Gov. Brown Signs Bill Affirming the Right to Film Police in California

As I've previously written here, Californians have the legal right to film police while officers perform their official duties in public as long as the citizen does not obstruct or interfere with the performance of those duties.

In 2015, Gov. Brown signed SB-411 into law, which amended the Penal Code to specifically affirm the right of citizens to film police.  Sections 69 and 148(a)(1) now includes the following language: "The fact that a person takes a photograph or makes an audio or video recording of a public officer or peace officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation of [this code], nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person."

The law was drafted by the California Public Defenders' Association and supported by the ACLU and other civil rights groups.  There was no organized opposition.  Practically, the change will has legal effect.  The act of filming police in public has always been legal in California (in the sense that it has never been illegal).  This bill merely clarifies and restates existing law.

If you have questions about your rights during encounters with police, call our office for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading.  

Fullerton Criminal Defense Attorney

Why Privacy Rights Still Matter

Disclosures regarding the NSA's secret spying program have recently raised some debate in the United States over privacy rights and their limits.  How much government intrusion is too much and how should we balance the state's legitimate "need to know" against an individual's reasonable expectations of privacy?

The Fourth Amendment to the US Constitution assures our right to be free from unreasonable searches and seizures.  Critics of the Fourth Amendment often claim that it only protects the guilty.  "If you aren't doing anything illegal, then what do you have to hide?", they ask.  There are lots of compelling responses to this stupid question, but perhaps the best defense of the Fourth Amendment was recently illustrated by the case of a New Mexico man named David Eckert.

Eckert was pulled over by police for failing to make a complete stop at a sign as he pulled out of a Walmart parking lot.  An officer noticed that Mr. Eckert appeared to be clenching his buttocks. Clenched butt cheeks can only mean one thing, police reasoned: Eckert must be transporting marijuana inside his rectum (because that's where people keep it?).  This was the "probable cause" that cops cited in obtaining a warrant to perform a 14-hour-long series of invasive cavity searches on their suspect.  

Police transported Eckert to an area hospital for exams.  Doctors initially refused to perform the requested procedures, citing medical ethics.  Officers then took Eckert to the Gila Regional Medical Center, where other doctors apparently had no such ethical objections.  

First, doctors performed x-rays of Eckert's lower abdomen.  No contraband was located.  

Then, doctors probed Eckert's anus with their fingers.  No contraband was found.  

Then, just to be safe, doctors probed Eckert's anus again with their fingers.  Still no contraband.  

Next, Eckert was subjected to an involuntary enema.  He was forced to defecate in front of doctors and police.  Police searched his stool for signs of contraband, but none was found.  

After that, doctors forcibly inserted an enema into Mr. Eckert's anus a second time.  Again, he was made to defecate in front of the doctors and police.  Again, no contraband was found.  

Can you guess what happened after that?  If you guessed "Eckert was forcibly subjected to a third enema", you're right!  Still no contraband.  

Now, after spending the better part of their afternoon elbow-deep in Mr. Eckert's colon, lesser doctors might have reasonably concluded that their patient was not hiding any contraband, at least not inside his rectum.  But these guys didn't get to be doctors by quitting when the going got tough. 

Mr. Eckert was then subjected to another x-ray of his abdomen.  Still no contraband.  

Finally, Eckert was prepared for surgery and sedated.  Doctors performed an involuntary colonoscopy to inspect the lower portion of his digestive tract.  No contraband was ever located.  

Mr. Eckert's only crime was failing to make a complete stop at a sign.  Police, acting on no more than a hunch, were able to obtain a warrant from a judge, authorizing a series of highly invasive "medical procedures", supposedly justified by some serious risk to public safety (suspected possession of marijuana).  Just imagine how police might have treated Eckert if he were suspected of something that was actually dangerous.

Some people will say that this type of government intrusion is making us safer by reducing the risk of a terrorist attack.  I'd rather take my chances.

If you or a loved one have questions about invasive police searches and your constitutional right to privacy, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Criminal Defense Lawyer 

A Plea for Restraint

Attorneys finished presenting their closing arguments in the Kelly Thomas murder trial this morning.  Manuel "Manny Man" Ramos and Jay Cicinelli are each charged in the beating death of the 135-pound homeless man in Fullerton.  Ramos is accused of murder and manslaughter.  Cicinelli is accused of manslaughter and using excessive force.

The fates of both defendants are now in the hands of the jury.  Deliberations are likely to take several days.

It's hard to believe that 2 1/2 years have elapsed since Kelly's death.  In that time, Kelly's Army has shaken the bases of power in Fullerton, California.  Sustained protests forced Fullerton's Chief of Police to resign, 3 city council members were recalled from office, a grand jury indicted 3 police officers for their roles in the beating, the public image of the FPD was irreparably tarnished as this scandal shed light on the culture of corruption within its ranks, and the District Attorney took the unprecedented action of filing murder charges against an on-duty cop.

