EXHIBIT 3

Case 3:16-cv-07222-SK Document 78-3 Filed 12/31/18 Page 1 of 29
DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

Barbara J.Butler & Associates - Certified Court Reporters

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 IN THE UNITED STATES DISTRICT COURT

 IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA

 --oOo--

ROY NELSON III, Successorin-Interest to Decedent ROY 

NELSON; ORENELL STEVENS,

individually,

 Plaintiffs,

 CASE NO.:

 vs. 3:16-cv-7222

CITY OF HAYWARD, a municipal

corporation; MICHELLE HALL, in her 

individual and official capacity 

as Police Officer for the CITY OF 

HAYWARD; NATHANAEL SHANNON, in his 

individual and official capacity 

as Police Officer for the CITY OF 

HAYWARD; MATTHEW MCCREA, in his 

individual and official capacity 

as Police Sergeant for the CITY OF 

HAYWARD; JOHN PADAVANA, in his 

individual and official capacity 

as Police Officer for the CITY OF 

HAYWARD and DOES 1-50, inclusive,

individually and in their official 

capacity as police officers for 

the City of Hayward, CERTIFIED COPY

 Defendants. 

_________________________________/

 DEPOSITION OF SERGEANT MATTHEW McCREA

 TUESDAY, DECEMBER 5, 2017

 (CONFIDENTIAL Page 20, Line 20 to 

 Page 26, Line 18 are bound separately)

REPORTED BY: ANGELICA R. GUTIERREZ, CSR NO. 13292

Case 3:16-cv-07222-SK Document 78-3 Filed 12/31/18 Page 2 of 29
DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

Barbara J.Butler & Associates - Certified Court Reporters

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1 had been called to have this person removed, which

2 later it was determined to be Mr. Nelson.

3 Q. So it wasn't your understanding at the time

4 that there was a request for a 5150 detention of

5 Mr. Nelson?

6 A. As the call unfolded, I heard the request for

7 a what's known as code two, which is an ambulance to

8 respond for a 5150 detention, and that's nothing

9 uncommon.

10 Q. Okay. So as you became -- I assume you were

11 listening to the radio traffic or reading your CAD for

12 further information?

13 A. Correct.

14 Q. Okay. And as time passed, you gathered more

15 information about the call, correct?

16 A. A little bit here and there, yes.

17 Q. But at some point you did end up responding to

18 the call, correct?

19 A. Only after Officer Shannon had requested my

20 presence.

21 Q. Okay. So Officer Shannon went over the radio

22 and asked for the sergeant to come to --

23 A. Asked for the supervisor.

24 Q. Okay. What was your understanding why you

25 were being summoned to the area?

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DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

Barbara J.Butler & Associates - Certified Court Reporters

29

1 A. Officer Shannon had said that he needed the

2 superior to respond as the Wrap, leg restraining

3 device, may need to be deployed.

4 Q. Okay. And based on my understanding, correct

5 me if I'm wrong, the supervisor would be the person who

6 had the Wrap in the vehicle; is that correct?

7 A. That's correct.

8 Q. Okay. And is the supervisor the only person

9 that is permitted to carry a WRAP device?

10 A. It's the only vehicles that have the WRAP are

11 the supervisor vehicle.

12 Q. So for -- in order for a patrol officer to get

13 a WRAP device, they would have to summon the sergeant

14 or an acting sergeant, correct?

15 A. They would need to summon the supervisor.

16 Q. I'm assuming that there are supervisors above

17 the level of sergeant who could also respond with the

18 WRAP device; is that correct?

19 A. Correct.

20 Q. Okay. But to your understanding, can anybody

21 below level of sergeant have a WRAP device in their

22 vehicle with the intention to use it?

23 A. Not with the intention to use it, no.

24 Q. What is the requirement from the supervisory

25 level of permission required to utilize the WRAP

Case 3:16-cv-07222-SK Document 78-3 Filed 12/31/18 Page 4 of 29
DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

Barbara J.Butler & Associates - Certified Court Reporters

30

1 device?

