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Eye on the Courts: What Does Kelly Thomas Verdict Mean For Police Accountability?

police_tapeThe acquittal of two former Fullerton police officers yesterday in the beating death of Kelly Thomas illustrates the same problem that prosecutors had more than 20 years ago in the Rodney King case and more recently in the Oscar Grant case – even when horrific acts are caught on video, it is difficult if not impossible to get a jury to convict police officers of murder when discharging their duty.

Indeed, just the fact that they had to face trial was a monumental step forward.  These were the first two police officers in Orange County history to face murder charges for conduct committed on duty under the color of authority.

Give Orange County District Attorney Tony Rackauckas credit – not only did he decide to prosecute the two Fullerton police officers, but he put his name on the prosecution, arguing the case himself in court.

“I would do the same thing again,” he would tell reporters. “I think it’s a matter that a jury had to see.”

The video of the clash, which occurred at a busy bus depot, ignited public outrage and became a cause célèbre for activists seeking reform.

Despite the video, both sides offered a different interpretation of what happened, where the prosecutor argued that officers were beating a helpless man and the defense argued that the officers were simply trying to do their job in subduing an unruly suspect who was out of control.

Jurors sided with the defense here.  The defense argued, “They did what they were trained to do.”

“Police officers have the privilege, the right to use force to overcome resistance,” said Ira Salzman, a defense attorney who often represents police officers, told the LA Times. “When you have the law allowing use of force, that is a tremendous protection.”

This is part of the difficulty because the law allows police to use deadly force in carrying out their duties.  And there is an inherent difference between excessively using that force, which would be misconduct but not necessarily criminal conduct, and actually intending to unlawfully kill.  Prosecutors had to “prove the officers had the intent to harm Thomas above and beyond responding to his actions.”

In addition, jurors are naturally going to give officers a certain amount of deference in the use of that force.

The key to this case was the video.  Prosecutor Rackauckas said without the 33-minute surveillance video that they synced with audio from recorders on the officers, they would not have filed charges.

He told jurors that this was an obvious “depiction of excessive force” and argued to jurors they were watching a homicide.

The following is a description from the LA Times:

“The recording begins with Ramos, responding to a report of someone rattling car doors, approaching a disheveled, shirtless Thomas outside a downtown Fullerton bus depot.

Ramos orders Thomas to sit on the curb with his feet out and hands on his knees. A frustrated, and at times sarcastic, Thomas appears to have a difficult time following his commands.

About 15 minutes into the video, Ramos puts on latex gloves and puts his fists in front of Thomas’ face. “Now you see my fists?… They’re getting ready to f— you up.”

“Start punching, dude,” Thomas said.

Moments later, a relatively calm situation quickly escalates. Ramos grabs his arm; Thomas pushes it and starts to move away from Ramos, who takes out his baton. As Thomas is walking away, another officer is seen swinging his baton at the homeless man’s legs.

(That officer, Joe Wolfe, was charged with involuntary manslaughter, but Rackauckas said Monday prosecutors would not pursue that case after Monday’s verdict.)

Soon Thomas is on the ground fighting with six officers.

“I can’t breathe,” Thomas said. “Dad, help me! Dad, help me!”

Cicinelli struck Thomas on the face with his Taser at least twice.”

There are still question as to whether the FBI will seek federal charges.  The LA Times reports this morning that a spokesperson for the FBI’s Los Angeles field office indicated that the agency opened an investigation into the case in 2011 and, with the conclusion of the state trial, “investigators will examine the evidence and testimony to determine if further investigation is warranted at the federal level.”

There are local implications here as well.  In September 2012, Yolo County DA Jeff Reisig declined to file charges against UC Davis Police Officers who sprayed seated protesters with pepper spray.

The DA wrote,  “In light of this additional evidence, and viewing the incident through the totality of the circumstances, there is insufficient evidence to establish proof beyond a reasonable doubt that the use of force involved in the November 18, 2011, pepper spraying was unlawful and therefore warrants the filing of criminal charges.”

As we noted on Saturday, in the Galvan brothers case, the DA’s office not only refused to prosecute police officers who severely beat two men in a park in West Sacramento, but they filed criminal charges against those brothers.

When Judge Tim Fall asked the deputy district attorney why the DA was considering, after three hung juries, filing a fourth trial for the brothers, she indicated that the defendants had filed a federal law suit against the West Sacramento Police Department.  Judge Fall turned to her and asked, do you represent the People of Yolo County or the West Sacramento Police Department?

The one case in Yolo County that breaks the mold is the trial that will begin next Tuesday for former West Sacramento Police Officer Sergio Alvarez.  But his crimes were not crimes of excessively carrying out his duties, but were rather using the color of his authority to place women into vulnerable locations and then, while they were in custody, sexually assaulting them.

For a prosecutor, at least, there is a vast difference between that and going too far in the carrying out of official duties.  Hence, the investigation of the shooting of Kevin Hughey has sat on the DA’s desk for months, almost as long as the investigation into whether to criminally charge Lt. John Pike for his actions on November 18, 2011.

Even when cases do go before juries, police officers gain the benefit of the doubt.  We saw this in the federal civil rights lawsuit filed by the family of Luis Gutierrez in federal court.

We had no video for that incident, and even with lower thresholds of burden of proof, the jury ultimately exonerated the three Yolo County deputies, despite the defense’s efforts to argue that Mr. Gutierrez was simply walking down the street and was stopped by police for an investigatory stop with no articulable facts.

In the end, these cases demonstrate the difficulty we have in holding police officers accountable for actions done while on duty, and under the color of authority.  The Kelly Thomas case is only the most recent example.

—David M. Greenwald reporting

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About David Greenwald

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.


  1. the second hardest thing to do is try a police officer for a crime, the hardest is to prosecute a prosecutor.

  2. Putting an incident where a couple of college students getting pepper sprayed by a university offiicer on the same level as the officer beating death in Fullerton, officer shooting death on the BART, near beating to death of the Galvan brothers, serial sexual assaults by an officer in West Sac, and the officer shooting of Hughey in West Sac. is a very very big leap.

  3. Jury – it should be noted that jury pools are no longer selected in public, pulling names out randomly. Jury pools are selected in secret by computers and it does happen that the jury commissioner or clerk of the court adds names of people whose job is to bring in the desired verdict, outtalking other jurors.

    Police training — police are taught that shooting to kill should be their 1st reaction. Police tend to be the sort that like action. Instructors at the Police Academy at Butte College freely admit that “required” classes in soft subjects like communication skills are skipped and everyone goes to the firing range instead.

    Revamping POST training nationwide would be a very good idea.

  4. Good editorial in the Times: http://www.latimes.com/opinion/editorials/la-ed-kelly-thomas-20140115,0,7486125.story#axzz2qVAM008Q

    “But no one should conclude from the acquittal that nothing went wrong that night in Fullerton, or that the high legal bar for convicting police officers means that violence is an acceptable way for police to handle a mentally ill suspect.”


    “Responsibility for dealing with the mentally ill often falls to the officers who patrol the streets, and they need better training and support to do so safely. Police routinely confront men and women who are erratic or irrational, and they are forced make split-second decisions on whether these individuals pose a deadly risk. Yet too few officers across the country receive adequate training or clear protocols on how to defuse, rather than escalate, dangerous confrontations with the mentally ill.”

    I’ve been arguing this point for a long time, glad the times now agrees.

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