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Charges Dismissed Against Officer

Posted on Wednesday, November 01, 2006 at 12:00PM
Posted by Paul Q. Goyette

The San Joaquin County Superior Court has dismissed the charges of Penal Code § 149 (assault under color of authority) against San Joaquin County Sheriff’s Department Correctional Officer Terry MacDougall. The dismissal followed a mistrial where a deadlocked jury could not make a decision. The jury deadlocked at 7 jurors for acquittal and 5 for conviction.

This case comes out of the use of force situation in the county jail on July 5, 2005. On that day, MacDougall was working in the booking area of the jail and was processing inmates who had recently been transferred in from state prison. The trouble began when inmate Darnell Franklin refused to cooperate in the dress-out process. Specifically, the inmate wanted to continue to wear his basketball shoes instead of the jail issued footwear. The inmate argued that he had a medical clearance to continue to wear his basketball shoes, but no such record existed in the jail. MacDougall spent several minutes trying to convince the inmate that he would have to wear the same shoes as the other inmates. The inmate became angry and started using profanities towards MacDougall. At one point, MacDougall walked to another location of the booking area to get backup officers, fearing that an altercation might develop with the inmate. MacDougall returned to the inmate and ordered him several times to give up his basketball shoes and put on required jail footwear. The inmate continued to get more and more agitated until MacDougall saw him move in an aggressive fashion to get out of the chair in which he was seated. MacDougall put his hands on the neck and shoulder area of the inmate and attempted to hold the 6′ 2″, 250 pounder in the chair. He was unable to do so and as the inmate started to get out of the chair, MacDougall hit him with two or three distraction blows to the face. The inmate then struck MacDougall in the face knocking MacDougall back. Three other officers took the inmate to the floor. A two-to-three minute struggle than ensued, where MacDougall and five or six other officers attempted to gain control of the inmate. During the struggle, MacDougall hit the inmate two or three times in his leg while he was attempting to put him in a figure four control hold. Officers were eventually able to get the inmate handcuffed and then taken to the administrative segregation section of the jail. The inmate suffered no serious injuries in this incident.

Six officers witnessed most of the incident and another four or five saw limited portions of it. Not surprisingly, each witness’ testimony varied to either a small or large degree about what occurred. Two officers testified that they did not see the inmate act aggressively or try to get out of his chair before MacDougall used force. Other officers testified that the inmate was extremely aggressive and dangerous and fought extraordinarily hard throughout the incident. One witness, who did not participate in the fight, testified that the inmate struck MacDougall in the face while he was still in the chair. Other officers testified that MacDougall struck the inmate while he was in the chair and the inmate struck MacDougall after he stood up.

During the investigation, investigators focused as much on the subjective opinions of the witness officers as they did on their actual observations. It occurred to me that this was a classic case of conflicting witness perceptions. It is very common to have significantly differing witness observations in any police use of force situation. The more confusing, stressful, loud and violent the incident, the more likely it is that witness perceptions and observations will differ. The problem with this case is that it appears that the investigators and the prosecutor focused heavily on the opinions of some of the witnesses. Those witnesses did not see the same things that MacDougall saw. Based on MacDougall’s observations, his use of force was perfectly reasonable, if not minimal, under the circumstances.”

At trial, Don Cameron of Cameron Consulting testified at length that MacDougall’s use of force was consistent with this training and was within the guidelines of the department’s use of force policy. Cameron explained to the jury that the use of strikes, blows, and punches, is a very effective way to distract a subject and get him under control.

After a lengthy deliberation, the jury deadlocked at 7 jurors for acquittal and 5 jurors for conviction. The jurors that supported a not guilty verdict told me that they focused on the step-by-step progression of the incident, from MacDougall’s point of view and believed his use of force was reasonable. A juror who wanted to convict MacDougall said the group for conviction focused on the bigger picture and put less importance on the specific second-by-second steps that led MacDougall to use force. Both groups of jurors acknowledged that they were deeply divided and frustrated with the other group’s analysis of the evidence.

As for MacDougall, he simply wants to get back to work. “I never felt I did anything wrong. I was dealing with a very aggressive inmate who did not want to follow the rules of the jail. It is frustrating for me to get prosecuted for a crime when I was simply doing my job” he said. MacDougall continued, “I’m obviously happy that the criminal case has been dismissed. I have been on administrative leave since last year and really look forward to just getting back to work.” As of this writing, the department still had MacDougall on paid administrative leave and any decision regarding his status remains pending.

ABOUT THE AUTHOR: Paul Q. Goyette is the managing partner of Goyette & Associates, Inc., who specializes in the representation of public safety employees and their associations in numerous types of legal matters.

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