[Warning: don’t read this if you want to be a juror in the trial of the officers accused of killing Kelly Thomas. I’m not kidding. As for the rest of you — settle in, it’s going to take a while.]
Fifteen minutes later, one would be headed towards death and one towards murder charges.
Children should not watch the Kelly Thomas video, YouTube has advised, as have many blogs and commenters, me included when I previously published it here. I’m going to amend that advice slightly. Children should not watch the second half of the tape, but by sixth grade or so they should be able to watch the first half, because they should see how police interactions with the public can go. Specifically, they can see how, in what started as a normal interaction, police demand compliance that befits their role as the muscle behind city government. (They’ll also see how police use subterfuge to serve another role, as spies.) And they’ll see the terrible potential consequences of arresting someone.
Policing is a necessary part of society; if public actors don’t do it then private ones will. (Some call policing a “necessary evil,” but that seems unfair. My friend Paula Williams says that in her part of Fullerton, the problem greater than brutality is the absence of police presence and availability – which, I’d say that to the extent it comes from social policies that value some people’s property and lives more than others, verges more towards being evil.)
What I’m going to do here is review the Kelly Thomas video, noting where I am by time stamp, from a civil libertarian legal perspective, noting the things that struck me on my earlier viewing, and raising some questions – some of them tougher than people might want to admit – about what we see there.
00:01 – I have not read large amounts of the local and national commentary on the video (though I have read some), and the first thing I noticed here is the wildly swinging camera before we fix in on the image of Officer Ramos talking to Kelly Thomas. When I’d first seen the term “security footage” applied to the video, I had presumed that that referred to a camera that was either stationary or switched between views in a set pattern, which had fortuitously happened to capture this event. This is something different. What we learn from the first few seconds is that someone, at this point in the interaction, deliberately took control of the camera and focused in on the events involving Ramos and Kelly. Maybe someone else here knows: who made that decision, how, and when were they tipped off as to when to focus in on that interaction. Did the police on the scene (Ramos and Wolfe) do so automatically, or did someone else intercede? It looks to me as if someone was scanning and watching, eventually framing and then following the interaction. Does this affect our view of what was going on? Sound then comes on at 00:17.
00:18 – Ramos is swinging his baton back and forth in his hand in a menacing fashion. Is this good or bad police work? You have to answer this question with the same information that Ramos and Wolfe had at the time – not knowing that within half an hour Officer Cicinelli would be pounding Kelly’s face into an unrecognizable pulp. Why is Ramos doing this? Is he supposed to be doing it? Do we think that other officers should NEVER do it again?
01:20 –Despite having had regular interactions with Ramos, Kelly apparently lets him know that he doesn’t speak English. The officers plan along, offering to talk to him, in Spanish, Mongolian, etc. Initially I thought that Kelly had just come up with a very poorly executed plan to protect himself from interrogation, given that (so far as I can tell) he was speaking at least partially in English (and had presumably done so in the past.) But it looks to me that Kelly is on the ball enough to know that what he’s saying is absurd. He’s playing with the officers – patently lying to preserve his dignity, his ability to be treated like a human being capable of resistance. Why are the officers playing along? Because they’re leading up to getting a more serious concession from him, as we’ll see in few minutes.
01:40 – I’m going to just write what I hear rather than use official court transcripts.
Wolfe: “Where do you normally sleep at?”
Kelly: “I sleep in trash cans.”
“In Fullerton or where?”
“Yeah.”
“You plan on going to sleep soon?”
“I’d like to. I would like to.”
What’s this about? I’m going to argue that the officers here were implementing official city policy. You can’t sleep in a trash can in Fullerton. Fullerton, I believe, would like its homeless to go elsewhere. They’ve now established that Kelly planned to break the law. For those who weren’t paying much if any attention to the Necessity Village protest of Occupy Santa Ana, this is a very good example of what the homeless go through, and why laws against sleeping in public are wrong to deny the homeless that necessity. Wouldn’t it have been great if the cops could have just arranged for Kelly to have a lift to the Armory? But the Armory was closed; that’s not our policy – our county’s policy. Do we pay the cops to pretend that the policy doesn’t exist? Do we want them asking these questions?
02:07 – Kelly may be mentally ill, but his sarcasm is working perfectly.
Ramos: It seems like every day we have to talk to you about something. Do you enjoy it?
Kelly: Oh yeah, it’s great, you know, I LOVE bumping into you every day.
[INTERLUDE 1: Have the officers to this point done anything improper towards Kelly Thomas? Are they entirely carrying out city policy? Is the city policy that they are carrying out legitimate or not? Do you see any crime or politically questionable behavior so far?]
There will be 10 of these “interludes” as we go through the video; if you don’t want to be influenced by my own perspective, answer them as you reach them, before you get to the end.
02:24 – After a car’s acceleration drowns out some interaction, it’s clear that Ramos wants to ask Kelly some questions. Kelly is cooperative: “what do you guys want to know?” Traffic noises obscure the next half minute. Apparently, Ramos is talking to Kelly about some complaint called in about him or others. Kelly says he doesn’t know about whatever it is. Ramos (and later Wolfe) fixate on confirming his name – which is odd (as Kelly probably realized) given their history of interactions, but Kelly has to play along. At around 04:30, Ramos mentions suspicion of burglary.
05:00 –Kelly mentions something about “moving on.” Ramos says “I’d like to.” Kelly: “I forgot your name,” then later, saying matter-of-factly “I don’t want to go.”
05:27 – Here’s what they apparently wanted – Kelly’s consent to a search of his backpack. They have said that they can’t establish his identity, and Wolfe says “Do you have anything in your backpack with your name on it?” Kelly might have said “no” to a search before; now it will help him solve the problem of their supposedly not knowing his real name. It looks to me as if the last five minutes have been leading up to this.
Kelly: No, why, did you want to see some stuff?
Wolfe: If you don’t mind. [Kelly takes off his backpack and hands it off-camera to Wolfe.] We just gotta figure out your name so we can get out of here and go about our business and you can go to sleep.
Wolfe sends Kelly to stand near Ramos.
[INTERLUDE 2: Have the officers to this point done anything improper towards Kelly Thomas? Are they entirely carrying out city policy? Is the city policy that they are carrying out legitimate or not? Do you see any crime or politically questionable behavior so far?]
05:50 – Ramos tells Kelly to sit down. Things start to get heated. Ramos tells Kelly to sit down. Kelly asks where? Ramos says “there on the curb,” but he doesn’t seem to be pointing towards the curb. Kelly either doesn’t want to sit down or doesn’t understand the instructions clearly. Ramos steps forward. Wolfe says “Just sit down so we can get this thing done and you can go about your business, dude?” The camera has scanned and refocused.
At 06:20, Kelly sits on a raised object with waist-high object on which he can lean behind him. He first sits forward with his arms on his knees, and Ramos points and continues to tell him to sit on the curb. Kelly leans back and stretches out his legs. Ramos points again and he leans forward, elbows on knees. He leans back again, then forward again, repeatedly – it’s unclear whether this is at Ramos’s direction.e He At the 07:00 mark, Ramos seems satisfied and stands to the side. A bicycle rides by. At about 07:15 a new officer comes into view, touches Ramos on the elbow to get his attention, and says “in case you need us.” Ramos and Kelly continue to talk. At 08:23, Ramos walks closer to Kelly and stands at his side.
08:36 – Heard from off-screen?
Wolfe: “Is it Ronny? That’ right? No? So should we take you for having someone else’s mail?”
A long pause follows, with Ramos standing by Kelly, who is seated leaning back with legs extended. Another police care shows up at about 10:00 and the legs of two officers are seen walking behind Kelly in the top left of the frame. Around 11:00, a bald-headed person in a backpack is seen waving to attract Ramos’s attention and a conversation ensues for the next 45 seconds, after which Kelly leans forward to take a sandal he had removed from off of the ground. Kelly appears to have begun pulling at his hair nervously. He starts having an animated discussion, gesturing with beseeching open arms while looking up at Ramos. This continues until Ramos walks away at 13:30.
13:30 – Wolfe tells Ramos that Kelly has two pieces of mail for an attorney and wonders if he (presumably the attorney) is the victim of a theft. He explains that the attorney, Casey Hull, “so I’m thinking of suspicion of 496.” Ronnie Casey Hull is an attorney with an office on Santa Fe Ave., right near the Transportation Center. Now they have something with which to charge Kelly, if they want to – Penal Code section 496, misdemeanor possession of stolen property.
