The Alameda County District Attorney’s Office has determined no criminal charges will be pursued against any Pleasanton police officers involved in physically subduing a local man who died at the hospital less than two hours after the confrontation with police near Raley’s in 2018.

The DA’s Critical Incident Team concluded the use of force exerted by primary responding officers Brad Middleton and Jonathan Chin, along with others from the Pleasanton Police Department who provided backup that afternoon, was reasonable given the circumstances of the confrontation with 38-year-old Jacob Bauer, nor did it rise to criminal culpability.

The investigators reached their conclusions, which were endorsed by DA Nancy O’Malley, after analyzing the scene, interviewing officers involved and reviewing a range of evidence including autopsy records, body-worn camera footage and dispatch recordings.

“There is no evidence that any of the officers committed a crime related to the level of force use,” the DA team wrote in its final report, which was obtained by the Weekly this week.

“Rather, their use of force appears to have been objectively reasonable given the level of Mr. Bauer’s resistance. Nor is there evidence of criminal negligence on the part of the involved officers,” the report stated. “Finally, Mr. Bauer’s death was not proximately caused by the officers’ actions, but rather his own ingestion of a toxic amount of methamphetamine.”

“A prosecutorial decision must rest squarely on the ability to establish the elements of a crime beyond a reasonable doubt,” the report added. “Applying the high charging standards by which the District Attorney’s Office is ethically bound, we can only conclude that the officers involved in this incident are not criminally liable. We are closing our file and will take no further action in this matter.”

Bauer’s parents -- who are longtime Pleasanton residents -- expressed disappointment at DA’s findings in a statement released through their attorney on Friday afternoon.

“We are devastated by the violent and unnecessary death of our son Jacob Bauer. While we hoped that the DA would hold Pleasanton police officers accountable for his death, we are resolute in pursuing justice on his behalf through the civil courts,” John and Rose Bauer said.

“We hope that our case will require the Pleasanton Police to make changes in their culture and their training in how they deal with people with mental health disabilities so that no other family has to go through what we have gone through and continue to face every day,” they added.

The 10-page report was released to Pleasanton Interim Police Chief Craig Eicher on Jan. 30, but it wasn’t made publicly available until the Weekly contacted the DA’s Office this Thursday.

“While the Pleasanton Police Department is satisfied with the depth and thoroughness of the District Attorney’s investigation and report, the loss of life is tragic for all parties involved,” Eicher said in a statement to the Weekly on Friday.

“We want to again express sympathy for the Bauer family and respect their grieving process. We hope that with the investigation complete and the final report released, the healing process can begin for Mr. Bauer’s family, the officers involved and our community,” he added.

The DA’s report offers a detailed account of the circumstances of the confrontation between Bauer and police outdoors at the Oak Hills Shopping Center on Aug. 1, 2018 after the Pleasanton native had been spotted breaking bottles inside Raley’s.

The prosecutors’ incident narrative seems to align significantly with initial details released by PPD at the time, while the conclusions seem to discount certain claims made by Bauer’s family against police such as excessive violent force and officers delaying paramedics from rendering aid.

The report also reveals new details about Bauer’s behavior that afternoon, with investigators citing actions and comments indicating drug-induced disorientation amid abuse toward the officers at the scene.

That version of events differs from the account offered by Bauer’s parents in the wrongful-death lawsuit filed on their behalf on June 20, 2019.

The original civil complaint from John and Rose Bauer accused responding police officers of a "violent attack and excessive force" when Jacob Bauer resisted amid a mental health crisis, and then initially delayed paramedics from rendering aid when their adult son became physically unresponsive.

The family also disagrees with the county coroner autopsy finding that methamphetamine toxicity was the cause of death. Their third-party autopsy contends Bauer died as a result of asphyxia during physical restraint by police.

The Bauers’ lawsuit is now proceeding in federal court, according to a filing from their attorneys on March 12 to dismiss their original complaint in Alameda County Superior Court in lieu of the federal case.

The family’s attorney, Jayme Walker, shared more pointed and critical comments as well on Friday after news of the DA’s report became public.

