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Homeless Man Beaten by CA Police Later Dies in Custody

Officers found not guilty. Rodney King redux?

by
Jack Dunphy

Bio

January 25, 2014 - 6:30 pm

It was purported to be a slam-dunk for the prosecution.  Here, we were told, was a clear case of excessive force by police officers, nearly every moment of it of captured on audio and video.  A mentally ill homeless man is stopped by the police, who beat him into unconsciousness.  Five days later he is dead.  Three of the involved officers are charged with killing the man, with one of them facing a second-degree murder charge.  So horrific was the crime, so compelling was the evidence, that the county’s district attorney himself led the prosecution team, delivering the opening and closing statements and staking his professional reputation on obtaining a conviction.

And yet, after three weeks of testimony and presentation of evidence, a jury deliberates for just a few hours before handing down not-guilty verdicts on all counts against the first two officers to go to trial.  (The third accused officer’s trial was pending, but after the acquittal of the first two, the district attorney elected to drop the charges.)

What happened?

On the evening of July 5, 2011, police in the Orange County city of Fullerton, Calif., about 25 miles down the I-5 from downtown Los Angeles, responded to a report of someone vandalizing cars near the Fullerton Transportation Center, a commuter bus and train station.  The first two officers on the scene questioned Kelly Thomas, who was shirtless and carrying a backpack.  The encounter was captured on video by a nearby security camera, and the audio was captured by a digital recorder carried by one of the officers. (Warning: the video contains harsh language and depicts a violent encounter that led to a man’s death.)

The video shows that after a few minutes of conversation, during which Thomas claims not to speak English and is evasive about his identity, the officers tell him to sit down.  He complies.  When Officer Joe Wolfe searches Thomas’s belongings and finds mail addressed to someone else, the officers suspect Thomas of being a thief.  The second officer, Manny Ramos, gives Thomas specific instructions on how he is to sit, i.e., with his legs extended and his hands on his knees.  When Thomas fails to follow these instructions as precisely as Ramos would have wished, Ramos puts on latex gloves and moves in close to him.  “You see my fists?” Ramos asks.

“Yeah, what about ‘em?” says Thomas.

“They’re about to f*** you up . . .”

“Start punching, dude,” Thomas says.

“If you don’t f***ing start listening.”

And at this point, sadly for all but mostly for Thomas, the incident devolved into one in which two people lost all patience with each other.  Ramos slaps Thomas on the shoulder with his hand, once again telling him to put his hands on his knees.  Thomas instead stands up, prompting Ramos to draw his baton.  Officer Wolfe then approaches, also holding his baton.  Ramos tells Thomas to get on the ground, and when he does not, running away instead, both officers begin striking him with their batons.

The action moves out of frame for a moment, but the audio makes clear that Thomas is tackled and struck, and indeed when the camera again focuses on the altercation, Thomas and both officers are on the ground near one of the parked police cars.  Soon there are six officers involved in the struggle, with most of them trying just to hold on to one or another of Thomas’s limbs and put handcuffs on him.  One officer, later identified as Jay Cicinelli, can be seen striking Thomas in the face.  Though it isn’t clear in the video, testimony at trial was that Cicinelli was using a Taser as an impact weapon.

Given what we know to have followed, the video is heart-wrenching to watch.  Thomas repeatedly says he is sorry and calls for his father.  “Help, me, Dad,” he says over and over, and a bit later moans his last words: “Daddy, Daddy.”

What parent, what human, can watch the video and not be saddened and even sickened?

As indeed I suspect the jurors were.  So how is that they were not moved to convict the officers?  None of the jurors has spoken publicly about the case so any search for their rationale is purely conjecture.  For what it’s worth, here is mine:

The jurors were unwilling to convict for the simple reason that the prosecution failed to meet its burden, which is to prove guilt beyond a reasonable doubt.  The defense was able to plant doubts in the jurors’ minds in two key elements.  First, they offered evidence that allowed the jurors to question the cause of Thomas’s death, and second, they presented testimony that the officers’ actions were reasonable under the circumstances.