As this story nears its culmination, I wanted to take a moment to urge Kelly's Army to exercise restraint, however the jury rules.  Of course, any rational human with a heart and half a brain is crossing his fingers for convictions.  Convictions are the only way to start the process of closure for the Thomas family and for all the citizens of Fullerton.  Guilty verdicts are going to be necessary first steps toward rebuilding our trust in the FPD, protecting our most vulnerable and ensuring that this type of official abuse never happens again.

If the jury votes to convict, I want to urge Kelly's Army to restrain their celebrations.  Guilty verdicts will be a fitting conclusion to this story.  They'll represent the justice that we've all been screaming for since the story broke.  But celebrations still don't feel appropriate.  Kelly is still gone and the damage is still done.  Please show respect for the Thomas family by curtailing inappropriate celebration if the jury votes to convict.

Similarly, if the jury votes to acquit, I want to urge Kelly's Army to direct their anger towards the ones who were responsible and not elsewhere.  Out-of-town instigators should stay home and smash their own windows.

Update: Week 1 of the Kelly Thomas Murder Trial

I had an opportunity to sit in on part of the Kelly Thomas murder trial this morning, currently underway in Department 40 of the Santa Ana Courthouse.

Kelly Thomas is the mentally ill homeless man who was beaten to death by the Fullerton Police in July of 2011.  Officer Manuel Ramos is accused of murder and manslaughter in the case.  Corporal Jay Cicinelli is accused of manslaughter and excessive force.

So far, prosecutors have presented the case chronologically, in the order that events transpired on the evening of July 5, 2011.  The district attorney presented the synchronized audio / video that captures Kelly's last moments.  The audio recording of the confrontation includes threats of violence that Ramos directed at Kelly.  Those threats, the DA contends, escalated an otherwise-mundane encounter into a fatal one.  Prosecutors then called various first-responders, who described the scene immediately after the beating.

Today's proceedings included testimony from Captain John Zillgitt of the Fullerton Fire Department.  He was the lead paramedic responsible for overseeing the team of EMTs who loaded Kelly into the ambulance.  He stated that Kelly was unconscious and "hobbled" when he arrived -- Kelly's handcuffs were attached to his ankles.  "There was a volume of blood matted in his facial hair", said Zillgitt.  He further testified that Kelly's heart stopped while he was being transported in the ambulance and EMTs began performing CPR on their way to St. Jude Medical Center.

Dr. Aruna Singhania, forensic pathologist with the Orange County Coroner, also testified about Kelly's autopsy.  She determined Kelly's cause of death to be "anoxic encephalopathy [lack of oxygen] due to mechanical chest compression along with blunt cranial and facial injuries".

The jury is comprised of 12 jurors, plus 4 alternates.  I could not determine which of the 4 jurors were alternates based on where they were seated.  Of the 16, 6 are male and 10 are female.  They include 1 Asian male, one Hispanic male, and one Asian female.  The rest are Caucasian (the jury is overwhelmingly Caucasian and female).  

I will continue to attend as much of the trial as I can.  There were open seats in the courtroom today.  Members of the public are welcome to attend.  The Thomas family appreciates any support.  Trial will resume tomorrow at 8:45 AM in Department 40 of the Santa Ana Courthouse.  Stop by if you're in the area.  

Stay tuned for updates as they become available.  Thanks for reading.  

Kelly Thomas Trial Date Approaching

The trial of Fullerton police officers Manny Ramos and Jay Cicinelli is now scheduled to begin in Department C-40 of the Santa Ana Courthouse on December 2, 2013.  Members of the public are encouraged to attend.

Officer Ramos and Corporal Cicinelli are accused in the 2011 beating death of transient Kelly Thomas, pictured, at the Fullerton Transit Center.  Kelly was severely beaten by six Fullerton police officers on the evening of July 5, 2011.  He suffered severe injuries, including facial fractures and broken ribs.  Kelly never regained consciousness.  He died after being removed from life support five days later.

The incident was captured by both audio and video recorders.  Ramos is accused of provoking the fatal encounter by threatening Kelly with unlawful force.  At one point in the recordings, Ramos can be seen putting on latex gloves.  He says to Kelly, "See these fists?  There's getting ready to fuck you up".  As Kelly gets up and attempts to run from Officer Ramos, Officer Joe Wolfe strikes Kelly with a baton.  Wolfe and Ramos quickly take Kelly to the ground as more police arrive to assist.  Corporal Cicinelli deploys his taser several times, then begins striking Kelly repeatedly in the face with the butt of his weapon.  Six officers dog pile onto Kelly and continue their assault until Kelly stops breathing.

After Kelly lost consciousness, the officers made no effort to provide medical attention.  Even as the homeless man lay dying in the parking lot, officers prevented emergency responders from rendering aid to him.