[INTERLUDE 3: Have the officers to this point done anything improper towards Kelly Thomas? Are they entirely carrying out city policy? Is the city policy that they are carrying out legitimate or not? Do you see any crime or politically questionable behavior so far?]
14:30 – Kelly has resumed pulling at his hair. Ramos returns and orders Kelly, “put your feet out in front of you.” Kelly moves his feet a few inches forward, then back, then forwards again, but not outstretched. Ramos speaks relatively quietly.
Ramos: I’m not fucking around anymore. I’m trying to be nice. Put your feet out in front of you.
Ramos repeats this as he puts on his now-infamous latex gloves. Now, more determinedly: “Feet out in front out you.” Kelly isn’t moving. Then at about the 15:00 mark, where the abbreviated tapes start, Kelly leans back by maybe 20 degrees against the kiosk at a stretches out his feet. Ramos’s gloves snap into place. He now says “Put your hands on your fucking knees.” The profanity is just a way of being menacing; being menacing is just a way of achieving compliance.
I am watching this while sitting in my office chair, already knowing what comes next, with the wall about as far away from me as the kiosk is behind Kelly. I stretch out my legs, lean back about 20 degrees, and extend my hands. Sure enough, only the tips of my fingers reach to my knees. I think of what I would think I would say, given maximum calm and presence of mind, in that situation: “This is the best I can do, officer.” We can’t expect everyone to memorize that. I don’t know that I’d remember to be that polite, especially if I misinterpreted the instruction.
Kelly leans forward and places his arms on his knees just past the elbow. Ramos is displeased.
Ramos: Put your feet out in front of you.
Kelly, seeming surprised: Well which one is it, dude? –
Ramos, interrupting with a bark: BOTH!
Kelly, leaning back again: I can’t do both.
Ramos: Well you’re gonna have to lean real quick. Put your hands on your knees.
Kelly finally leans forward with his legs extended and arms resting along his legs. Now it’s time to arrest him.
[INTERLUDE 4: Have the officers to this point done anything improper towards Kelly Thomas? Are they entirely carrying out city policy? Is the city policy that they are carrying out legitimate or not? Do you see any crime or politically questionable behavior so far?]
Ramos wants to ensure compliance. So he makes his speech to a person he is about to arrest, for what I’m guessing is not the first time. Here, I’m aided by a transcription presented in court (http://www.youtube.com/watch?v=eU51GYBrcyY):
Ramos: Now you see my fists?
Kelly: Yeah, what about ‘em?
Ramos: They’re getting ready to fuck you up.
Kelly: Start punching, dude.
Ramos: If you don’t fucking start listening.
Kelly: It sucks.
Ramos: Yeah?
15:35: Kelly moves his hand back to behind him, as if preparing to steady himself while pushing himself up from the ground.
Ramos: Put your fucking hands on your knees!
Kelly: Well hey, I’m sick of playing games. Which … which one is it?
Ramos reaches out and grabs Kelly by his left shoulder, closest to Ramos.
Ramos: I’m through playing games too. Put your fucking hands on your knees right now.
Kelly: Would you just fucking …
By now events are happening quickly. Kelly stands up. Ramos cocks his fist back to prepare a punch. Kelly sees him and changes his demeanor.
Kelly: All right, all right.
Ramos: Put your hands …
[INTERLUDE 5: Have the officers to this point done anything improper towards Kelly Thomas? Are they entirely carrying out city policy? Is the city policy that they are carrying out legitimate or not? Do you see any crime or politically questionable behavior so far?]
With Kelly standing, Ramos has changed his mind and moved to Plan B.
Ramos: Get on the ground now. Get on the ground. Get on the ground!
Kelly has started moving away from the hulking Ramos. He turns and sees Wolfe, briefly holds up his hands towards him in a “don’t attack me” gesture, then continues sidling away. It has been five frenetic seconds since the first order to get down on the ground, and he’s not getting down on the ground.
[INTERLUDE 6: Have the officers to this point done anything improper towards Kelly Thomas? Are they entirely carrying out city policy? Is the city policy that they are carrying out legitimate or not? Do you see any crime or politically questionable behavior so far?]
Wolfe strikes Kelly with the baton at 15:47; Ramos advances and does the same a second later. My sense is that Kelly does not look like a risk to harm either one of them physically; I can’t rule out that he may have looked like a threat to flee. And, by 15:51, he has fled a short way down the street, the officers chasing him out of the scene. The camera searches the men out, finding them at 16:16, when we see a baton lift and land. The camera zooms in closer and in doing so excludes Kelly and the police from the scene by 16:18. By 16:19, we see the officers on top of a struggling Kelly, who is trying to surrender – “Okay! Okay!” – but is still up on his right elbow. At 16:22:
Ramos: Put your hands on your back!
Kelly: Okay!
Ramos: Put your hands behind your back!
Kelly, groaning and screaming: Oh, shoot! Oh! [More groaning] OK, I’m SORRY! I’m SORRY, dude!
Ramos tries to get Kelly to put his hand behind his back. Kelly says “OK, hang on a second. OK. I’m sorry, dude!”
[INTERLUDE 7: Have the officers to this point done anything improper towards Kelly Thomas? Are they entirely carrying out city policy? Is the city policy that they are carrying out legitimate or not? Do you see any crime or politically questionable behavior so far?]
We’re at the 16:46 point, exactly halfway through the video. This is about as much as I would let my young teenage daughter watch. This is what apprehension of a fleeing suspect looks and sounds like – and she might as well know it. I’ve already tried to teach my kids a lesson: Unless a cop appears to be a psycho who is actually trying to kill you, don’t run from the cops. This underlines it. The question of whether these officers to this point had acted properly in apprehending Kelly once he fled is a separate one from (1) the question of whether they should have stopped and searched him in the first place, (2) the question of whether they treated him appropriately while he was being held pending arrest, (3) the question of whether they treated him appropriately once he stood up and began backing away from them, and (4) … everything that happened next.
And this is a good segue to the entry of Officer Jay Cicinelli into events.
Those people who think that Kelly Thomas was moved to behind the cover of the tree foliage for the later events have a hard case to make; it’s the sort of conspiracy that undermines the very serious critique of what comes next. Kelly ran to the spot where he landed. The forward progress of tackling and subduing him moved him the last few feet. The cops could not have known the angle of the camera to that fine a degree – and even if they had they could do nothing about it. Events were playing out where they were because that’s where Kelly ran and was brought down to the asphalt.
By the 17:00 point, Kelly is complaining that he can’t breathe. For those of us of a certain age, this brings us back to the bad old days of Daryl Gates and his claims about racial differences in “positional asphyxia,” from which those (especially Blacks) apprehended by the LAPD kept on dying after being put in “chokeholds.” This – I don’t even think is disputable – was not to this point as bad as that. When a man of Officer Ramos’s size is using his weight to pin down a man of Kelly Thomas’s size, the man on the bottom has a chance of asphyxiation. I expect police officers, taking into account the actual degree of danger they face (which would have been different if, say, Kelly had pulled out a buck knife), to recognize the problem, account for it in their actions, and even increase their own personal risk at some point if it appears that a fleeing suspect – especially a non-felony suspect – may be asphyxiating in order to prevent it. Sorry, cops, but balancing your personal safety against even that of a fleeing suspect is part of the job.
Part of that calculation is that Kelly obviously could breathe – or he would not have been able to speak. That doesn’t mean that the cops didn’t have to take the prospect of his asphyxiation into account; it did mean that Ramos could probably expect that he had some more time to try to subdue Kelly safely before risking causing him lasting harm. Reasonable people can disagree about this and I’d reserve the right to change my mind given more evidence, but at that point, if Kelly had for example been chloroformed and passed out, he’d still be alive now.
At 17:23 comes an odd moment in the tape. Kelly, still being subdued but apparently still able to collect himself and act intentionally, yells out “Hey, Carona!” My honest first reaction was “is he calling out the name of former Orange County Sheriff Mike Carona the way that Al Pacino yelled out “Attica!” in Dog Day Afternoon, as a way of protesting police misconduct? That seems unlikely. I presume that he saw someone he knew called “Carona” or “Corona” and was asking for their help. That just underlines my belief that at this point it was not clear at all that Kelly would die.
