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'Excessive force' in Fullerton police case could be hard to prove

August 8, 2011 |  8:45 am

Fullerton death

As authorities investigate the recent death of a homeless man in Fullerton, experts said simply showing that police used force on him would not be enough to show criminal wrongdoing.

Indeed, they said, criminal investigations involving police use of force are not about whether an officer struck a person, but whether the force was "unreasonable" or "excessive."

"Unreasonable force is any force that is used when unnecessary, and that is quite rare," said retired Los Angeles County Sheriff's Cmdr. Charles "Sid" Heal. "Most of the trouble comes with excessive force, that is, too much force that is applied longer in duration than necessary."

Witnesses have said the officers in Fullerton case tasered Kelly Thomas several times and beat him. The July 5 incident, which left Thomas unconscious and in critical condition until he died five days later, has outraged his family and many residents of the Orange County suburb.

Heal said that when officers use a stun gun, there must be continued resistance to justify using it again, and that using force on someone who is restrained may be considered excessive. But he noted that even handcuffed suspects may not be deemed restrained and have been known to injure officers.

Broad legal protections make prosecuting law enforcement officers extremely difficult. A handful of cases are filed across Southern California annually. Many of Southern California's most notorious incidents of the last decade did not result in criminal charges.

In 2004, Los Angeles police officers were recorded pummeling a car-theft suspect along Compton Creek. One officer who hit the man with a flashlight was fired -- metal lights were subsequently banned -- but none faced criminal charges. In 2002, two Inglewood police were captured on video punching a developmentally disabled 16-year-old in the face and slamming him onto the hood of a patrol car. After two juries deadlocked in the criminal case, it was dropped. A civil jury later awarded the officers $2.4 million for being unfairly disciplined.

Heal said some departments have very strict use-of-force policies, so that legally justifiable acts can still violate department policy and lead to a firing. "Something can be lawful but awful," he said.

Fullerton's use-of-force policy explicitly directs officers to intercede if they see fellow officers applying what they believe to be excessive force.

Surveillance video shot from the Fullerton bus depot where the incident took place shows parts of the altercation, but key elements are obscured, according to a law enforcement source who reviewed it. The source, who spoke to The Times on the condition of anonymity because the case is ongoing, said the tape shows six officers struggling with Thomas, a 37-year-old man who suffered from schizophrenia.

The source said obstacles obscured the "quality and angle" of the shot. It's hard to see whether Thomas was restrained, as some witnesses have said, and the full extent of the officers' actions, the source said. Another source familiar with the video said tree limbs and leaves blocked part of the camera's view.

Other videos that have been posted on the Internet, one from a bus and another from a bystander's phone, do not show the police officers but capture the sounds of a stun gun, Thomas' screams and the reactions of shocked bystanders. Witnesses on those videos describe Thomas being repeatedly struck, kicked and shocked by the officers.


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Photo: A crowd gathers in front of the Fullerton police station Sunday to protest the death of Kelly Thomas, a homeless man who died after an altercation with several officers. Credit: Francine Orr / Los Angeles Times