http://www.puppetgov.com/2009/11/03...ce-often-use-force-in-resisting-arrest-cases/
By Sean Webby~Mercury News
Scott Wright was fixing the emergency brake on an old Cadillac in a parking lot near Willow Glen last year when the San Jose police rolled up. Within minutes, he had been shot with a Taser and beaten with batons, breaking his arm.
The cause of the trouble? Wright reached into his van to wash his greasy hands.
Police said they feared he was going for a weapon, but no weapon was found. Wright was charged with resisting arrest, but the district attorney dismissed the case before it got to trial.
What happened to Wright is no isolated event. Hundreds of times a year interactions between San Jose police and residents where no serious crime has occurred escalate into violence.
Many times the reason for the encounter is as innocuous as jaywalking, missing bike head lamps, or failing to signal a turn. But often, as the incidents develop, police determine the suspect is uncooperative and potentially violent and strike the first blow.
While many of those incidents raise questions about whether the police response was excessive, the department almost always dismisses such complaints about its behavior and limits public scrutiny of the cases, moves that tend to heighten distrust of the department, particularly in minority communities.
Last week, the Mercury News disclosed the existence of a cell phone video documenting one such confrontation between police wielding batons and a Taser and college student Phuong Ho, who police said was resisting their instructions. It is rare for such a video to come to light, but allegations of excessive force are far from uncommon.In recent months the Mercury News has reviewed 206 court cases in which the most serious charge against the defendant was a violation of California Penal Code section 148, the misdemeanor crime of resisting arrest or delaying or obstructing a police officer. Of those, 145 — 70 percent of the cases — involved the use of force by officers.
The review was launched following the April disclosure by the newspaper that San Jose charges far more people with resisting arrest, compared with its population, than any other major California city, and that a disproportionate number of those charged are Latino residents. State and county statistics show San Jose police charge people with resisting arrest, as the primary charge, three times a day on average.
Police chief Rob Davis and other officials defend the department practices and say their officers are trained to show restraint. They caution that comparisons with other communities can be misleading.
The review included more than half of the San Jose police court cases filed last year in which resisting arrest was the primary criminal charge. The examination of those cases — together with a review of civil lawsuits and interviews with police, suspects, their lawyers and national experts on police practices — provides the most detailed public portrait of the San Jose police use of force ever developed.
It omitted what may be the most egregious cases — those where the district attorney refuses to file charges requested by the police. Such cases are closed to public scrutiny.
The Mercury News review also found:
Around the nation, many departments closely monitor cases of resisting arrest because of a concern that the loosely defined crime is a “cover charge” used by errant cops to justify unnecessary force. San Jose police officials last month said, in response to Mercury News questions, that they were instituting a policy to begin tracking such arrests.
The department’s internal investigators routinely discount citizen complaints of force. Last year, a year in which 117 cases were filed, the department did not “sustain” a single complaint, including Wright’s — a finding that outside experts say is not credible if a department takes complaints seriously. The city’s Independent Police Auditor disagreed with police findings in 25 of the 99 use-of-force cases it reviewed last year. But the IPA lacks authority to go any further than official dissent.
The district attorney’s office, which files charges in about eight of every 10 Santa Clara County arrests, rejects cases at an unusually high rate when the crime is resisting arrest and the department involved is San Jose police. More than one-third of the time, the district attorney declined to file charges — a number sharply higher than the rate when other county police agencies bring a complaint of resisting arrest, according to statistics provided by the office.
When defendants consult a lawyer and challenge resisting arrest charges brought by San Jose police, they often succeed. Defendants who hired lawyers and contested their cases managed to win outright dismissal or at least reduction of the resisting arrest charge nearly half the time, the newspaper review found.
The city has paid $861,778 to settle 10 lawsuits charging San Jose police with excessive force that have been filed since 2004, city figures show. Another 24 cases filed in that period remain open.Concern from expertsThere is no widely used and uniform method of publicly reporting incidents of police force, and no state agency requires them to be reported, preventing easy comparisons to other departments. But outside experts who reviewed a dozen troubling cases selected by the Mercury News expressed alarm at the pattern they saw.
