Footage Of Lethal Beating Deleted From Seized Phone; Sheriff Asks FBI To Take Over Investigation
from the a-step-in-the-right-direction dept
Well, this is rather unexpected. After sheriff's deputies seized cell phones containing footage of David Silva's death at the hands of nine law enforcement officers, the assumption was that Kern County Sheriff Donny Youngblood's promise of a full investigation would result in little more than some officious noises being made and declarations that the recordings were "inconclusive" or "unrecoverable."That this is the most common assumption shows how far the trustworthiness of law enforcement has fallen. This precipitous drop in trust is almost inversely proportionate to the increase in recordings captured by members of the public. Law enforcement has long been in control of the cameras and this power shift has resulted in some very ugly behavior. The expected mode is cover up and obfuscate, abusing the power that comes with the position.
The unsurprising part of the David Silva beating is this: when one of the phones confiscated by law enforcement (one without a warrant, the other after an illegal nine-hour detention) was inspected at the Sheriff's office, Sheriff Youngblood discovered the footage had been deleted.
The surprising part is that Youngblood decided to call in the FBI to head up a parallel investigation into the death of David Silva. Even better, he had the phones flown out to the FBI's Sacramento office for analysis. This is a rather unprecedented move. The general response from local law enforcement to situations like these is to close ranks and make vague promises and statements about "justice" and "truth." Instead, Youngblood opted to turn the investigation over to a more neutral party (and one with better tech tools).
The fact that this story has attracted national interest probably pushed Youngblood to consider other options. There's little chance the Sheriff's department would be able to control the narrative (or contain the fallout) at this point and with potentially damning footage being deleted by a law enforcement officer, there's no chance for redemption without making the investigation more neutral.
This isn't to say the FBI isn't capable of covering up misbehavior, but in this instance, it really doesn't have much of a stake in the outcome. If the footage shows what eyewitnesses have described, there shouldn't be too much of a question as to where the guilt lies.
The deputies named by the department have been put on paid administrative leave pending the outcome of the investigation, and Sheriff Youngblood has stated that these officers have been receiving death threats and negative email. This, too, is an expected outcome. The court of public opinion creates a lot of judge/jury hybrids. Naming the officers involved is a small but significant step towards a transparent investigation. Hopefully, the FBI's involvement will continue in this fashion, rather than take a turn towards the opaque.
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Filed Under: david silva, deleted, fbi, kern county, lethal beating, mobile phones, video evidence
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It would be great if this type of service were more widely used. I also find it sad that I feel a need for this type of service.
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I would hope that the FBI involvement leads to two things.
1: Prosecution of those responsible for the death of David Silva.
2: Prosecution of those responsible for issuing death threats against any of the suspects.
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The other problem is that most of those services don't upload until after you stop recording. If your phone gets smashed or turned off the recording is not transferred or may be lost entirely. Uploading the live stream protects against that.
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The very fact that the police worked to delete the videos (after claiming it as 'evidence') smacks of cover-up. They're all but admitting their guilt at this point.
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"Fortunately I have never had an opportunity to test it to see how well it works."
That's the big problem. You can't test it to make sure it works beforehand. What if you find out in the heat of the moment that some other app is making a fuss?
Then again, THAT would be an easy problem to solve by building in a test-function in the app, that would upload to a different server that actually erases the data daily.
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The other problem is that most of those services don't upload until after you stop recording. If your phone gets smashed or turned off the recording is not transferred or may be lost entirely. Uploading the live stream protects against that.
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[OT] Subcommittee has finally come to order: Webcast now started
An hour late, the hearing has finally come to order. Webcast has started.
A Case Study for Consensus Building: The Copyright Principles Project
Thursday 5/16/2013 - 2:00 p.m.
2141 Rayburn House Office Building
Last week's Techdirt article
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“Many unanswered questions about David Silva's death”, KGET, May 13, 2013
Can we conclude that the witness accounts of baton blows to the head appear to be corrobated by the description of injuries found on the body?