2 A. It's -- the reason that the sergeants have the

3 WRAP in their vehicle is so that way -- it's one of

4 those calls, as I had said earlier, where a supervisor

5 is required to respond. The sergeants are the ones

6 that have the WRAP. They are the ones who are required

7 to respond out there to be able to evaluate the

8 situation.

9 Q. Okay. So would it be fair to say that when

10 somebody summons you to bring the WRAP, you would come

11 to the scene and evaluate the potential need for the

12 use of the WRAP?

13 A. Yes.

14 Q. Okay. Do you have an understanding why are

15 only the sergeants allowed to have the WRAPs or are

16 allowed to give permission to use the WRAPs?

17 A. Just how our policies and procedures are

18 written.

19 Q. So you don't have any understanding of the

20 reason for that?

21 A. Just the policy and procedure of the

22 department.

23 Q. So you're just following directions?

24 A. Yes.

25 Q. Fair enough. And so from the time that --

Case 3:16-cv-07222-SK Document 78-3 Filed 12/31/18 Page 5 of 29
DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

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1 underneath the person and get the straps together, is

2 there any requirement that one or more of the officers

3 observes the individual being placed into the WRAP for

4 their physical wellness or check vital signs, etc.?

5 A. Like one officer designated to?

6 Q. Yeah.

7 A. That's never been something we've ever

8 discussed. If you're working on the upper portion of

9 the body or restraint or holding the person down, then

10 that would obviously be a consideration that, you know,

11 this is going be one of your responsibilities to make

12 sure this person is doing okay.

13 Q. So it's your understanding that the person or

14 people in the vicinity of the person's head and upper

15 torso would be responsible for observing the person to

16 make sure that they're not having some kind of medical

17 emergency or medical stress?

18 A. Correct.

19 Q. But that's not something that, for example,

20 you as an acting sergeant would say, "Hey, Officer

21 such-and-such, you will be the person doing vitals"?

22 A. No.

23 Q. Okay. And if there's multiple people standing

24 in the vicinity of the person's head, how would those

25 people know who would be the person undertaking that

Case 3:16-cv-07222-SK Document 78-3 Filed 12/31/18 Page 6 of 29
DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

Barbara J.Butler & Associates - Certified Court Reporters

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1 responsibility?

2 A. It would probably be discussed between the two

3 of them.

4 Q. Okay.

5 A. Or however many. In a perfect world of using

6 the WRAP, the supervisor that's on scene would be

7 standing back and taking in the overall picture of

8 what's going on and I -- if I was out there and that

9 perfect world had existed, I would be standing there

10 and being one of the people to take into account what

11 distress, if any, this person may be in.

12 Q. And is there any particular training of what

13 should occur if a person is noticed to have been in

14 medical distress?

15 A. You would want to make an alert notification

16 of your observations as soon as practical, yeah.

17 Q. Okay. And are you meaning to say you would

18 want to alert your fellow officers of those

19 observations?

20 A. Yes.

21 Q. And what -- say a person is placed in a WRAP

22 device and they are overt medical emergency, what would

23 the next step be for the perspective of the people

24 applying the WRAP?

25 A. At that point, it would be making folks aware

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DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

Barbara J.Butler & Associates - Certified Court Reporters

70

1 of what was going on and now the shift and focus is

2 from the restraint to the medical distress.

3 Q. Okay. So it's fair to say person noticed --

4 once somebody had noticed that the individual in the

5 WRAP was having some kind of medical emergency that you

6 would stop applying the WRAP device?

7 A. Yeah, you would end up stopping, yes.

8 Q. Okay. And once the person placed in the WRAP

9 device was having a medical emergency, would you then

10 remove the WRAP device traditionally?

11 A. It depends on how far into the process you

12 are.

