Southern California Officer Sentence to Four Years For Pepper Spray and Stun Gun on In-Custody Inmates

desert-hot-spring-court

Does Case Have Any Implications for Davis?

A federal judge sentenced former Desert Hot Springs Police Sgt. Anthony Sclafani to four years behind bars for abusing his powers by using a stun gun and pepper spray on “essentially helpless” suspects in custody.

The incidents occurred a day apart in February 2005.  Seven years later, he was convicted in February of using force and violating the civil rights of two inmates under the color of law, in separate incidents a day apart.

He fired his stun gun at a male suspect, who was handcuffed in the back of a patrol car after his arrest for a parole violation, according to federal prosecutors.

The following day, when a female inmate, who had been arrested for drunken driving, banged on her cell door, Sgt. Sclafani pepper-sprayed her in the face and eyes, then fired his stun gun at her, prosecutors said.

Assistant U.S. Attorney Steven M. Arkow said Mr. Sclafani deserved a “substantial” sentence of more than eight years in prison for “an assault on two essentially helpless individuals” who were “restrained and vulnerable.”

Prosecutors wrote in court papers that Sclafani “intimidated, abused and repeatedly assaulted two helpless victims who were in his custody at the jail…. To cover up his illegal conduct, he then concocted lies that the victims were combative and physically resistant to justify his use of force.”

A 2010 internal investigation by the Desert Hot Springs Police Department failed to find evidence of excessive force, said Mr. Arkow.

The male complainant said that he had attempted to report the abuse at the time, but that his complaint was not taken seriously by authorities.

He told the judge this week, “This has been a long time coming.  I don’t believe I should have to live in fear of police brutality no matter where I come from.”

“The truth about what occurred was not borne out by the internal investigation,” Mr. Arkow said. “It didn’t come out until the case was tried before a jury.”

“Unfortunately, it goes deep into that department,” U.S. District Judge Terry J. Hatter Jr. said. “The department itself needs to be cleaned. And, unfortunately, this sentence will be part of that cleansing.”

Parallels to UC Davis?

Pepper-spray

Yolo County District Attorney Jeff Reisig’s office has taken more than eight months in deciding whether to charge Lt. John Pike, and others involved in the pepper spraying of students, with criminal charges stemming from the incident on the UC Davis campus.

There are clear differences in the two cases however.  Sgt. Schlafani used pepper spray in addition to a stun gun on helpless victims, who were safely in custody.

The judge in that case indicated that “neither of the victims posed a threat when they were attacked,” according to a local account and said it was “almost incomprehensible” that there was “not something going on in your life at that time to cause you to … lose control” twice within a 24-hour period.

On the other hand, the Kroll investigation pulled up some stunning findings in the UC Davis case.

The major finding of the two reports is: “The pepper spraying incident that took place on November 18, 2011 should and could have been prevented.”

Kroll writes: “The actual deployment of pepper spray by Lieutenant Pike and by [Officer Alexander Lee] at Pike’s direction was flawed and unnecessary.”

The task force finds, along with Kroll, “The decision to use [pepper spray] was not supported by objective evidence and was not authorized by policy,” as the pepper spray that was used was not an authorized weapon for use by the UCDPD.

The task force finds, “Lt. Pike bears primary responsibility for the objectively unreasonable decision to use pepper spray on the students sitting in a line and for the manner in which the pepper spray was used.”

The case for criminal charges starts with the finding that the use of pepper spray was objectively unreasonable given the circumstances.  That is bolstered by the questionable legal authority that the police used as a basis to clear out the tents.  Not only did they probably lack legal authority according to Kroll, they knew it.  It was Lts. Pike and Swartwood who demanded the Campus Counsel give them a legal opinion.

The pepper spray is unauthorized under UCDPD General Order No.559 which “provides that pepper spray can be used, but specifically refers to the MK-4 (a smaller canister).”

The task force adds, “Furthermore, the investigation found no evidence that any UCDPD officer had been trained in the use of the larger MK-9.”

Kroll supported their conclusion that use of pepper spray was not reasonable use of force by stating, “This conclusion is buttressed by the facts that the MK-9 was not an authorized weapon under UCDPD guidelines and that UCDPD officers were not trained in its use.”

