By Mark Gutglueck
(April 23) The videotaped beating of Francis Pusok shocked many of San Bernardino County’s residents as well as those who live outside the county and California. The video, captured by the Los Angeles NBC affiliate station’s Newschopper 4, was replayed for a statewide, national and international audience. To the sensibilities of those who perceive law enforcement officers as the thin blue line separating the civilized members of society from sociopaths, the images of Pusok being beaten even after he had ceased attempting to flee, had ended his resistance, was complying with the officers’ commands and was attempting to surrender were incongruous with the their conceptions of peace officers as disciplined functionaries dedicated to upholding the law.
For a significant number of San Bernardino County residents, however, the action of the sheriff’s officers in administering summary punishment to the suspect was no surprise whatsoever. In their direct or indirect experience, San Bernardino Sheriff’s Department deputies are not reluctant to use force liberally, excessively or preemptively to maintain their psychological advantage and physical domination over those they are assigned to police and patrol.
Comments by pundits, observers and law enforcement professionals laid the responsibility for the breakdown in discipline and unbridled violence evident in the Pusok incident to a training and leadership failure within the department. But the culture of violence and summary retribution that pervades the sheriff’s office is attributable, at least in part, to the other law enforcement institution in San Bernardino County that co-exists and functions side-by-side with the sheriff’s department: the San Bernardino County District Attorney’s Office.
At least since the tenure of district attorney Jerome Kavanaugh in the 1940s, the San Bernardino County District Attorney’s Office has made a practice of closing ranks with police officers and sheriff’s deputies in the face of charges that officers or deputies had brutalized the criminally charged or convicted, suspects, citizens and even witnesses. In an effort to ward off contemplated or filed civil cases brought against law enforcement officers, their agencies, and the city or county that employs them, the district attorney has filed criminal charges against the plaintiffs or potential plaintiffs, in most cases P.C. 148 charges, that is, resisting arrest. This strategy entails obtaining a conviction against the citizen, thus lessening the viability of any civil suit that has been filed on his behalf or discouraging the filing of a suit under preparation.
Confident that they have the backing of the district attorney if their use of excessive force is ever brought into question, officers feel free to indulge in violence against suspects or those they encounter in the field if they perceive their authority, dignity or self-esteem has been insulted or even questioned. Such excessive uses of force are routinely followed up with a police report, written by the officer who utilized the excessive force, describing circumstances that provide an ostensible justification for the use of force. Those reports may or may not be forwarded to the district attorney’s office. On occasion, contingent upon the discretion of the reviewing attorney in the prosecutor’s office, charges are filed against the suspect, citizen or witness.
There are often indicators in police reports intended to blunt charges of police brutality that can be discerned by an experienced law enforcement officer or lawyer which give away that the accusations of resistance or obstruction of a police officer are marginal, exaggerated or outright false. Those flaws, however, do not necessarily prohibit a prosecutor from charging the suspect or defendant with resisting, obstructing or delaying a peace officer.
In San Bernardino County, charges against police officers and sheriff’s deputies for excessive use of force are exceedingly rare, and charges against police or sheriff’s officers for falsifying their police reports are virtually unheard of.
The most recent exception that proves that rule involved the prosecution of deputy Michael Parham, who was charged in the May 20, 2012 beating of Mario Madrigal at Madrigal’s home in an unincorporated county area near San Bernardino, while a heavily intoxicated Madrigal lay handcuffed on the ground. A jury convicted Parham of assault by a police officer and battery after a seven-day trial in 2014.
The most celebrated case relating to excessive use of force in San Bernardino County prior to that was the prosecution of two former Adelanto police officers, Thomas Chandler and Kenneth Gailey, accused of trying to beat a confession out of one suspect and beating another before forcing him to lick his own blood off a booking room floor in 1994. The San Bernardino County District Attorney’s Office took up that case, but it was dismissed because of prosecutorial misconduct. While the matter was under appeal, the U.S. Attorney’s Office in Los Angeles stepped in and filed charges against Chandler and Gailey, who then pleaded guilty in 1997 to federal civil rights violations.