“In almost all of them, there is an underlying questionable or even illegal activity,” said Sam Walker, a criminologist at the University of Nebraska and the author of 11 books on policing, criminal justice history and policy, and civil liberties.
Penny Harrington, the former police chief of Portland, Ore., said it is important to remember that many people confronted by police are on drugs or alcohol, or have mental illnesses, conditions that may be spurring them to react with violence toward law enforcement.
But Harrington added: “If a person is going to resist arrest it is usually for something very serious that they will go to prison for.” Given the large number of incidents in San Jose where the only crime is resisting arrest, or resisting arrest together with minor crimes such as traffic violations, “then I would be very concerned.”
San Jose police said they would not respond to questions about individual cases, even those already closed. But former Santa Clara County prosecutor Terry Bowman, who is representing one of the officers in the Phuong Ho case, said the cases she reviewed for the newspaper showed officers engaged in an “evenhanded attempt to get suspects to toe the line.” She said statistics showing high numbers of resisting arrest cases reveal nothing more than “good public safety-based law enforcement.”
The police accounts of individual cases included in this article were drawn from statements in court cases.
San Jose police have historically made little information available about cases in which officers use force. Last month, at the urging of police, the City Council rejected the proposal by a community task force that police disclose the reports they prepare documenting each case in which force is used. At that same meeting, the council also suspended production of an annual statistical report about instances in which force is used; the police complained that report, which was last released in the summer of 2008, could be misleading to the public.
Police defend actions
Police officials say their officers use force only when they must, to protect themselves and others in complex situations that can quickly turn violent. They say that their internal reviews establish that San Jose police act with restraint, and cite the low number of citizen complaints about excessive force. And police captain Gary Kirby told a City Council committee this year that after reviewing more than 100 resisting arrest cases from the past two years, he came to a clear conclusion: There is no problem.
“We are very proud to have one of the most professional departments in the country,” said Police Chief Davis. But, he added, “our officers are given an immense amount of power. It is important for us to make sure that our officers are using that power appropriately. We can always continue to improve.”
San Jose police recruits spend more than 100 hours at the academy getting extensive training about using force. Once on the job, they get refresher courses every two years. As part of the refresher, each officer uses a force options simulator, a kind of computer game that tests officers in how quickly, and how severely, to use force in situations mirroring life on the street.
A photo of Ballard after his encounter with San Jose police. He suffered a broken cheekbone and lacerations.(Photo courtesy of the Office of the District Attorney of Santa Clara County) (Gary Reyes)
The training educates officers in federal and state laws that require them to limit use of force to what is reasonable to gain control of a situation and accomplish an arrest if the officer has probable cause to believe the suspect committed a crime. That standard is intentionally loose, depending on the facts of a situation: How severe is the crime? How big and strong is the suspect? What is the suspect’s history?
San Jose local policies further restricts officers. They are expected to first use verbal warnings, and persuasion, unless that appears ineffective.
“Our basic philosophy is, if you need to use force to effect an arrest, then you use the lowest use of force you can,” Davis said.
The department already is initiating a number of steps to respond to community unrest stemming from the high rate of street arrests on discretionary crimes. Supervision and training have been stepped up, and the department has volunteered to be the first in the country to test a new commercial device officers would wear that records sound and visual images from encounters.
But on the street, officers are still left to make split-second decisions regarding how much force is reasonable, and often, what’s reasonable is in the eye of the beholder. Resisting arrest allegations, more than many other crimes, hang on the word of police officers against the word of those they’ve taken into custody. The Scott Wright incident, like many of those reviewed by the Mercury News, shows just how much those perspectives can vary.
Very different accounts
When four police officers responded to a report of potential car burglars on Shadow Dance Drive near Willow Glen, they found Wright and Mark Schleicher standing in a parking area next to Schleicher’s car. The officers separated and questioned the two men.
Wright told the officers he wanted to wash his hands, and said later that he believed one officer shrugged permission. In the police version, the officer told Wright not to reach inside the van, and Wright became combative, telling an officer he would “kick your ass” if the officer touched him.
