Sunday Commentary: Should the DA Drop the Charges against the Picnic Day 5?

Yesterday, as we had a booth at Farmer’s Market for the Vanguard, it was mostly a pleasant experience, but one man walked up to me and asked if we were a bunch of anarchists.  I asked him why he would ask that.  And he said that he’s “read the crap” I’ve written about the police situation on Fifth Street (Russell Boulevard).

I tried to explain to him my view on policing, that it was a necessary function in society (a very non-anarchist point of view) but that it needed to be done in a manner that follows the Constitution.

He seemed to object to the idea that the charges should be dropped against the defendants in the Picnic Day incident.

He ended up walking off before I could complete my thoughts, so I figured I would answer the question of whether the DA should drop the charges against the Picnic Day 5 and why.

Part of the problem in objectively evaluating the case at this point is we have not seen the full extent of the DA’s evidence.  Had the preliminary hearing scheduled for next Thursday still been on the calendar, we would get a chance to evaluate the evidence against the individuals.  We have not seen all of the video nor have we seen all of the eyewitness statements.

The man I spoke to fixated on the fact that someone hit the officer in the head with a bottle.  From the video that has been made available, I have not been able to pinpoint where the officer was hit in the head with the bottle, nor can we tell from the charging document who is alleged to have hit the officer in the head with the bottle.

It is worth noting that no one appears to be charged with assault with a deadly weapon (Penal Code section 245(a)(1)).  Instead the defendants are charged with 245(c), Assault by Means of Force Like to Produce Great Bodily Injury on a Peace Officer.

While this remains speculation on my part, it is suggestive that if an officer indeed had been struck in the head with a bottle, the video is inconclusive as to who did it.

As noted, each of the defendants is charged with a violation of section 245(c).  A key part of that charge is that the defendants “knew and reasonably should have known that the victim was a peace officer engaged in the performance of the victim’s duties.”

Part of my discussion at Farmer’s Market was that the defendants did not know that these guys were police officers – we’ve heard this from eyewitnesses, we’ve heard this indirectly from the defendants.  The man argued, how do we know this?  And that’s the point – the prosecution has to prove that the defendants did know that they were police officers.

On video, you can watch the incident develop.  You have a group of people congregated around a house party – some have gone into the street and were at least partially obstructing a lane of traffic.  The police van, unmarked, does a U-turn and ends up pulling directly into the crowd of people.  That action affects the group that is large but peaceful, and clearly angers some of them.

It appears that words are exchanged, and at one point Sergeant Ramos is shown opening the door into the crowd and at this point punches are thrown.  There are lots of questions about what was said – as we don’t have audio.  There are questions about who threw the first punch.  But, tactically speaking, the handling of this was a huge mistake, to the point that the city has already changed some of their policies.

But the key to the criminal charges is going to be whether the individuals knew or reasonably should have known that these were police.  You had at least two of the men in plainclothes.  While the police had badges, the witnesses said they were not visible and that the police never identified themselves as police officers.

The defendants are also charged with a violation of Penal Code section 69.  There are actually two types of obstruction or resisting arrest, one is PC section 148 which is a wobbler, and the other is the more serious PC 69, which is resisting with force or violence.

Under PC 69, the individuals are accused of “willfully and unlawfully attempt(ing), by means of threats and violence, to deter or prevent …  an executive officer, from performing a duty imposed upon such officer by law and did willfully, unlawfully, and knowingly resist, by the use of force or violence, such officer, in the performance of said officer’s duty.”

If you read the jury instructions for PC 69 (CALCRIM No. 2652) you will see some key elements: (1) defendant used force or violence to resist an executive officer; (2) when the defendant acted, the officer was performing his or her lawful duty; and (3) when the defendant acted, he or she knew that the executive officer was performing his or her duty.

Clearly, the last two portions of that jury instruction are going to be critical.  An interesting aspect of California law is that a citizen is in effect permitted to resist unlawful arrests by police.  The jury instruction notes that a peace officer is “not lawfully performing his or her duties” if they are either “unlawfully arresting or detaining someone” and/or “using unreasonable or excessive force in his or her duties.”

The People have the burden of proving beyond a reasonable doubt that the officer was lawfully performing his duties as a peace officer, and if the People fail to meet this burden, the jury is required to find the defendant not guilty of the PC section 69.

So yes, it greatly matters if the officers failed to identify themselves – that is a key element in both charges, and it matters if this is seen as either an unlawful arrest (because the officer is seen as instigating the confrontation) or excessive force by the police.

As I have previously argued, the most likely defense here will be a claim of self-defense.

Self-defense according to the law has a three-part requirement.  First, the individual had to reasonably believe that he or she was in danger of great bodily injury.

Second, he or she had to reasonably believe that immediate use of force was necessary to defend against that danger.

And third, he or she had to use no more force than was reasonably necessary to defend against that danger.

Here it again comes down to whether the jury believes that the defendants knew or should have known that these were police officers performing their lawful duty.  The defense is going to have to attack both parts of that – the identification issues will be laid out, but the lawful duty aspect may be equally important.

Second, I think the defense is going to have to challenge who started the fight.  It’s harder to claim self-defense if the defendants threw the first punch – even if the defense can show that the officers were overly aggressive in their approach.

Third, the defense is going to have to argue that the actions by the defendants were reasonable in an effort to defend themselves.

Again, we don’t have the full evidence yet, but what we do have adds up as follows:

• The police were extremely aggressive in their approach to the situation. I have spoken to other police officers and none of them would have driven the van into the crowd.  Most told me that they would have at a distance used their loudspeaker to ask people to step back onto the sidewalk and upon non-compliance would have called for uniformed back up.  That approach would have created a less confrontational first step and eliminated the ambiguity of identity.
• The individuals claim that they didn’t initially know these were police officers. Evaluate the incident if you assume the men are not police officers and you end up with a very different picture of what was reasonable.
• The initial flashpoint was the act of Sgt. Ramos who shoves the door open into the crowd. Now he claims that the man showed him a gun, but we can’t see that on video nor is there a gun found, although they say they found ammunition in his backpack.
• Angelica Reyes on the video initially becomes incensed when the vehicle almost hits her. She’s clearly kicking at and punching at the officer.  As I’ve noted previously, some of the actions by the defendants appear to be in an attempt to come to her aid when Sgt. Ramos had her in a headlock.  It is also at least worth questioning how much damage Ms. Reyes could have inflicted on the much larger officer, given both her diminutive size and the fact that she appears to have had on open-toed shoes or high heels – so was probably in effect kicking him barefoot.  Based on that, we should question whether her actions were “likely to produce great bodily injury.”
• The jury is going to have an interesting question to decide – if the defendants did not reasonably know that these were police officers, do their actions constitute self-defense?

All of that gets to the issue of whether the jury will or will not convict.  None of which gets to the question as to whether the DA should simply drop the charges here.

The strongest case for that is the fact that the police took a situation where no real laws were broken and created the conflict, suggesting that maybe this should not be handled as a criminal matter.  Where I have the biggest problem is that they are putting felony charges on these individuals – who from what we understand lack any sort of criminal record – that carry with them prison time.

Unless the DA has evidence that we don’t know about it, it seems questionable at best that they can get a conviction here.

If you believe that the charges should be dropped, you can sign the Change.org petition here.

—David M. Greenwald reporting