The Parham and Chandler/Gailey cases entailed extraordinary elements that set them aside from other examples of excessive use of force and police brutality. Charges were filed against Parham and another deputy involved in the Madrigal beating incident, Shadia Adham, after Adham, who was approached by a witness to the beating who asked for her and Parham’s identities, gave the names of two other deputies. This led to a circumstance in which other members of the department felt it necessary to provide an accurate description of what had occurred during the encounter with Madrigal in their reports, as well as their being willing to testify against Parham when the matter went to trial. Adham was initially charged with a misdemeanor count of impersonating a police officer, but that charge against her was later dropped.
In the case involving Chandler and Gailey, an audiotape recorded in May 1994 the pair did not know about came into the possession of the prosecutors. In that recording, Chandler could be heard asking Joseph Valdes, who was suspected of abusing his daughter, “Are you going to tell us what we want to hear?” as he and Gailey beat him, twisted his limbs and kicked him. In October 1994, Chandler and Gailey beat Henry Easley, who had been arrested on drug charges, in retaliation for Easley having spat on a fellow police officer. Easley was hit so hard on the head that he started to bleed, at which point Chandler ordered Easley to lick his blood off the floor. A just-hired police officer who had witnessed the beating came forward to inform on and then testify against Chandler and Gailey.
Dan Lough, who was a prosecutor with the San Bernardino County District Attorney’s Office from 1977 until 1985, was then a senior prosecutor with the Riverside County District Attorney’s Office from 1986 to 1994 and assistant district attorney in San Bernardino County from 1995 until 2001, said prosecutions of police officers and sheriff’s deputies in San Bernardino County are very uncommon.
He said that the reluctance to prosecute law enforcement officers is an outgrowth of the close relationship between the prosecutor’s office and the law enforcement agencies within the prosecutor’s office’s jurisdiction. He suggested that the pass peace officers are given on citizen abuse cases is less a result of prosecutors trying to cover up wrongdoing than a reflection of the practical difficulties entailed in obtaining convictions against law enforcement officers, who are generally viewed more favorably by juries than are run-of-the-mill criminal defendants.
“Police officers are trained as witness and for that reason they make a really good impression on a jury,” Lough said. “In addition, the investigators on these cases are often friendly to the officer.”
In partial reference to the Chandler/Gailey matter, which the district attorney’s office did pursue while he was second-in-command under district attorney Dennis Stout in the mid-to-late-1990s, Lough said, “I don’t think there was an absolute unwillingness to prosecute bad police officers. I think it was more, in my case, whether the quality of evidence existed that would allow us to get a conviction that prevented us from pursuing those types of cases. As the assistant district attorney, I had to personally sign off on all of the cases involving charges against police officers. A supervisor was required to handle those cases and before they would be filed they went to me. If you could prove they [the officers] were good for it [i.e., guilty] and there was the evidence to make a case and get a conviction, then I would approve going in that direction. That did not happen often. We passed on [rejected] most of those cases. I saw conduct by officers a lot of time I did not approve of, but I had to evaluate the case from a prosecutorial standpoint as to whether we could prove criminal intent and criminal conduct to a jury. Juries are much more willing to side with the officer. More often than not, the police officers are not going out there to kill or hurt someone. A lot times they do make mistakes. But does that rise to the level of a crime? For me, it is the provability of a case that translates into willingness to prosecute someone.”
Lough said he understood that officers are intent on maintaining command presence and sometimes overreact to any challenges, real or just perceived, to their authority. That overreaction, he said, can escalate into the use of force. “Very often, the police are concerned about control,” Lough said. “There is a reason for that. Sometimes control comes down to perception or just a feeling. They have been trained to control a situation and when that control drifts away from them, they often act badly. In this society, we have a right to disagree and a right to do certain things even if others do not like it, but if you are interacting with a police officer, and are even within your rights, you might flunk his attitude test, and things can end up going badly for you.”