At 17:26, Kelly starts panting. Ramos, who is trying to get him into a position where he is completely unthreatening to him and the other officers while lying on top of him, tells him “Relax!” Kelly yells out – not an agonized scream, but the tone of someone trying to get a point across, “I can’t, dude!” This is where someone could and should have moved in and just helped to untwine Kelly and Ramos so that it was clear that Kelly would stay on the ground.
Ramos moves at 17:31 and Kelly’s screams intensify. “Relax!” is met with “I can’t breathe!”; another “relax” with “Okay! I can’t breathe! … I’m sorry man.” It is a rotten conversation, but one that Kelly still seems likely to survive, and Ramos seems to want him to survive it. A siren is heard, and at 18:02 a police car rolls into the top of the frame and we see the shoes of an officer come out. Either it or the one who arrives twenty seconds later is Jay Cicinelli, who is there to kill Kelly. At 18:05, Ramos recognizes him and starts barking out orders to him and to Wolfe.
Ramos: Jay! Joe – go to your right. Joe, hold on!
[INTERLUDE 8: Have the officers to this point done anything improper towards Kelly Thomas? Are they entirely carrying out city policy? Is the city policy that they are carrying out legitimate or not? Do you see any crime or politically questionable behavior so far?]
The cops want Kelly face down on the sidewalk, which I suppose makes them marginally safer in this situation than if he was face-up, but seems not to be worth the trouble of achieving. Now we hear shouts of “he’s resisting!” A shouted question like “want TASER?” We hear a TASER going off, twice. Kelly is ordered to roll on his stomach, but he is screaming in pain and his mind is elsewhere. Now we’re hearing agony – no words, just high-pitched screams. And then, at 19:30, we see Cicinelli smashing downward with the butt of his TASER towards Kelly Thomas’s face as if he was trying to pound a nine-inch nail into a concrete block. The camera goes out of focus for a few seconds at 19:32 – and I can’t help wondering if that was some post-production mercy for the audience, who won’t be able to see what was in the blur.
Cicinelli, I think it is, says to another officer “Help us!” and then adds at 19:42, “He’s on something.” (Yes, the will to live is a powerful drug.) Kelly starts calling mournfully for his father; initially it is not even recognizable as speech. “Help me, Dad.” This, children should not see or hear. He’s mostly calling for his Dad, though at one point I thought he said “God.” “Help me, help me.” The cops are rolling him over now into the position they prefer, to further lower the odds that he would be able to harm them. One officer is sitting on the back of another one, presumably to increase the weight holding Kelly down. One cop – again, I think it’s Cicinelli – is saying “he’s still gonna fight!” I somehow think that if all of the cops had counted to three and suddenly backed off twenty feet in different directions, Kelly would not have been able to run – at least not far. I think that it would have at least been worth a try.
[INTERLUDE 9: Have the officers to this point done anything improper towards Kelly Thomas? Are they entirely carrying out city policy? Is the city policy that they are carrying out legitimate or not? Do you see any crime or politically questionable behavior so far?]
At 21:45, no amount of “relax” is going to keep Kelly from sorrowfully intoning “Daddy,” while the voice I think is Cicinelli says “he’s still fighting.” At 22:30, Kelly’s repeated phrase turns to “Help me.” By 22:40 or so, that phrase turns into his last words. It is about seven minutes since Wolfe hit him with the baton.
The last ten-and-a-half minutes of the tape are bureaucratic discussion among police, of how to deal with the situation, how to get him into the car, etc. I don’t think that this requires a lot of analysis, though I’m sure that lawyers on both sides are combing through for every word – especially Cicinelli. At 23:45, “is he breathing?” “He’s still going up and down.” Then the famous “we ran out … took my TASER… smashed his face in” comment. Around 25:20: “He’s on somethin’,” we hear again, because “three of us couldn’t even….” The spin had begun.
[INTERLUDE 10: Have the officers to this point done anything improper towards Kelly Thomas? Are they entirely carrying out city policy? Is the city policy that they are carrying out legitimate or not? Do you see any crime or politically questionable behavior so far?]
Morally, the beating of Kelly Thomas may be a clear-cut case; legally, it is not – except, I suspect, for Cicinelli, and that probably on an excessive force charge, and I may even be wrong about that. Here’s the problem: for police to be completely secure against attack by suspects, the suspects have to be unconscious or dead. (This assumes that their bodies are not booby-trapped.) There’s a trade-off here, and what the FPD did was decide that even the slightest degree of possible threat from the fleeing suspected misdemeanant was not worth avoiding subduing him with even fatal use of force. The more well-protected you want the cops to be, the more likely it will be that a suspect will be killed in a condition like this. The more you want to prevent suspects from being killed or maimed, the more that cops from being put at risk.
The argument that Kelly Thomas posed a threat to the cops at any point seems weak to me, but I am not a cop, and if we let cops make these calls on their own – and we generally do – it’s hard to call them criminals when they put a lot more weight on their own protection than the safety of suspects. Ramos could be convicted of second-degree murder if, in essence, a jury found that his actions violated the law to a degree substantial enough to take away his police immunity – and a death occurred as a result. Up through the arrival of Jay Cicinelli, Ramos is “guilty” of putting the safety of himself and his partner absolutely paramount – and the question of whether his doing so put him outside of the protection of the law is one for a judge and jury to consider. It sure sounded like all he wanted to do is to get Kelly Thomas into a position where he could pose no possible threat. I call that unreasonable under the circumstances and maybe even stupid; I have a hard time calling it illegal. (If I did, it sure wouldn’t be because he put on latex gloves and threatened to beat a suspect if he resisted, because I’m pretty confident that that’s fairly standard for police in some situations. If the people of Fullerton don’t like it, they had better inform the cops – and then live with cops who are likelier to let suspects flee. It’s one or the other.)
Now let’s look at the world through Jay Cicinelli’s eyes. (OK, “eye.”) He comes up to a situation where two officers, one of them especially meaty, are holding down a suspect who is screaming that he can’t breathe – not moving, but also not “relaxing.” As I say above, the tool that I’d like to see cops use in this situation is probably some more advanced version of chloroform – the idea is just to get the guy to stop struggling. Use of the TASER? That’s completely unnecessary – although if it’s Police Department policy, and I suspect it is in many more places in the county than Fullerton, it’s probably not a crime. As for use of the TASER to smash in the face of a subdued suspect who simply needs to be moved into a safer position? Let’s just say I’d need to be convinced that that wasn’t a crime. The absence of instructions from other cops like “he’s got a gun (or knife)” or “smash in his face, Jay!” should have been a hint.
What needs to be fixed here? I think that the tradeoff between police safety and suspect safety needs to be recalibrated. That Kelly Thomas was small and homeless enters into the equation somewhat, but not entirely – small people and homeless people may have knives, for example, and may pose a danger to cops. Had a buck knife been found (or planted) on Kelly, we’d be having a very different discussion, and Ramos and Wolfe didn’t know for sure that he posed no danger, even if you and I think that they knew for sure enough.
Cicinelli’s behavior, by contrast, needs to be fixed. In my opinion, it’s clear from the video that he overreacted to the situation with a high level of force, including lethal force, and also that his assessment of the situation was skewed and his post-event justifications were convenient but strained. That needs to be fixed – and, if it needs saying, his career as someone who can be armed as a public or private officer should be over.
But that’s not what needs to be fixed most. You can see a tragedy of circumstance playing out here, in addition to what malicious behavior we may infer from the cops, but the basic problem arose before 00:01 of the tape:
Kelly Thomas should not have been stopped at all.
Kelly Thomas, shirtless and scruffy, was an undesirable. Fullerton – and I believe that this was as a matter of public policy – did not want the homeless around. The homeless make people not want to be here. The homeless lower the values of property and businesses. Like most cities, Fullerton wanted them elsewhere. The cops understood this clearly.
So, they saw Kelly Thomas walking around and they looked for a way to arrest him. They intimidated him into accepting a search of his backpack. The backpack containing mail from a law firm across the street gave them a reason – I’d call it a pretext, given the availability of benign explanations – for an arrest, having stolen property. This seems awfully strained to me, but it seems to have done the trick. Once you have the basis for an arrest, then you have the basis for order someone around, and (almost) everything that you do after that can be justified as a response to resisting arrest, even if the arrest itself is bogus.
Fullerton wanted the homeless out of its public space. The officers, knowing that, found a basis to arrest and transfer out one homeless man. He was not immediately compliant enough for them; he tried – as is a natural human tendency – to flee. Things escalated. They tackled him, brought him down, and tried for a while to get him into a position where he could pose no possible threat to them. A cowboy officer showed up late on the scene and tried to help out by beating his face in.
