Reflections on the Kelly Thomas Acquittals and the Difficulties of Criminally Prosecuting Police Offices for Excessive Violence

Police officers often have to make split second decisions on using deadly force. Their judgments are usually correct, but occasionally in hindsight they are wrong. Sometimes they made obviously bad decisions from the beginning. The intentional beating of a suspect is not a split second life or death situation. Kelly Thomas is a classic example of police brutality, apparent to all but police officers and jurors. An Orange County jury acquitted two Fullerton Police Officers in the brutal beating of a homeless, mentally deranged Kelly Thomas on July 5, 2011. District Attorneys are reluctant to prosecute police officers for the use of deadly force for two reasons. First, DA’s have to work with the police. Second, juries are reluctant to convict officers for excessive force. Indeed, four term Orange County District Attorney Tony Rackauckas had never filed charges against an on-duty officer for the use of excessive force. For example, his office found justifiable use of force when Anaheim officers on separate occasions shot Hispanics. The officers claimed they saw the suspects reaching in their waistband for a gun. They were unarmed. The waistband defense is becoming common in officer shooting cases. The case of Kelly Thomas was different. Not only did DA Rackaukas file charges against three officers, but he also personally prosecuted the case. He was incensed and chagrined by what he saw on the 33 minutes surveillance tape. Kelly Thomas was beaten into a bloody pulp by six police officers. He died five days later in the hospital. An employee of the Slidebar phoned the police saying someone was vandalizing car windows. Bar owners think business is adversely affected if disheveled homeless persons hang out around the bars creating a disturbance. Officer Ramos and other members of the Fullerton Police Department responded. The Officer recognized Kelly Thomas from seven prior incidents. He knew Kelly Thomas had psychological issues. The officers tackled Thomas, hit him with fists, batons, and a Taser, handcuffed him, and left him unconscious. About 15 minutes into the video Officer Ramos puts latex gloves on his hands. He then places his fists in Thomas’ face and says: “Now you see my fists. They’re getting ready to fuck you up.” The schizophrenic Kelly Thomas’ response was “Start punching, Dude.” The violence commenced. Kelly Thomas cried out: “I can’t breath. Dad, help me dad, Help me.” The smackdown continued. Officer Joe Wolfe hit Kelly Thomas’ legs with his baton. Officer Cicinelli Tasered Thomas four times, and then smashed his face 2-8 times with the Taser. The officer said: “We ran out of options, so I got the end of the Taser …. I just started smashing his face to Hell.” Kelly Thomas suffered a fractured face, broken rib and was left brain damaged. He was removed from life support five days later. The jury, after a nearly four week trial, took only seven hours to acquit the two officers. Cathy Thomas, Kelly’s mom, cried out “They got away with murdering my son.” The DA then dropped charges against Officer Wolfe. The Cicinelli and Ramos acquittals are not the first, nor will they be the last, time juries blind themselves to overwhelming video evidence of police brutality. The first was the Ronald King beating on March 3, 1991. Four LAPD officers were acquitted by a Simi Valley jury. A federal jury subsequently convicted two of them for violating Rodney King’s civil rights under federal law. San Bernardino County Deputy Sheriff Ivory John Webb, Jr. pulled over a speeding Corvette in 2006. He ordered the occupants out. Elio Carron, the passenger, was on leave as an Air Force MP in Iraq. He lay prone on the street until Webb ordered him to stand up. Webb shot Carron three times as he started to stand up. Officer Webb was prosecuted for attempted voluntary manslaughter. The jury took only three hours to acquit him. A blatant deadly force case was the fatal shooting of Amadou Diallo, an immigrant from Guinea, in the early morning of February 4, 1999. Four New York City plainclothes officers saw him standing in the vestibule of an apartment house in the Bronx. They thought he matched the description of a serial rapist. The officers approached him. He reached into his pocket to pull out his wallet. An officer called out “Gun.” All four officers opened fire. 51 times! He was struck 19 times. Amadou Diallo was unarmed, standing in the vestibule of his apartment house. The four officers were indicted on second degree murder and reckless endangerment. An Albany, New York jury acquitted them. The subsequent settlement was $3 million. Police officers often stand by their colleagues in false arrest and excessive force cases. Thus, a training officer testified that the two followed the procedures they were taught in the Academy and used by the Fullerton Police Department. I do not believe the Academy’s lessons or the Fullerton Police Department Manual includes beating suspects to a pulp. A key issue in these cases is the admissibility of evidence. The jury and people do not get to hear or see evidence excluded by the judge. Judge Froeberg excluded the personnel files of Cicinelli and Ramos. We do not know what is in them, but the lawyers would probably not have objected unless something incriminating was in the files. Their defense had several prongs. First, as a normal defense tactic, they blamed the tragedy on the victim. He had a history of violence and drugs. Second, they emphasized the difficult job of the officers in patrolling the “dangerous streets” of Fullerton. Third, they claimed a pre-existing heart condition rather than the beating caused his death. Finally, they claimed the officers were simply following standard police procedures. The defendants did not take the stand. Had they done so, they would have been skewered on cross-examination. They will not be able to avoid testifying if a subsequent civil suit goes to trial. The photo of the beaten Thomas went viral, resulting in a large public outcry. The Fullerton Police Chief retired, and three Council members, including a former Chief of Police, were ousted by the voters. They had tried to “whitewash” the tragedy. The Rodney King and Kelly Thomas beatings have a commonality. It’s called “education” in police parlance. A suspect who does not comply with the police order but resists is “educated.” Education means he is beaten until resistance stops, which usually means lying prone. As long as Rodney King and Kelly Thomas continued to squirm, they were ”educated.” “Education” is not a formal lesson in the Police Academy. The defense claimed Kelly Thomas was “uncooperative” and “combative.” Most law enforcement officers are dedicated, responsible officers of the law. A few though, such as apparently Ramos, become emboldened with the power of the badge. They forget that the badge entails duties and responsibilities – to act reasonably as a public servant. The badge is not a license to kill or savagely beat suspects. Cathy Thomas settled her wrongful death suit for $1 million before the trial. Ron Thomas, Kelly’s father, will pursue his wrongful suit against the officers and the City of Fullerton. He seeks justice. Jay Cicinelli feels vindicated by the jury. Thus he wants his job back with the Fullerton Police Department. His defense will cost Fullerton an additional large sum of money by attributing his conduct to Fullerton Police Department procedures. He now wants his job back. He doesn’t get it; the jury doesn’t get it. The District Attorney, citizens of Fullerton and Orange County get it. Fullerton's new police chief doesn't want any of the three back.