OAKLAND (CBS SF) — BART has been unable to fire a station agent facing criminal charges for allegedly beating a homeless man with a stick while on duty in Oakland earlier this year because station surveillance video and police statements were ruled inadmissible in a disciplinary hearing, according to court records.
Amalgamated Transit Union Local 1555 fought the termination of station agent Paul Bailey in arbitration. The union’s contract forbids the use of station surveillance cameras to watch employees, saying they should only be used for security and patron safety. There are exceptions, including for cases involving assault.
However, the union objected to the use of the video during a disciplinary hearing and later argued that it did not receive other requested evidence from the agency, including body camera footage of a police interview with the homeless victim. ATU also argued that BART’s case relied on hearsay because the victim was not available during the proceedings so BART police officers relayed his statement.
The procedural violations by BART deprived Bailey of due process in the proceedings, an arbitration committee found in May. Bailey’s job was reinstated.
Bailey was charged with two misdemeanors and BART is fighting the decision. The agency filed a petition to vacate the arbitration decision in Alameda County Superior Court on Friday, arguing that the committee didn’t review the merits of the termination at all, instead focusing on the procedural issues, and denied BART an opportunity to present its case.
The incident started at about 4:40 a.m. on March 2 when Bailey called BART police to report that a homeless man had assaulted him while working at the MacArthur station, according to police reports. When the officers responded, they found the homeless man near the station bleeding from a fresh cut on his head. He told the officers that Bailey hit him with a stick.
But the man was also confused, becoming “argumentative and irate” with BART police Officer Jonathan Guerra, according to Guerra’s report. He refused to identify himself and repeatedly told Guerra “I plead the fifth” and said he had been beat up by BART police in the past and had a lawsuit.
The officers put him in handcuffs based on the report from Bailey. They called an ambulance to treat the man for his head wound and put him in the back of the patrol car, according to the report.
In a recorded statement described in the police report, Bailey told the officers that the homeless man approached him asking where the blood bank was and then swung at him, but Bailey blocked it.
Bailey said the man then punched him in the shoulder so Bailey pushed him away, sending him to the ground. Bailey said he didn’t know how the man was wounded in the head, but suggested maybe he hit his head when he fell, according to the police report.
The officers reviewed surveillance video from the station. According to the report, it showed Bailey inside the station agent booth as the homeless man approached. Bailey stepped out of the booth and the homeless man threw his two bags to the ground as he partially blocked the emergency exit gate. Bailey put his hand up and the man slapped it.
Bailey then pulled a 2-foot-long, 1-inch-diameter wooden rod from the station booth. He walked toward the homeless man and then struck a fare gate, breaking the rod in half.
He went back into the booth, made a phone call and walked out, following the homeless man and picking up the broken pieces of the rod. Bailey followed the man out of the station, where he confronted him and hit him two or three times with the rod until he fell to the ground.
Bailey was charged by the Alameda County District Attorney’s Office with misdemeanor brandishing and battery. He is scheduled to return to court on Aug. 26 for a pretrial hearing, according to the district attorney’s office.
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