Judge Calls Out Portland Police For Bogus 'Contempt Of Cop' Arrest/Beating

from the self-defense-against-excessive-force-possibly-a-thing dept

It doesn't happen often, but a judge has called out police officers for using a non-existent offense -- "contempt of cop" -- to justify the use of force against a detained person. Multnomah County (OR) Judge Diana Stewart cleared 16-year-old Portland resident Thai Gurule of several charges brought against him after he was pummeled and tased by police officers for… well, basically for responding angrily to a somewhat derogatory gesture.

Police that night had been looking for a group of seven to nine African American men, including one shirtless one, who had been walking the streets, reportedly damaging property and yelling profanities. Within minutes of receiving the group's last known location, police several blocks away focused their attention on a group of three young men: Gurule, his 20-year-old brother and their friend.

That was the narrative up to the point where Thai Gurule found himself on the receiving end of fists and Tasers. Ignoring the fact that this group had little in common with the suspects other than race, we come to what turned this incident into a confrontation and, finally, a one-side melee.

The following comes from the judge's statement on the dismissal of charges:

As the youth walked past, Officer Hughes said, "Hey" to the youth and when the youth continued, he again said, "Hey" and clapped his hands.

Thai Gurule turned to face Officer Hughes and in an angry or aggressive voice said "Don't fucking clap your hands at me". Officer Hughes stepped forward while the youth stepped back.

Cue escalation. The officers decided to cuff Gurule (for "resisting arrest," apparently). As a crowd began to gather, the officers decided to move Gurule into a prone position for cuffing, supposedly for officer safety. But rather than let Gurule move to a prone position, one of the officers decided to speed up the process by sweeping Gurule's feet out from underneath him. From that point, it became an uncontrolled beating. One officer held Gurule by the hair while the other two wrestled him to the ground and hit him multiple times with their fists and knees. Finding the one-sided "struggle" to be ineffective, Sgt. Lile deployed his Taser.

After they were done throwing blows, the officers threw the book at Thai Gurule, listing all of the following charges on the police report:

Aggravated assault
Simple assault
Criminal threats
Disorderly conduct
Interference with public safety
Resisting arrest

The accompanying reports filed by the officers maintained that Gurule repeatedly swung his fists at officers and tried to choke one of them. Unfortunately for these officers, multiple recordings of the incident that contradicted their narrative were made available to the judge.

Judge Stewart was obviously irate at the thick stack of lies delivered to her in the form of police reports and sworn testimony. She also was none too happy with the officers' justification for initiating the arrest of a person who had done nothing more than fail to treat Officer Hughes with as much deference as he felt he deserved. Not only did she dismiss the charges, but she read the entire damning dismissal order out loud.

In discussing the "resisting arrest" charge, Judge Stewart also addressed the pure BS motivating the officers' arrest of Gurule. She points out there's an exceedingly low bar that needs to be met to satisfy the requirements for bringing this charge, but the officers couldn't even meet that.

Actual restraint was placed upon the youth at the moment that Officers Hughes and Hornstein placed control or escort holds on the youth. At that moment, even given the broad authority described above, there is insufficient evidence before the court that the Officers were operating under their community caretaking function, or therefore under color.

At that time, there is no evidence of concerns about a crowd forming. That concern arose as much as a minute later when the officers decided to take the youth to the ground.

Establishing this, she gets to the heart of the matter.

The only facts before the court are that the youth failed the attitude test when he turned and aggressively complained about Officer Hughes clapping him hands. Officer Hughes stepped forward and the youth stepped back and Officer Hughes, immediately followed by Officer Hornstein placed the holds restraining the youth.

And there it is: the bogus arrest was prompted by a little disrespect Officer Hughes just couldn't handle. It is surprising enough that a judge would call out an officer for this sort of behavior. It's even more surprising that she would move on to allowing an arrested suspect's self-defense claims stand. In most cases, the judicial branch shows deference to police officers who use excessive force in their self-defense ("feared for their safety"). In this instance, the deference went the other way.

