DA’S ATTEMPT TO EXPAND COPS’ CRIMINAL LIABILITY THWARTED

HARRY S. STERN
Managing Principal
Rains Lucia Stern St. Phalle & Silver, PC

A Good Cop

For six years, Mike Lewelling toiled in anonymity at the San Francisco Sheriff’s Department (SFSD). He worked in the jails. He worked in the courts. He worked wherever they sent him. By all accounts, Lewelling was dependable, diligent and a good cop. He never garnered so much as a single complaint and, instead, earned commendations and the respect of his peers and supervisors.

In early 2014, Lewelling put in and was selected for a coveted patrol assignment. Such details are relatively rare at the SFSD. San Francisco is the only one of California’s 58 counties that is also a city. There are no unincorporated areas or contract communities, so there is not much area that isn’t under the jurisdiction of the San Francisco Police Department. There are a few exceptions — the SFSD protects City Hall, the Public Utilities Commission and all of San Francisco’s municipal hospitals and clinics. The crown jewel of these facilities is San Francisco General Hospital (SFGH), which is the city’s only Level 1 trauma facility and a well-regarded teaching center.

But there is another side to SFGH. As described by the Court of Appeal, SFGH’s emergency department has an “unpredictable patient population, much of it consisting of the homeless, the mentally ill, and those suffering from substance abuse problems. The chaotic population can make the emergency department a dangerous place: staff have been strangled, sexually assaulted, punched, kicked and spit upon. Abuse by patients, both physical and verbal, is a daily, sometimes hourly, occurrence.”

About halfway through Lewelling’s graveyard shift at his post outside the emergency room, it seemed like it was going to be a rare quiet night. The ER wasn’t particularly busy and the disturbances had been relatively few.

Career Criminal Comes to the ER for Drugs

That was all about to change, and, unbeknownst to Lewelling, this change would upend his life for the next five years.

Enter Otis Campbell. (This is a nom de guerre. There is no legal cause not to use Campbell’s real name; rather, I just don’t like giving him any additional publicity.) If ever there was a man who personified each of the deadly sins and all the regressive, birdbrained policy disasters of San Francisco, it was Campbell. As near as one can tell, Campbell had spent the entire adult portion of his 59 years breaking the law. Most recently, Campbell had developed a proclivity for spitting on uniformed police officers, paramedics and health-care professionals. A scant two weeks prior to his arrival at SFGH, he had been ejected from another local hospital for threatening a nurse and then running into a patient’s room and relieving himself in the sink.

Most of Campbell’s visits to the emergency room turned out to be motivated not by the need for treatment, but by his addiction to opioid painkillers. As a result, Campbell was on a “pain contract” with his primary doctor and had been flagged in the hospital’s database for drug-seeking behavior. In other words, Campbell feigned injury to get dope.

Campbell proudly wore most of the favored San Francisco victim labels like glorious badges of honor. He was homeless. Well, actually, he had been evicted from subsidized housing because he tried to strangle his roommate and was sent to prison. He was disabled. In reality, he told his probation officer that he had been run over by the jealous boyfriend of one of his lovers. He was a veteran. In fact, he spent less than a year in the Coast Guard and left under murky circumstances. He was a senior citizen. Fair enough, but his age barely slowed the onslaught of assaults and other indignities that he perpetrated against the residents of San Francisco.

Campbell approached the triage desk in the emergency department like he owned the place. He had an appointment much later in the day, but that was of no consequence to him. Campbell wanted drugs and he wanted them now. He was entitled to them. The hospital staff owed him drugs and he was there to collect. What Campbell hadn’t counted on was that the triage desk was manned by a former Marine that night. When this Marine-turned-trauma nurse typed Campbell’s name into the computer, it lit up like a Christmas tree. There were alerts for violence, drug-seeking behavior and assaults on staff.

Our Marine/nurse — we’ll call him O’Reilly — took Campbell’s vital signs and began the process of admitting him to the hospital, although he knew full well why he was there. Campbell reported that he was in tremendous pain and described it as a 10 out of 10 on the scale. Campbell also began haranguing O’Reilly because all these questions were delaying the receipt of his drugs. When O’Reilly asked Campbell another question, he told him to “figure it out yourself, college boy.”

Given Campbell’s threatening demeanor, O’Reilly was concerned about his co-workers. He informed the charge nurse. They decided that Campbell would not go into the triage area alone with any of the other nurses. Campbell continued to be aggressive and uncooperative. He swore under his breath and paced about. He was agitated. He needed his drugs.

