Following a lengthy arbitration, the disciplines imposed on Berkeley police officers Henry Wellington and William Thornton were overturned. After vindicating these officers, Arbitrator Paul Staudohar reinstated Wellington to his former position and rescinded the 10-day suspension imposed on Thornton.
Thornton was also reinstated to his position as a field training officer. Representation in this case was provided by LDF panel attorney Alison Berry-Wilkinson, who is a partner at Carroll, Burdick & McDonough.
On July 26, 1996, Wellington assisted three other Berkeley police officers in serving an arrest warrant on an individual. wanted for attempted rape. When the suspect would not open the door to his private co-op dorm, the police entered using a key obtained from the apartment manager.
The officers themselves, advised the suspect that they had a warrant for his arrest, and repeatedly asked him to get up off the bed on which he was reclining.
The suspect refused to cooperate, resulting in a struggle to put on the handcuffs. Once handcuffed, the suspect immediately went limp.
The officers believed this to be a form of passive resistance, but also were concerned that there might be a medical reason for the suspect’s sudden change in demeanor. After the suspect was cleared by the paramedics, the officers took him to jail.
Thornton then joined in assisting Wellington and the other officers in transporting the still passive suspect out of the patrol car and into the jail, so that one of the other officers could take his scheduled Code-7.
At the Hall of Justice, the suspect continued his limp passive resistance and had to be placed into a wheelchair to be taken up to the jail. As the wheelchair was moved from the patrol car to the booking room, Thornton held onto the suspect’s head so that he could maintain some control if a violent outburst occurred.
Once in the “booking room” (which is a small locked room where paperwork can be completed at a podium prior to taking the suspect up the elevator to the jail), the suspect remained limp in the wheelchair. Consequently, one officer turned her back to the suspect to complete the booking documentation at the podium.
Thornton was standing at the side of the wheelchair, holding the suspect’s head up so that he would not fall out of the wheelchair. Wellington and the other officer were on the opposite side of the wheelchair from Thornton.
Suddenly, the suspect bolted out of the wheelchair and violently head-butted Thornton, knocking him off balance into the corner between the wall and the podium.
The suspect then lunged at the female officer in front of him and drove his lowered head and shoulders into the officer’s torso, slamming her into the wall.
Using the full force of his body weight, the suspect pinned the female officer to the wall above a wooden bench.
Wellington and the other officers were immediately concerned for the female officer’s safety due to the violence of the suspect’s attack.
Because of the size of the room, the location where the female officer was pinned to the wall, and the fact that the suspect was kicking out backwards to prevent the officers from approaching, neither Thornton nor the officer completing the booking forms were in a position to render immediate assistance.
Believing that the female officer was in danger and that she needed to be immediately freed from where she was pinned against the wall, Wellington struck at the suspect with a closed fist in an upper-cut motion to the only part of the suspect’s body that was accessible – the head and shoulders. Wellington’s first punch at the suspect missed, the second resulted in a glancing blow and the third made clean contact, which succeeded in buckling the suspect’s leverage and allowed Wellington to push the suspect off the female officer.
Once the suspect was pushed off the female, he fell prone to the floor. While all four officers were trying to restrain the suspect, the suspect began to yell loudly and repeatedly “kill me, kill me” and “I want to die.”
At the time, the suspect was smashing his face repeatedly into the concrete floor, causing considerable damage to his face and significant bleeding from his wounds.
In addition to pounding his head into the floor, the suspect was fighting and kicking with his legs. The kicking was so forceful that one of the officers, using all of her body weight, was not able to control the suspects legs.
All of the officers tried various techniques to gain control of the suspect to prevent him from smashing his face into the ground. All were concerned that the suspect would seriously injure himself if he continued pounding his head into the concrete floor.
During this time, both Wellington and Thornton were trying to grab and hold the suspect’s head to prevent further injury, but the slipperiness of the blood made this difficult.
In an attempt to prevent further bashing, Thornton gave the suspect a distraction slap to the right side of the head and yelled at him to stop. But the suspect did not stop trying to harm himself, so Thornton abandoned this tactic after the single slap.
As a result of the struggle, other officers came to assist in controlling the suspect. After hobbles were placed on the suspect and his head was controlled, the suspect was taken by ambulance to Highland Hospital in Oakland.
While at the hospital he again became extremely combative, requiring seven-to-eight people to restrain him, including two Berkeley officer and two Alameda County deputies.
One week after the suspect’s arrest, the female officer who was pinned to the wall complained to her supervisor that Wellington had used excessive force in punching the suspect at the booking room.
During the course of the internal investigation that was prompted by her complaint, the department discovered Thornton’s use of the distraction slap.