“Two things are clear from what we have been able to review -- the police were the first aggressors without any sufficient cause and Jacob was unresponsive much sooner than is apparent in any police report or the DA report and nothing was done to intervene to save his life until it was too late,” said Walker, from the firm Gwilliam Ivary Chiosso Cavalli & Brewer.

“The officers took a man in a mental health crisis and beat him and restrained him until he died. This has been devastating to the family,” the attorney added.

In a statement Friday, Pleasanton city attorney Dan Sodergren said, “Litigation on this matter is still pending and the city is unable to comment at this time.”

Below is a description of events as recounted in the prosecutors’ report, followed by reaction and claims made by the Bauer family attorney.

The DA’s report

The DA’s investigative report, cited as written by the Critical Incident Team with no individual authors specified, described the series of events and evidence from that afternoon as follows:

In a new revelation, Bauer was seen acting erratically inside and outside of Raley’s nearly three hours before the main incident at the grocery store on Aug. 1, 2018, walking in circles, mumbling to himself and appearing agitated.

Then at 2:20 p.m. that day, as previously reported, he was seen inside the store and growled as he lifted a shopping cart chest-high and slammed it on the ground. He then walked around the store, talked loudly to himself, banged his cellphone on shelves, and took drinks from bottled beverages and either put them back or broke them on the floor.

A store manager and employee monitored Bauer’s activities in the store for nearly 20 minutes and then called police dispatch at 2:42 p.m. after saying they couldn’t get him to leave the store.

Officers Middleton and Chin arrived at 2:51 p.m. to find Bauer had left the store, but approximately one minute later they found Bauer walking on Mission Drive toward Sunol Boulevard -- near the backside of Jim’s Country Style Kitchen.

Middleton spoke to Bauer, obtained his name for a status check (confirmed valid driver’s license and no outstanding warrants) and informed him about the Raley’s vandalism complaint. Bauer denied breaking items in Raley’s or arguing with store employees.

The two officers flanked Bauer while asking if he possessed anything illegal, to which Bauer did not answer and stared straight ahead while holding a separate cellphone in each hand.

Middleton and Chin then moved to detain Bauer by each grabbing an arm and a wrist, and Bauer resisted. (At this point, the DA’s report notes Bauer was 5-foot-9 and 274 pounds.) The time was 2:56 p.m.

At first Bauer was tense and motionless, but then he pulled an arm free from Middleton’s grasp so both officers used a leg sweep to put Bauer on the ground. The three struggled with Bauer on the ground and Chin called for backup.

The struggle continued with the officers unable to handcuff Bauer’s wrists together. Middleton tased Bauer in his hip and shoulder to no appreciable effect. About 30 seconds later, multiple other officers arrived in quick succession.

Bauer was kicking at the officers and scratched Chin multiple times, and in response, Chin and other officers delivered blows with their hands, batons and at least two more Taser stuns “in order to gain compliance.”

The officers then managed to handcuff Bauer’s wrists together using multiple sets of linked cuffs at around 3:01 p.m.

One minute later, officers began the process of putting a body-wrap restraint device on Bauer starting with his legs.

During the four-minute process, Bauer resisted officers and loudly yelled statements like “They’re trying to kill me and rape me, Mr. Trump” and “Mr. Trump, please, they’re trying to kill me.”

Officers noticed blood on Bauer’s face so they applied a spit mask at 3:09 p.m. One minute later, the wrap restraint was fully applied.

“All officers involved described the extreme difficulty they had in controlling Mr. Bauer, which required the use of batons, Tasers, hand strikes and other pain compliance measures,” the report stated.

Livermore-Pleasanton Fire Department personnel were signaled to come inside the staging area and assess Bauer at 3:11 p.m. -- though the report does not indicate when LPFD arrived on scene.

Paramedics Plus personnel then arrived at 3:14 p.m. and worked to get Bauer on a gurney for medical transport. One paramedic gave Bauer the sedative Midazolam (Versed) at 3:19 p.m.