[W]hile a person may not use physical force to resist what is actually or perceived by the defendant to be an unlawful arrest, a person may use physical force in defending oneself from excessive use of force by an arresting officer. Any injury caused to an officer in the course of engaging in a justifiable use of force to defend oneself may under such circumstances be justified and not criminal.

[...]

In this case, the youth's age is a relevant factor which the court considers even without the testimony of youth. Therefore, the question before the court is whether this youth and a reasonable 16 year old youth in his position would have believed that the use or imminent use of force against him exceeded the force reasonably necessary and whether he was entitled to defend himself with a degree of force which a reasonable 16 year old would reasonably believe to be necessary for the purpose.

[...]

The take down, although intended to be gentle and with adequate warning was nothing like that plan. Officer Hornstein swept the youth's feet out from under him causing him the sensation of falling forward without the use of his hands to break his fall. The next 35 to 45 seconds was a melee of fists and punches and bodies falling upon him. Prior to reaching the wall, the youth was attempting to regain his footing and get back on his feet and remove himself from what a reasonable person would have felt was a senseless and aggressive use of excessive physical force.

Once at the wall, the independent evidence of the video clips is less clear but continues to show the youth trying to struggle away from the officers rather than engage in a physical altercation…

[...]

[G]iven that confusion, rapidity of events, the tangle of officers and the youth and the confusion caused by the crowd, I find that as to all charges herein, the state has not established beyond a reasonable doubt that the youth was not reasonably justified in the use of self-defense as to all of the charges herein.

And with that, Thai Gurule is no longer facing criminal charges. As of yet, there's no word of what consequences, if any, are awaiting the officers involved. The city's police department is only a couple of years removed from a DOJ investigation, but incidents like these show there's still work to be done.

And, of course, the local police union has greeted this decision with assertions that the officers involved did nothing wrong and that Judge Stewart is nothing more than an armchair quarterback, but you'll have to click over to Popehat to read Ken White's entertaining/infuriating take on the union head's counterclaims.

Filed Under: beating, contempt of cop, police, police violence, portland, portland police

DOJ Report Details The Massive Amount Of Violence Committed By Rikers Island Staff Against Adolescent Inmates

from the the-infernal-machine dept

Late in 2012, two mentally-ill minors were taken from their cells at Rikers and beaten by a shift captain and multiple guards, who took turns punching the two inmates while they were restrained. A jail clinician reported seeing one of them being punched in the head while handcuffed to a gurney. Another clinician said she saw staff striking the other while he screamed for them to stop hurting him. One of the two told consultants he was still spitting up blood "more than a month after the incident."

This was prompted by the inmates' refusal to "comply with earlier search procedures" and for "throwing urine" on guards. When questioned about this retaliatory beating by a prison physician, the captain said the inmates had banged their own heads against the wall. Other statements gathered infer that those involved pressured clinic staff to corroborate this story. The official report said simply: "The inmates were escorted to the clinic without further incident or force used."

We've long since dismissed the idea that the prison system offers any sort of reform or rehabilitation. Instead, it's a place where people are sent to be forgotten, broken down or completely destroyed. The Rikers Island prison in New York is no exception, but it does "offer" something many others don't. Because New York law treats everyone 16 and up as adults when it comes to criminal charges, minors are sent into the general population to co-exist with those with years or decades of criminal experience under their belts.

But there should be someone acting as a force of good, or at least neutrality, inside the prison: the guards. According to the DOJ's investigation of Rikers Island, those tasked with watching the prison population are indistinguishable from the long-term inhabitants. And those perceived as weakest -- the newly-imprisoned minors -- are targeted most frequently.

In the driest terms, the DOJ breaks down the problems at Rikers.

We conclude that there is a pattern and practice of conduct at Rikers that violates the constitutional rights of adolescent inmates. In particular, we find that adolescent inmates at Rikers are not adequately protected from harm, including serious physical harm from the rampant use of unnecessary and excessive force by DOC staff. In addition, adolescent inmates are not adequately protected from harm caused by violence inflicted by other inmates, including inmate-on-inmate fights. Indeed, we find that a deep-seated culture of violence is pervasive throughout the adolescent facilities at Rikers, and DOC staff routinely utilize force not as a last resort, but instead as a means to control the adolescent population and punish disorderly or disrespectful behavior. Moreover, DOC relies far too heavily on punitive segregation as a disciplinary measure, placing adolescent inmates—many of whom are mentally ill—in what amounts to solitary confinement at an alarming rate and for excessive periods of time.

