The Yolo County DA’s office issued a report this past Wednesday clearing Woodland police officers of criminal liability in the death of Michael Barrera. They conclude, saying “our office concluded that the members of the Woodland Police Department had used reasonable and necessary force during the detention and arrest of Michael Barrera.”
The DA finds, “There is insufficient evidence to conclude that the use of force by the officers was unreasonable or had proximately caused or contributed to the unfortunate death of Michael Barrera. Hence, no criminal charges will be filed in this case.”
In the course of analyzing this report, the Vanguard spoke to the family’s attorney Stewart Katz, a longtime civil rights attorney, Aaron Zisser, a police oversight consultant out of Oakland, and Ken Williams, a use-of-force expert out of Boston and a longtime Boston police detective.
For the purposes of this analysis, we assume that the facts are correct and accurately presented – although from the comments made by both Stewart Katz and Aaron Zisser, there is some concern about the report itself.
Finally, the Vanguard’s analysis finds a few points where we are troubled by the handling of the incident and the officer’s dismissive attitude when the subject claimed he could not breathe, only a minute or two before he died.
Stewart Katz – Attorney for the Barrera Family
From Stewart Katz’s perspective, given the inconclusive report from the criminal pathologist as to the cause and manner of Mr. Barrera’s death, “there is no reasonable likelihood that anyone’s going to be criminally convicting any of the officers in 2017 in America.
“Look at results around the country to cases that to outside observers look close to murder (or manslaughter),” he said. He said, given the standard of proof, he didn’t see any likelihood of getting a criminal conviction.
But beyond that, he felt it was “a very disingenuous propaganda effort.” He said that “it was not really an honest document.”
Mr. Katz went down a long list of complaints with the report, including lack of witnesses that they directly cite (with no direct quotes), and the mention of the handcuffs without details of the handcuffing. One of his biggest complaints was the mention of the Woodland Christian School.
For instance, the report cites, “Garfield Place is situated in a residential neighborhood and minutes away from Woodland Christian School… Additionally, during the initial search, Sergeant Davis recalled seeing over 50 kids on the playground at the Woodland Christian School, which was only a few minutes away from Garfield Place.”
According to Mr. Katz, the school is located at least half a mile from where this incident took place. “That’s there for effect,” he explained. “That’s there to stop any analytical thinking.”
Stewart Katz had another criticism of the report. The DA claims that the report “addresses only whether or not there is sufficient evidence to support the filing of any criminal charges in connection with the death of Michael Barrera.”
But starting on page 18, they discuss applicable law and analysis. “They don’t talk about one law about the police activity,” he said. The report looks at battery on an officer and resisting arrest, but doesn’t look into PC 149 unlawful use of force under color of law. “They don’t talk about a 245 (assault) by an officer. They claim they’re investigating a death but they don’t talk about murder, they don’t talk about manslaughter.
“How is talking about their theory about what crimes they want to say Michael Barrera might have (committed), how does that have any effect on their purported analysis on whether or not the officers should be criminally prosecuted?” he asked. “They don’t even look at that.”
He noted that there are a lot of videos, audios, reports that relate to the death of Michael Barrera which he hopes can lead us to the truth of what happened, he said, “That’s what I took away from the report.”
Aaron Zisser – Police Oversight Consultant
Aaron Zisser runs a civil rights consulting business and has experience as a trial attorney conducting “pattern or practice” investigations around the country with the Civil Rights Division of the U.S. Department of Justice.
He had a similar reaction to the report as Mr. Katz.
He explained that “when they’re describing the events, it’s usually not clear which piece of evidence they’re drawing from.” He noted that “there’s never any reference to the use of force reports that were used by the officers.”
He noted that they interviewed one of the 911 callers, but not all of them, and they do not explain why.
The oddest part of the report comes on page 27, where the report says, “At no time was Barrera put into any control holds that would cause his inability to breathe. And even though Barrera’s face ended up on the muddy ground, at no time was his mouth or nose obstructed in a way that would deprive him of the ability to breathe (this was evident from a photograph taken of Barrera shortly after the officers commenced CPR on him).”
Mr. Zisser was somewhat skeptical of the phrasing, stating that “they seem to be saying that they photographed him after they turned him over and applied CPR – (and that) is somehow evidence that at no time was his mouth or nose obstructed. Maybe, I’m reading that wrong. That is a still photograph (which) cannot indicate that there never was a moment. Certainly a photograph, once the struggle has ended, doesn’t indicate anything.”
He too noted a lot of paraphrasing without direct quotes or references.
“It’s really not clear what the video shows versus what these statements would indicate,” he said. “They don’t indicate whether there was any contradiction among statements. They don’t attempt to reconcile any such differences.”
Like Mr. Katz, he said, “They don’t talk about what criminal code provisions would apply to the officers’ conduct.” He noted, “They focus on the criminal conduct of the victim.
“I would love to see the video, maybe the video shows that the officers were completely justified and did everything right. The report doesn’t describe in sufficient detail the various pieces of evidence including the video and audio,” he said. “It’s not the report I would have put together.”
Ken Williams – Use of Force Consultant
Ken Williams worked as a police officer for over 15 years in Massachusetts and now works as a use-of-force consultant.
In an email to the Vanguard, he explained, “It’s important to review this from the perspective of what did the officers know before their (actions), what did they witness, and was (the) force used objectively reasonable, based on everything known.”
Here he explains, “Police have probable cause to arrest. They are able to articulate a crime(s) and less than lethal force deployed is ineffective at gaining control of this person thru pain.
