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Officers Vindicated in Excessive Force Case

Posted on Sunday, March 01, 1998 at 12:00PM

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 After vindicating these officers, Arbitrator Paul Staudohar reinstated Wellington to his former position and rescinded the 10-day suspension imposed on Thornton.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.