This opening statement is alarming, but the devil is in the details, as they say. And Rikers' staff are operating at near-Satanic levels.

Based on a review of Department 24-hour reports from October 2012 through early April 2014, we identified 64 incidents involving blows to an adolescent inmate’s head or face. This is undoubtedly an underestimate of the number of headshots during this period, because 24hour reports contain only initial incident summaries prepared by staff themselves. Indeed, our review of incidents and witness interviews suggest that headshots were utilized far more frequently during this period. However, the fact that these summaries so often openly refer to headshots is disturbing.

Our consultant reported that headshots are far more common at Rikers than at any other correctional institution he has observed. In many instances, correction officers readily admit hitting inmates but claim they acted in self-defense after being punched first by the inmate. As a threshold matter, even when an inmate strikes an officer, an immediate retaliatory strike to the head or face is inappropriate. Moreover, there is often reason to question the credibility of the officer’s account. These incidents also disproportionately occur in locations without video surveillance, making it difficult to determine what transpired.

Those who intimately know the system know how to abuse it. The report details incident after incident that cannot be fully confirmed because it occurred out of view of the cameras. This is no accident. Inmate-on-guard violence can almost always be quantified because the inmate either doesn't know the camera's full scope or just doesn't care. But guards who want to hide their violent acts know where to go to escape the pervasive surveillance.

Where video exists, [there is a] failure to describe the events on the video. Often there is just a summary statement that the video was reviewed and consistent with officers’ use of force reports. Because video recordings so frequently go missing, as described above, without an accurate and detailed description of the video recording, there is no longer any objective record of the incident.

They also know how to deploy CYA phrases for beatings with witnesses, a little trick often used by abusive police officers.

While utilizing force, staff often yell “stop resisting” even though the adolescent has been completely subdued or, in many instances, was never resisting in the first place. This appears intended to establish a record that the continued use of force is necessary to control the inmate. Officers who witness the incident also frequently report that they heard the inmate was resisting, even though that is false.

In law enforcement, "stop resisting" is a mantra to be chanted while swinging fists, batons or anything else that might inflict pain. Rikers Island fits right in with its brothers on the outside.

This list neatly summarizes the brutal force that is the Rikers Island staff:

• force is used against adolescents at an alarming rate and violent inmate-on-inmate fights and assaults are commonplace, resulting in a striking number of serious injuries;
• correction officers resort to “headshots,” or blows to an inmate’s head or facial area, too frequently;
• force is used as punishment or retribution;
• force is used in response to inmates’ verbal altercations with officers;
• use of force by specialized response teams within the jails is particularly brutal;
• correction officers attempt to justify use of force by yelling “stop resisting” even when the adolescent has been completely subdued or was never resisting in the first place; and
• use of force is particularly common in areas without video surveillance cameras.

The long report details numerous, extremely violent incidents, like this one:

In August 2013, four adolescent inmates were reportedly brutally beaten by multiple officers. Based on accounts provided by the inmates, several officers assaulted the inmates, punching and kicking them and striking them with radios, batons, and broomsticks. The beating continued for several minutes after the inmates already had been subdued and handcuffed. The inmates were then taken to holding pens near the clinic intake where they were beaten again by several DOC Gang Intelligence Unit members, who repeatedly punched and kicked them while the inmates were handcuffed. Two of the inmates reported that they had lost consciousness or blacked out during the incident. The officers’ written statements assert that the inmates instigated the fight and they used force only to defend themselves. The Department’s investigation of the incident was ongoing at the time this letter was prepared. The inmates sustained multiple injuries, including a broken nose, a perforated eardrum, head trauma, chest contusions, and contusions and injuries to the head and facial area.

