The San Bernardino County District Attorney’s Office charged three of the eleven deputies involved in the April 9 arrest of Francis Pusok with one count each of felonious assault by a public officer.
A KNBC news helicopter captured the final minutes of a chase extending by vehicle from Apple Valley and through unincorporated sections of the county, Hesperia and finally to a rugged hillside in the Deep Creek area south of Apple Valley, where Pusok abandoned his car and set out on foot and commandeered a horse near Bowen’s Ranch.
As Pusok eluded the several deputies that had followed him by vehicle to that area who were obliged to give chase on foot across terrain that could not be negotiated by motor vehicles, several more deputies were brought in by a sheriff’s department helicopter to assist in the pursuit. With the news helicopter high overhead and one of three sheriff’s department helicopters criss-crossing near the ground, Pusok fell or was thrown from the horse as first one and then and then another deputy came into the view of the video camera.
The news helicopter continued to capture video footage of Pusok, who momentarily attempted to flee on foot after falling from the horse but soon thereafter dropped to the ground in a compliant posture, being pummeled with fists and a Taser gun and kicked as the first two officers and then eventually eight more officers swarmed him.
After what he said was a careful examination of the footage on the videotape as well as the audio captured on belt recorders that were activated by several of the officers, district attorney Mike Ramos on September 1 said a decision had been made to file charges against deputies Nicholas Downey, Michael Phelps and Charles Foster.
According to Ramos, the videotape showed “deputy Nick Downey, when Pusok was down with his face down and his hands behind his back, kicked him once and then twice in the head area.” The video further depicted, Ramos said, “Mr. Pusok with his hands behind his back and his head on the ground in a prone position as he [deputy Phelps] is kicking him in the groin area.”
Four and a half minutes later on the video, “after Pusok is hobbled – after he has been handcuffed and his legs are bound and he is turned on his side – the deputy rears back and kicks him. That would be deputy Charles Foster,” Ramos said.
Ramos said, “This morning we filed three charges, three counts, of assault by a public officer in violation of Penal Code Section 149, a felony that was committed by deputy Nicholas Downey, Michael Phelps and Charles Foster, who assaulted and beat Francis Jared Pusok under color of authority, the defendant being then and there a public officer, to wit, a peace officer.”
Ramos described the elements of the crime as the three officers acting in their capacities as police officers during which time “they assault[ed] or beat another individual without legal necessity, using more force than was necessary under the circumstances.” Factors considered, Ramos said, were “the severity of the crime at issue” as well as whether the suspect presented “an immediate threat to the officers or others [and] whether at the time the suspect was resisting or attempting to evade arrest.”
In addition to the kicks he described, Ramos said Pusok was pummeled with “hands and fists.”
In his narrative, Ramos referred to ten sheriff’s officers whose images were captured on the video. An examination of the video, however, shows that there were 12 deputies in all captured on the six minute and two second video released by KNBC. An eleventh member of the department can be seen entering the video screen’s field at 3:02 on the video and another comes into view at 3:09. At that point Pusak is yet on the ground and almost entirely obscured from view by the deputies hovering over him.
The department has released the names of seven members of the department depicted on the video, most or all of whom can be seen using some level force on Pusak: deputies Scott Hamilton, David Moore, Dominic Moody, Raymond Perez, Tyler McGee, detective William Doemner and sergeant James Evans. The two other department members have not been identified.
Ramos said the others were not charged because their actions were less egregious than those of Downey, Phelps and Foster in that they may have had grounds to believe, based upon what they saw of others’ reactions and what they individually may have heard as the events unfolded, that the level of force they used was appropriate, given the circumstance.
“A peace officer may presume that a fellow officer has acted lawfully,” Ramos said. “If one of several deputies acted unlawfully or engaged in unreasonable excessive force, that officer’s action – those officers’ actions – are not imputed to another officer unless that office knew or should have known the fellow officers were acting unlawfully.”
Ramos further sought to explain why the others had not been charged, stating that they might not have seen the excessive force applied by Downey and Foster at the outset of the incident. “Those bushes are tall,” Ramos said of the vegetation around the spot where Pusok was lying on the ground. “You can’t see around them. So when these other officers are running up, what they hear on the belt recordings – and I am not going to get into the details; I am going to leave that for court – they hear something. The other officers are yelling. Not knowing the circumstances, they can’t see when they come upon Mr. Pusok and the other officers there.“
Thus Ramos said, “In fact, the use of force that they showed was reasonable under the circumstances. A lot of those officers just put their foot on him to hold him down to make sure he wasn’t moving. We took all those factors into consideration on why we did not charge the others. I believe the deputies that were filed on today crossed the line under color of authority but their actions should not tarnish the badge of those that honorably serve every day.”
Attorney Richard Hirsch, who in conjunction with attorney Michael Nasatir is representing Foster, said of his client that he has “ten years of distinguished and unblemished service to the sheriff’s department and was awarded the medal of valor in 2012 for saving a citizen’s life. Foster served in the Army’s 82nd Airborne Division in Iraq, Afghanistan and Kosovo. We’ve carefully reviewed the video and audio recordings in this incident, and it is clear our client used minimal and reasonable force to restrain a dangerous individual who was resisting arrest. We are confident that when the evidence is presented in a court of law, that a jury will agree that deputy Foster is innocent of this charge.”