Kelly's death helped to expose a "culture of corruption" within the Fullerton Police Department.  Several other incidents were later revealed in which Fullerton Police had used excessive force, fabricated reports, suppressed exculpatory evidence, and engaged in acts of dishonesty.  Chief Michael Sellers was forced to "resign" in the wake of the investigation.  Fullerton voters also held a special recall election, in which 3 council members were removed from office for their roles in the scandal.

The Fullerton Police Department has a long way to go if it hopes to restore the public's trust.  "Guilty" verdicts for Ramos and Cicinelli will be a crucial first step in the healing process, both for the City of Fullerton and for the Thomas family.

The defense is expected to make two key assertions.  First, they will argue that Kelly caused his own death by refusing to follow the commands of officers and by attempting to flee.  Attorneys will claim that the officers used the appropriate degree of force to restrain a violent, dangerous individual and that their force would have ended immediately upon Kelly's compliance.  Secondly, the defense will likely argue that the cause of Kelly's death cannot be determined with any reasonable degree of certainty and that some reasonable doubt must, therefore, exist.

Stay tuned for developments as they become available.  I will try to attend as much of the trial as possible.

Can I Legally Film the Police in California?

Update:  Gov. Brown signed SB 411 into law on 8/11/15.  This bill specifically states that the act of filming police in public is not illegal and should not be the basis for arresting or detaining a person.  SB 411 does not create any new rules, but merely affirms and restates existing law.  For more information, click here.  

The simple act of filming police while they perform their official duties is protected by the First Amendment. The recent proliferation of cheap, ubiquitous video cameras has had a major impact on the way police do their jobs.  Cops know that any contact with citizens can quickly go viral on the internet, for good or for bad. Police are more likely to act professionally when they know that they will be held accountable for their actions.  So film away, post it to Youtube, get a million hits and become an internet celebrity.  If the cops give you any shit, tell them I said it was OK. 

The right to film the police has been consistently affirmed by the courts, most recently in the case of ACLU v. Alvarez, 679 F.3d 583 (2012).  There, the ACLU successfully won an injunction to prevent enforcement of an Illinois eavesdropping statute.  The law prohibited any recording of any conversation unless all parties consented to the recording, regardless of where the conversation occurred or whether the conversation was clearly audible to the public.  The ACLU regularly monitors police activity in Chicago to deter and document official misconduct.  They argued that the Illinois law unconstitutionally prohibited them from documenting public conduct, thereby infringing upon their right to free speech.  The Federal Appellate Court agreed.  

People get themselves into trouble, though, when "filming the police" becomes "interfering with police".  As discussed above, you have a right to document the cops.  In fact, please do.  You do not have a right, however, to waste their time.  Police are paid by the hour.  Their salaries come from our taxes.  When you waste the cops' time, you waste everyone else's tax dollars.  That being said, you may not delay, obstruct or interfere with official police conduct in any way.  When you stick a camera in a cop's face, believe me, he is itching for a reason to take you to jail. Section 148(a)(1) of the California Penal Code gives him the authority to do so if he believes that you are making his job more difficult or more time-consuming than necessary.  

I spoke with a few current police officers (who wish to remain nameless) while researching this piece.  I got the impression that each of them understood and respected the constitutional right to film official public conduct. Like most people, though, cops do not appreciate anyone making their jobs more difficult than necessary. Unlike most people, these guys carry both guns and badges. Piss off a fry cook and you might get a loogie in your hamburger.  Piss off a cop and you might BE a hamburger.  Here are some helpful tips that they offered for anyone who wants to film the police without being beaten and thrown in jail:

-Do not interfere with their official duties.  The rest of these rules are basically different ways of reiterating this first commandment. 

-Stay out of their way.  They need space to do their jobs.  If you crowd them, them will "feel threatened", and we know what happens when cops "feel threatened" (see previous posts re: Kelly Thomas).  

-Don't ask them a bunch of questions while they are trying to work.  Don't complain about how they're doing their jobs, and don't tell them that they're using excessive force.  Document it, get it on film, and complain to their supervisors later, but always remember the first rule.  

-If you intentionally provoke the police, don't be surprised if you get the reaction that you're looking for.  Maybe have someone else hold the camera for this part.  

If you or a loved one is hassled for filming police (or arrested for interfering / resisting), call my office at (714) 449-3335 for a free consultation.  Ask for John.  

Good luck out there and thanks for reading.  Remember, don't give the cops anything to do.

Orange County Resisting Arrest Attorney

Use of Force by Police During the Dorner Standoff: Legally Justified?