Some of this is inevitable error in the process of law enforcement. But the real way to have prevented this problem is: don’t try to move people out of an area when they’re doing nothing wrong except being undesirable. Spend the money so that the homeless can survive here, can get a place to sleep, which is all that Kelly Thomas had wanted at that moment. That is something that does not implicate merely the police force or the City Council – it implicates everyone who wants a “decent” city that is not sullied by the existence of homelessness.
This is not what Fullerton wanted, but it is the implication of what Fullerton wanted: a nice suburban city where people don’t have to be confronted with homelessness — or pay to deal with the growing problem of the homeless.
Some critics have said that Mayor Sharon Quirk-Silva’s focus, at the beginning of the controversy, on improving how the city deals with the homeless was missing the point. After viewing this video of how the tragedy came to pass, I think that it was right on point. This was not an error in arresting a misdemeanant or felon; it was an error in arresting a gentle and innocent man, based on priorities ultimately directed by the voting public.
Wow awesome article. Very open. Touches on all sides, all possibilities. Refreshing. Very unfortunate incident. ;-(
The part, early on, where Ramos asks what language Kelly speaks is clearly verbal harassment, trying to get an angry reaction from Kelly to give Ramos an excuse to do anything he wants.
It’s in response to Kelly saying “I don’t know what you’re talking about.” in response to being accused of a crime. Ramos pretends to misunderstand that sentence.
Thanks for the clarification. So that raises some questions:
(1) is playing dumb with a subject in that situation to get an angry reaction from them a violation of law, and
(2) was getting an excuse to “do anything he wants” with Kelly Thomas — which, let’s be fair, probably meant arrest and removal from the area rather than killing him — something that Fullerton did not want of its police officers, or was it something that it actively wanted from them?
Even now — do Fullertonians want their homeless to be treated with kid gloves even after the Thomas furor dies down? It would be nice from my perspective if they did, but do they? Or do they just want police to be less grotesque in how they get them out of the area? (And remember, whether or not the death was all Cicinelli, the beaten-to-a-pulp face was apparently all Cicinelli.)
Do you live in Fullerton Greg?
Despite that most regular commenters here could by now answer that question in their sleep, I’ll answer your question if you tell me why it matters.
When public anger came streaming into Fullerton from all over the country, did you ask people that same question?
*Knowing your civil rights would be a good start and cautionary tale for all of us. Being goaded into a confrontation by a police officer is always a possibility in spite of the civil rights considerations or best intentions. A jury will in the end decide was was done and how rightly or wrongly it was done. Anything we may say at this point…..makes little or no difference. Justice is blind….. hopefully the jury selected will open their eyes to the entire body of evidence, before finally casting any or all appropriate judgments
.
I don’t think that it’s likely that Kelly could have gotten out of that situation without the police searching the contents of his bag. “Know your civil rights” is important, but I don’t expect a mentally ill homeless man to be a match for two experienced cops who understand their job to be doing just what Ramos did until Kelly ran.
Platitudes aside, I don’t think that a fine-grained analysis of the video is as easily brushed aside as you seem to think it is. On repeated viewing, the video is not what I expected. Did you take a look at it?
You are saying what “Fullerton wanted and did not want” and without defining what you mean by Fullerton (although I must admit this is very hard for me to look at and I did not read the entire post) that if Fullerton is meant as Fullerton in whole, and not just the police and those now elected to public office, that compared to other cities in Orange Country Fullerton may be friendlier than most to the homeless.
Fullerton is ultimately a college town, and young people who rent are in general friendlier to the homeless then homeowners who are worried about property values and the safety of their children. I have made friendships over the years with many of the homeless, Kelly Thomas was one of them although that was some years back, I have often been told by that Fullerton has more food lines and helpful individuals than most OC cities. I myself do not know if this is true, but your statements about Fullerton’s attitude towards the homeless would mean more to me if you were a resident.
As for the motive in the police killing Kelly, which you seem to attribute to him being homeless, I would say you are only partially correct. The police culture in Fullerton, as it now reflects the attitude of Pat McKinley himself, is to consider all those who are on the margins, and who normally have little recourse, as scum to be f*cked with. An immigrant dishwasher riding home from work on this bike, a low end stripper, a tweaker, a white street punker, and a mentally ill homeless man are all equally at risk, as they are all regarded as trash, and kicking their ass for the last 20 years has never resulted in any consequence to an officer.
The primary problem, and the issue which we need to correct first, is the culture of the Fullerton PD. We will probably always have always have homeless people (btw – Kelly did not want to sleep inside if you gave him a motel room he would not have used it for more than a day or two), but we do not need to always have asshole cops. Lets fix what we can actually fix first.
I’m judging “what Fullerton wants” by who it elects — and, in this case, elects repeatedly. Fullerton voters apparently liked their unquestioningly pro-police City Council majority — although a switch of about 50 votes in 2010 would have meant a working majority on these issues of Sharon, Doug, and Bruce.
I live less than half a mile over the botder in South Brea, but Fullerton is where I do most of my commerce and local activism. (Brea is small, pretty well run and Democrats have little chance there. Fullerton politics is more interesting and (especially these days) consequential.
More significantly, aside from my running to represent Fullerton (and over a dozen other cities) in the State Senate this year, I spent two months as the Civic Liaison for Occupy Fullerton earlier this year, in which my task was to keep the occupation legal, peaceful, and effective. In that capacity I negotiated directly with City Manager Joe Felz, Acting/Interim Police Chief Dan Hughes, Mayor Sharon Quirk-Silva, and other council members.
Occupy was treated well (and earned that good treatment) and I did learn a lot about what Fullerton does right, including post-Thomas reforms. Treatment of the homeless was one of the main themes of the Fullerton Occupation. (You might say that you didn’t hear much about it. Give me 1% of Tony Bushala’s budget for political action and you would have.)
So far as I can tell, here’s how it worked: homeless people would be tolerated in public areas so long as they were not subjects of complaint. If they were subjects of complaint, as Kelly became that day, then they had to go (at least for a while) and the cops’ job was to come up with a way to make it happen.
That’s what Wolfe (sweet-talking Kelly to submitting to an unnecessary search) and Ramon (baiting and later intimidating him) were doing. They didn’t want to kill him, they wanted to remove him on a flimsy pretext — because that was their job. They may have been “assholes cops,” but in this case they were doing exactly what they were expected to do: remove the undesirables. So yes, we agree, homelessness was part but not all of the problem.
They wanted (and this is to some extent to their credit) to do it in a way that had surface constitutional legitimacy, as opposed to pulling a gun on him and marching him to the squad car to be taken away for “questioning” and then dumping him in Anaheim or Santa Ana (or on a bus to Victorville.) But if they were “assholes,” they were being paid specifically to be “assholes” when and as needed.
At some point, Kelly stopped being docile in the face of affronts to his dignity. He stood up when he wasn’t supposed to, didn’t lie down like he was told to, started walking away, and then ran. Even though the misdemeanor charge was woefully wrong — as they often are in such situations when they want a pretext and any pretext will do — it was a misdemeanor charge, and so Kelly was now a fleeing misdemeanant.
So Ramos gets to sit on top of him — but couldn’t quite maneuver him into the right position where he’d be completely unthreatening. (Ramos was wrong to want Kelly to be 100% incapacitated, but that’s not murder — and for all I know it was his training.) I see no indication that Ramos wanted anything other than to safely — EXTREMELY safely — complete the bust of someone who had in fact resisted arrest, even though the arrest was substantively bogus (although technically defensible, which is all he needs.)
The fatal problem arose when Cicinelli came onto the scene, saw two officers on the ground with some “perp,” and went into “Barney Fife with a TASER” mode, eventually coming up with the bright idea of beating Kelly’s face in when he could TASER him no more. He apparently (and incredibly) thought that he was in the World Series of scuffles rather than in a sandlot game — and so he thought that recklessly assaulting Thomas was appropriate. This is worse judgment that I can express and I think he earned his manslaughter charge, which I hope comes with a customized dunce cap.
You’re right about what the police culture of Fullerton has been — though I’m not convinced that Dan Hughes continues the problem as opposed to being part of a solution. (My interactions with him through Occupy have been mostly, not all, decent.) I think that that’s why McKinley, most of all, deserves recall. Bankhead and Jones probably do as well just for being so clueless and diffident in a time of crisis.
