Santa Ana Police Officer Fount Not Guilty of Excessive Force

On January 20, 2003, Santa Ana Police Officer Christopher Nicely assisted on what he thought would be a routine domestic violence call. Almost a year later, he was acquitted of criminal charges stemming from this anything-but-routine call.

Chris Nicely had been a police officer for two years with the Santa Ana Police Department. However, he had been employed for many years with the Fontana Police Department before transferring to Santa Ana. Nicely had developed a reputation as a thorough, levelheaded cop.

On January 20, 2003, he responded to assist on a domestic violence call. The other unit responding was a reserve officer. Because the call was in the reserve officer’s district, the reserve acted as the handling unit. The original call was from a male, and when the officers arrived at the apartment, a male answered the door. Daniel Schneider indicated that he had made the call and spontaneously stated he had hit his wife. The reserve began to interview the wife. Nicely could see that the wife was intimidated by the presence of her husband and he moved Schneider to another area in the apartment and began to gather information.

At this time, Schneider told Nicely that he had not hit his wife, but had made the statement because they had got into an argument and she told him that unless he went to jail, she would divorce him. This sounded odd to Nicely, but Schneider held fast to his story. Nicely then asked the reserve to take Schneider outside while Nicely interviewed the wife.

The wife denied that she had been struck or abused by her husband. She did relate that he had abused her in the past, but had not done so this night. She had no visible signs of injury. Both Schneider and his wife denied that the police had ever responded to their location in the past. Based upon the information he had gathered, Nicely believed that something had occurred, but he did not have enough for an arrest.

He went outside to speak with the reserve and discuss what was going to occur. The reserve did not give Nicely any contrary information. Nicely then had the reserve give a domestic violence pamphlet to the wife while he would speak with Schneider. Nicely and Schneider stood on the side of an ornamental lake, while Nicely explained to Schneider that he would not be arrested, but that it was a matter of time before his wife would change her mind about having him arrested.

During this conversation, Nicely could see that Schneider was becoming “edgy” and appeared as if he was thinking about running. Nicely reached out to grab Schneider, when Schneider slipped and fell into the lake. Schneider landed sitting up in the lake and appeared fine. Nicely returned to the apartment and told the wife that her husband had slipped and was wet, but he was fine. Nicely and the reserve then left the scene.

Later that night, Schneider called Santa Ana P.D. and alleged that Nicely had hit him and pushed him into the lake. Shortly after Schneider’s call, the reserve told the watch commander that he had seen something that he thought might have been a use of force. Nicely was never contacted regarding the incident by anyone from the department before he was placed on administrative leave five days later. A few months later, a criminal complaint was filed charging Nicely with “Assault Under Color of Authority.”

On October 28, 2003, the trial in the case of People v. Christopher Nicely began in Department C-54 of the Santa Ana Courthouse in Orange County. The prosecution presented three witnesses in support of their case: the reserve officer, Daniel Schneider and a sergeant who had responded to Schneider’s complaint.

The reserve officer testified that he believed that Schneider should have been arrested, however, he did not question Nicely about his decision not to arrest Schneider. He further testified that he believed that Nicely had struck Schneider and tossed him in the lake. He saw Nicely’s right side of his body swing toward Schneider at which time. Schneider doubled over. He next saw Schneider’s body “flying in the air” some 10 feet, landing in the water headfirst.

On cross-examination, the reserve acknowledged he could not see the front of Schneider and that Nicely was in a better position to determine if Schneider posed a threat. Although he was not intimidated by Nicely and had eight years as a reserve officer, he did not ask Nicely why Schneider was not arrested, or what happened when Schneider fell in the lake. The reserve assumed that Nicely had received different information than he had, although he disagreed with the decision not to arrest Schneider.

He acknowledged that he has a duty to render aid if someone is injured, but felt that Schneider did not need aid even though he may have been assaulted and was gasping for air. He further indicated that while he believed that Nicely assaulted Schneider, Nicely appeared calm prior to Schneider going in the water and even after the incident.

The next witness called by the prosecution was Daniel Schneider. Schneider testified that he and his wife became involved in an argument and he called the police because his wife told him to call. He denied striking his wife but stated she was the aggressor and was only defending himself. He remembered admitting to striking his wife when the police first arrived because his wife told him that he needed to go to jail or she would divorce him.

Schneider recalled that he and Nicely walked to the path next to the lake. He did not know where the reserve officer was located. He could not remember what Nicely was saying, but he did recall that Nicely asked him, “What would you do not to go to jail?” After which, Nicely hit him and he fell to the ground. He recalled being picked up and thrown into the water feet first. He got out of the water and approached his apartment. He could hear Nicely telling his wife that he had slipped and fallen into the water. Nicely and the reserve passed him as he entered the house. After a couple of hours, he called to report what had happened to him. He had a bruise where he had been hit, which was later photographed by the sergeant and the CSI person who came to his apartment.