And chillingly matter-of-fact footnotes point to the pervasive culture of violence maintained by Rikers staff.

RNDC inmates suffered 22 jaw fractures during the first 5 ½ months of 2012 alone.

The ultimate problem here is that the DOJ could investigate nearly every prison in the country and come away with reports nearly as damning. A severe imbalance of power, only occasionally addressed by very minimal checks or repercussions, leads directly to this sort of behavior.

The violence is abhorrent. That it's often directed at the weakest members of the prison population is even more so. And the staff knows what it's doing is completely wrong. The report shows that staff falsified reports, destroyed recordings, instructed clinic staff to corroborate their lies, told visiting teaching staff to "look away" from violent incidents (and keep their students from viewing these beatings as well) and failed to investigate questionable reports in a thorough or timely fashion.

Going to prison is never expected to be a pleasant experience, but one would hope they only needed to watch out for their fellow inmates. The Rikers staff's behavior ensures there is no safe haven inside its walls.

Filed Under: adolescents, beating, doj, gangs, inmates, prison, rikers island, violence

Jury Finds Two Officers Charged In Beating Death Of Homeless Man Not Guilty

from the proving-these-two-cops-can-beat-more-than-transients dept

The verdict has come back on the trial of two officers charged in the beating death of schizophrenic homeless man Kelly Thomas. Not guilty on all charges. The Orange County jury heard three weeks of testimony and returned this verdict in less than a day.

The incident, which began with Officer Ramos putting on gloves and announcing to Thomas that his "fists" were getting ready to "fuck him up," and ended with Thomas in an irreversible coma, was caught on surveillance tape and synched to Ramos' body mic recording. The tortured screams and gasps of the 135-lb. Thomas were unable to convince the jury find one of the cops guilty of lesser charges (Officer Cicinelli -- charged with involuntary manslaughter and use of excessive force). Even Cicinelli's own words -- "I ran out of options and just started bashing the hell out of [Thomas'] face [with the butt end of his taser]" -- failed to persuade the jury that the force used was excessive.

But as the Orange County Register presciently noted a couple of weeks ago, juries in Orange County tend to be "law and order" juries.

Orange County juries historically have given police officers carte blanche to use deadly force even against unarmed citizens and to lie in official reports that cover up police corruption.

The defense argued that Thomas died of causes unrelated to the physical force applied by six responding officers. They also argued that any force that might have been "excessive" was demanded by Thomas' supposedly violent resistance. But that seems a little unlikely when you take into account the defense's medical expert, who maintained Thomas died of a "weakened heart" brought on by "years of meth abuse." How does a 135-lb. man with a "weak heart" (who "could have died sitting in a closet" according to the medical expert) put up enough of a struggle that officers (six of them) fear for their safety? It doesn't add up, especially when you consider the fact that Officer Ramos, who initiated the attack and spent most of the incident on top of Kelly Thomas, outweighed the homeless man by at least 100 pounds. Add to that the weight of other officers who responded to calls for backup. Suddenly, this guy with a heart so weak he could have died "at any time" looks almost superhuman.

If there's anything that seriously undercuts the arguments that these officers responded with appropriate force to a threatening situation, it's the comparison of post-altercation photos of Kelly Thomas [warning: photo is extremely gruesome] and Officer Ramos, who sustained the following injury during the "dangerous" struggle.

The jury's verdict sends a message to Orange County law enforcement: you can threaten a person with a beating, follow that threat up with a six-officer beatdown -- including "beat[ing] the hell" out of them with the butt of your Taser -- all while being caught on tape and walk out of the courtroom free men. Kelly Thomas' father rightfully calls this a "miscarriage of justice."

For what it's worth, the federal government seems to find this verdict questionable.

"With the conclusion of the state court trial, investigators will examine the evidence and testimony to determine whether further investigation is warranted at the federal level," FBI spokeswoman Laura Eimiller in Los Angeles said in a statement.