13 Q. Okay.

14 A. If you have the thing fully on and they're in

15 the upright, seated position and they go into medical

16 distress, you would obviously undo portions of it to

17 the point where you are able to administrate.

18 Q. So your understanding would be that you would

19 only be expected to remove the portions that would

20 interfere with providing medical care?

21 A. Yeah.

22 Q. Okay. And would your understanding be that

23 that portion would be the upper body portion?

24 A. It would most likely be the upper body portion

25 since that's where the vital organs are at.

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DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

Barbara J.Butler & Associates - Certified Court Reporters

71

1 Q. Okay. Obviously, just depending on what type

2 of medical emergency the person's having?

3 A. Right.

4 Q. If they're bleeding out from their leg, you

5 would probably remove the leg portion?

6 A. Correct.

7 Q. If a person is successfully placed in a WRAP

8 and everything is closed and considered successful,

9 what do you do with the person at that point?

10 A. So a full successful WRAP, no medical

11 anything?

12 Q. Yeah, just under a perfect scenario when the

13 person's been properly detained and they're breathing,

14 speaking.

15 A. At that point, it would be the assessment

16 making sure there's no medical distress. If there's no

17 medical distress, it would be to lift the person up off

18 the ground in that seated position, placing them into

19 the backseat of the car, securing them, seat belting

20 them in, and continuing with transport.

21 Q. Okay. If a person -- and this would be I

22 guess whether the person is in the WRAP or not. Have

23 you been trained on what is called a recovery position?

24 A. In terms of a -- yeah, the first aid CPR

25 recovery position.

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DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

Barbara J.Butler & Associates - Certified Court Reporters

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1 Q. And that's what I was referencing was a

2 recovery position related to medical distress or

3 medical emergencies.

4 A. Yes. It's something that's taught about,

5 yeah.

6 Q. And what do you understand the recovery

7 position is?

8 A. A person has -- I don't know. It depends on

9 what the medical distress is. You know, if they're

10 vomiting, it keeps them from aspirating and drowning in

11 their own vomit, saliva, anything along those lines.

12 It can be used for a multitude of reasons.

13 Q. What's your understanding of what the recovery

14 position is?

15 A. A person rolled over onto their side or

16 somewhat onto their side. That's the best way for me

17 to describe it.

18 Q. Okay. And is it your understanding that the

19 recovery position is something that is typically done

20 if somebody is having breathing or respiratory

21 distress?

22 A. Not necessarily.

23 Q. Is it your understanding that the -- do you

24 have any understanding about whether the recovery

25 position exists for the purpose of preventing a person

Case 3:16-cv-07222-SK Document 78-3 Filed 12/31/18 Page 10 of 29
DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

Barbara J.Butler & Associates - Certified Court Reporters

73

1 from laying on their back that could potentially cause

2 problems with their organs or the ability for their

3 diaphragm to expand? Do you have any understanding of

4 that being part of the purpose of it?

5 MR. ROLLAN: Objection. Calls for expert

6 opinion.

7 MS. NOLD: Q. What I'm asking is your

8 understanding. I understand you're not a doctor and I

9 understand you didn't write the training. I'm just

10 trying to understand what information you have

11 available to you as far as what, you know, the, I

12 guess, biological purpose the recovery position

13 establishes.

14 A. I don't know.

15 Q. Okay. And that's fine. You don't necessarily

16 need to know. Some officers had done personal research

17 on topics that were outside of what we would expect

18 them to know. Sometimes people know more about stuff

19 and some times people have had other train and go they

20 know more. We don't know what you know pick away in

21 there.

22 A. Right.

23 Q. Okay. Have you received any training as far

24 as if a person is having some sort of respiratory

25 distress what your response should be in your first

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DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

Barbara J.Butler & Associates - Certified Court Reporters

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1 responder capacity as a police officer?

2 A. Airway, breathing, circulation and monitoring

3 each of those.