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“Dad who died during arrest 'begged for his life'; witness videos seized”, by Laura Liera and Jason Kotowski, The Bakersfield Californian, May 9, 2013
If we find, “Bruised up face, chin, ear, busted lip, broken nose, black eye, all marks all over his face" (see parent comment); does that tend to corroborate Ceballos' statement? At least make it more credible?
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Depends on if this ever goes to trail and if it goes to a jury in Simi Valley or not.
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California has three kinds of manslaughter under Penal Code 192. We can neglect the third kind, vehicular, under 192(c). Even if there's some kind of trail, it doesn't look likely that the victim got run over on that trail.
That leaves
There's some further explanation of “Voluntary Manslaughter” and “Involuntary Manslaughter” at the Shouse Law Group's website. I don't necessarily endorse everything in these two articles, but they are top Google results.
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And to add to your point, it's sad that people don't recognize that deleting something is far from erasing it's existence forever. All whoever was responsible did, was make it that much more obvious they have something to hide.
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If they try to erase the data on a solid state drive that is even harder due to solid state media having 'wear leveling' algorithms that control when a portion of the memory is over written.
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Still such mass memory erasing should also leave its mark providing evidence of another kind.
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The Question [Now] is
-Bill Gross, PIMCO
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Trust of breach
I'm finding the most encouraging law enforcement actions are coming from the office of sheriff. Maybe it's because they are elected. I don't know, but that is a very powerful office, and it seems that when a sheriff makes the news it's because of a positive thing... or at least an attempt do do what they believe to be a positive thing.
I don't know of any other law enforcement officer subject to election. I think the rest--police chiefs and officers, Sheriff Deputies (ahem. Oops.), FBI agents, etc, are hired or appointed.
Whatever it is--My trust level has been on empty for quite a few years, and I liked things better when it wasn't.
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Re: Trust of breach
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Re: Trust of breach
Indeed it is. Most people don't realize that county Sheriff is one of the, if not the, most powerful law enforcement position in the US.
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Re: Trust of breach
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Cops gotta love em..
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Re: Cops gotta love em..
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Now, is this because technology?
Maybe some, but I think there has been what might be considered a concerted effort to set the system in the path of one favor over another. No conspiracy theories here, I leave the Illuminati and the Masons to Dan Brown and Umberto Eco. No, I think this is more of a generational thing. One generation achieves a certain level of 'Teflon-ness', the next sees the benefits and works on better Teflon.
So did our 'out of sight, out of mind', 'declare them guilty and stuff them in a prison' solution do much to assuage the communities ire? I am not suggesting a return to corporal punishment per se, but maybe there is a way to include the public. Is there a way, not being used now, that will express the publics consternation at those that think they are above the law, yet at some point come into their comeuppances? Unlike them, within the constitution, of course.
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Well, you know, some people just believe everything see on TV or read in the news, without applying a critical filter and cross-checking against other reports.
Not everything the media reports is absolutely correct. You have to take each individual story and add a dose of salt.
But some people just get hold of that bad info and grab on to it —it gives 'em funny ideas— and then they go straightaway off the rails.
“David Silva's death gains national attention”, KGET, May 16, 2013
Just in case anyone here is in doubt, the best information that we have is seven Kern County Sheriff's deputies, and two CHP patrolmen. The Bakersfield police have been involved, but only in that the Kern County Sheriff, Donny Youngblood requested an outside agency to analyze the two seized cellphones.
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A Learning Moment:
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Re: A Learning Moment:
Most people don't think this sort of thing will actually happen to them and don't have a plan for getting stuff backed up quickly and easily.
On the other hand, if I just witnessed the cops beating someone to death outside my house, I probably would be backing things up as fast as possible and then leaving the area for a while.
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On the other hand, most city police chiefs are hired by the city government, based on who knows what type of political wrangling.
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The cynic in me thinks that the motivation for more substantial consequences is driven by internal factions in their police department or just leaving them to fend for themselves because they screwed up too big.
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One thing I haven't seen in the news yet is whether the victim's family is paying for a second autopsy, by outside pathologists.
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I guess we all lucky that California is not Mississippi.
Heck, California ain't even Chicago. Winters in California are for sure nicer than Chicago. Those Chicago winters—they cold. Damn cold.