While it's somewhat encouraging to see that the FBI thinks something is amiss here, there's really no reason for the federal government to step in and find some other way to punish these two cops. The only thing that should be looked for is evidence of misconduct that occurred during the trial which would stipulate throwing the verdict out and retrying the case. Anything else would be the government sending the unwelcome message (one it has sent previously, following the trial of George Zimmerman) that if the administration doesn't like a verdict a jury has reached, it will subvert the judicial system and render one of its own.

Filed Under: beating, excessive force, kelly thomas, law enforcement, officer ramos, police brutality

Released Video From Silva Beating Shows His Last Moments; Video Of Actual Beating Still Missing

from the LEO-Video-Editing-Services,-open-for-business-24/7 dept

A pair of the cell phone recordings of the David Silva beating have been released by attorney Daniel Rodriguez. 23ABC News received the videos first, both of which capture the final moments of Silva's life. Unfortunately for those seeking more clarity as to the actions of the nine responding officers, these videos fail to provide much insight into the officers' actions during the previous 30-40 minutes.

Both videos were shot after the batons had stopped (allegedly) swinging. [The videos won't embed so you'll have to click through to view them.] In the first, Silva is surrounded by several members of law enforcement who are obviously still restraining him. You can hear faint orders to "get down" being yelled by the officers, but the most noticeable sounds come from Silva himself, who spends most of the runtime screaming.

The second video shows the efforts of law enforcement and the responding EMS unit to revive Silva. One of the offscreen voices makes a couple of interesting statements. First, he points out that officers "stood around for five minutes" by Silva's unmoving body before attempting resuscitation. The second, echoed by a female voice, lends some credence to the story put forth by several witnesses: "Now, it's a murder scene."

Also of note, at 5:19 a second cell phone, presumably recording, shows up in frame. This would appear to be the other cell phone that was seized by the Sheriff's Department, the one on which the footage is no longer available.

The witnesses claim that both phones had footage of officers striking and kicking Silva, but with both phones now returned to their owners, none of the footage has survived. Both phones made their way from the deputies who seized the phones to the Kern County Sheriff's Office, which then shared the phones with the Bakersfield PD and the FBI. The FBI has apparently analyzed both phones but has yet to release its findings.

Here's where we stand right now, according to Rodriguez:

Rodriguez told ABC23 that "the more incriminating video was one on the other cellphone." He said that video was shot "while the batons were swinging." Rodriguez added the second phone was returned to his client with no video. If a video was erased from that phone, he said, it could not be recovered because of the type of the device.

David Cohn, the attorney for David Silva's family, has his own concerns:

[Cohn] said his clients are concerned that the videos might be erased or destroyed, either accidentally or on purpose. He has not seen them.

"If I'd heard that they'd given them to the FBI, ok," he told The Associated Press on Tuesday. "But the Bakersfield Police Department, whom they work with on a daily basis? It certainly doesn't have the look of impartiality."

Cohn also (obviously) has his concerns about the phone seizures themselves.

Cohn said the Sheriff's Department went "well beyond a reasonable search" in obtaining the videos, making no effort to ask for copies or voluntary cooperation from the witnesses.

"They held these people hostage for several hours pending the serving of a search warrant. I've never heard of that before," he said.

Beyond the deputies' abuse of these witnesses' rights, there's another aspect that may have made these seizures illegal, as posited by ExCop-LawStudent.

The Privacy Protection Act, 42 U.S.C. 2000aa(a) (hereafter PPA), states:

Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication….

This law provides that if a person takes a video of police action and intends to disseminate it to the public, the police can only obtain the video by subpoena, not by a search warrant. In this case neither of the individuals who had their property seized were suspects in the crime being investigated, the death of David Silva at the hands of Kern County Sheriff’s deputies, nor were they being arrested.

The sheriff’s office was aware of the video because the individual that taped the beating called 911.

Further, that individual informed the 911 personnel that she intended to disseminate the video to the public (at 0:46 of the call), saying “I’m sending it to the news.” At this point, the Sheriff’s office was on notice that this was “work product” protected by the Privacy Protection Act, and should have been obtained by subpoena, not by a search warrant. Indeed, the law specifically provides that a warrant can only be used after a subpoena has failed to obtain the material.