4 Q. Okay. And assuming that once you're

5 monitoring one of things, if one of those things is not

6 occurring, there's obstruction to the airway or the

7 person's not breathing --

8 A. Then you fix it.

9 Q. Correct. And what does fixing it mean?

10 A. Depends on the circumstance. Is it a choke?

11 Is the airway not tilted correctly? If you need to

12 administer breaths, it's a whole multitude of things.

13 Q. And fair to say that one of those things would

14 be calling an ambulance if they're not already en

15 route?

16 A. Yes.

17 Q. And then obviously the officers undertake

18 whatever they can medically within the course of their

19 training, whether that's CPR or applying pressure to a

20 bloody wound, or whatever you can do within the scope

21 of the tools that you have available to you, right?

22 A. Correct.

23 Q. Is it your understanding that a WRAP can be

24 used against individuals for, I would say, punitive

25 reasons? Say the person is disrespectful and rude.

Case 3:16-cv-07222-SK Document 78-3 Filed 12/31/18 Page 12 of 29
DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

Barbara J.Butler & Associates - Certified Court Reporters

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1 A. That would be an inappropriate use of a WRAP.

2 Q. Okay. And so did you receive any training on

3 what would be considered inappropriate use of the WRAP?

4 A. Yes. It's defined in our policy.

5 Q. What's your understanding of what

6 inappropriate use is beyond what we just established,

7 the punitive reasons --

8 A. Just as a physical punishment. That would be

9 inappropriate.

10 Q. Okay. So back to the scene. You guys have

11 developed a plan for getting Mr. Nelson out of the car,

12 right?

13 A. We were working on them, yes.

14 Q. It sounded like you and Officer Shannon mainly

15 are developing a plan and Officer Hall is as a training

16 officer, probably just there to follow orders, to some

17 degree?

18 A. She's following along, and I'm trying to -- I

19 recall trying to get her to think of formulating a plan

20 and working to formulate the plan with us for

21 experience.

22 Q. She's not training for part of all of the

23 exercises of every call that she responds to train her,

24 to explain things to her, to become a better officer

25 going forward?

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DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

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1 A. Correct.

2 Q. So what was the plan for getting Mr. Nelson

3 out of the car?

4 A. Well, the initial plan I had developed was to,

5 since Mr. Nelson was seated in the back of the car with

6 his back facing the driver's side rear door, was to

7 open up that door, and while he was still seated in the

8 car, at that point to be able to apply the handcuffs

9 while he was still seated in the car before having --

10 Q. And then in the plan, the intention, once he

11 was handcuffed, was the intention --

12 A. Was to remove him from the car and have him

13 lay down on the ground so the WRAP could be applied.

14 Q. Okay. Was there any discussion about

15 handcuffing Mr. Nelson without opening the car door --

16 window rolled down?

17 A. Not that I recall. That would have been

18 impossible to do with the car.

19 Q. It would have been impossible to roll the

20 window down and handcuff him through the bars?

21 A. There's not enough room to be able to do that.

22 Q. Okay. And do you know if -- to the best of

23 your understanding, would your arms fit through the

24 bars?

25 A. It's a complete officer safety issue. In my

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DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

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1 opinion, if you get your arms through there, you can

2 get stuck, or if the person who is in the back decides

3 to go on the attack, you're stuck. They grab your arms

4 and that would -- I would never even consider that.

5 Q. So more not that it's impossible, more that it

6 would be unwise; is that more accurate?

7 A. Even sitting here just trying to think of how

8 it would even be done, I can't even formulate a plan of

9 how we would do it. So in my opinion, it would be

10 impossible.

11 Q. Okay. Fair enough. Obviously, you guys

12 didn't discuss that in any regard?

13 A. Right.

14 Q. Okay. Fair enough. And so the intention

15 obviously was just to put Mr. Nelson into the WRAP

16 device, and what were you going to do with him?

