Former San Jose State Cop Fired for Excessive Force Won Job Back on Appeal

Chong’s attorney, Stuart Kirchick, called him a “very intelligent young man, but suffering, unfortunately, from a mental illness that started unusually only a few years prior.”

Kirchick said that his client spent a few days in jail, but that Santa Clara County prosecutors dismissed all charges after they saw the body-cam footage from the library.

“He [Chong] was not willing to give his true name to the officer and that just completely set the officer off,” Kirchick said. “I mean he just completely lost his temper and used unreasonable force in the process of detaining him … to just find out his name.”

Chong filed a claim with the university in September 2016 and the school settled, paying him $950,000.

This wasn’t the first time Silva had been accused of excessive force. A 2017 lawsuit filed by then-student Alan Chen alleges that Silva and a fellow officer "flung" him to the concrete face-first, breaking his teeth and causing him to lose consciousness in 2015.

Records show, Silva was given a warning in 2015 on a performance evaluation to “not let his frustrations get the best when dealing with uncooperative subjects in the field.”

The school settled with Chen for an undisclosed amount last year. The university has not yet responded to questions about that incident.

In November of 2016, the university launched an internal investigation into the library incident, and Silva was placed on administrative leave.

The university system brought in Morin Jacob, an attorney with the San Francisco-based law firm Liebert Cassidy Whitmore, to assess this incident. She said that Silva “lost control of the situation early by reacting emotionally to Chong.”

Jacob found that Silva violated the school’s use-of-force policy each step along the way and that Chong was not a threat.

Silva’s choice to use a Taser on Chong’s chest, which can be very dangerous, she found went against the school’s policy requiring officers to avoid that area. And Jacob determined that Silva misled investigators.

“Officer Silva claims that Chong pushed him into the wall, but the videos do not support Officer Silva’s account,” she wrote in her report. “Chong did not push Officer Silva into the wall.”

The university fired Silva in August 2017. But he appealed with the backing of his department and his fellow officers.

“There isn’t a single peace officer that was involved in this incident that either reviewed the video, that works for the department or was out at the scene of this incident, that says John did anything wrong,” Silva’s attorney, Steven Welty, told the administrative law judge at his State Personnel Board hearing.

Welty conceded that the body-cam footage is disturbing, but pointed out that Silva did not ask for this to happen. When Silva arrived on the eighth floor of the library, Welty said the officer was expecting to just give Chong a citation and ask him to leave the building. Silva couldn't be reached for comment Wednesday. Welty did not respond to messages seeking comment.

Silva won his appeal and was reinstated in May 2018. The university contested that decision with a strongly worded filing from the school’s attorney, Katherine Winder.

“In stark contrast to the tale spun by Silva, this case does not represent a reasonable and necessary use of force but rather this case is an egregious example of excessive force that left a public library patron with severe and pervasive injuries,” she wrote. “In revoking Silva’s dismissal, the [judge] determined that Silva’s severe beating of a mentally ill minority member of the public was proper, in a public library at a university.”

The personnel board declined to reconsider.

Silva never returned to active duty with the school's police force, according to a university spokeswoman. He resigned on Oct. 1, 2018, the day he was scheduled to return to work.

But he apparently still had the support of his former chief, Peter Decena. After about eight years, Decena had left the school in 2017 to head up the Los Gatos-Monte Sereno Police Department.

Decena hired Silva as a Los Gatos officer in September 2018.

The chief did not respond to specific questions about the March 2016 incident or the additional lawsuit, but issued a press release Wednesday that said he concurred with the State Personnel Board review.

“He [Silva] participated in our rigorous selection process and completed a thorough background investigation, including a polygraph examination and psychological screening,” Decena said.

San Jose State spokeswoman Robin McElhatton said in a statement issued Wednesday that the March 2016 incident was unfortunate, but that safety and security are the university’s top priority.

"We are committed to ensuring that we have a well-trained, professional campus police force that complies with professional standards," she wrote.

Robert Salonga of the Bay Area News Group contributed to this report.

This story was produced as part of the California Reporting Project, a collaboration of 40 newsrooms across the state to obtain and report on police misconduct and serious use-of-force records unsealed in 2019.