Eventually, Campbell hit a down cycle and passed out on a bench in the waiting room. For reasons that should be obvious, the hospital doesn’t allow people who don’t have appointments to crash in its lobby.

So, in keeping with established protocol, the charge nurse asked Deputy Lewelling to have Campbell leave. This was routine. It was one of those tasks Lewelling did at least once each shift. He calmly walked over to where Campbell was lounging and tapped him politely on the shoulder until he finally roused. Campbell was not pleased. He was already in a bad mood because those lousy nurses hadn’t immediately given him his drugs. And now this deputy had the nerve to wake him up from his nap.

The Struggle Is Real

Lewelling gave Campbell options. He could leave by the waiting room exit or he could leave by the door in the ambulance bay, but he had to leave. Campbell wasn’t having any of this — he knew his rights. He wasn’t going to leave without getting drugs. So he angrily barked that he would speak to the medical staff. Campbell got up from his resting spot and started toward the nurses’ station. Campbell warned Lewelling, “if you touch me I will f—k you up!” Notably, he left his collection of backpacks and bags on the bench.

Lewelling couldn’t allow Campbell to confront the nurses again, so he firmly grabbed him by the collar and guided him back down onto the bench. Campbell was madder than a wet hen. He lashed out at the deputy with his walking stick, but Lewelling wrestled the stick out of his grasp. As Lewelling was trying to talk him down, Campbell suddenly directed a nasty loogie at his face.

Lewelling reacted instinctively by clasping his gloved hand over Campbell’s mouth. When Campbell reached for his walking stick again, Lewelling put him in a control hold. Soon, other deputies arrived and helped handcuff Campbell and take him to a holding cell.

The Peacock and His Feathers

George Gascon admired himself fondly in the mirror. He had perfectly matched his bright amethyst pocket square to his socks. This was going to be a great day. His team of consultants was announcing that Gascon had filed five felony charges against Mike Lewelling.

When reviewing the antiquated security camera footage from the waiting room, one of Gascon’s underlings noticed that there appeared to be variations between the video and Lewelling’s police report.

Although Gascon had never actually tried a case in court, he knew public relations gold when it came across his desk. This one had all the key ingredients. First, it was politically less challenging to prosecute a deputy than a police officer. Despite being under constant attack from the far left, most citizens had a favorable impression of their police but were less familiar with the Sheriff’s Department, which primarily patrols the jails and courts.

And better still, Gascon brayed that “the fact that a Sheriff’s deputy allegedly battered a patient at San Francisco General Hospital is unnerving. What’s worse is that he’s also alleged to have perjured himself on a police report — unforgivable conduct that led to the arrest of the innocent victim.”

Otis Campbell — innocent victim? Hospital patient? You have to hand it to Gascon and his public relations team, they sure know how to cook up a press release.

The Trial

After the usual motion work and appearances, Lewelling stood trial in July 2015. Even the prosecution witnesses testified to the constant danger at SFGH. Police and fire department witnesses recounted Campbell’s history of violence and his habit of spitting on uniformed public safety workers. Campbell essentially refused to answer questions during cross-examination until admonished by the court. He still managed to answer “I don’t recall” to scores of questions.

Sean McCann, a thoughtful and experienced professor of police science, testified for the defense as a use-of-force expert. He opined that not only had Lewelling used sound tactics, but his limited uses of force were reasonable. In rebuttal, the DA called a sergeant who conceded that the force Lewelling used was appropriate, but claimed that the original detention — in other words, just the act of stopping Campbell from charging at the nurses — was improper, and thus, the physical contact that flowed from that was illegal.

And this was Gascon’s scheme: He wanted to create a new way to criminalize basic police work. He replaced the requirement that the jury had to find that an officer actually used excessive force with the theory that the slightest touch to effect a mistaken detention was criminal conduct. For example, an officer stops a suspected bank robber based on what the teller reports. However, it turns out there were two similarly attired people near the bank and the officer happened to stop the one that wasn’t an armed robber. If the cop handcuffs the suspect for safety reasons, under Gascon’s plan she is guilty of a felony assault under color of authority.

To get there, Gascon’s office had to convince the judge to approve jury instructions that they created out of whole cloth. Sadly for Lewelling, the judge relented and the jury was instructed on Gascon’s new theory.

It was evident from the questions asked that the jurors were confused by these hastily cobbled-together instructions. After four days of deliberations, the jury acquitted Lewelling of felony perjury, authoring a false police report and filing a false document — so much for Gascon’s claim of “unforgiveable conduct.” The jury also acquitted Lewelling of Gascon’s false allegation that he had choked Campbell.