Whatever was said, as Wright reached into the van, an officer struck and broke his left arm with a baton. Wright fell inside his van. As he flailed, he was hit with batons several more times. One officer used a Taser on him.
Police say the force was justified because Wright could have been reaching for a weapon. After the violence ended, police arrested Wright and sought charges of assaulting the police and resisting arrest. Prosecutors declined the assault charges, and filed only a charge of resisting arrest.
Before the date for trial, Wright’s lawyer asked the judge to review internal police department records of three officers to explore any history of using excessive force or making false statements. After conducting the review, the judge ruled that records in at least one of the officer’s past merited disclosure. The charges were later dropped, court records show, “in the interests of justice.”
Tracking the arrests
Across the country, resisting arrest charges have raised concerns inside and outside police departments, because of allegations that they have been misused by officers to justify unwarranted force. As a result, and often in response to legal challenges, cities from Schenectady, N.Y., to Los Angeles closely monitor cases where such charges are filed.
“I think such reviews are a best practice now,” said Gerald Chaleff, police administrator for the LAPD, which has had its supervisors sign off on all such busts since the department agreed to federal oversight after an officer corruption scandal nine years ago. “A department needs to have the confidence of the community it is policing.”
Chief Davis and other police officials present for an October interview said the department will now begin tracking incidents of resisting arrest. The officials said the new policy did not suggest the department sees any problem with how it handles resisting arrest charges.
Under California law, “resisting arrest” is something of a misnomer — the charge is for resisting or interfering with an officer.
“Some people have a problem with authority and that’s OK,” said Bowman, the frequent lawyer for police. “But that doesn’t mean that you have the right to be a problem for authority.”
On some occasions the charges develop after officers wade into fights or respond to domestic violence or other potentially hazardous situations. But on many other occasions reviewed by the Mercury News, the violent confrontations seem to develop almost out of nowhere.
Seven began as pedestrian incidents such as jaywalking.
Eleven sprang from traffic stops for minor infractions, such as burned-out license plate lights.
In eight cases where force was used, the incidents began with officers spotting riders on bikes without head lamps.
In many cases included in the newspaper review, minor incidents turned violent after suspects challenged officers’ authority. In 30 of the cases, police reports mention the suspects mouthing off before force was used. In 19 of the cases, officers detail the use of a specific four-letter word.
There is a well-known term for charges brought against suspects whose arrests follow defiance by the suspects, which is not in itself illegal, said Paul Chevigny, a New York University law professor and author of books on police force: Their real crime, he said, is known as “contempt of cop.”
Consider the example of Daniel Duran, who mouthed off as he and his fiance, Cindy Guizar, came upon a group of officers trying to calm a 2005 street disturbance in the downtown San Jose entertainment zone.
“It was not a smart thing to do,” said his attorney, Sharonrose Cannistraci, even if it was not illegal.
Duran and Guizar went inside a bar and were seated on a couch when five officers came inside. One grabbed Duran, according to federal court documents. Before it was over, both Duran and his fiance were on the ground, and officers had fired their Taser guns repeatedly.
Guizar was charged with assaulting the police and resisting arrest, charges that were later dismissed. Duran was charged with being drunk in public. That charge was also dismissed in return for his guilty plea to the misdemeanor crime of disturbing the peace.
In 2006, Duran and Guizar filed a federal civil rights complaint against the city. Duran’s attorney, Cannistraci, is a former deputy district attorney who describes herself as “very pro law enforcement. But I’ll take a case when officers clearly step over the line. And in this case, what happened was clearly wrong.”
In 2007 the city paid $120,000 to settle the lawsuit.
‘Pretext’ stops
Sometimes, minor incidents turn violent when police pull over suspects they actually want to question for more serious reasons — gang members or people they have encountered in the past. Such “pretext” stops are legal, as long as the minor transgressions exist. And San Jose police say the stops give them a chance at catching people with outstanding warrants, drugs or weapons.
These stops have a high potential to end in force, both because the suspect may be belligerent and because, as NYU’s Chevigny notes, police are more likely to use extreme force against unsympathetic suspects.
