Fullerton Police 'Use Of Force' Trainer Says No Policies Violated During Beating Death Of Kelly Thomas

by Tim Cushing
Techdirt
Dec. 25, 2013

More expert witnesses have been called in to testify in the beating death of Kelly Thomas. The defense called in its two final witnesses late last week -- Cpl. Stephen Rubio, a "use of force" trainer for the Fullerton PD, and Dr. Stephen Karch, a forensic pathologist.

Rubio's takeaway from the 33-minute video showing homeless man Kelly Thomas being restrained and beaten by six Fullerton police officers?

“In the video, all things considered, I don’t see anything out of policy,” Rubio said.

Among the things that failed to fall outside of the Fullerton PD's use of force policy are Officer Cicinelli repeatedly striking Thomas in the face with the butt of his Taser and Officer Ramos announcing that he was "getting ready to fuck [Thomas] up."

As for the first non-violation of policy? Apparently if your Taser is not "effective," you can just turn it into a blunt-force weapon.

[R]ubio said the Taser that Cicinelli used on Thomas wasn’t working correctly because Thomas continued to fight and the device made a noise that indicated it was being “ineffective...”

Officers, he said, are allowed to improvise with their weapons, though they aren’t trained to use a Taser as an impact weapon.

So, officers aren't trained to improvise with their Tasers but somehow Cicinelli's freelancing isn't a violation of policy. Then there's this marvel of a sentence.

Strikes to the head and face can be dangerous depending on what items are used, how hard they land and where they hit the suspect, Rubio said.

When an expert witness paraphrases the obvious and offers it up as testimony, it's time to dismiss them from the stand. Rubio's saying what everyone knows, including the defense. Smashing people in the face does tons of damage, most of which has incredibly deleterious effects on the beaten person's health. In contrast, a former FBI agent testifying for the prosecution referred to Cicnelli's "improvisation" as the use of "deadly force." And yet, somehow this still falls within the flexible parameters of Fullerton PD's "use of force" policy.

As does this:

Defense attorneys also asked Rubio about a part in the video in which Ramos put on white latex gloves and tells Thomas, “See these fists? ... They’re getting ready to f--- you up.”

John Barnett, who is representing Ramos, asked Rubio if his client’s words were consistent with his training.

“Yes, it was a conditional threat,” Rubio said. “The profanity may be off-color and may be a slight policy violation.”

Still the use of words, even profane ones, as a means to avoid endangering an officer or suspect is acceptable, Rubio said.

So, the swearing was the only problem. Other than that, threatening someone with violence is completely "by the book" for the Fullerton PD. "Conditional threats?" Perfectly fine. (Not that Ramos' threat was conditional…) Just don't swear. "Please hand me your license and registration or I'll beat you with the butt end of my Taser." "If you don't place your hands behind your head, I'm going to hit you with every non-lethal weapon I have in my arsenal." "If you make me get a warrant, I'm going to rip your house apart and kill your pets." All by the book.

After damaging the reputation of the Fullerton PD ("threats are cool, as are improvised beatings") in hopes of redeeming two bad cops, the defense turned to another medical expert, one who followed the post-beating-death script to the letter. Beatings don't kill people. Drugs (and bad hearts) do.

Dr. Steven Karch, the final witness for two former city police officers charged with killing Kelly Thomas, said the homeless man suffered from methamphetamine cardiomyopathy, a weakening of the heart caused by drug abuse.

"He could have died sitting in a closet by himself," Karch said.

Could have. But didn't.

Thomas died five days after lapsing into an irreversible coma -- a coma he lapsed into while being beaten and restrained by six Fullerton police officers. All else being equal, I'm sure he would have preferred dying alone in a closet, rather than being beaten to death.

Karch, like many other coroners and pathologists before him, blamed the dead man for instigating his own death.

[K]arch said Thomas' clash with police was "precipitated" by a spontaneous psychotic episode brought on by past meth use.

Karch stands alone on this, contradicting both the Orange County coroner and UC Irvine trauma surgeon, who each determined Thomas had died from a lack of oxygen to the brain precipitated by chest compression and multiple injuries to the face.

According to Karch, there's only one person who truly knows why Kelly Thomas died.

Karch wouldn't say whether Thomas' fight with police on July 5, 2011, caused his heart to fail but said it could be a possibility.

"I would suspect that the added stress of this fight or physical altercation would make it worse," Karch said.

"So you're not saying he was destined to die on that particular day and the police just happened to be there?" Rackauckas said.

"Only God can say that," Karch said.

Nice. Too bad The Almighty can't be tapped to testify. According to toxicology reports, Thomas had no drugs or alcohol in his system on the night he died, but this fact matters little to those who see every beating death as the inevitable end to a drug "abuser's" life. If the cops don't get to him first, Thomas dies from heart complications -- maybe that same night, maybe 20 years later. Six on one side, half-dozen on the other.

Karch really had to stretch to make this theory fit a 135-lb. homeless man with no drugs in his system.

Thomas, he said, appeared to have had a psychotic episode the night he clashed with police, because only someone with "some kind of mental malfunction" would take on six police officers.

The strength it would take to fight with half a dozen police officers would normally be difficult to gather, but would be easy under a meth-induced psychotic episode, he said.

Except, of course, there was no meth in Thomas' system. What then?

[P]eople who habitually use meth can still be affected years later by the drug, suffering from such things as a weak heart and spontaneous psychotic episodes, Karch said.

So, if you've used drugs even once in your life (or have been arrested for possession), prepare to have that held against you by those attempting to brush aside accusations of brutality. No drugs in your system? Must just be some bad flashbacks. "Yeah, the perp fought hard, like a psycho. We needed six officers just to keep him restrained. Found out he used meth regularly up until 1995. No wonder he was such a monster NEARLY 20 YEARS LATER."

There's nothing facetious about this scenario.

A doctor who prepared a report on Thomas after he attacked his grandfather in 1995 with a fireplace poker wrote that Thomas told him he used methamphetamine and did "a lot" of LSD up until 1994.

No drugs in his system. It doesn't mean Thomas hadn't used meth recently, but it does mean he hadn't used any in a rather long period of time -- long enough that its traces had vanished from his system. And yet, the defense paints a portrait of a psychotic, amped up on drug flashbacks, overpowering six police officers who outweighed him by at least at 10-to-1 ratio. A psychotic who died of a preexisting heart condition no less, despite the fact his face resembled a tenderized side of beef by the time his comatose body arrived at the trauma center.

No one would expect the defense team to do any less in order to spring its clients, but the justifications and theories are old hat. They've been deployed by countless law enforcement agencies in the past. But they have to sway a jury this time, not just placate pesky members of the press. We'll see how that goes.