No. It ain't Mississipi and it ain't Chicago neither.
Damn cold.
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The Bakersfield Californian notes that the coroner's office is a division of the Kern County Sheriff's Office.
“ROBERT PRICE: Has good-ol'-boy corruption seized the Kern County Sheriff's Office?”, by The Bakersfield Californian (Robert Price, Editorial Page Editor), The Bakersfield Californian, May 18, 2013
(Emphasis added.)
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Proving murder is requires proof of intent. Intent may be inferred by circumstances. But proving —beyond a reasonable doubt— that the officers wrongfully intended to kill the man may be an awfully steep hill to climb.
If we credit the reported statement —if the account is repeated under oath— that the first officer on the scene told the man not to move, and then, when the man sat up, the officer immediately struck him in the head with a baton…
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“FBI to probe fatal beating by Kern County deputies”, by Diana Marcum, Paul Pringle and Richard Winton, Los Angeles Times, May 14, 2013
If we credit that statement, can we infer that the first two deputies on the scene intended to use deadly force without justification?
If that account is repeated under oath —and a jury believes it— is it sufficient to prove murder?
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California Penal Code Section 187-199
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One news outlet reports 19 baton blows visible in the surveillance video.
“California cops defend phone confiscations as video of 'constant bashing' emerges”, RT, May 16, 2013 (edited)
I've watched that video, but didn't count the hits myself. I guess 19 is as good a number as any, until the video experts take the time to really analyze the video with all the tools at their disposal.
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Once the videos disappear, anyone involved who's not begging to aid the investigation is on the carpet as an accessory. The sheriff's own situation for the next few years will be heavily determined by how many minutes or hours it took him to realize that. If he was complicit in the deletions, sending the evidence to the FBI is pretty risky: like chewing off a leg to escape a trap, it's better than the alternative.
With his action setting the pace, I expect the men involved in the beating won't be able to find a common line and some will turn state's evidence.
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The trouble with footage
The classic case is Rodney King, another "footage of police beating" incident. The guy with the camera didn't see the high-speed chase that the severely intoxicated King led the police on, endangering the lives of himself, his passengers, the police, and innocent civilians. It also didn't show him behaving in bizarre ways and making comments that led the officers on the scene to believe he was under the influence of not only alcohol but PCP as well.
All it showed was the arrest, and subsequent beating after King resisted arrest, and that's all that got broadcast on TV. When an impartial jury considered all the facts, they found the officers not guilty. But they had already been convicted by the media in the court of public opinion, and it touched off a riot.
Recorded evidence (audio and video) can have a very powerful emotional impact, and when used irresponsibly it can cause serious problems. (See also: the 911 call in the Trayvon Martin case that the reporter edited to manufacture the appearance of racism where none existed.)
With the way people keep pulling stupid crap like this, it's not hard to understand why even good police don't like being taped. If I was a cop I wouldn't like it either, and not because I wanted to avoid responsibility, but because there's plenty of precedent to worry about that video being used irresponsibly and undermining the public safety that I had taken an oath to protect!
The closer to the truth, the better the lie, and the truth itself, when it can be used, is the best lie.
- Isaac Asimov
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Re: The trouble with footage
Yes they did let them go. We can recall what happened next as half of LA went up in flames. The law is not just about the words of law when a Judge also needs to show that Justice is done where LA burned because Justice was not done. The discontent and anarchy in LA causing millions of dollars of damage became their Jury to judge them and guilty was their verdict. We can also recall who soon went to jail on public choice.
I will remind you that deleting video evidence is so extremely unprofessional and unlawful that any officer who does such should be immediately fired.
Filming officers doing their duty is allowed by order of the Court and a good reason for them to be professional. I am sure some do not like it but as long as it does not hinder their duty then they cannot interfere except by polite request.
Then should they wish to counter public opinion then be open and honest. You may note once seized the videos had no chance of going public so they only deleted evidence which could convict them.
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I am sure everyone involved wants the truth to come out and the whole truth. Is not deleting the video evidence not trying to hide the truth? Is it not better for them to be open and honest and to follow the rules?