However, the problem you identify is not “the culture of the Fullerton PD” so much as it is the culture of police departments generally. They are doing the bidding primarily of wealthy citizens and commercial interests, so they identify the likes of activists like you and me as threats. When someone does wrong, they tend to close ranks — as do most organizations.
As I’ve said before, I don’t think that a police squad hand-picked by Bruce Whitaker and Tony Bushala — or by Jane Rands and Glenn Georgieff — would likely be much different; as with the military, it’s largely the nature of the job. We should, and do, struggle against it, though, but great police chiefs (like Bill Bratton) are the exception.
While I enjoy this interaction much more than our previous one, our basic disagreement is on what politicians could and should have said over the past year. For Tony, Bruce (to the extent he can), and the groundlings at FFFF, the party line is that all six cops involved were rotten, as was the police and city hierarchy, and anyone who disagrees is hiding something.
The more I view the tape, the more I become convinced that Sharon Quirk-Silva hit exactly the right notes. The problem, as I see it, is not that Manuel Ramos is a murderous asshole, but that he is paid to be intimidating, and that he was instructed to target his intimidation in these situations towards targets such as Kelly Thomas. That’s a bad policy, it needed to be changed, and Sharon was right on the money. And, yes, there needed to be a program so that Kelly could find a place to sleep.
Should she, or should Doug Chaffee, have called for the firing of (or murder charges against) all six cops? I think that clearly the situation for all of the cops except Excitable Boy Jay Cicinelli is more complicated than that; they were contributing to an injustice, but a not-quite-illegal one, and they are simply not conscious accessories to murder. (“Why didn’t someone stop Cicinelli?” Watch the tape a few times in real time, like I did. He didn’t really give people a chance — he used his own painfully twisted discretion.)
Like I have said, I like Jane Rands and Matt Rowe, who are my second choices in their races. If we were to somehow end up this year with a City Council of Rands, Rowe, Georgieff, Chaffee, and Williams, I think it would be an extraordinary strong and wise group of people. My disagreement with you is particularly with your view of Doug Chaffee. I think that that’s of enough general interest that I’ve decided to make it its own post.
“Even now — do Fullertonians want their homeless to be treated with kid gloves even after the Thomas furor dies down? It would be nice from my perspective if they did, but do they? Or do they just want police to be less grotesque in how they get them out of the area? (And remember, whether or not the death was all Cicinelli, the beaten-to-a-pulp face was apparently all Cicinelli.)”
Greg-
First of all, what do you mean by “do Fullertonians want their homeless to be treated with kid gloves” ?
Secondly- “This” is not going to die down
Third-
“this” is not merely some cops who had a fight with someone homeless and Tased the person to death because he wouldn’t put down a weapon-this has nothing to do with the fact that Kelly was homeless, this was an innocent mentally ill man who happened to be on the streets.
Fourth-
Fullerton and the rest of cities in America-”want police to be less grotesque” period-homeless or not.
Thanks for your comment, merijoe.
“Treated with kid gloves” means “treated gently.” In this case, that doesn’t simply mean not being beaten to death, but also not hassled by police. It might even mean year-round open accommodations for homeless who need a place to sleep. This would all be very humane — and would also likely increase the numbers of the homeless, which I’m told people do not want. It wasn’t a trick question or a rhetorical question, it was a real question.
I hope that you’ll try reading my analysis of the video again. Yes, so far as I could tell from the video,Kelly had done nothing wrong — except to give the police a pretext for arresting him by having the discarded letters, and he should not have been detained for it.
What he was actually pursued for, though, was resisting arrest. He stood when he was told not to stand, walked when he wasn’t supposed to, and then ran. This is often what people end up getting beaten up over — not just in Fullerton, but everywhere. I don’t like the fact that the police can make resisting a flimsy arrest on a pretext to be the actual crime — but they do.
The dirty secret of polite society is that this is pretty much what the public wants — to keep
the underclass cowed. As a civil libertarian, I don’t loke this — but I recognize that whay happened with Ramos was not unusual, nor would he gave thought that he was doing anything but his job.
What society doesn’t want is to be confronted with this truth. It doesn’t want the sort of results that follow from the frenzied overreaction of Cicinelli. Take that away — had Kelly been subdued at the 18 minute mark, and I think that most people dismiss the interaction with something like “well, he shouldn’t have run.”
I think that people don’t want to see sausage being made — but they do want sausage.
*Suppose….just suppose…..a higher up at either the PD or one of the City Council persons….mentioned in passing that the high visability of homeless in Fullerton was starting to become an embarrassment ……and just suppose that somehow filtered down to the troops on patrol. Just suppose a variety of merchants and homeowners had been complaining about urinating and deficating homeless bothering the locals.
All of the above ….doesn’t change the facts when it comes to Kelly…however. They could have chosen anyone to make a project out of and perhaps it was just bad luck, opportunity or a dedicated mission. No matter, the results remain the same.
I suppose the defense attorneys will take this same casuistic approach in explaining their clients’ action (“He ran!” “He resisted arrest!”), and I understand what Mr. Diamond is saying here (the kid shouldn’t have been detained, much less arrested, in the first place). Yet the kind of deadly force applied by the cops is reserved only for those occasions when their lives or the lives of civilians are in danger. The only life I saw in danger was Mr. Thomas’. Two cops charged? It should have been all of them.
*Anita B….you say it well. And we agree!
Here’s the problem, Anita: the deadly force was not applied by “the cops.” It was applied by Cicinelli — whose crazy overreaction the cops may well have not been able to predict. If they’re conspirators committing a crime, then all are responsible for the result — but they weren’t. Prior to Cicinelli’s freakout, they were applying what I consider to be unreasonable and unnecessary force — if you believe (as I do) that they shouldn’t prioritize their absolute safety over the welfare of their suspect — but it was not illegal, let alone deadly, force. So with what exactly should the other cops be charged?
That’s the problem at hand. Recognizing it is not casuistry.
Greg —
The coroner pathologist testified that Thomas’ death resulted from chest compression *and* blunt-force facial injuries. I didn’t know Cicinelli did that all by hisself! Anyway, the charges he faces carry a maximum of four years in prison. Is that the legal system Sharon Quirk-Silva is saying will begin the ‘healing process?’
For someone who apparently asks for nuance and thoughtfulness, you’re exhibiting a clear lack.
O, Jesus, Greg. We all saw the tape. Cicinelli’s brother officers did absolutely nothing while a man was beaten to death. Cops operate under the color of authority; we have standards much higher for them than we have for the rest of us, so let me repeat that: They did nothing while a man was beaten to death. They weren’t charged, but they are culpable.
But why in the hell didn’t they just quit fucking around, cuff Thomas, put him in a police car, and drive him to jail? I’ve seen people far larger and more menacing than Kelly Thomas hooked up and stuffed in the back seat of a car, and nobody’s hair even got messed up. Two cops couldn’t have done that? You and I could have done that. And I’m old and fat.
Look at the time stamps and tell me exactly when it was you think that Kelly was “beaten to death.” I can tell you exactly when I think it was — after the TASER had failed to subdue him (and had actually made him fight harder) and Cicinelli thought that it was time to do some brain surgery on him with a blunt object.
Every police officer is supposed to be able to trust the others. It is not inconceivable to me — and all the less inconceivable to other officers, who in the rush of events may not even have known who it was on the ground — that Kelly had a weapon and was trying to kill one of them with it. Maybe Cicinelli would have been the only one to see it. If he actually was trying to kill someone, then banging him unconscious might have been appropriate; I don’t know what FPD’s rules were. You and I know that he wasn’t doing so, but I can’t assign that knowledge at the time to the other officers. (It’s not clear to me if Ramos and Wolfe were even paying attention to what Cicinelli was doing.)
The questions in your last paragraph are good. I think that they didn’t cuff him back near the kiosk because he ran, and they didn’t do it after he ran because he was in an awkward position and not entirely immobilized. It happens. (Realistically, they probably didn’t want to break his arm or something — although in hindsight that would have been much better.) I think that if they had had another minute, they might well have gotten themselves untangled and been able to do it — but they didn’t have time because Barney Fife showed up and wanted to use his bullet.
I think that it was all set to be resolved reasonably well before Cicinelli showed up — and that he acted so quickly, unexpectedly, and crazily that the other cops couldn’t deal with it fast enough. I’d look forward to testimony, though.