17 Assuming you successfully placed the WRAP devide, what

18 was the end game on the plan? What were you going to

19 do with him?

20 A. The end game would have been to transport him

21 to St. Rose hospital on our own outside of the normal

22 protocol just because of the delay in ambulances.

23 Q. Okay. So it was the intention to go ahead and

24 go outside of protocol and self-transport him to

25 St. Rose?

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DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

Barbara J.Butler & Associates - Certified Court Reporters

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1 A. Yeah because it would have served the purposes

2 of exactly what medical would have done, get him there,

3 medically cleared and in the meantime maybe an

4 ambulance could have showed up and done a transport to

5 John George or we could have discuss what else would

6 have needed to be done beyond that, but never got

7 there.

8 Q. Right. At that point when you guys were

9 putting together a plan, what was your understanding of

10 how much time had elapsed when you had first

11 responded -- Hayward PD's first response to Ironwood up

12 to that point?

13 A. I don't even recall how long it was. I just

14 know that the officers had said there were several

15 delays and that multiple ambulances had been rerouted,

16 so it was becoming excessively long.

17 Q. Okay. So you have this discussion. What

18 officers are present at this point besides Officer

19 Shannon and yourself?

20 A. Let's see. Officer McKee and I believe

21 Officer Padavana were also on scene. I wasn't having

22 any active discussion with them. I was more with the

23 training unit, with Officer Shannon and Officer Hall.

24 Q. Was it your understanding Offers McKee and

25 Padavana came in response to a call for assistance in

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DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

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1 getting Mr. Nelson into the WRAP device?

2 A. They responded in case it needed to be

3 applied, yes.

4 Q. And do you recall, were you the person who

5 summoned additional units?

6 A. I had requested additional units to the scene.

7 Q. And were Officers McKee and Padavana a part of

8 the planning process for the -- that you guys had

9 discussed about getting him out of the car and into the

10 WRAP?

11 A. It was something that I had brought to Officer

12 Hall's attention to think about who would be in control

13 of arms, who would be in control of legs.

14 Q. And were Officers McKee and Padavana part of

15 the conversation? Were they given assignments with

16 that plan?

17 A. There was nothing ever specific put in who was

18 going to do what at the time. I was trying to work on

19 that with her, but I don't think anything was ever

20 fully put together.

21 Q. Okay. So it sounds like you had started to

22 put together a plan, but you guys didn't ultimately

23 come with a plan and then begin the plan; is that

24 correct?

25 A. I'm sorry.

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DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

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1 Q. Let me strike that question. Ig sounds like

2 you guys started to create a plan about who was going

3 to do what, but it sounds like you didn't complete the

4 plan?

5 A. I think it became more along the lines of

6 being senior officers and having used the WRAP before

7 and the understanding of it and just kind of going on

8 auto pilot.

9 Q. Okay. So then at some point the plan became

10 initiated, correct?

11 A. Yes.

12 Q. Okay. And then what happened next?

13 A. Officer McKee opened up the back door.

14 Mr. Nelson stepped out, and I believe it was Officer

15 Shannon had one arm. Officer McKee had the other, and

16 they were preparing to handcuff him.

17 Q. Was that your understanding it was part of the

18 plan that Officer McKee was going to open the car door?

19 A. It wasn't what I was expecting, but it's not

20 unreasonable. You've got to open the door.

21 Q. Sure. From what understand, I believe Officer

22 Hall and maybe Officer Shannon were trying to get

23 Mr. Nelson to put his hands behind back so that they

24 could presumably handcuff him while he was still seated

25 in the car, and then the door opened. Is that your

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DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

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1 understanding, that Officer McKee opened the door on

2 the other side?

3 A. I just recall Officer McKee standing there and

4 Mr. Nelson stepping out of the car.

5 Q. Okay. And when Mr. Nelson -- when Officer

6 McKee opened the door and Mr. Nelson got out of the

7 car, were you startled by Mr. Nelson getting out of the

8 car?

