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Experts discuss videotaped Calif. use-of-force case involving student

The San Francisco Chronicle reported late yesterday that San Jose Police Chief Rob Davis has “promised a swift investigation into a videotaped incident in which officers used a baton and a TASER stun gun while arresting a college student.” The suspect, who had reportedly threatened his roommate with a knife, claims now that he was struck even after he was handcuffed.

Liability and Litigation Columnist Terry Dwyer told PoliceOne that although the video might ‘look bad’ to the untrained eye, “I certainly wouldn’t want to prosecute a case with this video as my only evidence. We know that videotapes do not tell the whole story.”

Glenn French, a Sergeant with the Sterling Heights (Mich.) Police Department and also a PoliceOne contributor, says that he just hopes the officers’ rights are not railroaded by the press and the public. “We can’t take a way the rights of people we arrest, so why should we take away the rights of the people out there effecting those arrests? These guys are putting their lives on the line every day. The video itself is one sided and one dimensional and you’re only seeing bits and pieces. But the officers’ perspective is different inside that room. Maybe they had a perceived threat that you can’t see in that video.”

Dwyer points out that there will be due process for all the individuals involved. “There’s going to be a review at the departmental level. They’re going to review it, and the DA may take a look at it as well. There’s going to be an injury to prisoner report, and they’re going to look at the injuries, and from what I can tell those baton strikes were delivered to the body, they were not delivered to the head. The verbal commands are quite clear — when he complies, all use of force stops.”

In the Chronicle article, San Jose State University mathematics student Phuong Ho, a 20-year-old from Vietnam said, “I had no weapon, I was on the ground, I was no physical threat to them.”

The problem is, just because he was allegedly unarmed and lying on the ground, that did not mean he was not a threat. French says, “Even though that guy is on the floor, he’s on his back and he’s being told to roll over but he’s not complying. So he’s still resisting.”

Dwyer also points out that once somebody is handcuffed it does become more problematic from a litigation standpoint as far as baton strikes and use of force is concerned. “But we all know that once people are handcuffed, they’re not always neutralized. They may still be a threat in some shape of form.”

PoliceOne Columnist Gary T. Klugiewicz dovetailed with that sentiment, saying, “Can you use force when the suspect is on the ground? The answer to that is, ‘it depends.’ It all depends on the totality of the circumstances and we just don’t know what the totality of those circumstances is. I don’t know what happened here, but I can tell you that when you take a suspect to the ground, that’s a very dangerous time. Anybody on the ground can be extremely dangerous. Officers might even encounter more danger with the subject on the ground than if they’re standing up because of the close proximity. They’re not stabilized, they’re not under control — you don’t know if they’re armed or not armed. I can’t see what’s going on in that video, but the point is that when you take somebody to the ground it’s a very dangerous time — when you’re trying to stabilize somebody it’s a very dangerous time. Whether or not the suspect is armed or not armed, he’s on the ground in close quarters and close proximity to the officers’ weapons,” Klugiewicz says.

Dwyer adds, “I think it’s an assumption that the suspect was hit after the cuffs were on. I heard that clanging noise, but once again, has the threat been ended and was the use of force reasonable under the circumstances? That’s the legal criteria. That’s what a lot of people don’t understand. The public tends to have a misconception about what the rules of force are.”

French says that while the video might look bad, that doesn’t mean anything. “It’s amazing how quick people are to convict officers for wrongdoing, but you have to let the investigation take place and let that process run its course. If these guys have done something wrong then I’m the first one to say well, they need to be convicted for any wrongdoing, but in the meantime you have to remember that these officers were in a room with a guy who had just assaulted somebody with a knife, and so the anxiety level is raised before you even get through the door.”

Dwyer concludes, “As an attorney, I wouldn’t have any problem defending the cops in that video from what I have seen. There’s all this histrionics going on — the suspect is screaming and all that — and you hear the officers giving very direct verbal commands. Once he complies, and once he’s quiet, there’s no use of force. The batons are put away and they’re talking with him.”

The incident in question took place on the evening of Sept. 3, 2009, when San Jose Police were called to the apartment in which Ho and his roommate had gotten into an argument in after the roommate spilled soap onto a piece of steak Ho was eating. Ho told the Chronicle that he said to his roommate during the incident that if they had been in Vietnam, Ho “might have killed him.”

This thing will likely “grow legs” from a national media standpoint — in each of the conversations PoliceOne has had with our cadre of experts, the names of famous use-of-force cases were invoked. We will continue to follow this story and provide updates as they become available. Meanwhile, add your voice to the conversation by posting your comments below.

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