Ex-officer sues over his 2019 dismissal

Johnathon Silva claims he was forced to resign

An ex-police officer for the Los Gatos-Monte Sereno Police Department is suing his former employer over his 2019 ouster, which came after a new police-transparency law unearthed videos of him violently beating a man when he was a San Jose State University cop.

In a wrongful-termination lawsuit filed last week, attorneys for Johnathon Silva contend the police department knew about the 2016 campus confrontation — and his subsequent firing that was later overturned — when it hired him, and that Silva was improperly forced out by a city bowing to the ensuing outcry following the records release.

“The police department started to feel pressure that the city would be upset they hired this officer even though he did nothing wrong,” Silva’s attorney, Mike McGill, said in an interview. “If that’s the way employ

ers will operate, through mob rule, no one who is involved in a negative encounter would have a job again. That’s not an appropriate basis to let somebody go, it’s arbitrary.”

In response to an inquiry by this news organization, Los Gatos Town Attorney Robert Schultz wrote in an email that “the Town has not yet been served with the lawsuit and although we can’t comment on a case in litigation, I can state that Mr. Silva was (a) probationary employee and was not terminated, but instead resigned from his position as a police officer with the Town of Los Gatos.”

The mention of probationary status alludes to the fact that had Silva been fired, the town would not be required to give cause.

McGill said the town’s characterization of Silva’s departure is splitting hairs, asserting that his client was faced with the choice of either resigning or being fired.

“That’s not a voluntary resignation,” he said. “That is a termination.”

Silva resigned from the department in late July 2019, about three weeks after the Bay Area News Group and KQED reported he had once been fired by San Jose State University police over his violent March 2016 arrest of Philip Chong in the campus library. The report was based on video released under SB 1421, a landmark 2019 law that compelled police to release troves of footage and other previously undisclosed disciplinary and use-of-force records. In the encounter partially captured on video, Silva sought to arrest Chong for reportedly masturbating and watching pornography on a laptop. After Chong refused to give his name and birth date, Silva forced him to the ground, punched him several times in the head, kneed him in the torso, unsuccessfully used a stun gun on him, and hit him several times with a metal baton.

By the time Chong was arrested, he suffered broken ribs and a collapsed lung. An initial review by then-Chief Peter Decena did not find Silva’s conduct was improper. But after Chong filed a legal claim — which eventually led to a $950,000 settlement — the university commissioned a third-party review that concluded in 2017 that Silva used “egregious” excessive force.

The university fired Silva, who successfully appealed the firing the following year and got his job back, then decided to resign. A few months later he was hired by Los Gatos police, who by then had named Decena as its new chief.

After news of the San Jose State videos of Silva broke, the town government and police department faced criticism from a vocal contingent of residents. Los Gatos officials defended the process that led to his hiring, but by the end of the month, they announced that he had resigned.

McGill considers Silva to have been vindicated by the 2018 SJSU appeal decision, and the current lawsuit — which seeks unspecified monetary damages and Silva’s full reinstatement to the Los Gatos police department — asserts that there is nothing about his work performance in Los Gatos that warranted him being made to leave.

“They told him that he was a person they wanted to hire, and he committed to that,” McGill said. “He was exceeding standards and doing a great job.”

A couple of weeks after Silva left, the Los Gatos department, in accordance with SB 1421, released video of another use of force by Silva that occurred in April 2019, in which he used a carotid hold, or sleeper hold, to subdue a man reported to have been yelling obscenities at an apartment complex. After the man was rendered unconscious, he was not arrested and was instead issued a citation.

The police department said its investigation deemed the use of force to be “objectively reasonable.” As it happens, the hold that Silva used was banned by the state Legislature and Gov. Gavin Newsom last fall in the wake of the police killing of George Floyd in Minneapolis.

Maureen Fox, a Los Gatos resident who banded together with others to oppose Silva’s continued employment for the town, said this week that she cannot envision a scenario where Silva can go back to working in her community.

“The termination was entirely appropriate and necessary,” Fox said. “It is absolutely right to exclude from a police department a person who has shown an inability to control his temper, and engages in unnecessary violence when he is in contact with a civilian.”