“The police will use force to control but it can’t be excessive force. In this case, the sergeant de-escalated; which is commendable. He also had, more likely than not, a legal right to shoot too but chose restrain instead,” he explained. “It’s hard to tell if this report is accurate or biased without a review of all materials in the record. If I grant the report a benefit of doubt by believing the facts contained are accurate then the force used wasn’t with malice or intent to have street corner justice.”
Mr. Williams concludes, “Based on my technical knowledge of police practices in the use of force, the law, and constitutional protections afforded all based on the Bill of Rights, absent more information, the force used was objectively reasonable to arrest.”
In May of 2016, Mr. Williams had analyzed the shooting death of Mario Woods and concluded, “What you see in the Mario Woods video is shocking.”
Around the time of the Mario Woods shooting was a similar scenario in the streets of Camden, NJ, as captured on Investigation Discovery channel’s “Black and Blue.” Unlike in the case of Mario Woods, the man in Camden was arrested and stopped without incident.
Here a man with a knife threatens people in a pizza parlor and takes to the streets. “The way the Camden Police handled the incident, well it’s night and day,” the announcer says.
Ken Williams explains, “The difference between Mario Woods and this – how many officers actually have weapons out?” He continues – “we have distance, we have officers walking with him, he’s now put his arms down and then negotiating.”
The police chief in Camden acknowledged that, a year and a half ago, this guy would have been shot and killed.
But this got us wondering about the handling of the Michael Barrera situation. Sergeant Krause reportedly “immediately exited his patrol vehicle with his sidearm drawn.” He gave commands to Mr. Barrera to drop his golf club. Sergeant Davis and Officer Lal followed with their Tasers drawn.
There were repeated commands to drop the golf club and to “stop resisting.”
What we never saw was any effort – at least reflected in the report – to de-escalate the situation. Again, we don’t know what was exactly said, but the DA reports, “During the initial encounter, officers gave repeated commands to Barrera to drop the golf club, which Barrera ignored. Instead he was acting agitated and began yelling profanities at the officers. Barrera stated that a golf club was not a deadly weapon and told the officers to put their gun and tasers down.”
Given his methamphetamine use and paranoia, it seems that another approach might have worked better and might have avoided the need for a use of force – similar to what happened in Camden.
It was something that Aaron Zisser flagged as well, pointing out, “You’d want to have internal affairs look into whether approaching with their sidearms already pulled was a deviation from policy.
“That’s a whole question about de-escalation and bringing in mental health staff,” he said. “He wasn’t wielding the knife, he was wielding a golf club.
“Certainly that raised red flags in terms of de-escalation techniques,” he said.
Part of his problem is we don’t see video here, and we have vague descriptions like “acting agitated.” “No one has any idea what that means or what he was doing,” Mr. Zisser explained.
The second red flag is the description of Mr. Barrera as he first articulates that he is in trouble.
The DA writes, “At one point, Barrera said he could not breathe. Officer Gray responded by stating that Barrera was talking and he was fine. A little over a minute after Barrera said he could not breathe, the audio captured Officer Gray stating Barrera was still breathing.”
But then later in that paragraph, the DA describes, “All of a sudden, Barrera began to vomit and liquid was coming out of Barrera’s mouth. Barrera then became unresponsive as he ceased to grab onto Officer Wright’s hands. Barrera continued to cough up liquid. The officers immediately turned him over and summoned medical assistance.”
At this point they couldn’t detect a pulse. The timing on this is important – it all happened very quickly. The DA describes that “the time between the officers’ initial arrival at Garfield Place to the time Barrera was last heard on the recording was approximately 3 minutes and 48 seconds.
“From the time Barrera was last heard on the video to the time an officer announced ‘he’s out’ was approximately 1 minute and 18 seconds,” they said.
So you have a case where the man is complaining about being unable to breathe, the officers discount that, and then within a minute or so, he’s in deep jeopardy.
In New York in 2014, Eric Garner was restrained by four officers while repeating, “I can’t breathe” – 11 times. He would lose consciousness and the officers turned him onto his side to ease his breathing. He remained on the sidewalk for seven minutes, but the officers did not perform CPR because “they believed he was breathing.”
Is this a similar situation where police ignored the plea of a man who was in trouble? The DA makes no analysis of this other than to take the officers at their word.
“That analysis is not provided as to whether they were right to continue in their approach even after he said I can’t breathe,” Aaron Zisser explained. “The report seems to believe the officers that the statement ‘I can’t breathe’ wasn’t true. In other words, they were justified in not believing him.” He again references the still photo taken after the encounter as evidence cited by the DA.
“That part is just so bizarre to me,” he said.
The key question Mr. Zisser points out is never asked by the DA – is the claim reasonable that because he can talk, therefore he can breathe normally? “If it was unjustified for them to ignore that plea, where does it fit in terms of the legal standard about whether they were obligated under the law?”
Those are the two biggest flags in the report – the initial encounter and whether a heavier focus on de-escalation would have produced better results, and then the lack of response to his claims about not breathing shortly before he was clearly in distress.
According to a release from the city, they said “the City’s goal is not only to ascertain the facts surrounding this incident, but also to do so in a manner that instills confidence in the process and supports the need to build trust between the community and the Woodland Police Department.”
Those would seem like two major questions that need to be addressed. The release states that “the City has formally requested that the California Department of Justice, Office of the Attorney General, conduct an additional review of this incident. The internal investigation being conducted by the Woodland Police Department remains ongoing at this time.”
The Vanguard will have more as additional information becomes available.
—David M. Greenwald reporting
(Disclaimer: The Vanguard has hired Michael Barrera’s sister, Marissa Barrera, as an employee effective June 15, 2017).