GD– What’s your opinion regarding none of the six officers offering aid to Kelly? Don’t they have a duty of care? Does it make them criminally culpable? Negligent to the point of it being criminal? Grossly negligent?
How about in the context of receiving aid for their injuries first before attending to Kelly? Kelly flat lined in the ambulance and needed resuscitation.
Does any potential officer negligence accelerate to a criminal level because not only did they not exercise their duty to care, but they also impeded aid from being delivered in a timely fashion?
I haven’t thought that much about that and I don’t understand it to be part of the DA’s case. Off the top of my head, I don’t think that cops are held to have a duty to provide first aid to a suspect that they have subdued. If they were held to have created the situation illegally, maybe you could bootstrap one, but I’d just be guessing. It would presumably also involve a reasonable person’s understanding of the situation: which is probably that the paramedics were going to take him, that he was probably unconscious but not comatose, and that if he were comatose there was no treatment they could offer him anyway.
To the extent that they were held to have improperly impeded the paramedics from providing care, I would think that in this case it might go more to damages than to liability. You’re asking good questions and you’ve gotten to the point where I’m outside of my wheelhouse in answering.
I don’t recall a statement that chest compression was sufficient by itself, do you. Even if so, the degree of chest compression prior to Cicinelli’s whipping out the TASER was much increased by how they apparently felt they had to deal him afterwards. Do you really think that he’d have died have Cicinelli not shown up? I honestly don’t.
If chest compression really is what killed him, though, then the problem (putting aside Cicinelli’s action) really was likely to be lack of training, because in that case it should have been clear that they didn’t have to turn him face down. I don’t get the sense that the cops — Cicinelli aside — thought that holding him down was killing him. If it had, in the absence of Cicinelli, I’d think that people would have been more likely to think of his death as a horrible, stupid accident that they should have prevented, don’t you?
The problem you mention with inadequate sentencing for manslaughter are a function of the existence of the doctrine of police immunity (and giving the police the benefit of the doubt as to whether their actions were illegal.) If you don’t like that doctrine, fine, but you can’t blame the FPD for its existence.
The legal system does what it can. It does not and should not turn manslaughter into murder. But hey, if you think you can prove (or that the DA can prove) that Cicinelli, in trying to subdue Kelly Thomas, acted with a “depraved heart” when he decided to pound Kelly Thomas in the face, then go ahead and try. I wouldn’t weep if he got convincted of second-degree murder; I just doubt that the law allows it.
What’s your alternative to the legal system beginning the “healing process”? Vigilante justice?
“I don’t recall a statement that chest compression was sufficient by itself, do you.”
It could be according to the UCI surgeon who testified: “Lekawa said he believed “200 pounds of weight is enough” to cause chest compression and a deadly lack of oxygen.”
http://latimesblogs.latimes.com/lanow/2012/05/kelly-thomas-died-from-chest-facial-injuries-coroner-says.html
What’s the motivation behind your reductionism?
“What’s your alternative to the legal system beginning the “healing process”? Vigilante justice?”
No, just plain ol’ justice. Since only a compromised modicum is being considered by the legal system, there can never be healing. Whose to say convictions are going to be handed down anyway? The end result may pour more salt in the wounds.
Thanks for the link. If 200 pounds of weight is enough to cause chest compression and death in the fairly normal circumstances we see prior to the arrival of Cicinelli on the scene at about the 18 minute mark, then police procedures have to be revised to prevent that sort of sustained compressive force. But it does not sound to me like at that point the interaction was leading to death. “I can’t breathe” can mean “I am having difficulty breathing” or “I can’t take full breaths,” not just “I cannot get any air into my lungs.” Before the 18 minute mark, it was a bad situation but not a deadly one.
Once Kelly was hit with the TASER shock — and then with the TASER itself — the force of his struggling (and the force required to hold him down) intensified. If a compressive injury is what killed him, that’s when the force intensified enough to do it. From the story to which you link:
All of those time points mentioned came after Cicinelli arrived on the scene, decided to TASER Kelly, beat his face in, and led him to struggle more intensively — and for more force to be used to hold him down (which also required the additional officers.)
I think that you’re misusing the term “reductionism.” My motive is to figure out who, based on the video evidence and my understanding of the law, is and is not guilty of crimes.
You didn’t answer my question, GSR. We can go through the legal system — or do something else. You don’t seem to like the prospects of going through the legal system. So how do you expect to obtain “just plain ol’ justice”? I hope that you’ll address my arguments next time.
Same ol’ spin. “Thanks for the link…but!”
“You didn’t answer my question, GSR. We can go through the legal system — or do something else. You don’t seem to like the prospects of going through the legal system. So how do you expect to obtain “just plain ol’ justice”? I hope that you’ll address my arguments next time.”
No, I don’t like the prospects, but I never said that they shouldn’t be pursued. I think this entire incident, like those before it and those surely to come after it, scream out for major reforms.
I hope you stop throwing out conclusions without addressing evidence as you lecture others to do!
GSR: “I think this entire incident, like those before it and those surely to come after it, scream out for major reforms.”
That’s exactly what Greg has been saying, in numerous posts and comments these last few days. What are you guys arguing about?
I can’t figure out your position.
What reforms do you understand to have been implemented?
“What reforms do you understand to have been implemented?”
Huh?
I’ve stated my opinion that the policy of FPD as of last summer was that homeless people would generally be tolerated in public spaces so long as there was no complaint raised against them, but that if there was a complaint the cops were expected to come up with some legal reason to remove them from the area.
Do you agree with that? If so, do you think that that policy remains in effect? I don’t know for sure, but I’ve heard secondhand that in that respect things have changed.
“Do you agree with that? If so, do you think that that policy remains in effect? I don’t know for sure, but I’ve heard secondhand that in that respect things have changed.”
I said that major reforms are needed. You ask me what reforms I understand to be implemented.
To that I appropriately replied, “Huh?’
Huh?
Why don’t you go sit in the courtroom to get your information? You are so wrong it makes me sick.
Justice for Kelly Thomas
I got my information from watching the video; I don’t need to be in the courtroom.
It’s good that you want justice for Kelly Thomas. But throwing out a conclusion like that without addressing the evidence is not just.
“But throwing out a conclusion like that without addressing the evidence is not just.”
So why are you doing just that?
GSR — are you actually so daft as to think, after reading what I wrote, that I am not “addressing the evidence”?
After sifting through all your verbal diarrhea on this post and others, I’ve come to the conclusion that I don’t particularly give a shit about your take!
OK, so you have reading comprehension problems and when confused you resort to insults. Duly noted.
Marlena is a narrow-minded fool!!
You mean Troll? Remember you have to use the native tongue of FFFer land.
You mean Troll? Remember you have to use the native tongue of their land.
agree with your general conclusions. I see a lot more guilt on the police side though.
agree that policework can be dangerous (although less so than for lumberjacks and miners statistically, it’s still up there).
but these weren’t guys in fear for their own safety. they were guys ready to “fuck someone up” because he didn’t treat them with the kind of “respect” they feel they require.
I’ve had a policeman literally tell me to “say that again in a more respectful tone!” about some answer I gave them, like they were a pouting little kid. (And I’m a pretty polite guy.)
These 5/6 armed dudes compressed a man’s chest and suffocated him to death while beating his face, back etc to a pulp…
While said victim was unarmed and yelling “I’m sorry,” and struggling just because, as he repeatedly pleaded with them “I can’t breath.”
In my opinion they are all murderers and should be punished as such.
I don’t see they were in danger, and I don’t believe for a moment they really felt that way either…
They were joking amongst themselves and complaining about how “exhausted” they after administering the beating when the paramedic came.
I DON’T agree with “FTP” and calling cops “pigs.” I DON’T think they are “all alike.”
But I also DON’T think their primary function is to “protect us” from serial killers and so on as the mass media has promoted.
I DO think they are overpaid and that we have to many of them in Irvine at least.
I DO think they will side with the wealthy against the marginalized as a general rule.
And I DO think that, while most cops aren’t necessarily power-obsessed little fascists, that the job does seem to attract a hugely disproportionate share of the people with that authoritarian personality type.
And I think there are cops who are decent people who would agree with a lot of what I just wrote, although it speaks very poorly of the Fullerton PD that they raised a million $ for Kelly’s prime killer.
Justice for all Kelly’s, past and future.
And I DO think that, while most cops aren’t necessarily power-obsessed little fascists, that the job does seem to attract a hugely disproportionate share of the people with that authoritarian personality type.