Unlike the days of Rodney King technology has now much improved where cameras are everywhere. Then damned right for the FBI to be involved when the Police just proved themselves untrustworthy. That fact won't make the public happy.
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Re: The trouble with footage
In this case, though, we have some video that documents the very beginning of the incident. We have the black-and-white surveillance video which has already been published. That's thev ideo that was referred to in the earlier story here at Techdirt. That video appears to start before the incident began.
If you haven't seen it, the video is embedded in the KERO 23ABC News story “Newly released video allegedly shows fight between intoxicated man and law enforcement” (story by Cris Ornelas and Derek VandeWeg, May 10, 2013)
In the Otto Zehm case, in Spokane, experts got as much resolution as they could out of surveillance video, and brought in frame-by-frame stills for the jury to examine.
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Re: The trouble with footage
There is also a report from someone who allegedly encountered David Silva shortly the Sheriff's deputies arrived on the scene.
“Witnesses: Deputies used too much force in arrest of Bakersfield resident David Silva”, by Cris Ornelas, KERO 23ABC News, May 9, 2013
It's too bad this woman doesn't want to be identified. I wish the people could get her come forward and testify.
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Shame
This is indeed a disgusting case so these Police Officers hanged around and totally abuse a Court seizure order so that they could delete the evidence against them.
I should point out the obvious when if the FBI investigation shows video deletion while in Police control then the Police Officers involved should be immediately fired. There should never be any excuse for deleting evidence.
I don't know about you but had it been my phone that captured this then I would say "sure you can have the phone but let me back-up the data first". Should they refuse I would soon have a lawyer make an emergency Court appeal to not place the evidence into hands of the perpetrators. Revoke the seizure order and to hand the phone to the Judge directly under assurance of evidence safety. Always in legal hard ball you need to fight strongly and not just sit there and take what they give you.
Well this is a truly disgusting case where having both videos deleted clearly shows tampering. We can only hope these videos are recovered so that we can all see what really happened. From what the witnesses have said though this is little more than Police Officers committing murder.
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Re: Shame
Oh, and whether they save the recording or not, you pay for the attorneys time, quarter hour increments, travel expenses, et al. Of course one could go the high volume way and have an attorney on retainer, and at your side at all times. Though, this might not keep the cops from arresting the attorney by accident and separating you for, well just long enough.
The ACLU of NJ method mentioned above is the way to go. We need to find a way to get THAT to every cell phone user.
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Long enough for a lawyer to do some damage I am sure. If you are being detained the Police refusing to allow you to contact a lawyer seems another violation. Others could also contact a lawyer on your behalf when you still have a voice.
I also highly doubt the Police can arrest a witness in such a situation. This could be in front of family and friends and to arrest them for wanting their rights under the law?
Sure if you can backup the data it should be done as quickly as possible but my point is about if the Police arrive early and deny you using your phone before you can. So this is all about protecting the evidence from people who wish it deleted.
Certainly at nearly 2am this is a very bad time for both lawyers and judges. I am sure though it would not take long for one to understand your urgency and to know who exactly to contact to put a certain seizure order on hold.
The only other method I can think of is if you have the numbers to over-power the Police to allow you the time to complete the backup. A very risky move though most likely ending in mass beatings and arrests but maybe one backup.
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Sorry I missed this bit. On the other hand, my father was once arrested "for his own protection" for being a reporter in the middle of the 1957 Little Rock Central High School riots. This was just after he had two ribs broken by the crowd.
Go ahead, tell me things are different today. Police often act first and think, well either later or never. Not all police, but that police misconduct site sure has a lot of instances to report.
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“Deputies' video confiscations come under scrutiny in fatal Bakersfield beating case”, by Steven Mayer and Jason Kotowski, The Bakersfield Californian, May 11, 2013
Three a.m. Wednesday until noon is nine hours.
That article in the Californian also contains comments and analysis by Bakersfield defense attorney Arturo Revelo, and by Yaman Salahi, an attorney for the ACLU-Southern California, as well as by defense attorney Kyle J. Humphrey.
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Re: Re: Re: Shame
The police also cannot beat you to death in the street.
Oh, wait.