In support of this argument, the author cites the infamous case brought against the US by Steve Jackson Games, which had several work products seized by US Secret Service agents via a warrant, despite not being a suspect in the investigation at hand. The end result was $50,000 in damages plus attorney's fees being awarded to the game maker for these illegal seizures.

The video supposedly containing the most damning footage is missing. What we do have available only shows the aftermath of the beating. We're still waiting for much more information to be released. There's been no word back from the FBI on its analysis of the phones. The coroner has yet to release an official cause of death and the sheriff's office has stated this process could take up to four months. Kern County Sheriff Donny Youngblood continues to make concerned noises, but the lack of conclusive video has also prompted a bit more hedging, along with some unfortunate statements.

"I have seen the video," Youngblood said last week. "I cannot speculate whether they acted appropriately or not just by looking at the video."

The sheriff, however, acknowledged that there is a great deal of public concern about the incident and subsequent investigation. "It is not just troubling to the public, it is not just troubling to news media, it is troubling to me," he said. In an interview with The Times, he said the credibility of the department is at stake.

"Baton strikes were used, but what I don't know is how many and where they were on the body and if they caused significant injury that caused death," he said.

Youngblood said the baton is a less lethal weapon, and because of that its use doesn’t usually lead to deputies being placed on leave. But he said the head is not an appropriate place for a baton strike.

"Sometimes in the heat of battle, the baton doesn't go where you want it to go.... If someone has 20 baton strikes to the head, OK, that is easy for us. But when there is a fight or scuffle and a baton strike goes where it should not ... then you have to evaluate,” he said.

The passive voice in this context is bordering on reprehensible. There's a person controlling the baton and that person presumably should have the training to ensure proper "placement" of the weapon. The two deputies seen on the surveillance tape seem to be controlling their batons very well, using both hands to swing and connect with Silva. Nine officers swinging batons at one man are going to run out of "appropriate" real estate on a human body very quickly.

Youngblood seems to be drawing a line between proper baton use and a savage beating, but he's drawing the line in his office's favor. If all officers aimed exclusively and repeatedly for Silva's head, it's an open-and-shut case. But, if Silva struggled, or if blows rained down on other parts of his body as well, it's probably just good (if a bit too aggressive) police work (pending "evaluation").

Youngblood's statement serves two purposes: to define how far officers under his control actually have to go in terms of violence in order to warrant further review or disciplinary action, and to justify the fact that his deputies are still on active duty, despite earlier reporting that they had been placed on paid administrative leave until the investigation was complete.

It is common to place law enforcement officers on paid leave during investigations of arrest-related deaths, but the Californian reported the deputies involved remain on duty.

Youngblood's deputies who allegedly beat a man to death are still on patrol. One hopes that they won't find themselves in any situations in which a baton strike might be used, or go where the deputies "don't want it to go."

Filed Under: bakersfield, beating, david silva, destruction of evidence, evidence, police brutality, video

Police Try To Bring Wiretapping Charges Against Woman Who Filmed Them Beating A Man

from the wow dept

For the past year, we've talked a lot about how police and some courts have been abusing wiretapping laws to go after people who film the police in public. Thankfully, more recently, it appears that more and more courts have been smacking down such lawsuits, and those who are bringing them are regularly being scolded. Not everyone has received the message however. For example, there's police officer Michael Sedergren, who was disciplined for an incident in November of 2009, in which police were caught on video beating a guy named Melvin Jones III. The video was made by a woman named Tyrisha Greene. Jones had bones all over his face broken and became partially blind in one eye.

You would think that Sedergren, who was suspended for 45 days for his actions in the video, would know better and just get on with his life. Instead, he's "filed an application for a criminal complaint" against Greene, saying she violated wiretapping laws in filming him without his permission. Everyone involved knows the law is not intended for situations like this, where an officer of the law is out in public. If this officer's response to being filmed involved in questionable activities is to push for criminal charges against the person who caught him doing it, it seems like he does not deserve to be an officer of the law at all any more. What a massive abuse of the law.

Filed Under: beating, melvin jones iii, michael sedergren, police, tyrisha greene, wiretapping