This past Tuesday, February 12, deputies from the San Bernardino County Sheriff's Department cornered fugitive murder suspect Chris Dorner in a Big Bear vacation cabin.  Dorner had been on the run for nearly a week after allegedly murdering two people in Irvine and then shooting two police officers in Riverside, one of whom later died from his wounds.  After being surrounded in the cabin, he apparently attempted to shoot his way out at least twice, fatally wounding another officer.  Details are still emerging about the precise timeline of events in the standoff that followed, but it appears that the SBSD eventually opted to deploy some heavy-duty CS gas into the cabin.  Within minutes of deploying the incendiary gas, the entire structure became engulfed in flames.  No attempt was made to extinguish the blaze as the cabin was consumed by the fire.  A body later discovered in the burned out rubble was determined to be Dorner's.

The usual cast of characters has now squared off to allocate blame / thanks / condemnation / praise.  The "back-the-badge" crowd has lauded the bravery of the heroes who selflessly gave their own lives to protect ours.  The good folks over at CopBlock.org blame the militarization of police in general for this debacle.  They accuse the SBSD of acting as judge, jury and executioner and question whether or not any effort was really made to take Dorner alive.

I want to spend some time analyzing the use of force by police in this situation to determine whether or not the burning of the cabin was legal or justified.  Of course, the San Bernardino County Sheriff John McMahon has publicly denied that his deputies intended to ignite the fire.  Transcripts from police scanners at the time contradict this official explanation.  Just before the incendiary gas canisters were deployed, officers were heard saying over their radios, "We're going to go forward with the plan, with the burner...seven burners deployed...and we have a fire".

Of course, not enough information has been made public to determine whether or not the Sheriff's Department started this fire intentionally.  For the sake of discussion, let's assume that they did, or at least that the SBSD knew that launching CS gas into a wooden cabin was likely to ignite a deadly blaze.

First-hand witness accounts also suggest that Dorner actually took his own life with a single self-inflicted gun shot to the head as the cabin burned around him.  I realize, therefore, that Dorner was not DIRECTLY killed by police.  Based on the limited information available, we can surmise that the fugitive died at his own hand, but that the SBSD also deployed their own "lethal force", and it is this use of potentially lethal force by police that I want to examine.

So assuming that the SBSD either intentionally lit the blaze, or else simply ignored the known risks that are inherent when igniting a flammable gas inside a flammable structure (the definition of "recklessness"), was that use of deadly force "legal" or "justified" under the circumstances?  Let's look at the laws.

Starting with the obvious: murder is illegal, even if committed by the police (see previous posts re: Kelly Thomas).  Of course, not all killing is "murder".  There are many circumstances under which police may lawfully employ deadly force in dealing with dangerous fugitives.  CALJIC 5.26 reads in relevant part:

Homicide is justifiable and not unlawful when committed by a public officer...when necessarily and reasonably committed in arresting any person charged with a felony, and who is fleeing from justice or resisting arrest.  

Now we break that down, element by element:

"Public Officer" includes any law enforcement personnel, like deputy sheriffs and local police.

"Necessarily and reasonably committed" is up for some argument.  Were any other options available to the officers?  This is a question that I'm not equipped to answer.  Considering that the cornered fugitive allegedly fired hundreds of rounds at the police during the standoff, killing one, I think that a judge is extremely unlikely to second-guess the tactical decisions of commanders on the ground.  Daylight was fading and officers feared that Dorner might have night-vision goggles, which could have given him a major advantage in the dark.

"Charged with a felony" is pretty self-explanatory.  The District Attorneys from both Riverside and Orange County had filed murder charges against Dorner before the standoff began.

"...who is resisting arrest" also seems pretty well-established.  Again, Dorner was actually shooting at officers who had the cabin surrounded.  He had already killed two other officers during the manhunt and had demonstrated his intent to kill others.

Based on the letter of the law, I believe that the police were legally justified in using deadly force against Dorner.  I am not a tactical expert and have never served on a SWAT team, so I will leave all counter-factuals to other armchair quarterbacks.  Rather than arguing the strategic merits of burning down the home, I want to focus on the law of the matter.  Did the police "murder" Dorner (or at least break the law by intentionally employing deadly force)?  I don't believe that they did.

Mark your calendars: I am defending the police here.  And I'm not alone on this one.  David Klinger is a use-of-force expert at the University of Missouri at St. Louis.  He told the LA Times, "What difference does it make if one of the officers puts a round in his head, drives the armored vehicle over his body when they're knocking the building down, or he dies in a conflagration?  If he is trying to surrender, you can't do any of those things.  But if he is actively trying to murder people, there's no doubt that deadly force is appropriate and it doesn't matter which method is used to deliver it".

Sorry, CopBlock.org.  No hard feelings, just the law.  I gave you a couple links if that helps.

Am I missing the point?  Feel free to comment below.  Thanks for reading.

Three Little Piggies Went to Court

Three of Fullerton's Finest appeared this morning before Judge Froeberg in Department 40 of the Orange County Superior Court.  The case had been scheduled for a "995 Motion" (more on that below).  After taking brief statements from District Attorney Tony Rauckauckas and counsel for each of the defendants, parties stipulated that the hearing would be continued to January 18.

