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By PORAC | December 15, 2015 | Posted in PORAC LDF News

Custody Deputies Acquitted of Excessive Force Charges, Part I

Stone Busailah, LLP
Silver, Hadden, Silver & Levine


It was June 17, 2013, a day like many others in the Santa Barbara County Jail, as custody deputies attended to the many needs and antics of their dangerous inmate population. One of those inmates was Charles Owens, who was awaiting trial on rape and murder charges for which he was later convicted. Owens, a frequent guest at the jail and state prison institutions, was on this day demonstrating his profound annoyance over a five-minute delay in receiving his scheduled time in the dayroom by making repeated calls to the control center, in violation of jail rules. Custody Deputy Chris Johnson enlisted the assistance of Custody Deputy Robert Kirsch to go to Owens’ cell and counsel him. After a discussion of several minutes with Owens resulted only in his emphatic refusal to abide by jail rules, the deputies decided that Owens would be rehoused. He was handcuffed behind his back and moved through the jail hallways past video cameras, physically and profanely displaying his reluctance to provide cooperation to deputies.

As the deputies awaited the opening of a door leading to an adjacent hallway by the control deputy, Owens refused to perform the simple task known to all inmates — namely, to face the wall away from the deputies. Instead, he fidgeted and shrugged back and forth with his usual disdain for following orders. He was continually told to face the wall but chose not to do so. After numerous efforts to gain his compliance, and in an effort to safely move the recalcitrant inmate to the next hallway as the jail door was clicked open from the control center, Deputy Johnson attempted to apply a control hold he had been taught through his department, commonly known as a shoulder wrap, which upon completion would allow the deputy to insert his arm between those of the inmate and on top of the inmate’s shoulder to more safely direct his path of travel. Johnson did not apprise Kirsch of his imminent application of the hold, so as not to alert the inmate. When Johnson made physical contact with Owens, Owens tensed up and twisted away, resulting in Johnson resorting to another trained alternative, the taking of the inmate to the floor. In doing so, Johnson was forced to interpose his sizable frame between the inmate and Kirsch, who had been controlling Owens’ right arm. Kirsch’s view of the interaction of Johnson and Owens was accordingly blocked, as Johnson carefully brought Owens to the floor. Not immediately aware of what was transpiring, Kirsch attempted to grasp Owens’ left arm to reassert control.

As the situation continued to unfold, Johnson sought to restrain Owens’ upper body while keeping Owens’ head off the floor. A video at this juncture of the incident showed Kirsch looking at Owens as Owens was on his knees, with his head in a position to bite Johnson’s leg. The video showed a single knee strike to Owens’ right side, which caused him to fall to his left side, while still being carefully embraced by Deputy Johnson. Owens continued to resist by kicking, tensing his body and attempting to roll over on his back. Owens’ actions were countered by Johnson’s strong restraint, and Kirsch’s efforts to pin down Owens’ legs with his own legs. No force other than that required to overcome Owens’ resistance was used. The entire matter was concluded within about 30 seconds. Thereafter, Owens asserted that he had pain in his left side, the side away from the application of any force to him. He also claimed he was coughing up blood, but when he was examined by a nurse, no evidence of such blood expulsion could be found and no evidence of any injury was observed.

When Owens initiated a complaint through his public defender, the jail video was pulled and negative conclusions were immediately drawn without careful expert analysis of the video or the attending circumstances. Thereafter, the deputies were put on administrative leave and later charged with assault under color of authority, an alleged violation of P.C. Section 149, by the Santa Barbara County District Attorney’s Office. Weeks later, for apparent but unspecified political considerations, the DA’s Office determined that it would put its prosecution on hold in order to entice the U.S. Attorney’s Office in Los Angeles to seek an indictment against the deputies, which that office proceeded to do, resulting in two pending series of charges in two different forms based on an incident that resulted in no discernible injury, against two deputies who each had performed without discipline for about nine years. When prosecutors were asked at every level why such drastic responses were initiated, the defense was told, “It’s all in the video.” The video, they said, showed that the deputies clearly used too much force on a totally compliant and non-threatening handcuffed prisoner.

The government first went forward in its prosecution of the two deputies on June 10, 2015, with the jury voting nine to three for acquittal on all counts. The government then pursued a second trial, with additional prosecutors. On September 16, a jury voted 12 to zero to acquit both defendants of allegations of excessive force, which had been charged as violations of 18 U.S.C. 242. The second trial, even more vividly than the first, exposed the myopic nature of the initial filings, which seemed to have been done with no expert perspectives on force or video. Indeed, by the time the case was being argued to the jury, the government was conceding that much of the force that it had earlier described as brutal was actually legally justifiable.

The Use-of-Force Allegations

In the second trial, the government used the same use-of-force expert that it had in the first, who was hired long after the government had already rushed to obtain indictments. The government’s expert was unfamiliar with the training given to deputies in Santa Barbara and was not even mindful of the control hold known as a shoulder wrap until his cross-examination at the first trial. Based on his brief review of the video, he insisted that Owens had been “totally compliant” with the deputies and opined that no use of force on Owens was appropriate. Being unaware of the efficacy of a shoulder wrap as a control hold, the expert presumed that Deputy Johnson had simply grabbed Owens by the neck and recklessly and angrily threw him to the floor after Kirsch followed with what he claimed was a more inappropriate force. However, by the end of his cross-examination in the second trial, the government expert was forced to acknowledge that:

