Hours after a judge found Nelson Aviles not guilty of threatening a fellow police officer with a gun, the former cop was not out celebrating his victory. Aviles was on the phone, calling all the media outlets that had covered his arrest last April and telling them they were wrong about him.
"All I want to do is clear my name," he said Monday. "I am not a bad cop, never was."
But none of the reports were incorrect, including the one in this newspaper.
The former Fourth District patrolman admits he unclipped his 9mm Glock from its holster on April 17. He confesses he pointed it at Officer Daniel Leone.
But Aviles contends he was joking — all part of some good-natured ribbing between brothers-in-arms, something lost on those of us who are not gun-carrying police officers. A Municipal Court judge agreed.
On Monday, Judge Frank Palumbo found Aviles not guilty of simple assault, reckless endangerment and possession of an instrument of crime. At a preliminary hearing in May, Judge Louis Retacco had dismissed more serious felony charges of aggravated assault and unlawful restraint. The aggravated assault charge alone carried a potential five-year prison sentence.
"We were all kidding," Aviles said. "It’s not like I pointed this gun right towards his head."
His attorney, Gerald Stanshine, backed him up. Police are weapons experts trained in gun safety, he said, and that greatly reduces the threat Aviles posed to Leone.
"If it is some kid with a weapon in his hand or a civilian … accidents are too likely," the attorney said. "With somebody who is an expert that knows what to do and what not to do … it is a whole different risk factor."
Aviles, 38, moved from Chicago to Philadelphia in 1995 with his fianc�e, and lives near 16th and Jackson streets. He is divorced and has one daughter.
He had been a Philadelphia police officer for four-and-a-half years prior to the incident and his subsequent dismissal. Aviles said during that time, he and Leone were "buddies" and even worked as partners for a brief period.
The two have not spoken since April, Aviles said. Leone could not be reached for comment for this story.
Since the incident, the former cop claims he has had trouble holding a job. He had worked part-time at The Home Depot while on the force. Three days after he was arrested and charged, he was fired from the store, Aviles said. He found another job at another large chain store after that, but Aviles said after a couple of months, his bosses there learned of the charges against him. He claims they began switching his shifts and treating him differently until he quit because he "didn’t want the static."
Aviles has found a new job but did not disclose the name of the company for fear he would lose that position, too. He did say it was with a food-industry business in South Philly.
Despite hardships over the past seven months and his campaign to prove the media did him wrong, Aviles tells people he is not bitter about his situation.
"[The police department] had to do what they had to do," Aviles said, "but still how they did the whole investigation was really bad. I’m not bitter. I just want my job back and to continue my life."
But the question lingers: Why did Aviles point his gun at Leone?
"I have no idea," Aviles said. "It just came out of the blue. It was just like a joke."
The morning of the incident, Aviles was at Fourth District headquarters, 11th and Wharton, picking up riot gear prior to his patrol. He remembers a demonstration was taking place in Center City that day and he was among the officers assigned to be on standby in case things got out of control.
Aviles said he was in the police-station parking lot when Leone came outside and said, "I smell stinking Mexican," to Aviles, who is Puerto Rican.
Leone admitted to the comment during the trial. It was how the two officers kidded around, Aviles said. They had exchanged barbs like that with each other for two years.
However, the banter intensified into something less playful. It came out in court that the confrontation was fueled by Leone’s belief that Aviles had been distributing Leone’s cell phone number as a joke.
Internal Affairs officers investigated Leone’s claim before the trial and discovered another cop, not Aviles, had been circulating Leone’s phone number.
But on the day of the incident, it was part of the spiraling exchange between the officers.
Tensions peaked when Aviles removed his Glock from his holster and raised it toward Leone briefly, then returned it to his hip.
Leone testified that he felt threatened and afraid at the time of the incident, said Cathie Abookire, spokesperson for the District Attorney’s Office.
Two officers standing near Aviles who testified for the defense told the court they did not perceive Aviles’ actions as serious. One of the officers said he turned away and went about his business when Aviles pulled his weapon. A second testified that he could see Aviles’ finger was positioned outside the gun’s trigger guard. He also told the court that he jokingly said, "Hey man, I don’t think you want to waste any good bullets on that guy."
Aviles said he consciously did not put his finger on the trigger.
"I know I didn’t have my finger on the trigger," he said, "because I am trained not to have my finger on the trigger."
Leone and Aviles went their separate ways in their patrol cars that morning. Four hours later, Aviles said, he was called into Capt. Tom Thompson’s office and informed of the charges against him.
Police Commissioner Sylvester Johnson immediately suspended Aviles with intent to dismiss him from the department.
At the conclusion of the trial, Palumbo acquitted Aviles of all charges after briefly commenting that he viewed Aviles pointing his weapon at Leone as "some kind of jest," according to Abookire.
The prosecutor in the case, Brian Zarallo, disagreed with the decision and pressed the judge for further explanation, Abookire said. Palumbo declined.
"For a police officer to brandish a gun is not a joke," Abookire said. "For anybody to brandish a gun is no joke, especially for a police officer because they are held to a high standard."
Aviles is a long way from becoming a Philadelphia police officer again. His reinstatement hearing before an arbitrator is scheduled for July 15, 2003, according to Gene Blagmond, spokesperson for the Philadelphia Lodge of the Fraternal Order of Police.
Aviles will have the FOP’s support throughout the proceedings. A battle between two police officers presents the union with a sticky situation that it would rather avoid, Blagmond said, but it is FOP policy to side with the officer who has been suspended, fired or lost pay.
The chance of Aviles getting back on the force is not necessarily contingent on the officer’s court victories.
"The criminal case has nothing to do with the arbitration," Blagmond said. "There is a different level of proof on arbitration."
