Excessive Force Charges Against San Bernardino Deputy Dismissed

MICHAEL D. SCHWARTZ, ESQ.
Partner
Rains Lucia Stern St. Phalle & Silver, PC

Nick Downey, a well-liked, hard-working seven-year deputy with the San Bernardino Sheriff’s Department (SBSD), was working a special enforcement team car with his partner in the City of Victorville on April 9, 2015. Deputy Downey grew up in the high desert area of San Bernardino, not far from Victorville, and knew the area well. Victorville, a contract city with SBSD, is known for its high crime rate, gangs and drugs. For Nick Downey, April 9 should have been another ordinary day on patrol, looking for tweakers and other typical problems. But what began as a routine day mushroomed into an arrest caught on video that went viral, forever changing the lives and careers of Deputy Downey and two of his fellow deputies, Micheal Phelps and Chuck Foster.

At about 12:30 p.m., SBSD deputies went to serve a search warrant at a residence in Victorville. The warrant sought information and evidence linked to an identity theft investigation. As the deputies arrived on scene, they saw a man run from the residence, jump into a car and speed off. A pursuit quickly followed. The driver of the car, later identified as Francis Pusok, was a local 30-year-old drug addict and violent parolee. Pusok had been arrested for, among other things, fighting with police, domestic violence and shooting a puppy in front of his kids. Now, he was evading deputies on residential roads, at times exceeding 100 mph and heading into oncoming traffic. Deputies reported he began “dusting” them — creating dirt and gravel clouds to thwart pursuit and potentially cause the deputies to crash their vehicles.

When Pusok’s car came to the end of the road (literally on the edge of a cliff), he jumped out and fled on foot. Deputies followed. The foot pursuit led the deputies further into the mountains of the high desert. The terrain was treacherous: slippery, sandy gravel interwoven with jagged rocks, large gopher holes and plants reaching over 6 feet high. A CHP helicopter following the pursuit called for more support, while SBSD deployed three additional choppers. At one point, a CHP helicopter observed Pusok lose his footing and fall down a ravine.

Deputies from sister substations joined the pursuit, now entering its second hour. While a number of the deputies were pursuing Pusok on foot, the chase took another strange turn. The suspect stole a horse from a man bathing in a nearby mountain hot spring. The suspect who had eluded deputies in a high-speed, dangerous car chase and foot pursuit was now riding a stolen horse further into the remote mountains.
It was hot, with temperatures in the 80s, and the deputies were in full gear. One deputy called in with dehydration, then another. Dispatch reported the first dehydrated deputy was losing consciousness. Another deputy, lost, was told to light a signal fire so the choppers could locate him and lift him out. The situation was as treacherous as the terrain.

At one point, the CHP helicopter saw Pusok fall off the horse. Given the difficult terrain, a decision was made to helicopter deputies in and drop them off around the suspect, forming a perimeter around Pusok. Nick Downey was one of those deputies. Before he boarded the chopper, he and his partners were told to leave their OC spray behind, eliminating one tool from their use-of-force options. They were also told not to tase the horse as a way of disabling the suspect. They were informed that Pusok owned firearms and, as demonstrated by the puppy incident, was not averse to using them.

Light banter on the airship, picked up by Deputy Foster’s digital audio recorder (DAR), masked their obvious trepidation. One by one, they jumped from the helicopter. Deputy Downey was dropped on a ridge and immediately saw Pusok on another ridge, about 100 yards away. In between the two was a valley with a downward slope of about 40 degrees. Deputy Downey began running down the steep slope, nearly falling several times. Concentrating on his footing, he lost sight of the suspect. He had his firearm out, but while running up the other side of the embankment, he decided to holster it — he had no idea where his partners were and didn’t feel his backdrop would be safe should he come upon the suspect, opting instead for his Taser.

Rounding a large bush, Deputy Downey found Deputy Micheal Phelps, from the Twin Peaks substation, with his Taser deployed in dart mode. Downey found the suspect on the ground — not handcuffed, not searched and still moving, his arms underneath his waist, pushing up and reaching out. All four movements occurred in less than two seconds. The pursuit was now in its third hour. Both deputies were exhausted, barking orders for Pusok to put his hands behind his back. The footing was still precarious, the situation still dangerous. The suspect’s arms were extended out in a prone position. Seeing his partner’s Taser was ineffective, Deputy Downey decided to use personal body weapons to secure the suspect. On the side of that mountain, alone with his partner and an unsearched, unsecured, dangerous suspect whose arms and hands had just come out from under his waist, Deputy Downey decided to kick at the suspect’s left arm to disable it momentarily so he and his partner could handcuff Pusok.