The prosecution maintained, and presented medical witnesses who testified, that Thomas had died due to a lack of oxygen to his brain caused by the “mechanical compression” to his chest that occurred when officers were on top of him during the struggle.  The defense presented witnesses of equal standing in the medical community who testified that mechanical compression was not in fact the cause of death.  One defense witness who discounted mechanical compression as a factor was Dr. Gary Vilke, who has studied and written about in-custody deaths for 20 years.  Another doctor, Steven Karch, testified that Thomas had an enlarged heart caused by years of methamphetamine use.  Though the autopsy showed no evidence of drug use, Karch’s testimony could not be — and I suspect was not — disregarded by the jury.

In short, the defense raised the possibility, backed up by expert testimony, that the proximate cause of Thomas’s death was not the beating from the officers, but was rather a heart defect that was exacerbated by the struggle.  If you cannot establish how the victim died, you cannot prove beyond a reasonable doubt that he was murdered to start with.

The question of the officers’ actions being “reasonable” is trickier, but ultimately the jury was persuaded that they were.  Officers Ramos and Wolfe had responded to a radio call of criminal activity and had reasonable suspicion that Thomas may have been involved in it.  Thomas was therefore lawfully detained and was obliged to follow the officers’ instructions, no matter how inconvenient he may have found them.  When he stood up and ran away, the officers had lawful cause to use reasonable force to prevent his escape.

But was the force used on Thomas reasonable?  Given the fact that he died, the natural reaction is to say no, of course not.  How can it be “reasonable” that six officers were unable to control one slightly built man without killing him?  Every cop knows that getting handcuffs on a resisting suspect is not as easily accomplished as it’s portrayed on television.  I’ve been involved in several altercations that required several officers to control a combative suspect, even when every one of the officers outweighed the person being arrested.  Though Thomas can be heard saying, “I can’t breathe” in the video, the fact that he can say it is proof that he can in fact breathe.

Officer Cicinelli’s actions, in striking Thomas in the face with a Taser, may at first blush seem unreasonable, especially given the gruesome photos of Thomas’s face taken by his father at the hospital.  But defense testimony at trial was that Cicinelli responded to a call for assistance and arrived at the scene as the struggle was ongoing, finding his fellow officers on the ground and fighting with Thomas.  There was also testimony that Thomas attempted to take the Taser from Cicinelli, which if true would justify the strikes to his face.

Though the verdict may have been just in a legal sense, it does not mean all the officers were blameless.  For his part, Officer Ramos precipitated the altercation by demanding what I think most cops would see as an unreasonable adherence to instructions from Thomas.  If he felt there was a risk Thomas would fight or flee, he and Wolfe should have handcuffed him and put him in a police car while they continued their investigation.  Given Thomas’s docile behavior during the first few minutes of the encounter, even as he was evasive about his name, this could have been easily done with minimal force.  As it was, Ramos allowed Thomas to get under his skin and all but dared him to try to run away.  While it doesn’t make Ramos a murderer, he bears moral responsibility for the outcome.

Officer Cicinelli has expressed the desire to get his job back with the Fullerton Police Department, a desire the police chief says he will resist.  Cicinelli may have a legal case for reinstatement, but politically it’s a non-starter in a city that was roiled by Thomas’s death and remains so following the acquittals.  Last Saturday, 14 people were arrested during a protest against the verdicts outside the city’s police station.  Police declared an unlawful assembly after a news photographer was attacked.

The FBI has announced it will examine the evidence in the case to see if civil right laws were violated, raising the possibility that the officers may face charges in federal court.  It won’t happen, nor should it.  The criminal case is over, leaving many dissatisfied with the outcome.  But that’s the way it happens sometimes.  The courts do not always deliver satisfaction, nor do they sometimes even deliver justice.  What they deliver are verdicts, and this one has been rendered.  It’s a pity what happened to Kelly Thomas, but now that’s about all that can be said.

(Thumbnail on PJM homepage created using multiple Shutterstock.com images.)

Jack Dunphy is the pseudonym of a police officer in Southern California.

Comments are closed.