The task force notes that  UCDPD officers were not trained on how to use this pepper spray correctly and that they “did not use it correctly.”  Writes the task force: “The MK-9 is a higher pressure type of pepper spray than what officers normally carry on their utility belts (MK-4). It is designed for crowd dispersal rather than field applications and “[t]he recommended minimum distance for . . . application of the MK-9 is six feet.” Lt. Pike appeared to be spraying protesters at a much closer distance than 6 feet.”

We have Kroll determining that the use was unreasonable.  We have questionable legal authority to clear the tents anyway.  We have an unauthorized military grade chemical weapon, a weapon that UCDPD are not trained on, and a weapon that they do not use properly.

If DA Jeff Reisig does not want to weigh in on this matter, perhaps the US Department of Justice should open an investigation as to whether the protesters had their right to free speech and other civil rights curtailed under the color of law.

—David M. Greenwald reporting

About The Author

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.

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13 Comments

  1. Siegel

    Nothing? Police officer, excessive force, unlawful use of pepper spray, question as to whether federal charges aren’t a better fit than state charges, seems a bit more than nothing even though the circumstances for the use were very different.

  2. JustSaying

    [quote]“Parallels to UC Davis?”[/quote]Not one.[quote]“There are clear differences in the two cases however.”[/quote]Very true, most indubitably.”[quote]On the other hand, the Kroll investigation pulled up some stunning findings in the UC Davis case.

    The major finding of the two reports is: “The pepper spraying incident that took place on November 18, 2011 should and could have been prevented.”

    Kroll writes: “The actual deployment of pepper spray by Lieutenant Pike and by [Officer Alexander Lee] at Pike’s direction was flawed and unnecessary.”

    The task force finds, along with Kroll, “The decision to use [pepper spray] was not supported by objective evidence and was not authorized by policy,” as the pepper spray that was used was not an authorized weapon for use by the UCDPD.

    The task force finds, “Lt. Pike bears primary responsibility for the objectively unreasonable decision to use pepper spray on the students sitting in a line and for the manner in which the pepper spray was used.”

    The case for criminal charges starts with the finding that the use of pepper spray was objectively unreasonable given the circumstances. That is bolstered by the questionable legal authority that the police used as a basis to clear out the tents. Not only did they probably lack legal authority according to Kroll, they knew it. It was Lts. Pike and Swartwood who demanded the Campus Counsel give them a legal opinion.

    The pepper spray is unauthorized under UCDPD General Order No.559 which “provides that pepper spray can be used, but specifically refers to the MK-4 (a smaller canister).”

    The task force adds, “Furthermore, the investigation found no evidence that any UCDPD officer had been trained in the use of the larger MK-9.”

    Kroll supported their conclusion that use of pepper spray was not reasonable use of force by stating, “This conclusion is buttressed by the facts that the MK-9 was not an authorized weapon under UCDPD guidelines and that UCDPD officers were not trained in its use.”

    The task force notes that UCDPD officers were not trained on how to use this pepper spray correctly and that they “did not use it correctly.” Writes the task force: “The MK-9 is a higher pressure type of pepper spray than what officers normally carry on their utility belts (MK-4). It is designed for crowd dispersal rather than field applications and “[t]he recommended minimum distance for . . . application of the MK-9 is six feet.” Lt. Pike appeared to be spraying protesters at a much closer distance than 6 feet.”

    We have Kroll determining that the use was unreasonable. We have questionable legal authority to clear the tents anyway. We have an unauthorized military grade chemical weapon, a weapon that UCDPD are not trained on, and a weapon that they do not use properly.”[/quote]Not one word of this suggests any criminality was involved in Lt. Pike’s incredibly poor decision and actions.[quote]“If DA Jeff Reisig does not want to weigh in on this matter, perhaps the US Department of Justice should open an investigation as to whether the protesters had their right to free speech and other civil rights curtailed under the color of law.”[/quote]Reisig will, of course, “weigh in on this matter.” He will bring charges…or not. Why would you want the Justice Department to show up?

    The protestors’ free speech rights are not at question; they don’t need a defense for any charges against them.

    What kind of mumbo-jumbo is the comment about “…civil rights curtailed under the color of law”? It sounds very interesting, but what do you mean? Please be very specific about what charges you would have the federal government bring against Lt. Pike.

  3. David M. Greenwald

    What was the purpose of reprinting the entire argument?

    “The protestors’ free speech rights are not at question; they don’t need a defense for any charges against them. “

    You clearly were not following this argument. The purpose of mentioning free speech rights are the denial of civil rights under color of authority.