Deputy Downey made that decision in less than a second. However, within 1/6 of a second, as Downey began to kick at that left hand, the suspect moved both arms behind his back. Downey’s foot stumbled into the dirt and left shoulder of Pusok. Seeing one more rapid movement and still focused on the left arm, within that 1/6 of a second, Deputy Downey kicked at the arm again, hitting somewhere around Pusok’s upper shoulder and neck area. He then bent down to try and grab Pusok’s arm to handcuff him. Meanwhile, Deputy Phelps, seeing Pusok’s legs moving, kicked at the upper inner thigh in an effort at pain compliance. As more deputies arrived, Pusok continued to actively resist. Arriving deputies also deployed force in the form of knees, kicks, Taser, punches and batons to gain compliance and secure the suspect. Finally, after much effort, Pusok was handcuffed and hobbled. Aside from some cuts, scrapes and mild bruising (attributable to his slide down a ravine and falling twice off the horse), Pusok sustained no real injuries. The pursuit was finally over. The nightmare, however, had only just begun.

Unbeknownst to the deputies, an NBC News helicopter had also been on-scene and videotaped Downey’s, Phelps’ and other deputies’ uses of force in the arrest. It was aired live — a detached, flat, two-dimensional view from over 4,000 feet above the deputies. Use of force never looks pretty. In the words of retired SBSD Undersheriff and use-of-force expert Bob Fonzi, it’s violence: controlled but still, in the final analysis, violence. The video of multiple deputies using force to subdue Pusok soon went viral, airing across the country and the world. The deputies and their supervisors on-scene congratulated each other for their efforts and the lack of any real injuries to themselves, the public or the suspect. Meanwhile, journalists and social media were acting as judge and jury. And who would be judged by public opinion? Not Pusok, but the law enforcement officers who risked their lives to take him into custody.

Five months later, Deputies Nick Downey, Micheal Phelps and Chuck Foster were all charged with violating Penal Code Section 149, felony assault under color of authority. All pled not guilty, and the case wound its way to trial in February 2017, with me and my investigators. I defended Deputy Nick Downey; Kasey Castillo from Castillo Harper represented Deputy Micheal Phelps; and Heather Phillips from Goyette & Associates defended Deputy Chuck Foster. Joining the defense team were audio/video expert David Notowitz from the National Center for Audio and Video Forensics and use-of-force expert Bob Fonzi.

The prosecutor, a supervisor in the San Bernardino County District Attorney’s Office, tried the case for the state. The trial was a circus. The DA’s strategy in the case was to call only one witness to the stand, the case agent Sergeant Dan Hanke, and use him as a proverbial whipping post. The prosecutor’s direct exam of the honest, hard-working cop ranged from detached fact-gathering to open insults and innuendo. At times, the prosecutor was barking questions from the back of the courtroom, accusing the sergeant of conducting a biased, shoddy investigation to cover his buddies’ wrongdoing, although the sergeant had never met the three deputies. The investigation spanned 600-plus pages of witness interviews.

The investigation included high-tech scans of the remote area where the arrest took place and extensive cataloging of evidence. Despite the lengthy investigation (almost two years), there was never a complaint or request for follow-up by the prosecution. One observer described Hanke as the prosecution’s “personal punching bag.” Objection after objection by the defense was sustained. Although Hanke’s trial testimony was consistent with his preliminary hearing testimony and his training, the invective did not stop, with questions prefaced by “Sergeant, I’m just trying to get a straight answer from you,” when, in fact, the witness rarely got a straight question from the prosecutor. It became obvious that the strategy of the prosecution was to substitute public fear, ignorance and the myth of a law enforcement conspiracy for solid, credible interpretation of the evidence.

What Hanke did testify to, much to the annoyance of the prosecution, was that deputies, including Deputy Downey, are trained that until a suspect is handcuffed and patted down for weapons, that suspect is still considered armed and dangerous. Moreover, the hand movements of Pusok posed a significant threat to any deputy. He also testified that the terrain and conditions the deputies experienced were both hazardous and treacherous, and that the pursuit was one of the greatest uses of manpower and resources he had witnessed in his 12 years with the Department. Lastly, he testified that personal body weapons were in the same general force category as a Taser, and therefore a viable alternative to the Taser.