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Admin leave
If you want to make sure that officer know the bad consequences of violating the rules, then give them unpaid leave. Hopefully that would make them think twice before doing something stupid that could potentially affect their paycheck.
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Re: Admin leave
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Nothing unusual here
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Cellphone videos not yet released
Earlier reports had indicated the cellphone videos could be released to the public on Friday, but now this article says that analysis of the videos may not be finished until Monday or Tuesday of next week. It is not entirely clear whether the videos will ever be released.
“Analysis of cell phones in David Silva's death not complete”, KGET, May 17, 2013
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Additional search warrants executed
“Sheriff seeks medical details about Silva” by Steven Mayer, The Bakersfield Californian, May 17, 2013
“KMC videos, medical records released to Sheriff's Department”, KGET, May 17, 2013
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Kern County Confirms Homicide Investigation
“SOUND OFF: What's known, and what's not, in Silva investigation”, by John Arthur (Executive Editor), The Bakersfield Californian, May 18, 2013
In the Otto Zehm case, up in Spokane, Washington, one of the huge problems involved the city's confusion between investigating a homicide versus defending the city and its officers from civil liability for wrongful death.
I hope that Kern County does not similarly confuse homicide investigation with defending a wrongful death.
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Fair Trial Possible In Kern County?
“Kern Residents -- Fatal Police Beating Didn't Happen in a Vacuum” by Sandy Close and Raj Jayadev, New American Media, May 20, 2013
We don't know yet whether anyone will be charged in connection with the homicide. Based on media reports, there is probable cause to charge someone with a crime. But that may or may not actually happen.
If someone is charged, then there may be a question as to whether or not they can receive a fair trial in Kern County. Or if the media coverage has been so pervasive and prejudicial as to make it necessary to move the trial somewhere else.
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Re: Fair Trial Possible In Kern County?
“Additional search warrants executed” (Techdirt comment)
Compare:
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Witness video shows arrest of man who died in custody
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Cell phone video of alleged beating death of David Silva released
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Witnesses intend to sue sheriff's department
“Witness video shows no baton strikes”, The Bakersfield Californian, May 20, 2013
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Missing Video Not Recovered
Unfortunately, this news story does not tell us the make and model of the cellphone. If this does come to trial, no doubt more technical details will emerge.
Personally, this failure to recover any evidence regarding the video trouble me deeply. On the one hand, not everyone is someone like, just for instance the University of Michigan's J. Alex Halderman. On the other hand, while I'm certainly not J. Alex Halderman, I think it should have been possible to recover some evidence.
It might take a complete teardown of the cellphone. But when this attorney tells me that “ you cannot tell whether it was deleted, extracted, or whether it was ever filmed,” well, I'm kinda suspicious about that statement.
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Re: Missing Video Not Recovered
It was reported on Friday that the witnesses had obtained a new attorney.
At the news conference held Friday outside attorney John Tello's downtown Bakersfield office, Mr Tello said that the witnesses were now going to be represented by local attorney Daniel Rodriguez.
(source: KGET)
At the time, I didn't bother to comment on that aspect of the case. There might be many reasons for the witnesses to obtain new representation.
But when I add the fact that the previous attorney has dropped his representation together with the suspicion that the new attorney is not necessarily telling me the truth here…
What make and model was this cellphone? What kind of memory technology does it use?
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Witnesses have criminal history
“Video released in deputy beating”, KGET, May 20, 20113
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Sheriff needs to 'Evaluate' strikes to head
“Cell videos show man screaming as he's restrained by deputies”, by Richard Winton, Los Angeles Times, May 20, 2013
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Re: Sheriff needs to 'Evaluate' strikes to head
Carefully compare Sheriff Youngblood's ‘evaluation’ of head blows in the Silva case against the Sheriff's review board findings in the David Lee Turner case. In the Turner case, the Sheriff's Department found that a deputy's decision to shoot and kill Turner was “within departmental policy”. Turner had hit another deputy over the head with two beer cans in a plastic bag —and was poised to hit a second blow— when he was shot.
“Sheriff's review board: Fatal shooting of David Turner within policy”, by James Burger and Jason Kotowski, The Bakersfield Californian, July 18, 2011
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