The Berkeley Police Department terminated Wellington for punching the suspect in the booking room and for allegedly striking the suspect during the initial arrest in his apartment.
Thornton was suspended for 10 days and removed from his FTO position for having used the distraction slap in an attempt to stop the suspect from bashing his head into the concrete booking room floor.
This discipline was based on the chief’s conclusion that striking a “defenseless handcuffed prisoner” is always inappropriate.
In overturning the discipline upon both officers, the arbitrator found that the suspect was not “defenseless” as alleged by the chief, but rather was a very dangerous person, even while handcuffed. Consequently, the arbitrator held that the force used in the booking room by both Wellington and Thornton was reasonable and appropriate.
As to the force used by Wellington in the booking room, the arbitrator stated: “Under the circumstances, the use of the fist by Wellington does not appear to be an inappropriate use of force. [The female officer] was his partner and she appeared to be in danger from a violent attack.”
As to Thornton’s use of the distraction slap, the arbitrator recognized that this technique has been approved by POST for many years and was taught to Thornton during his training.
The arbitrator concluded: “Under the circumstances of a young man beating his head into a cement floor, causing severe laceration and possible brain damage, Thornton slapped and yelled out at the same time to divert [the suspect] from his abject self-destruction.
That the suspect was handcuffed had little if anything to do with his ability to bash his head. The distraction slap was not vindictive or intended to cause destruction. Quite the opposite, it was humanitarian and constructive.”
The Legal Defense Fund’s willingness to authorize the extensive use of experts in this excessive force case was critical to the successful outcome.
In the case, the department cavalierly ignored its own use of force policies and the training provided to each of these officers, which included both the use of a distraction slap and a closed-fist strike to the face.
Additionally, the arbitrator was positively influenced by Berry-Wilkinson’s decision to show POST training videotapes to counter the department’s conclusion that handcuffed prisoners are defenseless.
While those involved in day-to-day law enforcement know that suspects can be extremely violent despite being handcuffed, the video showed actual violent encounters between police and handcuffed suspects.
This demonstrative evidence proved vital to convincing the arbitrator that under the circumstances presented here, striking a handcuffed prisoner was both reasonable and appropriate.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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Dear PORAC Legal Defense Fund, This email has been weighing on my heart and should have been sent a long time ago. However, time seems to move fast even though your life has been put on hold. I have been on administrative leave since December of 2012. In April of 2013, I was arrested for the performance of my duties. Since the administrative side this case has not been resolved, I won't be getting into specific details regarding my case. However, I will say that I never thought that my life would turned upside down by doing the job that I love, and doing it in a way that I had been trained. I have been in Law Enforcement for 10 years, and I have been paying my monthly dues all along. I never really understood how important paying dues might be for me, I just thought it was the "cost of business". After being arrested, I understood the real worth of that investment. Because of politics, my case was given the "full court press". On January 3rd of 2014, the case against me was dismissed. It took no less than 5 experts to convince the Humboldt County District Attorney's Office to request dismissal. The time, effort, and money that this case cost couldn't have been endured by me as the sole provider of a family of four. LDF was there, big time. The panel attorney's under LDF were the best in the business. In the uncertain time during the criminal process, I couldn't have imagined how much help they could be. What a relief to know that LDF had my back. I am used to defending those who can't defend themselves. That's my job. When I was defenseless, LDF and the attorneys assigned to my case were my advocates and defenders. I thank you. My criminal attorney said it best at the conclusion of my criminal case: "Adam and his family are thankful that they can now move forward. The evidence showing Sgt. Laird was innocent was overwhelming. The expert EPD hired said that the suspect was rising up when Sgt. Laird pushed him back to the ground. The two experts that the DA’s office hired said that the force was reasonable and appropriate. The defensive tactics instructor who trained Adam said he acted consistent with his training in apprehending a high risk suspect in a dangerous situation. In total, five separate police practices experts reviewed the case and unanimously said Sgt. Laird acted appropriately". "It is hard to imagine what it must be like to risk your life apprehending a known gang member only to be charged with using excessive force when the suspect stated that he did not even feel the contact at issue. It is simply bizarre that Sgt. Laird was ever charged with a crime". Thank you. My family and I will forever be grateful for your service, Sergeant Adam Laird
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- Ron Ruddy Riverside POA
- Wendy Morrow Chico Public Safety Association
I had never been through an I.A. in my 21 years. I was scared and ashamed and humiliated. ( My attorney ) was excellent. He helped me through one of the worst times of my life. Had great outcome and I am grateful.