But the jurors were misled by the instructions that explained the charge of felony assault under color of authority and misdemeanor simple assault in the context of a police contact. They convicted Lewelling on both of these charges. The trial court dismissed the misdemeanor, finding that it was a necessary included offense of the felony.

The Appeal

San Francisco jurors are not exactly pro-police, and Lewelling was only sentenced to probation and community service, so it would not have been totally unthinkable to consider his case a victory. We had won acquittals on four of the five felony charges, and Lewelling wasn’t going to jail. But for us, there was no question that this result was a complete travesty. Otis Campbell was a walking, spitting billboard for everything that is wrong with the streets of San Francisco. He hadn’t been injured and had lied about most of what had happened to him. In complete contrast, Mike Lewelling was a family man who had led a life focused on service to others; he hadn’t so much as had a written reprimand during his career. We were not going to give up the fight.

I called Dylan Schaffer.

Schaffer is a phenomenal lawyer who has long been a member of our team, drafting critical motions and instructions as well as handling appellate issues. He has been an integral part of most of Rains Lucia Stern’s greatest cases, including the BART murder trial, the defense of baseball slugger Barry Bonds, the federal prosecution of four Fresno officers, the Oakland Riders trials, and many other high-profile successful defenses of peace officers facing state and federal criminal charges. These days, Schaffer has his own firm (Kerley Schaffer LLP), focusing on suing insurance companies for acting in bad faith. But when I explained the circumstances to him, he immediately agreed to help.

After poring over the trial transcripts and evidence, Schaffer confirmed that the erroneous jury instructions had caused Lewelling’s wrongful conviction. Schaffer was the primary author of a scholarly and persuasive brief that we filed in the California Court of Appeal. When we appeared for oral argument at the majestic Earl Warren Building, it was clear that the learned justices were not impressed with Gascon’s attempt to create what essentially was a new law.

On October 17, 2017, the Court of Appeal issued a published decision reversing Lewelling’s conviction: “That this was a close case is also shown by the fact that the jurors rejected the false reporting and perjury counts, which were based on the prosecution’s theory that, contrary to the assertions in defendant’s report, ‘Campbell’ never threatened defendant with his cane or told defendant ‘I’ll fuck you up if you touch me.’ In light of these acquittals, there is reason to believe the jurors concluded ‘Campbell’ did threaten defendant with his cane and with physical violence. Those facts further support both experts’ conclusion that defendant’s conduct after the initial detention was reasonable, which means the jurors must have relied on the prosecution’s invalid theory of unlawful detention to convict defendant under section 149.”

Déjà Vu All Over Again

Given the clear opinion from the Court of Appeal, we assumed that there was no chance that the DA would refile charges against Lewelling. And we were correct — sort of.

Gascon wanted to save face, so he tried to take a shortcut. Instead of retrying a felony that he couldn’t win without his now-discredited theory of criminal liability for cops, he figured he could stick a misdemeanor conviction on Lewelling. Remember that simple assault charge that was dismissed by the original trial court? Gascon did. He petitioned the court to reinstate it, over our strenuous objection. The problem was that the simple assault allegation suffered from the same legal defects as did the assault under color of authority charge.

Back to the Court of Appeal we went. The justices were not amused, to put it mildly. They issued a scathing opinion, writing they were “dumbfounded” by the prosecution’s arguments in this case and reversing the simple assault.

Once again, we returned to San Francisco court, expecting perhaps an apology but certainly a dismissal. Not so fast. We were forced to file motions to limit evidence and a comprehensive discharge of the conviction in the interest of justice before the DA’s Office finally did the right thing. By this time, Gascon had announced that he wasn’t seeking re-election. We have since learned that Gascon aspires to be the Los Angeles district attorney. Good luck with that.

At long last, Mike Lewelling was a free man. He was beyond ecstatic. His ordeal had taken nearly five years and taken a huge toll on him and his family. Lewelling had also won an extremely important victory for cops throughout the state in the form of a powerful Court of Appeal decision. If Gascon had been successful in his attempt to criminalize basic police work, every pedestrian or traffic stop could have led to a felony charge against the officer. The effect on the public’s safety would have been devastating. Lewelling expressed his tremendous gratitude for the support of the PORAC Legal Defense Fund, which in his case included a criminal trial, expert witnesses, investigators and two successful trips to the Court of Appeal.

About the Author
Harry S. Stern is a trial attorney and the managing principal at Rains Lucia Stern St. Phalle & Silver, PC. Mr. Stern’s practice is focused on civil litigation and criminal defense. He regularly represents peace officers in internal investigations, administrative hearings, coroner’s inquests, grand jury proceedings and related court actions.