In the case of Danny Piña, whom police identified as a gang member, the suspect suffered a broken nose and dislocated arm in an incident that began when police stopped him last April near his house because his bike was missing a headlamp. Police say Piña resisted being detained.
But neighbors heard Piña asking “Why did you hit me in the head?” and “Why did you punch me?,” according to police reports — questions that left outside experts wondering whether Piña was indeed resisting arrest. The district attorney declined to file charges against Piña.
Citizen complaints about force
Police officials cite the low number of complaints over excess force as evidence that officers do their difficult job well. But community groups say San Jose discourages aggrieved citizens from complaining.
A 2007 Santa Clara County civil grand jury report cited widespread community concern about racial profiling and other issues, stating: “A number of citizens do not have the confidence to report perceived officer misconduct.”
Michael Morgan says that police tried to intimidate him out of filing a claim after they arrested him in 2006. The confrontation began when Morgan was stopped for not having a front license plate, and police indicated to him they suspected him of drug use. It turned rough, with Morgan claiming police manhandling aggravated a back injury, and Morgan told police he intended to file a complaint.
Before Morgan was released from custody, he said, the arresting officer told him: “If you think you still want to file that complaint, you can go ahead and try all you want.” His attorney, Robert R. Powell, said his client “understood he was being threatened with further harassment if he pursued a complaint.”
The criminal charges were dropped after a drug test came back negative. Morgan then filed a complaint that was resolved last October, when the city agreed to pay him $20,000.
Critics say complaints also are discouraged by how routinely the city rejects them. The city’s failure to sustain a single complaint of excess force in 2008 was unusual, but not by much; in 2007, when 117 complaints also were filed, the department sustained two cases, according to the Independent Police Auditor. A complaint is sustained when the department determines it is more likely than not that excess force was used.
A U.S. Department of Justice study found large departments — those with more than 100 officers — sustain on average about 8 percent of citizen complaints of excess force.
Nebraska professor Walker said of the city’s failure to sustain a single complaint in 2008: “It raises a red flag. There are red flags when you see sustained rates of 5 percent. Something like 12 to 14 percent is very common. When you see zero, there is a problem.”
By Sean Webby~Mercury News
Scott Wright was fixing the emergency brake on an old Cadillac in a parking lot near Willow Glen last year when the San Jose police rolled up. Within minutes, he had been shot with a Taser and beaten with batons, breaking his arm.
The cause of the trouble? Wright reached into his van to wash his greasy hands.
Police said they feared he was going for a weapon, but no weapon was found. Wright was charged with resisting arrest, but the district attorney dismissed the case before it got to trial.
What happened to Wright is no isolated event. Hundreds of times a year interactions between San Jose police and residents where no serious crime has occurred escalate into violence.
Many times the reason for the encounter is as innocuous as jaywalking, missing bike head lamps, or failing to signal a turn. But often, as the incidents develop, police determine the suspect is uncooperative and potentially violent and strike the first blow.
While many of those incidents raise questions about whether the police response was excessive, the department almost always dismisses such complaints about its behavior and limits public scrutiny of the cases, moves that tend to heighten distrust of the department, particularly in minority communities.
Last week, the Mercury News disclosed the existence of a cell phone video documenting one such confrontation between police wielding batons and a Taser and college student Phuong Ho, who police said was resisting their instructions. It is rare for such a video to come to light, but allegations of excessive force are far from uncommon.In recent months the Mercury News has reviewed 206 court cases in which the most serious charge against the defendant was a violation of California Penal Code section 148, the misdemeanor crime of resisting arrest or delaying or obstructing a police officer. Of those, 145 — 70 percent of the cases — involved the use of force by officers.
The review was launched following the April disclosure by the newspaper that San Jose charges far more people with resisting arrest, compared with its population, than any other major California city, and that a disproportionate number of those charged are Latino residents. State and county statistics show San Jose police charge people with resisting arrest, as the primary charge, three times a day on average.
Police chief Rob Davis and other officials defend the department practices and say their officers are trained to show restraint. They caution that comparisons with other communities can be misleading.