9 A. No.

10 Q. Did you have any reason to believe that Mr.

11 Nelson kicked his way out of the car or escaped in some

12 way?

13 A. No.

14 Q. And when Mr. Nelson got out of the car, did

15 you see him threaten anybody?

16 A. I don't recall what, if anything, he was

17 saying.

18 Q. Were you ever made aware of Mr. Nelson making

19 any threats against anybody upon getting out of the

20 car?

21 A. I don't recall.

22 Q. To your knowledge, did Mr. Nelson make any

23 threats against you?

24 A. Against me.

25 Q. Yes.

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DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

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1 A. No.

2 Q. To your understanding, did Mr. Nelson spit on

3 anybody?

4 A. No.

5 Q. Did Mr. Nelson head butt anybody?

6 A. No.

7 Q. Did Mr. Nelson punch anybody?

8 A. No.

9 Q. Did Mr. Nelson kick anybody?

10 A. No.

11 Q. When Mr. Nelson got out of the car, did he

12 appear to be compliant?

13 A. Define "compliance," if you don't mind.

14 Q. Sure. Was he responding to the command when

15 he was told to get out of the car?

16 A. I know one command that I can recall being

17 given and that was one I gave.

18 Q. What command did you give Mr. Nelson?

19 A. I told him to get down on his knees.

20 Q. Okay. And when you told Mr. Nelson to get

21 down on his knees, where was he located?

22 A. He, just prior to that, was slightly leaning

23 against the right rear quarter panel, right rear fender

24 of the car, and I had made mention to have him step

25 away so that way we were able to get him laid down onto

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DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

Barbara J.Butler & Associates - Certified Court Reporters

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1 the ground. After the officers had removed him from

2 the car or near the back of the car, that's when he,

3 Mr. Nelson, literally looked over to me, and I remember

4 very specifically locking eyes with him and trying to

5 use that moment to gain the compliance and give him the

6 command, "Get down on your knees." And I don't recall

7 how many times I had to give it, but I know that he

8 did go to his knees because I remember saying, when I

9 reviewed my camera footage, "Okay. There you go."

10 Q. In that regard, did you consider him to be

11 compliant with the orders?

12 A. We were getting some compliance, yes.

13 Q. Did you take into consideration that, while

14 asking him to get on the ground, his physical stature

15 and maybe a delay in getting himself to his knees

16 because of his large body structure?

17 A. I gave the command. I know I gave the command

18 more than once, and that's not uncommon, so you end up

19 getting the compliance -- or I got the compliance to go

20 to his knees, and okay cool.

21 Q. And he did. At what point did you consider

22 Mr. Nelson consider to be resistive?

23 A. Prior to him going to his knees, as they were

24 trying to walk him away from the back of the car, I

25 remember him twisting his upper body back and forth, so

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DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

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1 it wouldn't be full-on compliance.

2 Q. Okay. Have you ever heard the term "walking

3 resistance"?

4 A. Oh, yeah.

5 Q. Is that what you consider walking resistance?

6 A. Walking resistance would involve your legs.

7 Q. Okay. But he was -- he did take steps, he did

8 walk during that?

9 A. Yes.

10 Q. To get to the point where he could lay himself

11 down on the ground?

12 A. Yes. He wasn't drugged.

13 Q. Right. I would say there are videos that give

14 various perspectives -- from your perspective we have

15 seen the 360. So Mr. Nelson got down onto his knees,

16 correct?

17 A. Correct.

18 Q. And then what happened next?

19 A. He was placed down onto his stomach and face

20 down onto the ground so the ankle strap and leg portion

21 of the WRAP was able to become applied.

22 Q. Okay. And where were you at this time in

23 proximity to Mr. Nelson?