Next came the defense witness, expert Fonzi. Fonzi’s testimony was similar to Hanke’s, but with greater emphasis on the threat assessment and the appropriateness of the deputies’ choices of force. He spoke to reaction time and the considerations of law enforcement when deciding what force to utilize. Specifically, Undersheriff Fonzi testified to the nearly impossible challenge posed by the terrain and conditions (he visited the site twice himself in preparing his conclusions), the training the deputies received to navigate those challenges, and the realistic range of choices they had within those split seconds. Once again, the prosecutor attacked Fonzi’s opinion as biased and threw temper tantrums when he did not receive the responses he wanted.

Last up was the CHP helicopter observer, defense witness Officer Spurlock. She testified to tracking Pusok from above during the pursuit for over an hour, his physical build (she described him as large and agile, like a “cage fighter”), and how he fell twice before the deputies encountered him (once down the ravine and once from the horse).

If evidence had become a circus, closing arguments descended into farce. The prosecutor spent the first 10 to 15 minutes of his one-hour argument not on the law, not on the evidence, but on the New Testament, substituting intelligent argument for religious allegory. He began by reminding the jurors of the “Bloody Pass” — the innocent traveler who had been beaten and
left for dead by a band of thieves, and the Good Samaritan who helped the traveler even though it was difficult for him. The implications were patently obvious: Pusok, the wanted, dangerous felony suspect was the traveler beaten and left for dead on the Bloody Pass, the thieves who beat him were the sheriff’s deputies, and the Good Samaritan was the prosecutor. After objections and motions for a mistrial, the judge told the prosecutor that he saw no relevance between the story and the facts and law of our case and ordered him to cease from finishing the story.
Yet the prosecutor continued his biblical narrative. This time, the judge sustained his own objection in front of the jury and again ordered him to move on. Like a petulant child, the prosecutor asked the court why he couldn’t finish his story. The judge simply and sternly told him to move on. Next came references to temptation, lust, greed and pride. At this point, nearly 20 minutes into the closing argument, the prosecution had yet to mention the law or the evidence.

Finally, the prosecution put the video on the screen to discuss. However, upon further examination by defense counsel and the video expert, it became apparent that the prosecution was not using the video that had been admitted into evidence and viewed during the trial but a set of still photographs that had never been used or viewed during the trial — and that the judge specifically ordered not be used in closing argument. From biblical banter to direct violation of a court order, again, the defense objected and moved for a mistrial which was, after much discussion, again denied.

In contrast, the defense’s closing argument focused on a detailed analysis of the video, coupled with a recounting of the witness testimony and the law. Taking the prosecution argument on its face, I argued and demonstrated on the screen that, from the prosecution’s own analysis, Deputy Downey was being tried for choosing, in literally 1/6 of a second, a force option in the same category that his partner had chosen only two seconds earlier. After witnessing four rapid, threatening arm movements by the suspect in less than two seconds, I argued that the prosecution’s claim that the fifth arm movement by Pusok was one of complete submission was unreasonable and nonsensical. We then went through all the opportunities Pusok had in the nearly three-hour pursuit to surrender but chose not to. Why, I asked, should Deputy Downey, in the 1/6 of a second, trust that Pusok intended to surrender? No reasonable officer in Downey’s shoes would. I looked at the jury and then asked them, “Would you?”

In his rebuttal argument, the prosecution veered clear of any video analysis. Instead, he pandered to politics and prejudice rather than evidence and intellectual honesty. He argued that a “code of silence” in the Sheriff’s Department (despite no evidence presented at trial of any such code) led to a “culture of violence.” He then tasked the jury to stand in the way of the San Bernardino Sheriff’s Department “machine.”
The ploy, unfortunately, worked with some jurors. After two days of deliberation, the jury announced they were hung as to Deputies Downey and Phelps. A mistrial was declared.

The DA’s Office then reevaluated the case, taking into account the evidence actually adduced at trial, and decided that another hung jury was likely to occur. They offered to dismiss the felony excessive force charges against Deputies Downey and Phelps for no contest pleas to misdemeanor PC § 415, disturbing the peace. The deal would ensure the two former deputies’ ability to continue to fight to get their jobs back and stay in law enforcement. Both men, tired and worn, and a bit relieved to have this chapter of their lives closed, agreed to the deal. The felony charge of PC § 149 was dismissed. A relieved Nick Downey, still eyeing his administrative hearing this summer, was thankful to his family, PORAC/LDF and his entire defense team at Rains Lucia Stern St. Phalle & Silver, PC.

About the Author

Michael Schwartz is a partner with the law firm Rains Lucia Stern St. Phalle & Silver, PC. For the past 16 years he has focused on representing peace officers in some of the toughest and most noteworthy criminal cases venued in Southern California.