The review included more than half of the San Jose police court cases filed last year in which resisting arrest was the primary criminal charge. The examination of those cases — together with a review of civil lawsuits and interviews with police, suspects, their lawyers and national experts on police practices — provides the most detailed public portrait of the San Jose police use of force ever developed.
It omitted what may be the most egregious cases — those where the district attorney refuses to file charges requested by the police. Such cases are closed to public scrutiny.
The Mercury News review also found:
Around the nation, many departments closely monitor cases of resisting arrest because of a concern that the loosely defined crime is a “cover charge” used by errant cops to justify unnecessary force. San Jose police officials last month said, in response to Mercury News questions, that they were instituting a policy to begin tracking such arrests.
The department’s internal investigators routinely discount citizen complaints of force. Last year, a year in which 117 cases were filed, the department did not “sustain” a single complaint, including Wright’s — a finding that outside experts say is not credible if a department takes complaints seriously. The city’s Independent Police Auditor disagreed with police findings in 25 of the 99 use-of-force cases it reviewed last year. But the IPA lacks authority to go any further than official dissent.
The district attorney’s office, which files charges in about eight of every 10 Santa Clara County arrests, rejects cases at an unusually high rate when the crime is resisting arrest and the department involved is San Jose police. More than one-third of the time, the district attorney declined to file charges — a number sharply higher than the rate when other county police agencies bring a complaint of resisting arrest, according to statistics provided by the office.
When defendants consult a lawyer and challenge resisting arrest charges brought by San Jose police, they often succeed. Defendants who hired lawyers and contested their cases managed to win outright dismissal or at least reduction of the resisting arrest charge nearly half the time, the newspaper review found.
The city has paid $861,778 to settle 10 lawsuits charging San Jose police with excessive force that have been filed since 2004, city figures show. Another 24 cases filed in that period remain open.Concern from expertsThere is no widely used and uniform method of publicly reporting incidents of police force, and no state agency requires them to be reported, preventing easy comparisons to other departments. But outside experts who reviewed a dozen troubling cases selected by the Mercury News expressed alarm at the pattern they saw.
“In almost all of them, there is an underlying questionable or even illegal activity,” said Sam Walker, a criminologist at the University of Nebraska and the author of 11 books on policing, criminal justice history and policy, and civil liberties.
Penny Harrington, the former police chief of Portland, Ore., said it is important to remember that many people confronted by police are on drugs or alcohol, or have mental illnesses, conditions that may be spurring them to react with violence toward law enforcement.
But Harrington added: “If a person is going to resist arrest it is usually for something very serious that they will go to prison for.” Given the large number of incidents in San Jose where the only crime is resisting arrest, or resisting arrest together with minor crimes such as traffic violations, “then I would be very concerned.”
San Jose police said they would not respond to questions about individual cases, even those already closed. But former Santa Clara County prosecutor Terry Bowman, who is representing one of the officers in the Phuong Ho case, said the cases she reviewed for the newspaper showed officers engaged in an “evenhanded attempt to get suspects to toe the line.” She said statistics showing high numbers of resisting arrest cases reveal nothing more than “good public safety-based law enforcement.”
The police accounts of individual cases included in this article were drawn from statements in court cases.
San Jose police have historically made little information available about cases in which officers use force. Last month, at the urging of police, the City Council rejected the proposal by a community task force that police disclose the reports they prepare documenting each case in which force is used. At that same meeting, the council also suspended production of an annual statistical report about instances in which force is used; the police complained that report, which was last released in the summer of 2008, could be misleading to the public.
Police defend actions
Police officials say their officers use force only when they must, to protect themselves and others in complex situations that can quickly turn violent. They say that their internal reviews establish that San Jose police act with restraint, and cite the low number of citizen complaints about excessive force. And police captain Gary Kirby told a City Council committee this year that after reviewing more than 100 resisting arrest cases from the past two years, he came to a clear conclusion: There is no problem.
“We are very proud to have one of the most professional departments in the country,” said Police Chief Davis. But, he added, “our officers are given an immense amount of power. It is important for us to make sure that our officers are using that power appropriately. We can always continue to improve.”