    “Reisig will, of course, “weigh in on this matter.” He will bring charges…or not. Why would you want the Justice Department to show up? “

    He may, but federal charges may be a better fit here. Recall Reisig already tried to avoid investigating this issue once by passing it to the AG. Now he’s sat on it for eight months.

    “What kind of mumbo-jumbo is the comment about “…civil rights curtailed under the color of law”?”

    What do you mean what kind of mumbo jumbo – that is the federal law that the officer was convicted under in federal court down south.

    Be very specific? I was.

  4. medwoman

    [quote]Not one word of this suggests any criminality was involved in Lt. Pike’s incredibly poor decision and actions.
    [/quote]
    My understanding was that the charge of these investigations was to determine responsibility not criminality.
    I wonder if it is a criminal act for a police officer to use an unauthorized weapon in the use of which he has not been trained. Does anyone know? If if is, then criminality would be implicit in the findings.

  5. David M. Greenwald

    Medwoman: You forgot: “objectively unnecessarily use an unauthorized weapon in the use of which he has not been trained” and you are correct, the researchers were not charged with determining whether criminal laws were broken.

  6. David M. Greenwald

    Just Saying: does this not seem to fit what Pike did?

    Title 18, U.S.C., Section 242: Deprivation of Rights Under Color of Law

    [quote]This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S.

    This law further prohibits a person acting under color of law, statute, ordinance, regulation or custom to willfully subject or cause to be subjected any person to different punishments, pains, or penalties, than those prescribed for punishment of citizens on account of such person being an alien or by reason of his/her color or race.

    Acts under “color of any law” include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under “color of any law,” the unlawful acts must be done while such official is purporting or pretending to act in the performance of his/her official duties. This definition includes, in addition to law enforcement officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound by laws, statutes ordinances, or customs.

    Punishment varies from a fine or imprisonment of up to one year, or both, and if bodily injury results or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined or imprisoned up to ten years or both, and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.[/quote]

  7. David M. Greenwald

    From the FBI website:

    Excessive force: In making arrests, maintaining order, and defending life, law enforcement officers are allowed to use whatever force is “reasonably” necessary. The breadth and scope of the use of force is vast—from just the physical presence of the officer…to the use of deadly force. [b][u]Violations of federal law occur when it can be shown that the force used was willfully “unreasonable” or “excessive.”[/u][/b]

  8. JustSaying

    [quote]“What was the purpose of reprinting the entire argument?”[/quote]Sorry, normally I wouldn’t, of course. I couldn’t figure any other way of working with your [u]entire argument[/u] rather than picking at the little sections of it. The burden for making the case that Pike’s actions violate federal law is the one you’re taking on.

    The words of the Reynoso/Kroll are not those of law-breaking, but of bad judgment:[quote] “the incident…could and should have been prevented….deployment of pepper spray…was flawed and necessary….not an authorized weapon under UCDPD guidelines and….officers were not trained in its use…and they did not use it correctly….”[/quote]Since you’ve not claimed anything that you’ve listed violates any laws, how can you make the leap that there’s something to prosecute here. Hence, the request that you be specific about what Pike did that you feel could be charged. We need to find the crime first, rather than go shopping around for some law and jurisdiction that might, by some stretch, be “a better fit” to make Pike pay for what he did.[quote]“Just Saying: does this not seem to fit what Pike did?”[/quote]I don’t see how Pike’s actions fit here at all. What Constitutional rights were violated? What “different punishments, pains, or penalties…on account of such person being an alien or by reason of his/her color or race” are involved? How otherwise would you see that this statute “fits” what Pike did? Please be more specific.

    Law enforcement officers are given substantial latitude in making “reasonably necessary force” decisions. Furthermore, using pepper spray is recognized as being at the lower level of the force spectrum. It will be difficult enough for Reisig to prove a violation of state law.

    The Feds won’t find a crime to prosecute here, especially if there isn’t a state law violation. I can’t see that trying to prove that Pike’s actions were [u]willfully[/u] “unreasonable” or “excessive” in the situation he faced is something the Justice Department would think is a worthwhile effort.

    Sometimes bad things happen when bad decisions get made–every one isn’t necessarily criminal. My guess is that the right “fit” for punishing Pike for what he did is the University of California system.

    How Reisig’s recommendation that the AG handle the investigation and his eight months on the case gets transformed into a call for a Justice Department civil rights investigation is a fascinating exercise.

    What is the case in which the “officer was convicted…in federal court down south” that you suggest for comparison?

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