By David M. Greenwald
San Francisco, CA – Richard Everett found himself surrounded by police, receiving conflicting commands before being shot by both non-lethal and lethal rounds—causing serious injury.
Judge Michael McNaughton listened to both a motion to suppress and a preliminary hearing and, while expressing reservations about both, he left three of the charges in place for Everett to face trial on.
Police Sgt. Chris Oshita testified that he and DA Darby Williams went to visit Everett on September 6 in the hospital. At this point, Everett, waived his Miranda rights and gave an account of what happened.
Under cross-examination, Oshita acknowledged that he was unaware that Everett was represented by counsel and did not check with medical personnel as to whether Everett, who was immobilized and suffering from multiple injuries after having been shot, was medicated with pain killers that might impact his capacity to waive his Miranda rights.
Officer John Quinlan testified that he was the first to respond to the Tenderloin the night in question to a call that a man was brandishing a large knife and making threats.
Officer Quinlan described efforts to isolate Everett and de-escalate the situation.
He testified that Everett attempted to grab his belongings and leave the scene, and was shot when he stepped off the curb when officers ordered him not to.
Under cross-examination, Quinlan acknowledged that simply the act of pointing a firearm at a person is a considered a use of force.
Quinlan stated that under normal circumstances one person is supposed to give commands, however, he noted that at least 10 people were speaking and giving at times conflicting commands as they pointed both lethal and non-lethal weapons at Everett.
Officer Quinlan acknowledged that Everett was having a psychotic crisis. They were telling him that they wanted to take him to hospital to help him. At one point they told him to put the knife down, but another said that he could “keep the knife if he puts his hands up.”
Everett responded that he was “afraid of the guns” but the officers tried to reassure him, saying, “No one’s going to come up on you.”
The DA prior to arguments conceded there was no evidence on Count 5.
Public Defender Nuha Abusamra argued two points her motion to suppress. First, she argued that it was unclear at what point Everett was actually detained and therefore moved that the knife and his statements on scene be suppressed. The judge rejected that argument out of hand, arguing that the police had a clear basis to detain him based on the 911 call and the presence of the knife.
The more serious problem for the prosecution was the Mirandized statement. Here Abusamra pointed out there were two serious problems. The first is that Everett had been arraigned 977 (Penal Code § 977(b)) on September 1—meaning that he was represented by counsel and he had authorized them to represent him in his absence at his arraignment.
The second point is she questioned whether he had the capacity, given his injuries and potential for being on pain killers, to actually waive his Miranda rights.
Judge McNaughton asked whether the officer would have known that he had been arraigned and was represented by counsel.
She argued that she was appointed on September 1 and that on September 6 the prosecuting DA at the time, Darby Williams, had been present and she would have known that Everett was represented.
DA Negad Zaky responded that he disagreed with case law, and argued that Everett had never been in court though he acknowledged he had been arraigned 977. Therefore he believed there were no violations of the Sixth Amendment.
Abusamra pointed out that she had 977 authority for arraignment outside of Everett’s present and that the burden is on the prosecution to show otherwise.
Judge McNaughton rejected the argument that Everett was not making a knowing waiver of rights given he answered questions that were consistent with testimony.
Abusamra acknowledged that his statements were consistent and noted that they held his defense—as a point the judge partially agreed on. But she argued, under the circumstances, this was not a free will waiver.
Judge McNaughton was more concerned about the issue of representation. He said he was willing to give the officers leeway, but that a DA should have known better. Nevertheless, he did not grant the suppression motion, mainly because he felt like the statements made had largely been consistent with other testimony.
Ultimately, McNaughton issued holding orders on Count 1—resisting arrest with a weapon, and Count 3—possession of a dirk and dagger, as well as a misdemeanor on Count 4. He declined to reduce Counts 1 or 3 to misdemeanors.
However, he found insufficient evidence on Count 2.
The judge acknowledged he was troubled by the result, but wasn’t going to rule on whether the police used excessive force. That would be a question for another day and a different proceeding.
On Count 2, the critical question was whether Everett ran and was then shot or whether he was shot and then ran toward Officer O’Brien brandishing the weapon.
DA Zaky acknowledged that the police had fired non-lethal weapons toward Everett prior to his running. The judge did not think it was material whether it was lethal or non-lethal on this point but thanked the DA for his candor.
He therefore ruled that Everett was running as the result of being fired upon and therefore did not have an intent to attack O’Brien so much as to flee the scene and O’Brien just happened to be there.
Abusamra argued that there was definitely excessive force and believes their charges will not survive trial. The officer testified that they pointed a weapon—a use of force—within two to three minutes of the encounter.
Judge McNaughton again acknowledged that he would not weigh on whether the force was excessive but acknowledged it was a “terrible outcome.”
The matter has been held over for trial, with the next hearing set for October 11.