Officer Manny Ramos (top left) stands accused of Murder and Involuntary Manslaughter.  Corporal Jay Cicinelli (top right) is accused of Involuntary Manslaughter and Assault & Battery by a Police Officer.  Officer Joe Wolfe (bottom) faces the same charges as Cicinelli.  All three are accused of causing the death of mentally ill homeless man Kelly Thomas during a brutal confrontation last July at the Fullerton Transit Center.  The beating was captured on city-operated cameras.  During the beating, Kelly can be heard crying for help and repeatedly apologizing to the officers before he takes his last breath.

Ramos is accused of instigating the confrontation by threatening Thomas.  At one point in the video, Ramos is seen putting on latex gloves.  He says to Thomas, "See these fists?  They're getting ready to fuck you up."  At one point after receiving the threats, Thomas attempted to run from Ramos.  Officer Wolfe was the first to strike Thomas with a baton, quickly taking the 130-pound Thomas to the ground.  Cicinelli arrived on the scene after the beating had already begun.  Cicinelli deployed his taser into Thomas several times, then began using the butt of the weapon to pound the victim in the face repeatedly (I suspect Cicinelli is going to learn something about "butt pounding" where he's going).  Cicinelli can be heard on the audio recording saying "I just started smashing his face to hell".  Thomas died after being removed from life support 5 days later.

As I have explained in prior posts, every felony defendant has a right to a "probable cause" hearing.  The purpose of this hearing is to determine whether or not there is enough evidence that a reasonable jury MIGHT possibly vote to convict.  If there is not, we should stop wasting the court's time and the case should be dismissed.  If there is, then we must start preparing for an eventual trial.

There are two ways for the court to determine whether or not "probable cause" exists.  The first and most common way is by conducting a "preliminary hearing" (also commonly referred to a "preliminary examination", "prelim" or just "PX").  At the PX, the DA will present most of their case-in-chief.  Typically, an investigating officer will take the stand and say something like this: "I received a call of a domestic disturbance.  When I arrived at the residence, the victim had a bloody lip and the suspect had blood on his hands.  Witnesses told me that the suspect had punched the victim, so I arrested the suspect.".  After hearing the evidence, a judge will typically find that probable cause exists and the defendant is thereafter "held to answer" to the charges.

The other (and must more rare) way for probable cause to be established is by a Grand Jury.  The Grand Jury is group of volunteers who sit on the panel for one-year terms.  They meet in secret to review the facts and to decide whether or not sufficient evidence exists that a suspect could be convicted of a particular crime.  If they decide that probable cause exists, the defendant is thereafter "indicted" for the crimes.  The Grand Jury is more expensive and time-consuming than the PX, so it is only used in very sensitive cases or cases wherein the suspect is a public figure.  The DA may be reluctant to publicly charge a politician with some wrongdoing unless he is confident that the charges will actually stick.  In cases like these, prosecutors can opt for the secrecy of the Grand Jury rather than the usual PX.

In this case, Ramos and Cicinelli were initially charged in the typical manner.  They were publicly accused and subjected to a PX.  After hearing the evidence, a judge determined that probable cause existed and both were thereafter "held to answer" for their crimes.  Wolfe, however, was indicted by the Grand Jury several months later.  This, to me, suggests that DA Tony Rackauckas was reluctant for some reason to publicly charge Wolfe with the serious crimes alleged.  Rather than risking a political firestorm by filing excessive charges and running the risk that some could be dismissed, he instead opted for the Grand Jury route.  If the Grand Jury had determined that there was no probable cause, Officer Wolfe would never be charged and could be spared the public embarrassment of such an accusation.  Of course, the Grand Jury did return an indictment and Wolfe now stands next to Ramos and Cicinelli as all three await trial.

We know that 5 Fullerton Police Officers were involved in the beating that killed Kelly Thomas.  Many in the community have called for charges to be brought against the remaining two, but the DA has declined to do so.  Of course, we will never know if Rackauckas has presented those cases to the Grand Jury.  It is entirely possible (pure speculation) that the DA HAS presented those suspects to the Grand Jury and the Grand Jury has declined to indict because they found no evidence of wrongdoing.

Long story short, probable cause has now been established against all three accused officers.  Their defense attorneys have filed documents called "995 Motions".  A 995 Motion essentially asks the judge to dismiss a case after the PX if a defendant has been unlawfully "held to answer".  The defense is arguing that errors were made at the prelim (or, in Wolfe's case, at the Grand Jury) and that probable cause was found where none actually existed.  The 995 is always a long-shot and never really very likely to succeed.  Failing to file the motion would probably be considered malpractice on the part of the defense attorneys, though.  It's kind of a proverbial "shot in the dark", but one worth taking.