- Anthony Russo Clark Co School District
The members of my Association are very pleased with the level of representation that PORAC has given to us. As the President I can not thank you all enough.
- Caitlin Collins Tiburon POA
[My representative] made himself available 7 days a week understanding that those were my needs. He was very well informed and kept me on the right track and in the right frame of mind.
- Nick Bannister Phoenix LEA
I was extremely grateful for professional representation provided by ( my attorney ) during this extremely stressful situation
- Allison Clark Twin Cities POA
[My representative] is the best attorney LDF has. Her attention to details, professionalism, and intelligence were off the charts. If I did not have her as a rep I would probably be out of a job. She is fair and she was honestly concerned about me, my family and my case.
- Tamboura Nettingham Claremont Custody Center EA
My representative was an outstanding rep. I was very fortunate to be represented by her and the firm should be very proud to have her in it. She's courteous, smart and aggressive when needed. I would not ask for anyone else, if any other situation evolved, she's the best. Thanks.
- Christine Farmer Tehama Co DSA
Mine was a fairly simple situation and I may not have needed representative. I am glad I called for help, it gave me peace of mind and reassurance.
- Anthony Alonzo South Gate POA
Very pleased with the way the process was explained to me. Received updated info faster than I expected. Overall a good experience in a not so good situation. Thanks to LDF.
- Jonathan Smith San Diego D.A. Investigators
I couldn't be happier or more satisfied with my LDF Representative, the process and the outcome of my case.
- Stephanie Haas Lyon Co SEA
When I first contacted LDF re: my case I was unsure of how well/poor I'd actually be represented. I was impressed beyond belief. From the timely responses from my attorney, his knowledge in my case, advising me what my rights were and where I stood. I felt like I was genuinely being protected from unwarranted and unfounded accusations and believe, as long as I am in the right, I have someone fighting for me. Thank you, Thank you.
- Dan Lovelace Chandler LEA
Thank you for the funding and support. I would be in jail right now if it were not for LDF. I would not have had the funding to pay for the case. It was a tremendous help having [my representative] and his support team and the many experts supplied by LDF. I speak for myself, my family and other members of my association.
- Derwin Longmire Oakland POA
Outstanding [law firm] - incredible firm. And, LDF was easy to work and correspond with.
- Emery Eccle Culver City POA
LDF is THE most important asset / resource that police officers have. "Thank you" to all involved and keep up the good work!
- Robert Mickschl SAN DIEGO HARBOR P O A
From my initial call to LDF, to my "Thank You" email to (my attorney ) I had the best representation I could have hoped for. The "800" number call receptionists were very professional & understanding. (My Attorney's) office & staff kept me informed & updated. I am forever thankful to LDF & exceptional representation by ( my attorney ) & staff.
- Robin Gonzalez Yolo Co. DSA
[My representative was] very quick to respond, helpful and professional. Thank you!
- Joe Charvez Santa Clara Co DSA
I could not be happier with the interest, work put into my case, and assistance from [my representative]. Thanks !!
- Christopher M. Fuzie Modesto POA
I was very impressed with the speed at which the case was handled. Thank you!
- Patricia Goss San Anselmo POA
[My Representative] is fabulous! Thanks for all the exra work she did for me!
- Christopher Connally Assn of LEA
To whom it may concern: Let me start by saying how much I appreciate the opportunity to join the PORAC Legal Defense Fund. This is a great benefit for our membership. During the past twelve months I was fortunate to have access to the Legal Defense Fund through MPCA. Earlier this year I was both surprise, and disappointed, when realized that I needed to provide counsel to mediate pending litigation. In accessing the Legal Defense Fund I found your staff to be very professional and reassuring. The staff felt that [my representative]., would be the best ft for the situation. I would like to take the opportunity to express my appreciation for being represented by [Rick Barry]. Not only was he a good fit for the circumstances, at times it seemed as if he was the only attorney out of several involved that really had a grasp on the issues. Again, I would like to thank the PORAC staff, and know that I could not have been better served than by what was provided by [my representative].
- Jorge Garcia San Joaquin Co Corr Officers
No criticism to give. Very well.
- Craig Caches Fremont POA
I have only used LDF once for myself, which with the circumstance was great. I work with LDF in my assignment ( OIS investigator ) and after approximately 4-5 OIS's, I have great experiences with LDF.
- Brendan Dolan Milwaukee PA
Everything went very smooth and they handled everything! Thank you.
- Chad Sakamoto National City POA
Although this incident was unfounded, it's still stressful. My LDF rep kept me informed and kept "work" at work.