On cross-examination, Schneider admitted that he had two prior felony theft convictions and two misdemeanor theft convictions from Oregon. He testified that his convictions were a result of him trusting people. He was also on probation for a domestic conviction, which resulted from an April 2003 arrest. He admitted lying when he did not tell Nicely that the police had responded to his apartment twice the week before for domestic violence calls.

He further stated that his wife was always the aggressor and that he was just trying to defend himself. It was disclosed that he has been diagnosed with several disorders, including ADHD and impulse control disorder, and that at the time of the incident; he had not been taking his medication for several months. He also indicated he has an IQ of 74 and has a difficult time remembering.

Schneider testified he was afraid of Nicely and did not want to go to jail. He admitted that, although he has not filed a lawsuit immediately after the incident, he wanted to sue the police and thought that he was going to make money. He was sure that he had a bruise where he had been hit but did not seek medical treatment.

The last witness called by the prosecution was Sergeant Ibarra, who followed up on the call made by Schneider. He described the marks he observed on Schneider are four linear marks near his right rib cage. After observing the injuries, he called for a CSI officer to respond to photograph the injuries. On cross-examination, Ibarra testified he did not observe any bruising, or any other injuries on Schneider. Ibarra indicated that two of the photos accurately represented the injuries he observed. He testified that he interviewed both Schneider and his wife, but did not make a domestic violence arrest, even though he could have.

Four witnesses were called to testify for the defense. Two police officers, Dan Park, and Mike McCarthy testified as character witnesses. Both indicated they had worked with Nicely and had responded to calls with him. Both stated that Nicely was always professional and they had never seen him lose his temper. They noted that Nicely was effective in diffusing volatile situations. When they heard of the accusations, they did not believe them because the allegations were clearly contrary to Nicely’s character. Both indicated that if they responded to a call, they would want Nicely to be there.

Dr. Dallas Long was called as an expert witness regarding the identification of traumatic injuries. Long testified that, based upon his examination of the photographs of the injuries to Schneider, it was clear that they were not caused by a punch. He testified the injuries appeared to be abrasions, which followed the curve of the rib cage, clearly not what you would see if Schneider had been punched in the area. Furthermore, the size of the injuries was too large to be caused by a punch. He further noted that, based upon the great size disparity between Schneider and Nicely, if Nicely did strike Schneider, he would definitely expect to see injury consistent with a punch.

Lastly, Nicely testified on his own behalf. He was finally able to describe to someone what had happened that night. Nicely told the jury about the investigation on the night of the incident and what he perceived immediately before Schneider fell into the lake. He told the jury that he took over as the handling officer because the reserve was not properly investigating the incident. After interviewing both Schneider and his wife, he believed that something had occurred, but the wife was unwilling to state that she had been abused.

While talking to Schneider, Nicely told him he believed something had happened but that his wife was unwilling to say anything. As he was talking to Schneider, Nicely observes him act “froggy.” Schneider appeared to be nervous and edgy. Nicely stepped toward Schneider to place a firm grip on him, when Schneider stepped, slipped and fell into the lake. Nicely tried to grab him to prevent the fall, but only grabbed air. Schneider landed on his rear end and was sitting in the water. It was clear to Nicely that Schneider was fine. He walked back to the apartment and told Schneider’s wife what had happened. She had the DV pamphlet, which the reserve was supposed to give her. Nicely also testified he is left-handed. Although left-handed, he shoots right-handed and most likely would not have used his right hand if he were going to strike somebody.

The jury received the case for deliberation at approximately 11:20 a.m. They returned with a “not guilty” verdict after 50 minutes of deliberation. The jury found that there were too many unanswered questions by the prosecution and that reasonable doubt existed throughout the case. One of the jurors told the bailiff that he thought the district attorney’s office had wasted time and money in the prosecution of this case.

Nicely and his family is extremely grateful for the support of the Legal Defense Fund. Without LDF’s support, Nicely doesn’t know how he would have been able to mount a defense. From the beginning, Nicely was impressed that the LDF believed that he had a winnable case and were willing to provide the encouragement and support needed to present his defense.

He is also grateful for the efforts of his attorney, Bill Seki. Additionally, Nicely would like to thank his family and friends for the support they have provided during this past year.

Although it appeared that the odds were against Nicely, through diligence and perseverance, his defense team was able to show that the prosecution did not conduct a thorough investigation, and there was a rush to file charges. In the process, they dispelled the prosecution’s belief that if a fellow officer was willing to come forward, then the incident must have occurred.

Bill H. Seki is an attorney with the firm of Harrington, Foxx, Dubrow and Canter, LLP, located in Los Angeles. The police representation section of Harrington, Foxx, Dubrow, and Canter provides legal services to fit all law enforcement needs. Mr. Seki can be reached at 213-489-3222 or by e-mail at bseki@hfdclaw.com.