Today had been the day for argument on the 995 motions.  Defense attorneys for the accused asked the judge for more time, however, because the evidence is voluminous and the issues are complicated.  By stipulation of the parties, it was agreed that argument would be postponed until January 18, 2013.  Ron Thomas, father of the victim, addressed the court to oppose the continuance, but Judge Froeberg allowed the delay over Mr. Thomas' objection.

The defendants exited the courtroom immediately after the ruling.  They were flanked by a large group of family and supporters, including armed escorts.  An overweight Hispanic woman, presumably Ramos' wife or a female relative, was seen taunting Kelly's family as the crowd spilled into the hallway.  Ramos laughed and told her "You're funny" as he stepped into the elevator.

Check back on January 18 more another exciting update to the saga.  I will continue covering this story until there is justice for Kelly Thomas.

Restore Accountability - Support the Fullerton Recall

Update: On June 5, 2012, Fullerton voters overwhelmingly chose to clean house.  All three council members facing recall were shown the door.  "Yes" votes outnumbered "No" votes on the recall by a margin of 2-1.  Travis Kiger, Greg Sebourn and Doug Chaffee will replace F. Dick Jones, Pat McKinley and Don Bankhead.  Congratulations, Fullerton!

Fullerton, California has grappled with an abject failure of leadership over the past decade or so.  For many of us, the tipping point came with the beating death of unarmed homeless man Kelly Thomas on July 5, 2011 (for more details regarding Kelly's murder at the hands of the Fullerton Police Department, see previous posts).

Kelly's death and the subsequent cover-up are not the only reasons that Fullerton needs a change of leadership, they're just the straws that broke the camel's proverbial back.  Below, I've outlined several reasons that F. "Dick" Jones, Pat "McPension" McKinley and Don Bankhead need to go.

The Death of Kelly Thomas

Unless you've been manning the Space Station for the past year, you're probably familiar with the details of Kelly's murder.  In brief, he was detained by the Fullerton Police Dept. on July 5, 2011 on suspicion of burglarizing parked cars.  During the encounter, Officer Manny Ramos became frustrated that Kelly had difficulty complying with his orders, at one point stating "See my fists? They're getting ready to fuck you up".  Kelly tried to run but he was quickly taken down with batons and tasers.  In the beating that followed, Kelly sustained mortal injuries.  He died after being removed from life-support 5 days later.

Councilman (and former Chief of Police) Pat McKinley later bragged about having personally hired the officers involved in the beating.  Here is on CNN defending the killers.  While council members Bruce Whitaker and Sharon Quirk-Silva were quick to condemn the actions of these rogue cops, McKinley, Jones and Bankhead did everything in their power to try to excuse the inexcusable.  Whitaker and Quirk-Silva bravely and publicly called for the release of all relevant information regarding the investigation, including the city-operated surveillance tapes.  The Three Blind Mice (copyright Friends for Fullerton's Future) dragged their feet and downplayed the egregiousness of the officers' wrongdoing.  When DA Tony Rackauckas announced that 2 of the cops involved would face criminal charges, Jones called it "a tragedy for the officers".  Bankhead, also a former Fullerton cop, has consistently refused to take any action that might be contrary to the interests of his bosses within the Fullerton Police Officer's Assn.

Despite the Fullerton Police Department's well-documented track record of misconduct (see fullertoncops.com), the 3 council members facing recall have each done their part to resist meaningful reform.  They are each so utterly dependent upon campaign funding from the cops' union that they no longer represent the interests of the citizenry.

The FPD has lost our faith and the 3 Spent Cartridges have chosen to side with their union bosses over the electorate.  Go to the polls on June 5 and let them know how you feel about that decision.

Illegal Water Tax

Article XIII D, section 6(b) of the California State Constitution prohibits local governments from charging utility rates which exceed the costs of actually delivering the utility.  Basically, the city government may not profit by selling us water.

Of course, building and maintaining a water delivery infrastructure is expensive.  There are reservoirs, pumping stations, main pipes, administrative costs, etc.  Cities may (and most do) contract with a third party to actually deliver the water, and then pass those costs along to ratepayers in the form of a "franchise fee" on their water bills.  This is legal.

The City of Fullerton does things a little differently.  Since the city actually owns all of the water delivery infrastructure, there is no "franchise fee".  To offset the costs of water deliver, the city simply imposes a 10% surcharge onto our water bills, known as the "in-lieu-of-franchise-fee" (hereinafter, the "ILFF")

The revenue generated by the ILFF is then siphoned from the city's Water Fund and reallocated to the General Fund (coincidentally, the same fund that is used to pay council members' generous pensions).  It quickly becomes apparent why the council has a vested interest in assuring that this revenue stream keeps flowing.  Pun very much intended.

The problem is twofold: 1) The 10% figure is purely arbitrary.  It's a big, round number that someone pulled out of the air because it was easy to calculate.  It does not accurately represent the actual costs of water delivery.  2) It appears on its face to be an illegal, revenue-raiser.