Attorney Michael Schwarz, who is representing deputy Nick Downey, told the Sentinel, “We are asking the public to withhold judgment until the facts are presented at trial. One of the things that has been kind of lost in the shuffle in the public discussion is the fact that the information my client had at the time of the event was that the suspect was violent, armed and dangerous and had terrorized his family just a few days before. That was the knowledge base he had when he was chasing this suspect on treacherous terrain who was basically going nowhere. The video is a small window into a much larger picture. People should keep that in mind.”
Ramos’ statement that Phelps had “gone over the line under the color of authority,” Phelps’ attorney, Steven D. Sanchez, told the Sentinel, “is not a fair description. Phelps acted in conformity with his training and experience, basing his decisions on the actions and reactions of the suspect. The portion captured on video by the helicopter was after a three-hour pursuit of a fleeing felon on a crime spree. Phelps’ only intent was to get the suspect into custody, and that’s what he did. He knows there are three helicopters and half of the Hesperia Sheriff’s Department is looking for this guy. He’s aware that Pusok is not yielding to authority…that’s been evident. A reasonable deputy must assume he won’t submit to an arrest without resistance, even if at first blush he may appear to do so. Phelps had no idea if Pusok had any hidden weapons. Phelps was emotionally, mentally, and physically exhausted by the time he reaches Pusok…He’s been running in to where he finds Pusok…Everyone else was driven or helicoptered in. The elements played a huge role in this incident. He was knocked over by the wind of the helicopter; you see that on the video. His vision was blurred, sand was caked on the lenses of his sunglasses and he had no idea when back-up would arrive.”
Sanchez continued, “He’s the one that gets cuffs on Pusok, and once they are on and double-locked, and the arrest is effectuated and the suspect is finally in custody, Phelps extracts himself from the situation, doubling over in exhaustion from the struggle of using every limb trying to immobilize the suspect. The initial kick that is often spoken of was to the leg, not the groin, as the suspect was starting to get up, and designed to prevent that. It caused no injury whatsoever.”
Sanchez said the force Phelps used was appropriately applied.
“When Phelps went to handcuff Pusok, he saw movement,” Sanchez said. “He saw Pusok move his body and his right leg. That’s a bad sign for a deputy trying to arrest a fleeing, and potentially violent, suspect. Movement means escape. Movement means reaching for a weapon. Movement means injury or death to that deputy, unless that suspect is immediately restrained. Phelps did not see the leg strike to Pusok’s head, but he saw movement. At that time he is not in the position to presume that Pusok’s movement was not volitional, or an attempt to cause him harm. Phelps had no intent to kick him in the groin or to unnecessarily injure him. He wanted to kick him in the thigh to prevent him from getting up and running away. If you do not want a suspect to get up and run, you kick him in the thigh to briefly immobilize him. This is not prohibited by SBSO department policy.”
Sanchez said the frame by frame analysis of the videotape that has occurred since the incident has been done by individuals who were not in the arena of action and jeopardy the actual incident entailed.
“Phelps did not have his remote control with him,” Sanchez said. “He could not press pause and control live TV, nor did he have the opportunity to view Pusok’s threat in slow motion, frame by frame. Further, Pusok was not injured by Phelps. Pusok is seen hopping fences in San Bernardino a week later, so I seriously doubt he was hurt by Phelps.“
Sanchez suggested that his client might have been singled out unfairly by the district attorney’s office as part of an effort to placate public sentiment.
“Public pressure to prosecute police officers in today’s climate over any use of force, justified or not, is always at the forefront in any charging decision,” Sancez said. “It’s impossible to avoid. It seems like the charging decision with respect to my client was…misplaced. In this case, our client pulled out his cuffs, used only the force necessary to effectuate the arrest, then withdrew. Based on my reading of department policy, his actions were not specifically prohibited, he caused no injuries to Pusok, he arrested Pusok. To say I am surprised based on the supportive sentiment within the department and law enforcement community in the area would be accurate.”
The San Bernardino County Safety Employee Benefits Association, known by its acronym SEBA, is the union representing the sheriff’s department officers below the command level. A statement by SEBA President Laren Leichliter said that while “it is not our place to pass judgment” his organization would “offer support of our members and make sure each deputy in this case has access to legal representation. The primary focus of SEBA is to ensure members have the same legal right to representation as any private citizen, including the notion of being innocent until proven guilty.”
The Pusok beating, at least briefly in the wake of the broadcasting of the KNBC video, became something of a cause célèbre. Within short order, he was being represented by Victorville-based attorney Jim Terrell, who immediately began negotiations with the county, which in a little more than a week offered Pusok $650,000 to settle the matter and head off any legal action. Pusok accepted offer and the county board of supervisors, with the support of sheriff John McMahon, approved the settlement on April 21.
Nevertheless, Pusok’s ordeal had not ended. His home was subjected to the serving of a search warrant after he was taken into custody. On May 28, Ramos’s office charged Pusok with 11 felonies and three misdemeanors in connection with the April 9 pursuit, including evading arrest, auto theft, horse theft, animal cruelty, being under the influence of drugs, and reckless driving. Both he and his wife were further charged with being in possession of stolen property, based upon items recovered from his residence during the serving of the search warrants.
Terrell said the district attorney’s office’s action was disproportionately harsh in dealing with Pusok and disproportionately lenient in dealing with the officers who beat him. He said that based upon beatings Pusok had suffered at the hands of sheriff’s deputies in the past, he “had the right to run away. They’re savages,” he said of the deputies.
Terrell said at least five of the deputies at the scene of the arrest who had participated in the beating of his client should also have been criminally charged.