San Jose police recruits spend more than 100 hours at the academy getting extensive training about using force. Once on the job, they get refresher courses every two years. As part of the refresher, each officer uses a force options simulator, a kind of computer game that tests officers in how quickly, and how severely, to use force in situations mirroring life on the street.
A photo of Ballard after his encounter with San Jose police. He suffered a broken cheekbone and lacerations.(Photo courtesy of the Office of the District Attorney of Santa Clara County) (Gary Reyes)
The training educates officers in federal and state laws that require them to limit use of force to what is reasonable to gain control of a situation and accomplish an arrest if the officer has probable cause to believe the suspect committed a crime. That standard is intentionally loose, depending on the facts of a situation: How severe is the crime? How big and strong is the suspect? What is the suspect’s history?
San Jose local policies further restricts officers. They are expected to first use verbal warnings, and persuasion, unless that appears ineffective.
“Our basic philosophy is, if you need to use force to effect an arrest, then you use the lowest use of force you can,” Davis said.
The department already is initiating a number of steps to respond to community unrest stemming from the high rate of street arrests on discretionary crimes. Supervision and training have been stepped up, and the department has volunteered to be the first in the country to test a new commercial device officers would wear that records sound and visual images from encounters.
But on the street, officers are still left to make split-second decisions regarding how much force is reasonable, and often, what’s reasonable is in the eye of the beholder. Resisting arrest allegations, more than many other crimes, hang on the word of police officers against the word of those they’ve taken into custody. The Scott Wright incident, like many of those reviewed by the Mercury News, shows just how much those perspectives can vary.
Very different accounts
When four police officers responded to a report of potential car burglars on Shadow Dance Drive near Willow Glen, they found Wright and Mark Schleicher standing in a parking area next to Schleicher’s car. The officers separated and questioned the two men.
Wright told the officers he wanted to wash his hands, and said later that he believed one officer shrugged permission. In the police version, the officer told Wright not to reach inside the van, and Wright became combative, telling an officer he would “kick your ass” if the officer touched him.
Whatever was said, as Wright reached into the van, an officer struck and broke his left arm with a baton. Wright fell inside his van. As he flailed, he was hit with batons several more times. One officer used a Taser on him.
Police say the force was justified because Wright could have been reaching for a weapon. After the violence ended, police arrested Wright and sought charges of assaulting the police and resisting arrest. Prosecutors declined the assault charges, and filed only a charge of resisting arrest.
Before the date for trial, Wright’s lawyer asked the judge to review internal police department records of three officers to explore any history of using excessive force or making false statements. After conducting the review, the judge ruled that records in at least one of the officer’s past merited disclosure. The charges were later dropped, court records show, “in the interests of justice.”
Tracking the arrests
Across the country, resisting arrest charges have raised concerns inside and outside police departments, because of allegations that they have been misused by officers to justify unwarranted force. As a result, and often in response to legal challenges, cities from Schenectady, N.Y., to Los Angeles closely monitor cases where such charges are filed.
“I think such reviews are a best practice now,” said Gerald Chaleff, police administrator for the LAPD, which has had its supervisors sign off on all such busts since the department agreed to federal oversight after an officer corruption scandal nine years ago. “A department needs to have the confidence of the community it is policing.”
Chief Davis and other police officials present for an October interview said the department will now begin tracking incidents of resisting arrest. The officials said the new policy did not suggest the department sees any problem with how it handles resisting arrest charges.
Under California law, “resisting arrest” is something of a misnomer — the charge is for resisting or interfering with an officer.
“Some people have a problem with authority and that’s OK,” said Bowman, the frequent lawyer for police. “But that doesn’t mean that you have the right to be a problem for authority.”
On some occasions the charges develop after officers wade into fights or respond to domestic violence or other potentially hazardous situations. But on many other occasions reviewed by the Mercury News, the violent confrontations seem to develop almost out of nowhere.
Seven began as pedestrian incidents such as jaywalking.
Eleven sprang from traffic stops for minor infractions, such as burned-out license plate lights.
In eight cases where force was used, the incidents began with officers spotting riders on bikes without head lamps.