Since the council has become dependent on milking the ratepayers to fund their own pensions, they have no incentive to provide any accurate audit of the actual costs of water delivery.  According the city's internal review (not conducted by CPAs in accordance with any GAAP), the true costs of delivering the city's water hovers somewhere around 6.7 % of the total cost rather than the previously-assumed 10 %.  This 6.7 % includes the costs that city pays to itself to rent office space in buildings that the city owns (huh???).  Accepting the generous 6.7 % figure, the city has overcharged water users by about $27,000,000.00 since 1997.  This money has been diverted from its intended purpose (maintaining and rebuilding our crumbling infrastructure) and redirected into the pockets of the city's leaders and public employees unions.

Something We Can All Agree On

Liberals and Conservatives, Progressives and Libertarians can all agree that Fullerton needs a change at the top.  Our police department has abused our most vulnerable citizens with impunity.  Spending is out of control while critical infrastructure crumbles.  The elected leaders continue to line their own pockets with generous pensions while the ratepayers are bilked on water fees.  Our representatives on the City Council have been bought and paid for by public employees' unions.  They work for their union bosses, not for us.

On June 5, vote for change.

Fullerton: Come for the Nightlife, Stay for the Abusive Police

Recently, it seems that Fullerton, CA has become a shining beacon of police corruption.  Kelly Thomas put the town on the map (and the international news), but he's not alone among the long and growing list of those unfortunate enough to cross paths with Fullerton's Finest.

This week, we've added two more chapters to the story that just won't end.

Ofc. Vince Mater was finally charged with vandalism and destruction of evidence for his role in the custodial death of Dean Gochenour.  Gochenour, 52, was arrested around 9:45 PM on April 14, 2011 on suspicion of DUI.  Mater transported Gochenour to the FPD's jail, where the suspect was turned over to jailers for booking.  Some time around 11:30 PM, Gochenour's lifeless body was discovered hanging inside his holding cell.  Immediately upon learning of the death, Mater allegedly destroyed his department-issued Digital Audio Recorder (DAR), which would have contained audio recordings of his encounter with Gochenour.  According the DA's press release, Mater smashed the device against a steel door at the police station and removed the circuit board to ensure that nothing on the tape would ever see the light of day. Mater is not accused of murdering Gochenour and nothing indicates that he was personally responsible for the death.  Rather, it appears that Mater ignored repeated comments made by Gochenour indicating that he intended to kill himself. 

Mater is due in court on March 26 for his arraignment. 

Interesting side note:  Mater had previously been identified by the OCDA's Office as a "Brady Cop".  A Brady Cop is a police officer whose credibility has been so tarnished that he cannot be relied upon to testify truthfully at trial.  Once an officer is tagged as a Brady Cop, his or her value is basically reduced to that of a paperweight with a generous pension (and a gun).   

Our second story of the week actually involves an LAPD officer who made his home in Fullerton, presumably because of town's affinity for crooked cops.  Sgt. Joshua Jinwook Chong, 41, is facing a felony charge for making criminal threats against an ex-girlfriend, as well as two misdemeanor charges related to making harassing phone calls. 

Salvador Hernandez of the OC Register writes:

According to prosecutors, Chong sent several text messages to the woman on Oct. 17, 2011, in which he threatened to kill a male friend of hers. Later that night, he called her and allegedly threatened to kill her.


The woman decided to stay at a friend's home, and Chong is accused of calling her more than 25 times on Oct. 17, 2011, and the following day.

The woman reported the incident to the California State Fullerton Police Department, and Chong was arrested the same day.

Chong is out of custody after posting $50,000 bail.

...and Fullerton's proud history of police corruption grows a little longer.  Stay tuned for updates as they become available.  

Killer Cops Appear for Routine Hearing

(Alleged) Killer Cops Manny Ramos and Jay Cicinelli appeared before Judge Erick L. Larsh this morning in Department C-55 of the Orange County Central Court in Santa Ana.  The matter came on for a routine pre-trial conference, at which the status of discovery was discussed and more hearings were scheduled. 

Several members of "Kelly's Army" began congregating in the hallway outside the courtroom by 8:15 AM.  Some held signs reading "J4K Justice for Kelly".  Ramos and Cicinelli walked into the courtroom at 9:00 AM, flanked by family, security and their defense team. Both were dressed in dark suits and sat quietly at the back of the room until their cases were called.  At one point, it appeared that Cicinelli made eye (singular) contact with Kelly's supporters. 

The case was set for a Pre-Preliminary Hearing (referred to by attorneys as a "Pre-Pre") on December 16.  The Pre-Pre is another brief appearance at which attorneys will meet to discuss their readiness to proceed to the Prelim stage and estimates re: how long the Prelim should take.  For more discussion of the Prelim and its significance, see "Killer Cops Due Back in Court", below. 