  1. Owens had a duty, as an experienced inmate, to face the wall, without any deputy’s direction.
  2. Owens had a duty to follow every order from a deputy immediately after it was given.
  3. The deputies had a right to insist on Owens facing the wall, as such practice provides an appropriate tactical advantage to the deputies.
  4. Owens’ failure to face the wall when told to do so could reasonably be met with increasing levels of force.
  5. Increased levels of force could have included Officer Kirsch squeezing Owens’ arm repeatedly until compliance was achieved, and absent that, Owens could have been thrust up against the wall, with the deputies forcing his face to turn away from the deputies.
  6. An inmate’s refusal to follow directions could result in him being taken to the floor.
  7. Santa Barbara County Sheriff’s Department did not have a use-of-force continuum that required the deputies to go through any particular series of actions to take an inmate to the floor if he refused to follow directions.
  8. A handcuffed inmate should still be considered capable of highly threatening behavior, including kicking, kneeing, biting, spitting and headbutting.
  9. Deputies who are challenged by an inmate to “take these cuffs off and see what happens,” as the deputies were in this case, should consider such behavior by the inmate to be extremely threatening.
  10. Proper applications of force generally result in minimal injuries, and no injuries were found on Owens.

Thus, notwithstanding that Owens was handcuffed, the government’s own expert acknowledged that the person whom he initially described as totally compliant was not compliant at all, and that the remedies available for addressing the type of behavior that Owens was continuing to exhibit were actually less forceful than the response initiated by Deputy Johnson, whose takedown was finally described in the second trial by the government expert as “non-injurious,” and by a defense expert as “textbook.”What was readily apparent is that prosecutors in the case assumed from the outset that Johnson and Kirsch had angrily and jointly acted to gratuitously punish Owens for his problematic conduct. However, even the government’s expert testified that the slow-motion version of the video showed that the two deputies seemed to act independently of each other. Kirsch, he noted, did not seem to have any response to the actions of Owens, which suggested that he was unaware that Johnson had decided to take Owens to the floor.

He further conceded that a deputy in an altercation would be required to defend his partner and would not have to wait for that partner to be injured before acting on what he reasonably perceived at the time. As the video plainly showed, Johnson moved in front of Kirsch to continue to apply his control hold, which in turn made it impossible for Kirsch to see Owens and what was transpiring. In the confusion that ensued as Johnson sought to take Owens to the floor, Kirsch responded with a single knee application to neutralize Owens’ perspective movements. At the very time when Kirsch moved to apply the knee strike, the video showed that Kirsch was looking in the direction of Owens’ head, which was positioned adjacent to the leg of Deputy Johnson, as if in a position to render a bite. My final argument, even the government suggested that Johnson’s takedown was appropriate and that Kirsch’s initial response in utilizing a knee strike under the circumstances may have been as well.

The government’s expert further emphasized that it was critical in a use-of-force analysis to assess whether the officers tempered the force they were using, or whether it was applied simply to punish an inmate. The video showed that after the first knee strike by Kirsch, the deputies held their positions for a full seven seconds, reassessing just as the expert said they should. Only when Owens attempted to roll to his back, a position for which he could better kick or attempt a leg sweep did the deputies respond with any additional force, Johnson by tightening his grip on Owens and Kirsch by reapplying his knee to Owens’ torso to secure him. The government’s argument that Owens was doing nothing to require restraint was not based on any evidence and was contradicted by the testimony of a highway patrol officer who saw Owens kicking as Kirsch sought to control him by applying his knee to Owens’ lower body. In a nutshell, the prosecutors maintained that if Owens’ resistance could not be seen on the video, there was no resistance, an argument that the jurors unanimously rejected. It undoubtedly did not sit well with the jurors that the government, which had the burden to prove its case beyond a reasonable doubt, declined to call Owens as a witness in either trial, although he was certainly available, as he continues to serve a life sentence in state prison.

The Nuances of Video

Even the most properly administered law enforcement uses of force are difficult to watch. Time and again, the media shows us a video that inspires emotion from viewers and knee-jerk reactions from those in authority. Yet, time and again, the accused in these media showcases frequently use the video as their best evidence. Accordingly, experience dictates that prosecutors should be especially reluctant to proceed without a full grasp of the expertise necessary to understand both the video and the use of force.

In our case, the video was the linchpin of the government’s use of force, and the reason for which the DA’s office filed its original charges. But the video itself had inherent problems. Video is essentially a series of stills projected at high speed to foster fluidity and continuity. Early efforts at filmmaking consisted of photos flipped like so many cards to produce the appearance of movement. Simply put, the more frames, the more there is to see, and the less there is to miss. Whereas a typical TV set produces images shot at 30 frames per second (fps), a camcorder 60 to 120 fps and high-speed cameras for instant replays over 1,000 fps, the video from the Santa Barbara County Jail only recorded 7.5 fps and contained no audio. Thus, the jail video recorded 75% fewer frames than typical television video, resulting in what appears to the viewer as jerky or blurred movements, and missed action otherwise capturable on standard video.

Moreover, the video relied upon by the prosecutors was taken from a single camera 12 feet off the ground, 40 feet from the scene of the altercation. The images were compressed, with little ability to gather a sense of depth. Efforts to “enhance” the video inherently resulted in a compromise in resolution, as well as the production of grainy images. Of perhaps even greater consequence were the inherent limitations of what could be seen at all on the video. The part of the incident that the prosecutors alleged included the most egregious use of force by Deputy Kirsch failed to be viewable because of the camera angle and the positioning of the bodies involved in the altercation. Of equal concern in the prosecutors’ hasty analysis was the lack of comprehensive understanding of the complications in viewing such a crude video. From the outset, those reviewing the case were apparently distracted by the unsightliness of the application of force in real-time, without grasping what was actually occurring.

Stay tuned for Part II, which will further discuss the video evidence as well as the impact of the acquittals on the state charges, in the January 2016 issue of PORAC Law Enforcement News.