- Gerhard Wallace Santa Clara Co DSA
I think that [my representative] did a great job in presenting my case. I would recommend her to any deputy (officer) facing disciplinary action. My case was minor compared to other cases but [she] still did a professional job.
- Jeff Stanley Upland POA
Excellent program, no one should be without this coverage.
- Kelly K. Roe San Joaquin Co Corr Officers
[My representative] did a fantastic job at returning my phone calls and keeping me informed of any and all information pertaining to my case. I would recommend him to anyone.
- Roy Iler San Benito CO LEM
[My representative] always returned phone calls and let me know if he was contacted with information.
- James F. Beland Lake County SDA
- Alvaro Ancheta Glendora POA
I felt I was represented in a thorough and professional manner.
- Kenneth S. Blonski East Bay Regional Parks PMA
I was very pleased with my representative.
- Linda Mendez Imperial Co Prob and Corr
I'm very pleased with the services offered by the LDF. I feel so fortunate to enjoy the benefits of having the membership. The services provided by LDF to its members is simply 110% professional, supportive, great!! LDF care for its members is reflected by the quality of Best Law Firm offered, simply the best!
- Rodney Kirkland Oakland POA
Being a police officer in the city of Oakland, I appreciate the services that are offered.
- Diana Drummey Coronado POA
I so appreciated my LDF rep - his kindness and understanding re my case during an embarrassing and uncomfortable time - he was so caring.
- Juan Pascua, Jr. San Diego Co DSA
Very helpful and very informative!
- Daniel Smock Ventura County PPOA
Everything went smooth. I think the current system works very well.
- Stacey Bonilla San Mateo County DSA
[My Represenative] is an excellent attorney. He is very professional yet personable and I would definitely use him again. Thank you!
- Albert Contreas Imperial Co. DSA
Thank you for your services.
- Robert Muelberg Denver PPA
I could not have had a better attorney. [My representative ] went way above and beyond his duties. I would not have had a better experience with my representative. I believe that the LDF is the single most important benefit a police officer could have!
- Tigran Topadzhikyan Glendale POA
[My representative] is an excellent attorney. I would use him again. He communicates with his clients and is very competent.
- Rich Stepper Montana PPA
[ My representative ] was very knowledgeable regarding dept & legal rules regarding officer involved shooting. Provided good legal advice & was very supportive.
- Kevin Hullquist Siskiyou Co. Correctional POA
[My representative] did a good job representing me. Kept me informed.
- Richard Salcido Brea PA
LDF is a great organization that not only helps their clients but many of those around them such as coworkers and family members.
- Larry Fitch Shasta Co DSA
My LDF rep was great, always returned my calls quickly and kept me up to date with what was going on with the case. Thank you.
- Scot Hicks Humbolt County DSO
My experience was made much less stressful thanks to the LDF representation.
- David Baker Placerville POA
My experience through dealing with this matter was horrific. Without the efforts of the LDF and more specifically [my representative], I would most certainly have fallen victim to a corrupt and unethical administration. The LDF has saved my career and brought me justice.
- William DeWitt CPPA
Everything was awesome...could not be happier!
- Christopher Delaney Upland POA
Your rep was very personal. Even though my case involved something minor, your rep made me [feel] my case was his most important. I am very satisfied with my LDF team.
- Dennis W. Ostini Lake County DSA
[My Representative] was fantastic, knowledgeable, professional and easy to talk and work with. Even though the allegations lodged have not been resolved, [My Representative] continued to communicate with me, to offer his assistance.
- Katie Angermiller Tuolumne Co DSA
I was very satisfied with the work the LDF performed. The lawyers and clerical staff at [law firm] were all very kind, professional and they always assisted me when I called and never made me feel like I was a burden. Thank you LDF!
- Brian Schopf Elk Grove POA
Keep up the good work.
- Christopher Walters Antioch POA
My LDF rep was very attentive, and courteous. She made every effort to keep me informed, and kept my best interests at the front of the process. I was very satisfied with my LDF rep, and the entire process.
- Michael Shephard Suisun City POA
LDF is a very valuable resource. I would not do this job without it.
- Jason Kearsing Elk Grove POA
Very happy with LDF.
- Chris Lyon Tulare Co DSA
Very thorough group of sharp/smart government concerned [attorneys]. They understood what was happening and briefed me on everything. I was very impressed.
- Cathleen Weldon Siskiyou Correctional POA
Very Comforting to have a knowledgeable person looking out for my best inerests. Thx!
- Christopher Wirth A F G E Border Patrol
LDF referred me to [ representative ] in Spokane, WA. [ Representative ] did an outstanding job representing me. Thank you very much for the referral ! I would not be employed any longer had it not been for [ representative ] and his legal team.”