The defendants spoke little during the quick appearance, answering "Yes sir, your honor, I agree" when asked if they consented to the continuance. 

Ramos held his wife's hand as deputies escorted him from the building.  On the way out, he was seen joking and laughing with his family.  Apparently, something about the whole situation is hilarious to him.  Well, it's about to get a lot funnier.

Killer Cops Due Back in Court

Killer cops Manny Ramos and Jay Cicinelli are due back in Santa Ana court this Friday for a pre-trial conference.  In case you've been hibernating or manning the space station for the past 4 months, these are the same goons who brutally beat Kelly Thomas to death on July 5, 2011.  Mr. Thomas was a 37-year old homeless man who suffered from severe mental illness. 

On the evening in question, Fullerton Police received a call referencing a suspicious subject in the parking lot of the Fullerton Transit Center.  The caller (who has never been identified, although various reports indicate may have been a manager at the SlideBar) reported that the man might be attempting to break into parked cars. 

Officer Ramos responded to the call with his partner, Officer Joe Wolfe.  According to the digital voice recorders worn by the officers, as well as various security cameras, Officer Ramos repeatedly ordered Kelly to sit on a curb with his legs crossed and his hands behind his back while the officers searched the contents of Kelly's backpack. 

Due to Kelly's severe mental illness, he had difficulty complying with the officer's orders and repeatedly uncrossed his legs.  At some point during the confrontation, Officer Ramos put on a pair of gloves and told Kelly "These fists are getting ready to fuck you up".  Reasonably fearing for his safety, Kelly attempted to run.  He was tackled a few steps later and severely beaten.  Bystanders indicate that officers tased Kelly at least 5 times while punching, kicking and choking him. 

Corporal Cicinelli responded to the scene after the confrontation had already escalated into a full-scale beating.  It is alleged that Cicinelli may have dealt the death blow by repeatedly drop-kneeing Kelly in the throat and head, as well as striking Kelly in the face with the butt of his taser.  

This is what Kelly looked like when 6 of Fullerton's finest were done with him:

He was kept alive for 5 days on life support before his family made the decision to remove him.  Mr. Thomas died from a combination of asphyxia and blunt force trauma to the head as a result of the beating and choking he suffered at the hands of the Fullerton Police.  

Kelly has become a symbol of police brutality.  His case has galvanized activists in the normally quiet, conservative town of Fullerton, CA.  His death has also helped shed light on what appears to be a culture of corruption and cover-ups within the Fullerton Police Department.  As of October, 2011, Fullertonsfuture.org reports that no fewer than 9 Fullerton officers were on paid leave while under investigation for various crimes and abuse of authority.  Fullerton cops have recently been arrested for theft and drugs, sued for sexual assault, implicated in several other instances of brutality, and caught committing perjury. 

Partially in response to the public outcry against the officers involved, OCDA Tony Rackauckas announced on September 21, 2011 that Officer Ramos will be charged with 2nd Degree Murder and Manslaughter under the theory that he unlawfully precipitated a series of events that led to Kelly's death. Corporal Cicinelli is charged with Manslaughter and Excessive Force.  Both officers have entered pleas of Not Guilty and both are currently free on bail.  Their defense teams are being paid for the Fullerton Police Officers' Assn. (the police union). 

Both officers are scheduled to appear for pre-trial conferences this Friday, November 4.  The pre-trial conference is typically an opportunity for defense attorneys to sit down with the prosecution and to discuss the possible grounds for an early settlement via a plea bargain.  Nobody expects a plea deal to be reached in this case because the DA has not made any such offers.  Since the prospects for a plea deal are extremely slim, we can probably expect both sides to simply update the court re: the status of any outstanding discovery issues and to set dates for the court to hear motions, schedule further pre-trial hearings to resolve any loose ends, or set a date for a Preliminary Hearing (also referred to as a "Prelim", "Preliminary Examination" or a "Probable Cause Hearing" -- all different names for the same thing). 

Once the case advances to the Prelim, things really start getting interesting.  Everyone who is accused of a felony has the right to a neutral determination of probable cause.  One way this is achieved (the most common way in California) is by a Prelim.  The Prelim is like a little mini trial, wherein the DA spells out their case against a defendant.  Depending on the complexity of the issues, a Prelim can last anywhere from 30 minutes to several weeks.  The DA presents witnesses and puts investigators on the stand.  They explain what they found at the crime scene and how they came to suspect the defendant's involvement in the crime.  After the Prelim, the judge makes a determination as to whether or not continuing forward would be a waste of the court's time.  If the judge determines that there is a good reason to suspect that a crime has been committed and that the defendant is likely guilty of the crime, then the defendant is "held to answer" and the case is one step closer to trial. 

This blog will be closely following any developments in the case and I will try to provide meaningful legal analysis of every stage.  Stay tuned for more news as it becomes available.