Always reminds me of this guy I knew in high school, Mater Dei, a football player, he sat behind me in English class and tried to make me laugh: “You know what I’m gonna be when I grow up, Vern? A cop! So I can pull people over, take their pot, and smoke it myself!” I said, “ha ha, that’s funny Victor,” just to be polite.
Ten years later I get the alumni directory, and damned if Victor Rubalcaba wasn’t a cop!
First, thanks for the attention to what I actually wrote and for the well-thought-out response. Both are a too-rare treat.
I think that we have to distinguish between whether what they did at various points was unreasonable, whether it was wrong, and whether it was murder/manslaughter. I think we need to look at three parts of the video separately — (1) before Kelly stood up and starting moving away (or as cops would call it, “resisting arrest” and “trying to escape”), (2) from the moment he stood up to his being held down when Cicinelli shows up, and (3) the rest of the event.
Re (1): I fault Ramos and Wolfe for implementing an apparent FPD policy that (a) it was OK to come up with even a flimsy basis to arrest and remove a homeless person about whom the FPD has received a complaint, (b) it was OK to badger him into agreeing to a search that they otherwise had no right to conduct, and (c) it was OK to use threats and intimidation to get him to comply with their orders and to be docile while they processed him. However — unless the city contends otherwise, these were Police Department policies — job expectations — that were not clearly illegal, and so under the doctrine of qualified immunity the blame goes on the city, not the individual officers. Police are paid in part to control situations by whatever legal means they think that they need to use. Should the city be sued over it? Sure. The officers? Not for this — this isn’t exactly torturing someone to death. (That, more or less, came later — and neither Ramos nor Wolfe apparently wanted it to happen.) It was not reasonable, it was wrong, but it was not murder/manslaughter, and it was not their responsibility but the city’s. If you don’t want your cops doing this, train them not to do it.
Re (2): I agree that they did not have any reasonable and serious fear for their own safety. They did have a legitimate concern for it, but it’s one that pales next to the concern that they should have had for their “fleeing misdemeanant’s” safety. Putting aside Cicinelli, I think that Ramos and Wolfe didn’t think that Kelly’s safety was significantly threatened, though. They were just trying to be 100% safe — with Kelly face-down on the ground with his arms behind him — before they stopped holding him down. They get to make that call, but I think that it showed bad priorities. I call it unreasonable, probably wrong given that they should have known that he was not a real perp — but murder or manslaughter? Not even close.
Re (3): Cicinelli, upon arriving on a scene with officers on the ground struggling with someone, had the right to decide to shock Kelly with a TASER. I don’t like that, but it’s the law and it fit with department policy. If it was unreasonable — and that depends on his knowledge before he arrived and on what he did to assess the situation once he got there — then the city can be sued for it. His smashing in Kelly’s face — therefore leading him to struggle wildly and to the forceful chest compression that probably did also contribute to his death — was completely out of line and earns him personal liability, including for manslaughter. You’ll notice that Ramos and Wolfe weren’t clubbing him at this point — and it’s not because they couldn’t — because they apparently considered him to be mostly subdued. My guess is that what Cicinelli did was not accepted FDP policy (and if it was, it probably isn’t now) and probably shocked the hell out of the other officers if they realized what he was doing at that moment in the melee. Beating his face to a pump was not “the 5/6 armed dudes” — it was Cicinelli.
As I recall, for most of the minute before 18:00, Kelly isn’t really struggling that much at all. The cops are trying to get him into a maximally safe position for them and due to their bulk (and maybe his mental state), he’s having trouble complying. Normally, this would have been resolved safely within a short time. Kelly’s saying “I can’t breathe” means that he’s having trouble breathing in that position, which all of them are trying to change, not that he literally can’t get oxygen into his lungs. Later on, after the TASER shock and beating and his increased struggling as a result, I think that he really couldn’t breathe — but at that point I think that the cops (especially the three who showed up late) actually were worried about what he could do. I’d look forward to hearing their testimony on that.
Most of the disgusting banter seemed to come from Cicinelli, but in any event that banter isn’t evidence of their committing a crime.
It’s Cicinelli’s right to have a defense fund and it’s other cops’ right to donate to it. I find it repulsive, but I understand that they are worried about the public not making the distinctions that need to be made here, as when people say that “all six cops are murdered.” If only Cicinelli were criticized for his stupid action, I wonder if you’d see the same response. I have gotten secondhand agreement related to me about my earlier analysis, which is not exactly deferential to the cops.
I agree with most of the rest of what you say in the last part of your comment (although I don’t have a position on the number of cops in Irvine, whose police I found to be very professional and cooperative during the Occupy camp there). One problem we have, with police and military, is that giving someone deadly weapons and the right to use them to control others is an awesome power — and sometimes we treat it as just another delegation of responsibility. It isn’t. At worst, it’s the power to kill and get away with it, and that should concern us all.
The money Raised for Ramos ‘ bail was paid out mostly by his parents 90 percent, 10 percent by friends and family. 0 percent from FPD.
I took christian’s reference as being to Jay Cicinelli, not to Ramos.
sure you are right to point out that the bigger problems are on the POLICY level, rather than take the easier route of demonizing the cops personally involved.
I’m not an expert on this but I have questions like…
1) Why not just cuff or otherwise mechanically restrain someones arms?
2) Why is someone’s pleading that they “can’t breathe” not something to take seriously, given that people can and do die from the kind of pressure they were exerting? (I’m not following it down to the minute but I did read the coroner stating that the chest compression was a likely main factor in death.)
3) “One problem we have, with police and military, is that giving someone deadly weapons and the right to use them to control others is an awesome power…”
Well said, but I take it there’s supposed to be a difference in the standards and restrictions under which police and military each operate. and that’s why I support POLICE (not miltiary) solutions to international security threats and OPPOSE militarization of the police (whether for anti-protest activity, the “war on drugs” etc)
I don’t know the answer to your first question. I’ve wondered that myself. My guess is that they were in the process of doing that.
On your second question, it should be taken seriously. I don’t think that prior to Cicinelli’s arrival, the cops were taking it seriously. They were trying to shift him into a position in which they’d feel 100% safe and he would have been able to breathe. It’s after Cicinelli’s attack that all hell broke lose. If the department had a policy that when someone is struggling like that and complains that they can’t breathe, you should just let them go (even though they could theoretically run), it should have been followed. I presume that a copy would be worried that they might go for a weapon, but there must be better solutions than what we saw.
Agreed on point 3.
Why didn’t they cuff him?
Because if Kelly were cuffed they couldn’t beat the life out of him.
That’s one possibility. I see no compelling evidence for it. If I did, it would change the entire way I view the case — but I don’t.
Why do you think that Ramos was telling Kelly to relax and move his arms behind him?
From what the UCI surgeon and the coroner were saying and if their testimony was not refuted in court, couldn’t you say that what happened to Kelly Thomas from those officers (I am talking about only the officers that was on top of him and Ciciinelli who was beating his face in) is equivalent to as if those officers were drowning him in a body of water? And Cicinelli beating Kelly’s face in hinders him to draw breath.
If Kelly had no way of anchoring himself to be above water, his natural reaction would be to alleviate the force holding him down in the water. In Kelly’s case, he is going to try to get out from under the officers on top of him. He does that by looking like he is resisting, but actually wiggling left to right and vice versa helps him to put air in his lungs as much as he can. And what Cicinelli does either way, is making sure he doesn’t draw breath which we can agree on that he deserves some type of conviction according to your other article,”What Officer Ramos did wrong — and why he’ll be acquitted”. But shouldn’t the other officers that had a part in Kelly’s death based on the coroner/surgeon be held accountable? They made it hard for him to breathe with all that weight on him and the more officers that helped being on top of Kelly, made it that much harder. It is like drowning him.
I am not a lawyer and what I just wrote might be a stretch of logic but I can’t believe those other officers are going to get away with it just because they have a badge. If it weren’t for that, I would think the aiding and abetting laws would be applied for them.
Greg will say, “qualified immunity.” It’s a shame. Of course everything you say makes perfect sense.
The problem with that is if Kelly could not breath he would not be able to speak as well. Although, at a certain pint, Kelly’s voice seems to change. Could this be when his wind pipe was crushed?
Yeah — but they would not necessarily know in real time that that’s what happened. That came after the facial beating. My take on everyone but Cicinelli continues to be: before the beating, the situation was ugly but generally under control and should have been resolved without lasting injury; after the beating, the officers did things that would have been wrong with complete knowledge of the situation, but they didn’t have that knowledge.