24 A. I was standing back giving the officers room

25 so they were able to get Mr. Nelson onto the ground,

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DEPOSITION OF SERGEANT MATTHEW McCREA

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1 and because of the location that he was being placed

2 onto the ground, I had to go and retrieve the portions

3 of the WRAP device that were on the driver's side of

4 the car.

5 Q. And at this point then, was Mr. Nelson

6 handcuffed?

7 A. He was handcuffed at some point, yes. I can't

8 recall exactly at what point the handcuffs were

9 applied.

10 Q. But you did not participate in his

11 handcuffing?

12 A. No.

13 Q. Did you know who did?

14 A. No.

15 Q. So you went and grabbed the components for the

16 WRAP device, and at that point, you returned to where

17 Mr. Nelson was located?

18 A. Correct.

19 Q. At that point, do you recall if he was

20 handcuffed?

21 A. He might have been. I can't recall exactly.

22 Q. Okay. And where were the various officers in

23 relationship to Mr. Nelson's body?

24 A. I remember two up top and I remember Officer

25 Padavana being down at the legs, and after reviewing

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DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

Barbara J.Butler & Associates - Certified Court Reporters

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1 all the camera footage, it was Hall and Shannon were

2 the ones that I remember at the upper body.

3 Q. And then you said Officer Padavana down at his

4 legs?

5 A. Yes, he was helping with the legs.

6 Q. Who else was down at Mr. Nelson's leg?

7 A. I was.

8 Q. Okay. So at some point you went down by Mr.

9 Nelson's legs?

10 A. Correct.

11 Q. And at some point, did officer Padavana put

12 Mr. Nelson into a figure-four leg lock?

13 A. Yes, he had him in a figure four.

14 Q. Okay. And did he have him in the figure four

15 when you brought over the WRAP device?

16 A. Yes.

17 Q. Did you ask Officer Padavana or did he on his

18 own accord remove Mr. Nelson from the figure four to

19 facilitate the WRAP being placed?

20 A. Yes. The figure-four hold was removed so we

21 could straighten his legs out.

22 Q. Because obviously you couldn't put him in a

23 WRAP if the figure-four wasn't applied?

24 A. Correct. The WRAP is designed to be applied

25 to straight legs.

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DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

Barbara J.Butler & Associates - Certified Court Reporters

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1 Q. And to your best estimate, how long was Mr.

2 Nelson held in the figure four?

3 A. I'm not sure. My attention wasn't on

4 Mr. Nelson at that time; I was retrieving the WRAP

5 portions.

6 Q. Okay. And at that point, you guys began to

7 try to apply the WRAP device?

8 A. That's correct.

9 Q. Okay. To the best of your understanding, what

10 was going on with Mr. Nelson's upper body?

11 A. I do not remember. I don't know.

12 Q. Were you in a position where you weren't able

13 to see his upper body?

14 A. I was focused on getting his legs into the

15 ankle strap, getting his ankles cross so the ankle

16 strap could be applied, and that was my job. That was

17 my focus. Everything else at that time, I wasn't

18 paying attention to. I was relying on my partners to

19 be able to execute their job.

20 Q. Okay. I'm not sure -- do you recall making a

21 statement about, you know, when you were down Nelson's

22 legs, having, I guess what we refer to like a tunnel

23 vision, just focused in, sort of not cognizant what was

24 going on besides Mr. Nelson's legs?

25 A. That's a fair assessment. I'm working on the

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DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

Barbara J.Butler & Associates - Certified Court Reporters

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1 lower portion of his body, and my focus at this time is

2 to get his legs straightened and the ankles crossed.

3 Q. Okay. So at that point, you and Officer

4 Padavana began trying to get Mr. Nelson's legs into the

5 WRAP?

6 A. Correct.

7 Q. Okay. At any point, was Officer Shannon

8 assisting you with trying to get Mr. Nelson's legs into

9 the WRAP device?