After the fact, the police officer has a last word of sorts, Lough said, because he can put his description of what occurred into a police report, which has official status. Lough said he often detected in police reports an effort to obfuscate the use of excessive force. “I am tougher to fool than a jury,” Lough said. “The suspect does not get to give his side of what happened in those reports.” And, Lough said, the deputy prosecutors evaluating those police reports have less experience than he has, and some of them buy what is being offered in the police reports and then file resisting arrest charges against citizens who were the object of excessive force.
“They are usually P.C. 148 cases, resisting arrest, which get pretty short shrift, less than a DUI case,” Lough said. “The reports are written in such a way to support the officer. Seldom, if ever, do you get the story from the citizen. These are usually evaluated by a junior member of the DA’s office. So, he or she will get a 148 report and it is very difficult for someone who just got out of law school and has passed the bar and is now in his first job as a prosecuting attorney to say to the officer, ‘We don’t believe you.’”
Lough acknowledged that on occasion, deputy prosecutors have leapt into the breach, filing resisting arrest charges against citizens who have been roughed up by law enforcement officers as a means of staving off a possible lawsuit against the officer or officers, the agency employing them and the county or one of its cities.
“I’m not going to defend that,” Lough said.
Since 2003, Mike Ramos has been district attorney. He was elected and reelected with the support of law enforcement, including police administrators, management, and officers, including police employee unions. In his public statements and acts, including his prosecutorial policy, he has made no acknowledgement of the reality of officer-on-citizen violence, instead focusing on citizen-on-officer violence.
In May 2013, Ramos formed a specialized unit devoted entirely to prosecuting those alleged to have assaulted law enforcement personnel. Christened the Crimes Against Peace Officers Unit, the division consists of two deputy district attorneys and a victims’ advocate. In forming the unit, Ramos said, “Every hour of every day law enforcement officers in San Bernardino County put their personal safety at risk to protect our communities. In 2012, in our county alone, over 2,100 peace officers were assaulted, injured, threatened, or interfered with in the performance of their duties. Of these crimes, over 600 were felonies involving physical violence against an officer, use of a weapon on an officer, or threats to kill or injure an officer.
“In the past three years,” Ramos continued, “over 6,000 peace officers in San Bernardino County have been the victims of crimes committed against them simply because they were performing their duty protecting us.”
While the record of prosecutions and convictions of police officers for the use of excessive force in San Bernardino County would seem to indicate that the use of excessive force by law enforcement officers is so rare as to be virtually nonexistent locally, that is belied by the proliferation of civil suits alleging such brutality. While over fifty such claims or lawsuits are pending, ten cases going back over the last nineteen years resulted in substantial rewards to the plaintiffs. These cases are:
• Morgan v. County of San Bernardino, U.S. District Court, Central. District of California (Riverside), (1996), $714,000.00 settlement following jury verdict for excessive force and false arrest during a search warrant execution in Victorville, California;
• Darr v. County of San Bernardino, U.S. District Court, Central. District of California 2000), $50,000.00 settlement for violation of first amendment right to freedom of association;
• Austin v. County of San Bernardino, U.S. District Court, Central District of California, $500,000.00 jury verdict for false arrest and excessive force;
• Lopez v. County of San Bernardino, U.S. District Court, Central. District of California (2002), $50,000.00 settlement for racially motivated battery;
• Miller v. City of San Bernardino, et al., U.S. District Court, Central. District of California (2003), $35,000.00 settlement for unlawful detention;
• Calderon v. County of San Bernardino, U.S. District Court, Central. District of California 2003), $115,000.00 settlement for false arrest and illegal search;
• Ford v. County of San Bernardino, (2007), $80,000 settlement for excessive force;
• Diaz v. County of San Bernardino, et al. , United States District Court – Riverside (2008), $49,999.00 settlement for excessive force;
• Grasso v. County of San Bernardino, et al. (2009), $180,000.00 settlement for unreasonable force / infliction of emotional distress;
• Aubry v. County of San Bernardino, et al, U.S. District Court (Los Angeles) 2012, $325,000.00 settlement for the use of unreasonable force and for false arrest.
DA’s Policy Set Stage For Pusok Beating
By Mark Gutglueck