George Brown benefited from an expansion of the state’s military diversion statute, which suspends criminal charges for select veterans who cite the traumatic effects of their service as affecting their crimes.
SAN JOSE – Earlier this year, former San Jose police officer George Brown learned of his legal fate after he was charged with a drunken road rage episode from four years ago, based on allegations he repeatedly punched a woman on the side of a freeway and abused his police authority.
When his case was adjudicated in January, a law meant to help military veterans suffering from the effects of their service led to a court suspending his criminal charges on the condition he completes court-ordered rehabilitation. His police license with the state has since been taken off suspension.
Brown’s attorney argued to the Santa Clara County Superior Court that the alleged crimes were mitigated by PTSD he suffered from his time in the Air Force – including a stint in Iraq during which he volunteered to help wounded soldiers – prior to him joining the San Jose Police Department in 2015.
Brown, 41, benefited from the state’s military diversion statute, first enacted a decade ago. This year, the law also began covering felony crimes in addition to misdemeanors.
Prosecutors fought diversion for Brown, with District Attorney Jeff Rosen telling this news organization, “I doubt this new law was intended to give a free pass to a police officer charged with using his authority to beat a woman on a highway and put his children in danger.
“The law needs to be changed to help veterans whose troubles cause them to commit low-level, nonviolent crimes,” Rosen said in a statement. “The new law needs to cut out its benefits for dangerous people, especially dangerous people with badges.”
James Shore, Brown’s attorney, strongly objected to that view.
“The purpose of military diversion is to treat, restore, and rehabilitate United States military veterans like George Brown, who served honorably and was highly decorated for wartime service – but now suffers because of his sacrifice,” Shore said in a statement. “It is shameful, discriminatory, and downright repugnant for the government to attempt to deny worthy veterans access to military diversion based upon race, ethnicity, professional status, or any other classification.”
With the law’s expansion still fresh, prosecutors are already voicing concern about being hamstrung from mounting meaningful challenges to this new class of military diversion claims.
Shore and other attorneys who have defended people seeking military diversion argue that distinguishing prospective beneficiaries because of their job would unfairly punish people who pursue public service after they hang up their previous uniforms.
“We want police officers to be treated just like everybody else, even if that means sometimes they get the benefit of something,” said Richard Foxall, a retired veteran Alameda County deputy public defender who represented hundreds of veterans in his career. “I don’t see how you make the argument that they’re in a different category for this. I think that’s a really, really problematic stance to take.”
Authorities say Brown was off duty driving a Ford Explorer the night of July 24, 2021 when he narrowly avoided a collision with the driver of a Ford Flex near a southbound Interstate 280 ramp. That escalated to the two motorists driving aggressively, and a woman riding in the Flex threw a plastic bottle and hit the Explorer.
Both vehicles pulled over on Interstate 680 near the McKee Road offramp and Brown reportedly called dispatchers to send over San Jose police officers. Investigators say Brown identified himself to the other motorists as an SJPD police officer, and later “punched the 5-foot-3 woman in the face, knocking her to the ground,” then punched her again in an encounter that was partially recorded by passing witnesses.
Both parties left before officers arrived, and Brown was later charged with felony assault under the color of authority, misdemeanor battery and misdemeanor child endangerment.
Under the military diversion statute, current and former servicemembers, typically those charged with their first criminal offense, are eligible for pretrial diversion that dismisses their charges provided they complete a court-approved treatment or rehabilitation plan. The statute has felony exceptions for murder, voluntary manslaughter and an array of sexual assault and abuse crimes.
The statute presumes eligibility for diversion for a current servicemember or veteran who “may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or a mental health problem as a result of their military service, and the defendant’s condition was a significant factor in the commission of the charged offense.”
Furthermore, the eligibility assessment requires that the “court shall find that the defendant’s condition was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor.” In Brown’s case, a defense expert affirmed that he suffered PTSD and that it factored into his decisions around the incident.
Brian Welch, a Santa Clara County assistant district attorney who has overseen the two felony military diversion cases his office has litigated, said his office could not mount a robust challenge to Brown’s claims because of the leeway provided by the way the law was written. His office’s request for the court to order an independent evaluation of Brown was denied.
“The prosecution walks into court on a request for military diversion with one hand tied behind its back,” Welch said. “When appropriate to ensure the request is legitimate, we will ask the judge to appoint an expert to evaluate the defendant, and if the court denies that request, we will ask the court to order the defendant to submit to an evaluation through an expert retained by the prosecution.”
Brown’s case never made it to the second court test for military diversion — suitability — though Welch said his office argued Brown excelled as a police officer for years, “then all of a sudden, he gets into a drunken road rage incident, and now it’s turning into someone who is suffering as a result of PTSD. We argued in court that the conduct was not motivated by Brown’s military service.”
Foxall and other proponents of robust application of military diversion argue that afflictions like PTSD are not always predictable, and that diversion for Brown – with the consequence of returning to criminal court if he does not fulfill his requirements – will still ensure accountability.
“Sooner or later, he’ll realize, you know, there are better ways for me to be dealing with stuff,” he said. “I think there’s a lot of accountability on that side. I think diversion programs in general create incentives for people to do things that, clearly, incarceration and probation do not create.”
Foxall added that veterans are particularly good candidates for pretrial diversion and have low recidivism rates after intervention.
“It allows folks who have been entangled in the system and otherwise can be greatly derailed by being in the system, it can get them back into a productive life. And in many cases, it ends a spiral that’s been going on for a while now,” he said.
Still unclear is the effect that felony military diversions could have on police officers who previously would be on track to be decertified under Senate Bill 2, the landmark state law passed in 2021 that bolstered the state’s ability to revoke the licensing of officers who commit serious misconduct and crimes.
The body that oversees decertification, the Commission on Peace Officer Standards and Training, told this news organization that even absent a conviction, police officers can still lose their licensing.
“Regardless of the court’s decision to grant diversion, POST may still proceed administratively on a finding of serious misconduct where the evidentiary standard would be clear and convincing,” a commission spokesperson said.
That does not appear to be the case with Brown; he is no longer on the public POST listing of police officers whose certification had been permanently or temporarily suspended. Prior to the diversion, he had been listed as a temporary suspension since shortly after his arrest.
Welch noted that, under state law, Brown would be required to disclose his military diversion if he were to apply for a police job in the future. However, he noted that the situation exemplifies how a case like his often bypasses the practical methods of removing problematic officers from law enforcement, as there is no conviction or sentencing that would allow a judge to order the surrender of a police license, nor is there a plea agreement that could require it.
Santa Clara County has seen one other felony military diversion claim, involving a 34-year-old Air Force veteran who was charged with a 2023 road rage incident on Highway 17 in which he chased and hit another vehicle with his vehicle and then a bottle, then falsely reported himself as a hit-and-run victim.
He was granted military diversion this past May on the strength of a PTSD diagnosis, though an objecting prosecutor cited the defendant’s false police report as a denial of wrongdoing.
Welch said even after this outcome, he is withholding full judgment on the law’s broader impact.
“I do feel that certainly, the two cases that we have handled in this office in the last several months clearly illustrate the challenges that prosecutors will face in litigating these motions,” he said. “But we’ve had only a couple of judges weighing in on these requests, so we need to give it more time.”