Top Rated Comments   
I know a rich family that lives in a nice house. Their son went off his meds, left his job and was homeless for the summer. What were they to do? How do you make a grown man take his meds? He knew where his parents lived and could have shown up at any time and got cleaned up and fed. Eventually he did so. But for a summer he lived homeless just a few miles from his parents' house.
46 weeks ago
46 weeks ago Link To Comment
My brother and sister-in-law have a schizophrenic son. They have spent hours and days and weeks trying to find some way of helping and/or keeping track of him. To the point of begging for him to be arrested and jailed so he would be enabled to take his medication regularly. The system as it is currently set up insists on the rights of the mentally ill to be homeless, starving, robbed and beaten, and scared to death all the time. I have told them they run the risk of being killed in their own beds by having the young man in the house and they told me to shut up. There is no other option for them. They *did* suggest that it would be OK with them if he came to live with me in LA.
46 weeks ago
46 weeks ago Link To Comment
Jack is describing a trial. You are condemning Jack because he is reporting on what happened at the trial. You have your own opinion about what happened. You weren't at the trial nor have you read a transcript of the trial. You are in fact shooting the messenger. And you keep doing it. Why do you do that?

Now listen to me. Get up out of your chair. Go to the bathroom. Look in the mirror and ask the person in the mirror: "Why do you keep shooting the messenger, pal?"
46 weeks ago
46 weeks ago Link To Comment
All Comments   (59)
All Comments   (59)
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Looks like the police were off their meds that day. Perhaps the jury went off their meds.

Local jury has to live with local police. There should have been a change of venue.
46 weeks ago
46 weeks ago Link To Comment
Tasers to the face?

Nurse Ratched would be pleased. All that tedium of medication and waiting for a doctor's order replaced by such police expediency and efficiency.

Local police. Local jury. Local trial. No national media attention. Case closed.
46 weeks ago
46 weeks ago Link To Comment
Given the fact that the descedant is white pretty much makes Eric Holder's DOJ uninterested in civil rights charges as according to Holder those laws only protect minorities. Which explains why Jesse Jackson and Al Sharpton have been abscent. But also there is little evidence of civil rights violations. Especially given the lack of agreement on the cause of death. Generally, DOJ doesn't get involved in any case where there is a serious factual discrepancy that can cause a Civil Rights Division Trial Attorney to loose a case. That is something that is not acceptible.
46 weeks ago
46 weeks ago Link To Comment
"If you cannot establish how the victim died, you cannot prove beyond a reasonable doubt that he was murdered to start with."

This is law. This is justice. If people will not get this through their heads, they do not support the rule of law.

BTW, folks, this is exactly why Casey Anthony walks free today. No, it's not because the jury was made up of idiots. The prosecution could not establish the cause of death. No cause of death, no murder conviction.

That's how it is, and rightly so.


"How can it be “reasonable” that six officers were unable to control one slightly built man without killing him?"

In tenth grade, as a very skinny weakling, 4 members of the football team tried to put me in a trash can. They tried hard. They worked at it quite a while.

They failed.

Fast forward a few years, and I'm a very strong young soldier, hanging out at a friend's house. With me is a friend who is a former state champion wrestler, recently graduated from college, a very fit former Marine in his 30s, and another friend built like a football player. Also present (due to a nurse's very poor judgement) was a psychiatric patient, sickly and skinny. As the evening unfolded, the four of us found it necessary to restrain the psych patient. It took everything we had, and we nearly failed.

Unless one is willing to do serious bodily harm to a resisting person, it's very, VERY difficult to confine someone who does not want to be confined.

On the other hand, if you don't mind crippling or killing someone, it's pretty easy.

The very fact that 6 officers had a hard time controlling him demonstrates that they were trying to avoid serious bodily harm.

46 weeks ago
46 weeks ago Link To Comment
"BTW, folks, this is exactly why Casey Anthony walks free today. No, it's not because the jury was made up of idiots. The prosecution could not establish the cause of death. No cause of death, no murder conviction."

Music to my ears, as I got so woefully tired of people complaining about the Anthony jury being "wrong."

