Last week for the first time we got to see the charges against the Picnic Day suspects. This is our first chance to evaluate some of these charges, and in the end it will come down to a couple of key factors – whether the individuals knew that these were police officers, how the physical confrontation began, and in the end what are reasonable amounts of force.
There are those who point out that it is a crime whether or not the individual is a police officer to kick, punch and, of course, hit someone in the head with a bottle. But the way this case is charged, these factors are going to mean a great deal.
Each of the defendants are charged with a violation of section 245(c) of the California Penal Code which describes assault by means of force likely to produce great bodily injury on a peace officer.
The first factor here which immediately jumps out is that the DA maintains 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.”
This is naturally going to be a key question – did they know that these individuals were police officers? This was part of the dispute here – you had an unmarked van pull up into a crowd of people who had spilled onto the street. 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.
What we don’t have – at least in the wide view from the dash cam – is any sort of audio. So I think it is an open question whether the defendants knew that these men were police officers. And a key question will be at what point they became aware of this fact.
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 of PC 69 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 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.
Two other points are worth noting at this time.
First, it seems likely that the defendants will claim 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.
Again, I think this is going to hinge at least partly on 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.
In count three for instance, the DA alleges that Steve Ramos was engaged in his officer’s duties when three of the defendants attacked him. Alexander Craver, they allege, “choked” officer Ramos from behind while Elijah Williams punched him in the face, and Mr. Craver continued to choke him while Defendant Reyes repeatedly kicked him in the head.
However, Mr. Couzens doesn’t mention in the complaint that Sgt. Ramos had Ms. Reyes in a headlock and that both Mr. Craver and Mr. Williams may have believed they were acting in defense of Ms. Reyes.
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.
Given the “likely to produce great bodily injury” part, that needs to be questioned as well.
In the end, the defense’s case will depend on how clearly we can see the video, on whether audio is available, and also the extent to which the defense can put the reputations of these officers on trial.
Tomorrow in Department 1 we will see the bail hearing for Mr. Williams, as well as the arraignment of all five of the defendants.
—David M. Greenwald reporting