It took paramedics, PPD and LPFD personnel about eight minutes to load Bauer onto a gurney and the man’s condition was reported as breathing with confirmed pulse and dilated pupils.

At 3:28 p.m., Bauer was wheeled inside the ambulance, and paramedics removed the spit mask to find his face was a bluish color and they could no longer record a pulse at 3:30 p.m. The paramedic loosened the top part of the restraint and began CPR.

The ambulance then left the scene at 3:35 p.m. and arrived at Stanford Health Care-ValleyCare hospital at 3:46 p.m. Medical personnel continued resuscitation efforts, but Bauer was pronounced dead at approximately 4:15 p.m.

In addition to recounting prosecutors’ findings about the events at the scene, the DA’s report also noted toxicology and autopsy results from Dr. Michael Ferenc’s examination at the Alameda County Coroner’s Bureau.

Bauer’s blood sample was found to have 0.42 mg/L methamphetamine and 0.04 mg/L amphetamine -- the report stated meth is potentially toxic between 0.2 to 5 mg/L.

The county coroner determined Bauer’s cause of death was acute methamphetamine toxicity. Other significant contributing conditions, but none resulting in the underlying cause, were found to be probable mechanical asphyxia caused by the police restraint device, along with cardiac hypertrophy and morbid obesity.

In summarizing their analysis, the DA’s Critical Incident Team wrote, “Because the officers used objectively reasonable force to overcome Mr. Bauer’s intense resistance to their lawful attempt to detain him, their actions did not constitute an unlawful assault under color of authority

“Nor is there evidence that the officers were criminally negligent, i.e., acted recklessly in a way that created a high risk of death or great bodily injury, and that they knowingly disregarded that risk.”

Family disputes conclusions

“The DA’s conclusions are extremely disappointing and upsetting to the Bauer family,” attorney Walker told the Weekly.

“Jacob Bauer was acting erratically because he was in a mental health crisis. Rather than deploy de-escalation tactics, officers violently detained him and this led to his death,” Walker added.

Bauer’s parents and their attorneys had previously described their son's "rapidly deteriorating mental health" during summer 2018 in the weeks leading up to the fatal encounter.

The attorneys said John and Rose Bauer contacted Pleasanton police at least four times in the weeks leading up to the Aug. 1, 2018 incident to tell them about their son's condition and to try to have him remanded for mental health evaluation, but police responded that there was nothing they could do because he was not a danger to himself or others. Rose Bauer even accused police of being insensitive and condescending.

“The DA concludes that officers could violently detain Jacob for committing misdemeanor vandalism when he was clearly in the midst of a mental breakdown,” Walker said, criticizing the DA’s conclusions Friday.

The attorney argued that officers acted illegally by trying “to arrest a person without a warrant for committing a misdemeanor outside their presence.”

Walker also scoffed at the notion that the officers “could violently detain Jacob to assess whether he needed crisis intervention pursuant to a 5150” -- “particularly ironic” given the other recent outreach by Bauer’s parents to PPD “to try to have him committed for treatment pursuant to 5150 and the Pleasanton Police did nothing to help them.”

John and Rose Bauer also call into question the county coroner's determination of cause of death -- the county's doctor concluded the cause was acute methamphetamine toxicity.

But in a second autopsy and medical review commissioned by the Bauers, their examiner, Dr. Cyril H. Wecht, found Jacob Bauer died as a result of asphyxia during physical restraint by police, while citing as contributing factors meth intoxication, use of Taser and his obesity.

“Our independent autopsy concluded that the methamphetamine alone would not have killed Jacob without the violent acts of police officers. He died of mechanical asphyxia while being restrained in a wrap device that has caused other deaths by asphyxia,” Walker said.

“The civil case has only just begun and we only recently received the video footage from the incident,” the attorney continued:

“While it is disappointing that the DA did not hold the Pleasanton Police officers accountable, we fully intend to pursue justice on behalf of Jacob Bauer and his family and to hold them accountable in the civil case against them.”

Editor’s note: The Pleasanton Weekly has filed with the city multiple requests under the California Public Records Act for police body-camera footage and other documentation related to Bauer’s death, to no avail.