In many cases included in the newspaper review, minor incidents turned violent after suspects challenged officers’ authority. In 30 of the cases, police reports mention the suspects mouthing off before force was used. In 19 of the cases, officers detail the use of a specific four-letter word.
There is a well-known term for charges brought against suspects whose arrests follow defiance by the suspects, which is not in itself illegal, said Paul Chevigny, a New York University law professor and author of books on police force: Their real crime, he said, is known as “contempt of cop.”
Consider the example of Daniel Duran, who mouthed off as he and his fiance, Cindy Guizar, came upon a group of officers trying to calm a 2005 street disturbance in the downtown San Jose entertainment zone.
“It was not a smart thing to do,” said his attorney, Sharonrose Cannistraci, even if it was not illegal.
Duran and Guizar went inside a bar and were seated on a couch when five officers came inside. One grabbed Duran, according to federal court documents. Before it was over, both Duran and his fiance were on the ground, and officers had fired their Taser guns repeatedly.
Guizar was charged with assaulting the police and resisting arrest, charges that were later dismissed. Duran was charged with being drunk in public. That charge was also dismissed in return for his guilty plea to the misdemeanor crime of disturbing the peace.
In 2006, Duran and Guizar filed a federal civil rights complaint against the city. Duran’s attorney, Cannistraci, is a former deputy district attorney who describes herself as “very pro law enforcement. But I’ll take a case when officers clearly step over the line. And in this case, what happened was clearly wrong.”
In 2007 the city paid $120,000 to settle the lawsuit.
‘Pretext’ stops
Sometimes, minor incidents turn violent when police pull over suspects they actually want to question for more serious reasons — gang members or people they have encountered in the past. Such “pretext” stops are legal, as long as the minor transgressions exist. And San Jose police say the stops give them a chance at catching people with outstanding warrants, drugs or weapons.
These stops have a high potential to end in force, both because the suspect may be belligerent and because, as NYU’s Chevigny notes, police are more likely to use extreme force against unsympathetic suspects.
In the case of Danny Piña, whom police identified as a gang member, the suspect suffered a broken nose and dislocated arm in an incident that began when police stopped him last April near his house because his bike was missing a headlamp. Police say Piña resisted being detained.
But neighbors heard Piña asking “Why did you hit me in the head?” and “Why did you punch me?,” according to police reports — questions that left outside experts wondering whether Piña was indeed resisting arrest. The district attorney declined to file charges against Piña.
Citizen complaints about force
Police officials cite the low number of complaints over excess force as evidence that officers do their difficult job well. But community groups say San Jose discourages aggrieved citizens from complaining.
A 2007 Santa Clara County civil grand jury report cited widespread community concern about racial profiling and other issues, stating: “A number of citizens do not have the confidence to report perceived officer misconduct.”
Michael Morgan says that police tried to intimidate him out of filing a claim after they arrested him in 2006. The confrontation began when Morgan was stopped for not having a front license plate, and police indicated to him they suspected him of drug use. It turned rough, with Morgan claiming police manhandling aggravated a back injury, and Morgan told police he intended to file a complaint.
Before Morgan was released from custody, he said, the arresting officer told him: “If you think you still want to file that complaint, you can go ahead and try all you want.” His attorney, Robert R. Powell, said his client “understood he was being threatened with further harassment if he pursued a complaint.”
The criminal charges were dropped after a drug test came back negative. Morgan then filed a complaint that was resolved last October, when the city agreed to pay him $20,000.
Critics say complaints also are discouraged by how routinely the city rejects them. The city’s failure to sustain a single complaint of excess force in 2008 was unusual, but not by much; in 2007, when 117 complaints also were filed, the department sustained two cases, according to the Independent Police Auditor. A complaint is sustained when the department determines it is more likely than not that excess force was used.
A U.S. Department of Justice study found large departments — those with more than 100 officers — sustain on average about 8 percent of citizen complaints of excess force.
Nebraska professor Walker said of the city’s failure to sustain a single complaint in 2008: “It raises a red flag. There are red flags when you see sustained rates of 5 percent. Something like 12 to 14 percent is very common. When you see zero, there is a problem.”
