvarenga’s case.

Symptoms include nausea, vomiting, fever, abdominal pain and blood in the stool, he said. Intoxication can complicate a diagnosis.

A little more than six minutes after Falk placed Alvarenga in the police car, he walked Alvarenga to a men’s room in the Dunkin’ Donuts. They were captured on the store’s interior video. About 10 minutes later, police again brought Alvarenga to the bathroom.

Giacalone said Alvarenga appeared to be in pain when police escorted him to the bathroom. Capers said the cellphone recording contradicted Falk’s assertions that Alvarenga did not show any sign of injury.

“From his audible moaning captured on his cellphone, it also strains credulity that the police didn’t know he was in pain. Add to this he complains of bladder pressure and needs to be escorted to the bathroom twice within a span of 10 minutes, the first time spending two minutes inside and the second time spending three minutes inside, it doesn’t make sense that the police didn’t know something was wrong,” he wrote in an email.

Deposed in Alvarenga’s civil lawsuit, Falk denied using excessive force and said Alvarenga’s injuries could have happened elsewhere. He was not asked about Alvarenga’s moaning.

“What I’m saying is that he could’ve sustained that at any time,” Falk said. “He could’ve sustained it in the bar. He could’ve sustained it on the way home. But at the time when he was in my car, he never said he was hurt, and I didn’t see anything.”

Debra Urbano-DiSalvo, who prosecuted the case for Hempstead Village, said in an interview, “Who knows where this guy got hurt?”

Newsday requested an interview with Wade through the Hempstead police department and his police union. Wade did not respond.

An ambulance transported Garcia to Mercy Medical Center in Rockville Centre. The bar’s surveillance system then captured a cab arriving. Police spoke to the driver. The cab took Alvarenga home.

In his lawsuit, Alvarenga said he begged the cabdriver to take him to a hospital, but the driver refused, saying that police had ordered Alvarenga taken home. John Mullan, one of Alvarenga’s lawyers, said police put him in a cab rather than an ambulance to conceal what had happened.

Reaching home, Alvarenga struggled with unlocking the door for half an hour and then collapsed inside. His wife called an ambulance around 5:40 a.m. At Winthrop University Hospital in Mineola, now called NYU Langone Hospital, Alvarenga told doctors that Hempstead police had beaten him, according to hospital records.

The admitting diagnosis on the intake form was assault, and his blood alcohol level was .18, more than twice the legal limit for drunken driving.

Investigation and settlement

Based on Alvarenga’s allegation, the Public Corruption Bureau of the Nassau County District Attorney’s Office, then headed by acting DA Singas, opened an investigation.

According to the corruption bureau’s memo, investigators interviewed Garcia and Alvarenga, reviewed Hempstead police records and studied Alvarenga’s medical file.

The investigators also collected videos, including the two on Alvarenga’s phone that captured the key moments before the officers chased him down. Mullan said those videos had been deleted. The memo states that an investigator “restored” the videos.

Mullan said Alvarenga did not delete the videos and that Alvarenga saw Falk handling his phone immediately after his arrest.

Recommending against filing charges against the police, the memo stated:

“Mr. Alvarenga’s injury was caused as a result of him running from officers in an effort to evade apprehension once he was informed that he was being placed under arrest.”

Mr. Alvarenga’s injury seems to be the unintentional result of his own doing.

Memo from the Nassau DA’s office

The memo also pointed out that officers are permitted to use physical force to “prevent the escape from custody.”

“Mr. Alvarenga’s injury seems to be the unintentional result of his own doing,” the memo states.

Alvarenga was admitted to Winthrop University Hospital complaining of sharp abdominal pain. He underwent emergency surgery to repair his small intestine.

He stayed in the hospital for a week. Over the next two months, he had three more abdominal surgeries, according to hospital records reviewed by Dr. Drew, who concluded that Alvarenga would suffer from bowel obstructions for the rest of his life.

The Hempstead Village board voted last May to finance the settlement with Alvarenga by borrowing $4.5 million through a bond sale.

Hempstead Village Attorney Cherice Vanderhall, who succeeded Urbano-DiSalvo, said in an interview that neither Falk nor Wade were disciplined for their conduct during the arrest.

Falk testified that neither Nassau County nor Hempstead police questioned him about Alvarenga’s arrest.

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