I think that I’ve made clear that I think that Cicinelli committed manslaughter.
“.. the situation was ugly but generally under control and should have been resolved without lasting injury ..”
The situation was under control exactly as FPD wanted it to be in order to cause maximum injury to Kelly – they just didn’t count on him dying.
If it could be shown that the FPD — with the exception of Cicinelli — wanted to cause maximum injury to Kelly, then I’d change my opinion. As I say below, that’s what I had expected to see in the video. But — except for Cicinelli — I don’t. If it were true, you’d see lots more beating and shocking and a lot less immobilizing and trying to just shift him into position to be cuffed.
I dismiss Ramos’s “these fists are here to fuck you up” as intimidation used to prevent Kelly from resisting rather than as a declaration of intent. I expect that to be his argument and I expect the jury to agree that they can’t reject it beyond a reasonable doubt.
I don’t like the result — because the bust was sketchy (although technically legal) from the start — but once it turned into an arrest for resisting arrest, I think they have all of the alternative explanation that they need. And no, I am not happy about it.
I think that that’s a good argument; it’s not too much of a stretch of logic; I just don’t think that it will prevail.
I don’t know whether in making that argument you agree with me that had Cicinelli not shown up and did what he did, there’s no reason to believe that eventually they would have gotten Kelly turned over and cuffed and he’d be alive today (although maybe in jail for resisting arrest.)
Their attention was on holding Kelly down — and on what they had to do to deal with someone who responded so strongly to being TASERed. Continuing to hold down Kelly — and was that Cicinelli putting his back against another officer’s back to put more pressure on him? — after what Cicinelli did would have contributed to his death. The question will be: can we conclude beyond a reasonable doubt that the officers were paying attention to what Cicinelli did — not the TASER, but the facial beating — and that they understood its implications the way that we do with the benefit of hindsight?
I think that that’s going to be very hard to prove. They were involved in a struggle with someone who appeared to be using as much power as he could to get away from them. (I agree, he may have just been trying to breathe.) Their training is to prevent him from getting away and probably causing harm. In retrospect, it seems clear that continuing to hold him down was the right call. But was it obviously so — especially to the late arriving officers — in real time?
My guess is that either it wasn’t, or that it would be hard to prove that it was, or that even if it was a consideration for them they would be able to argue successfully that their real time balancing of the interest to public safety (which includes their own safety) have to be respected under the doctrine of qualified immunity.
The evidence of what they said afterwards, while disgusting, would probably be seen as suggesting that they (maybe with the exception of Cicinelli) did not think that Kelly was that badly injured and did not expect Kelly to die. The bruising and swelling present in the grotesque hospital photo wouldn’t be evident to them at that time.
It give me no joy to come to this conclusion, but it’s honestly what I expect to happen. Police are given a lot of leeway here — and generally the public is supportive of that, which makes getting a conviction even more difficult.
Now if we had testimony that some officer saw and processed what Cicinelli did to Kelly’s face, knew that as a result Kelly’s life was in danger from continued chest compression, knew that he posed know real threat to them, but continued to take part in the squashing him because he just didn’t care or actively wanted him dead — yeah, that would justify a murder or manslaughter charge, because that’s going outside of the officer’s actual job. I think that it’s a reasonable prosecutorial call to decide that that’s not just going to happen.
Thank you for the very well-thought out comment — it’s part of what I enjoy about discussing this case here, versus elsewhere.
I dunno GD . . . batons, heavy knees, commenting on blood after the beating, unwillingness to check vital signs, unwillingness to provide aide, unwillingness to retreat after Kelly was obviously subdued (there’s a comment that “he’s falling asleep” in the video I believe) . . . I don’t think you’re giving enough thought to the totality of evidence pointing to negligence.
I think the totality of evidence demonstrates that officer Ramos intended to do bodily harm to Kelly Thomas. I also believe that’s enough to warrant a murder charge as bodily injuries did indeed kill Mr. Thomas. I believe by intending to harm Mr. Thomas, the officers undertook a duty to care, failed to meet any care standard, and at a very minimum, are guilty of negligent homicide (manslaughter). I think a murder conviction is very likely under the CA definition of MII.
I understand your argument, I just don’t expect it to happen. I was recently sent a story about a case with some similarities in Pittsburgh, which largely reflects how these things go. I still may write about it here:
http://www.post-gazette.com/stories/local/neighborhoods-city/zappala-wont-charge-officers-in-jordan-miles-case-636125/
Before Cicinelli’s facial beating, they were using batons (on his legs) and knees to subdue him in a relatively low-violence situation that was moving towards completion. (I know that the earlier, “rousting” part of the video is disgusting to people, as it should be, but I think that people who are below middle-class recognize that this is nothing that unusual.) If you think that that won’t fall under qualified immunity, I think you’re mistaken.
Commenting on blood after the beating is irrelevant to murder.
If there is case law saying that officers have an affirmative duty to check vital signs and provide aid after subduing someone, that might change my analysis, but I don’t expect to find that they do.
I think that “obviously subdued” argument won’t work pre-Cicinelli, where they had made a decision — one that I disagree with, but one that I think is accepted by current law and then-FPD policy — that until he was face-down on the ground with his hands behind his back he was not “obviously subdued.” After Cicinelli, they were dealing with someone who was struggling with them with all of his strength — and for damn good reason — and so I expect that they will argue (successfully) that they could not be expected to process his being “obviously subdued” in real time.
I don’t recall the “falling asleep” comment; do you know the time stamp?
“Negligence” rules out murder — and in any case does require a duty of care. If their intent was to subdue him within the limits of their legal right to act as police, then that rules out intention to cause bodily harm.
If Ramos had beaten him before he was in essence under arrest, I might agree with you; if he had beaten him when he was trying to get him to relax and put his arms behind his back, I might agree with you too.
You’re asking the right questions. Before I watched the video, I had expected to see evidence that they actually wanted not just to scare him into quiet compliance, but actually wanted to hurt him. For all but Cicinelli, I just don’t think that the evidence is compelling. They wanted to arrest him in complete safety. They didn’t try to beat him down like Rodney King — except for Cicinelli, to whom I think your analysis applies because HE went far beyond reasonable use of force. So: for him, manslaughter.
The DA stated Ramos set the wheels in motion or something to that effect. What does that mean? And can the 2nd degree murder charge still hold?
GSR said: “.. I don’t particularly give a shit about your take!”
You should give a shit about Diamond’s take GSR, because that is the take that the defense is going to use.
The Weekly ran a story back in February on Ramos’ attorney and why he thought his client would be cleared and not convicted. I read it, weighed the argument with the knowledge of how difficult it is to gain convictions in these cases and made an intellectual assessment based upon it.
I know what Diamond is trying to do here, but his tone is coming off wrong. (brevity is also helpful) In addition to that, I disagree with the certainty with which he speaks even when presented evidence contrary to his stated positions and understandings. When the spin cycle keeps going, I don’t feel there’s much point to engaging anymore.
His tone is not wrong it is lawyerly … well that could be wrong .. ha, ha.
He is not speaking with absolute certainty – he is considering my opinion.
Diamond is not HARDLY part of the spin cycle.
I don’t mind legalese. That’s not the tone referred to.
His tone is nothing but matter of fact – what don’t you like about it specifically?
Maybe it’s my use of “daft” and “reading comprehension problems.”
Or he may not like that I’m not condemning Ramos and Wolfe enough. I don’t think that the prosecution will get past qualified immunity, but I do think that it’s a rotten person who agrees to engage in rousts.
“Once Kelly was hit with the TASER shock — and then with the TASER itself — the force of his struggling (and the force required to hold him down) intensified.”
Matter of fact? It is actually asserted here that after Thomas was taser whipped multiple times – in the range of view of other officers on the scene — ‘the force of his struggling intensified.’
Did you watch the video? At that point, he started fighting for his life.
Of course I watched the video. After the taser whips, “the force of his struggling” did not intensify. When blows like that are sustained, the very notion that ‘struggling’ intensified defies the capacity displayed. He was helpless with ever weakening cries for help from his dad. He wasn’t fighting for his life, he was descending into unconsciousness.
Can’t have it both ways, unless you give credence to that paradoxical exchange where an officer says ‘Ok, he’s going to sleep’ and another says right after that ‘He’s still fighting.’
This is why I care not for your conclusions.