Because the assailants who beat Kelly Thomas to death on the streets of Fullerton, California were swaddled in government-issued costumes and clothed in “qualified immunity,” the killers went free, and the city’s taxpayers will have to underwrite a $4.9 million civil settlement with the victim’s family, reports the Orange County Register.
— 89.3 KPCC (@KPCC) November 23, 2015
Thomas, a homeless man who suffered from schizophrenia, was beaten into a coma by a thugscrum of six police officers on the evening of July 5, 2011. Video recordings of the assault captured the anguished screams of the helpless, unarmed, 160-pound man as he was slugged, kicked, tasered, and clubbed as the attackers bellowed, “Stop resisting!” With his last words Kelly pleaded for his father Ron Thomas, a retired sheriff’s deputy. Left brain-dead by the gang beating, Kelly was removed from life support a few days later.
The lead assailants, Manuel Ramos and Jay Cincinelli, were acquitted of involuntary manslaughter and second-degree murder by an Orange County jury in January 2014. Several defense witnesses, including Fullerton Corporal Stephen Rubio, described the lethal behavior of the officers as compatible with the department’s use-of-force policy.
“These peace officers did their jobs — they did what they were trained to do,” insisted John Barnett, the police union lawyer who represented Ramos during the trial. Michael D. Schwartz, who represented Cincinelli, likewise insisted that the pitiless assault on Thomas was carried out in strict fidelity to the “training” the officers had received.
“The officer has the right to pursue the suspect until the suspect is controlled – that’s how my client was trained,” Schwartz told the jury. From his perspective, this explained and fully justified Cincinelli’s use of his Taser as a club, with which – in the assailant’s own words – he “smashed [the victim’s] face to hell.”
Schwartz exhorted the jury to “analyze this case without the emotion.” By this he meant suppressing the human tendency to empathize with the victim; he decidedly did not want the jury to set aside any sentimental attachment they had to the idea that law enforcement officers are “heroes,” or any irrational belief that aggressive violence is morally appropriate when committed in the name of the State.
Throughout the trial, the defense labored to portray the heavily armed, armor-clad, aggressive police officers as victims of a violent, super-humanly strong suspect.
“Listen to them during the fight,” Barnett urged the jury, clinging to the pretense that an assault carried out by eight police officers against a solitary victim somehow constituted a “fight.” “You don’t think they thought they were in the fight of their lives? Do you think that they called a bunch of cops there … to come watch them and help them beat down some homeless person? Do you think that’s what happened?”
As the video record of the incident demonstrates, that is precisely what happened. Responding to a call reporting that Kelly might have been trying to break into parked cars, Ramos made contact with the troubled man and immediately began mocking, taunting, and harassing him; he eventually devised an excuse to attack him.
“See these fists?” Ramos gloatingly said as he snapped on a pair of latex gloves. “They’re getting ready to f**k you up.” Ramos lit into Thomas, eventually enlisting the help of five of his comrades as the bewildered and brutalized man, profusely apologizing for offending his uniformed overseers, struggled desperately to remain alive.
The Orange County coroner and the trauma surgeon who had treated Thomas testified that he died as a result of oxygen deprivation caused by prolonged chest compression and repeated blunt facial trauma during the seven-minute onslaught. The defense countered with a novel theory proposed by Dr. Steven Karch, a “forensic pathology consultant” who frequently testifies on behalf of police as an expert witness.
According to Karch, Kelly Thomas wasn’t beaten to death by police. What killed him was “methamphetamine cardiomyopathy” entirely unrelated to incessant battering and being smothered beneath roughly a half-ton of uniformed, privileged human suet.
“He could have died sitting in a closet by himself,” Karch smugly asserted on the witness stand. When asked during cross-examination if he was saying that Thomas “was destined to die on that particular day and the police just happened to be there,” Karch abandoned his habitual pretense of certitude, modestly leaving such questions in the hands of Providence: “Only God can say that.”
Addressing the defense argument that Thomas had precipitated the beating by putting up resistance, Orange County District Attorney Tony Rackauckas acknowledged in a remarkable closing presentation to the jury that Thomas had the legal right to defend himself against a criminal assault by the police.
“There is no legal authority for a police officer to use force to punish someone,” Rackauckas told the jury. “There’s no authority to use force for `street justice.’ A police officer cannot get mad at somebody and start punching him around, or use any kind of force on him at all.”
When a police officer uses “unreasonable or excessive force, he is not lawfully performing his duties,” the prosecutor continued. Section 2670 in California’s Criminal Jury Instructions explains that defendants accused of resisting arrest cannot be convicted if the arrest was unlawful, and that “a person may lawfully use reasonable force to defend himself or herself.”
The threshold question is whether the victim “reasonably believes he is in imminent danger of unreasonable or excessive force by a police officer.” Of course, the mere presence of a police officer is probably enough to satisfy that condition, at least for well-informed people.
“A lot of people don’t understand this idea – but the police know,” Rackauckas continued. “They know if they are not lawfully performing their duty … [and] are using excessive force, that a person has the right to self-defense – that a person has the right to resist. You have a right to resist an unlawful arrest.” (Emphasis added.)
There was no ambiguity regarding the identity of the killers, and the law was on the side of the victim. But Karch’s “expert” assessment, combined with numerous appeals to authority, provided the conservative Orange County jury with an excuse to acquit the officers. By doing so they validated the privilege of police to kill without cause or consequences – except to the taxpayers who are compelled to pay for such “services,” and then indemnify the resulting victims.