10 A. Not that I recall. Not at that moment.

11 Q. At any point, did Officer Shannon try to

12 assist in getting Mr. Nelson's lower portion into the

13 WRAP?

14 A. I don't recall.

15 Q. Do you recall during this scenario seeing what

16 Officer Shannon was doing at all?

17 A. I just remember him being up on the upper end

18 of Mr. Nelson's body. What exactly he was doing, I

19 can't recall.

20 Q. You don't recall seeing Officer Shannon with

21 his knee on Mr. Nelson's back, sort of leaning over his

22 body towards the lower portion of his body?

23 A. I don't remember that at all.

24 Q. Are you familiar with the term called

25 "positional compression," sometimes referred to as

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DEPOSITION OF SERGEANT MATTHEW McCREA

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1 "positional asphyxiation"?

2 A. Yes.

3 Q. What's your understanding, based on your

4 training or your experience, what that is?

5 A. Just having -- the body being in a position

6 where it makes it hard to breathe.

7 Q. Okay. Is it your understanding based on your

8 training and experience that applying pressure to

9 certain portions of a person's back or upper body can

10 restrain their ability to breathe?

11 A. Yes.

12 Q. And what's your understanding of what portion

13 of the person's back you're supposed to avoid to

14 prevent yourself from restricting their ability to

15 expand their lungs?

16 A. I don't think I can give you an exact area.

17 Q. Okay. Well, based on your training, what are

18 the areas of a person's back that you avoid to avoid

19 causing that person to potentially have respiratory

20 problems?

21 A. In my opinion, any portion of the person's

22 upper body if they are on the ground, any weight

23 applied can cause a distress. Of course, obviously,

24 the main area would be direct pressure to the center of

25 the back, I would say, but if you are held down on the

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DEPOSITION OF SERGEANT MATTHEW McCREA

1659 Scott Blvd., Suite 15, Santa Clara, CA 95050 - (510) 83-BUTLER (2885) or (408) 248-BUTLER(2885)

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1 ground and downward pressure is applied, it would cause

2 some type of distress, however slight.

3 Q. Okay. Is your understanding based on your

4 training that you're not supposed to, for example,

5 kneel in the middle of somebody's back while they're

6 handcuffed down on the ground?

7 A. It would depend on the circumstances.

8 Q. To your knowledge, have you ever received any

9 training that advised you not to kneel in the middle of

10 somebody's back while they were handcuffed faced down

11 on the ground?

12 A. I don't recall ever being specifically given

13 that type of training.

14 Q. Okay. Do you recall any training that was

15 specific to positional asphyxiation?

16 A. Just in, like, a classroom setting of talking,

17 yeah.

18 Q. Okay. Do you remember what they said, sort of

19 what the key points were, the take aways?

20 A. You don't want to keep somebody in a position

21 where they're breathing is restricted for an undue

22 amount of time.

23 Q. And do you recall any sort of guideline of

24 what amount of time that would be?

25 A. No.

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DEPOSITION OF SERGEANT MATTHEW McCREA

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1 STATE OF CALIFORNIA )

 ) ss.

2 COUNTY OF CONTRA COSTA )

3

4 I, Angelica R. Gutierrez, a licensed Certified

5 Shorthand Reporter, duly qualified and certified as such

6 by the State of California;

7 That prior to being examined, the witness named in

8 the foregoing deposition was by me duly sworn to testify

9 to the truth, the whole truth, and nothing but the truth;

10 That the deposition was by me recorded

11 stenographically at the time and place first herein

12 mentioned, and the foregoing pages constitute a full,

13 true, complete and correct record of the testimony given

14 by the said witness;

15 That I am a disinterested person, not being in any

16 way interested in the outcome of said action, nor

17 connected with, nor related to any of the parties in said

18 action, or to their respective counsel, in any manner

19 whatsoever.

20

21 DATED: December 5, 2017

22

23 __/Angelica R. Gutierrez___________________

24 ANGELICA R. GUTIERREZ, CSR No. 13292

25

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