Judge Grants Motions to Set Aside Indictments Against San Joaquin County Officers Accused of Excessive Force

Posted by Christopher W. Miller, Esq.

Grand jury indictments against a retired deputy sheriff and a correctional officer have been dismissed by a San Joaquin County Superior Court judge who granted defense motions to set aside the indictments. In a dramatic ruling on April 26, 2004, Judge Richard Guiliani found there was insufficient evidence to support charges against now-retired Deputy Sheriff Bruce Thrasher and Correctional Officer Greg Fuher in the controversial death in custody of Mondez Denmon.

The officers were indicted January 22, 2004, by the second open grand jury in San Joaquin County history. Fuher was charged with felony assault under color of authority, while Thrasher faced a misdemeanor battery charge. I represented Thrasher and Robert Peters, Esq. represented Fuher.

“Out Of Control” Inmate Broke Leather Restraints

The facts in the case are extraordinary. Stockton police arrested Mondez Denmon, a parolee, on the afternoon of September 5, 2003, after he was seen dragging his girlfriend down the street by her hair. He was assigned the highest level of security risk at the jail because he had a violent prison history. Placed in a holding cell at the jail, Denmon raged at his girlfriend, at officers, and at the psychiatric staff who tried to intervene. He had to be forcibly extracted after he tried to cause officers to fall by pouring water on the floor of the cell.

While officers were trying to restrain Denmon outside the holding cell, he demonstrated more threatening behavior by throwing a 380-pound correctional officer off his back and continuing to fight with other officers. Denmon eventually was secured in a medical bed with a five-point restraint.

Twice over the next hour or so, officers were called to Denmon’s bed because he had broken the leather restraints on his wrists and across his back. Witnesses testified no other inmate in the jail’s history had broken the thick leather straps on the bed.

Denmon was described by witnesses as being “uncontrollable” and “out of control” while in the medical bed. Deputies and correctional officers responded to this behavior by attempting to restrain Denmon by any means possible. Thrasher struck him once or twice in the head with his fist as a “distraction strike”. Another deputy used a carotid-type hold on Denmon. Fuher and others stood on Denmon’s back, arms, and on the chain between his ankles in an attempt to stop his bucking and thrashing.

Denmon expired sometime after the carotid hold was applied; however, the coroner determined the cause of death to be “compression” of the chest caused by the weight placed on Denmon by the various officers attempting to restrain him.

Defense Motions Focused On “Reasonable” Use Of Force

A defendant has a due process right not to be indicted without a finding of probable cause by an independent grand jury. (Pen. Code § 995.) This requirement for probable or reasonable cause means a grand jury cannot indict unless there is sufficient evidence “a public offense has been committed, and . . . sufficient cause to believe the defendant guilty thereof.” (Pen. Code § 939.8; Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1022, fn. 1.) These are low thresholds, however, and indictments are set aside rarely.

The charges against the officers, assault under color of authority and battery, both required evidence the use of force was excessive; i.e., that it was unreasonable or unnecessary. Critical to our successful challenge to the prosecution’s evidence was the grand jury testimony of three witnesses, including an expert designated by the defense. The grand jury had indicted Thrasher and Fuher despite the testimony of a supervising lieutenant, a department use of force instructor and a defense expert that the officers were obliged to use “any means necessary” to overcome Denmon’s violent resistance.

Expert Witness Testimony Critical To Defense

Lieutenant Serpa, the administrative lieutenant in the sheriff’s office custody division, told the grand jury officers involved in an inmate restraint “have to do what’s necessary sometimes to control a situation to avoid themselves getting hurt, to prevent other staff from getting hurt, whether it’s an officer or support staff, and to prevent the inmate from getting hurt.” Deputy Charles Walker, Jr., a use of force instructor for the sheriff’s office, testified that where “it’s a situation that is out of control and the officers have no control . . . they’re taught in the academy to persist and overcome resistance pretty much by any means necessary without stepping beyond a line of excessive force.”

The last witness, George Arquilla, an expert in inmate restraint techniques, testified as a defense expert under a Penal Code section that requires the prosecution in a grand jury proceeding to put on evidence favorable to the defendant. Arquilla, a CDC sergeant who provides training and expert testimony in corrections cases, described the situation in Denmon’s cell as a “tactical failure”. He told the grand jurors the officers could not leave the situation, but instead were “duty bound” to attempt to control Denmon even as the situation became “uncontrollable.”

Arquilla also testified Thrasher’s use of “distraction strikes” in an attempt to subdue Denmon was “perfectly fine”. He testified a “distraction strike” in that circumstance was used to “strike the individual in such a way that I get his attention otherwise and I can overcome him by control.”

Indictments Not Supported By Evidence

The grand jury had been instructed that force is not unlawful when used to maintain custody. Reading a modified CALJIC instruction, the prosecutor told the grand jurors custodial officers may use reasonable force in establishing and maintaining custody of inmates. The grand jury also was instructed that the prosecution bears the burden of proving the use of force was unlawful.

These instructions should have caused the grand jury not to indict. No witness testified the officers’ use of force was unlawful or unreasonable; indeed, the testimony demonstrated not evidence warranting a conviction, but rather a complete defense both to assault under color of authority and battery. The prosecution introduced no evidence whatsoever to sustain its burden of proof against either officer, relying instead, apparently, on the shock value of Denmon’s death to sway the indictments.

Judge Shows “Moral Courage” In Dismissal

In a courtroom crowded with members of Denmon’s family and the media, Judge Giuliani described in terse language the inmate’s violent behavior and the officers’ increasingly futile attempts to control him. Calling the incident a “colossal fight” brought on by Denmon’s violent resistance, Giuliani ruled there was insufficient evidence to support the indictments. He granted the motions, set the indictments aside, and dismissed both cases.

As Bob Peters said in a media interview after the ruling, Guiliani’s was an act of moral courage. The case had received heavy coverage by television and newspaper reporters anxious to portray the incident as racially charged. Even the assistant district attorney publicly described Guiliani’s decision as “principled.”

Da Announces Intent To Appeal At Naacp Rally

Despite expressing that opinion, however, the assistant prosecutor for San Joaquin County announced at an NAACP rally called to protest the decision that he intends to appeal. Other politicians, including Mike Machado and Dennis Cardoza, reacted to the decision by calling for federal review instead of supporting the courageous officers who had fought with Denmon. No appeal has yet been filed.

Greg Fuher and Bruce Thrasher wish to express their profound gratitude to the PORAC Legal Defense Fund for the representation and support provided throughout the criminal proceeding.

Christopher W. Miller, Esq., is a former deputy district attorney who provides criminal defense representation to LDF clients throughout northern California. Robert Peters, Esq., is an experienced LDF panel attorney who practices criminal defense in Sacramento and throughout the Central Valley.