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?
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