I paid close attention to the Kelly case because I listen daily to KFI; I must confess that I was surprised at the verdict but figured the evidence just did not show beyond a shadow of a doubt that Kelly was murdered; IOW, a direct correlation between the beating he received at the hands of those cops & his death.
46 weeks ago
46 weeks ago Link To Comment
i live in orange county and have semi-followed this case

i believe the underlying point regarding the acquittal is not enough people in oc understand what is going on with the police and its transformation into a paramilitary union thug strong arm of the state

kelly thomas' father has spoken much of how hard it is to keep an adult in his 30's under constant supervision and it is against the law to forcibly keep his kid underwraps anyway

orange county is often wrongly portrayed as a conservative/libertarian area
sure, there are some conservatives but there are also tons of "california milquetoast libs" and most (regardless of politics) are totally clueless about the transformation of the police into a paramilitary union thug strongarm of the state

the general feeling being fostered here is the poor guy, kelly thomas, was in the wrong place at the wrong time coupled with being mentally ill inevitably led to his unfortunate demise-- it also seems to be the prevailing attitude that the cops were in the wrong place and the wrong time and unfortunately for them they stumbled upon kelly thomas and as the situation stumbled out of control the poor fellow was beaten unconscious in the confusion

there has been a small but very vocal outrage locally in the city of fullerton and it is up to those citizens to hold the police accountable for their actions


46 weeks ago
46 weeks ago Link To Comment
"kelly thomas' father has spoken much of how hard it is to keep an adult in his 30's under constant supervision and it is against the law to forcibly keep his kid underwraps anyway"

No father makes these kinds of statements unless they know their child is a danger to themselves or to others. Dad was right, and probably tried to teach his son how to navigate life with a less combative attitude, which also might explain why the son apologized to his Dad shortly before he died. Anyone who is unwilling to comply, or unable to understand the futility of resisting six armed and physically fit men who are trained in subduing suspects, is clearly not operating with a full deck and also putting themselves at unnecessary risk. That unnecessary risk proved to be fatal.
46 weeks ago
46 weeks ago Link To Comment
He should have been handcuffed prior to the search. Then the overcontrol of hand placement could not have been an issue.This was a bad one, and the jury was wrong.
46 weeks ago
46 weeks ago Link To Comment
"He should have been handcuffed prior to the search."

Easy to see in hindsight. Even so, at most this was a minor error. It's not a reason to convict someone of murder.
46 weeks ago
46 weeks ago Link To Comment
It's like trying the Mafia or gangs. Juries are too afraid of retaliation to convict
46 weeks ago
46 weeks ago Link To Comment
46 weeks ago
46 weeks ago Link To Comment
Recently, LAPD was involved in another apparent outrage, when a mentally ill man who led a police chase was ultimately gunned down, after exiting his vehicle (thus depriving him of any instrument of deadly force), and attempting to run away from pursuing police, who then shot him TWENTY times.
Three officers were suspended, and the LAPD is "investigating". I will eagerly await Officer Dunphy's analysis of that incident.
46 weeks ago
46 weeks ago Link To Comment
Police these days seem to all be dressed and equipped like storm troopers. Apparently they feel the need to behave like storm troopers as well.
46 weeks ago
46 weeks ago Link To Comment
I am just surprised that the parents seem to know the problems that their son has, do what seems like nothing to help him, leaving him on the street, and then get upset when a terrible consequence happens, because they weren't helping their son.


The death is a tragedy, but when to families take responsibility for the actions of their children, albeit grown children.
46 weeks ago
46 weeks ago Link To Comment
My brother and sister-in-law have a schizophrenic son. They have spent hours and days and weeks trying to find some way of helping and/or keeping track of him. To the point of begging for him to be arrested and jailed so he would be enabled to take his medication regularly. The system as it is currently set up insists on the rights of the mentally ill to be homeless, starving, robbed and beaten, and scared to death all the time. I have told them they run the risk of being killed in their own beds by having the young man in the house and they told me to shut up. There is no other option for them. They *did* suggest that it would be OK with them if he came to live with me in LA.
46 weeks ago
46 weeks ago Link To Comment
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