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Murder by Cop?
Was the Beating Death of Kelly Thomas Justifiable Homicide


                                                        by Allen R. Kates, MFAW, BCECR
           


                                    
                                                                             Schizophrenic Kelly Thomas
                                                                     after being beating by police officers           
                                                                                 


For two years, I was a residential counselor at Phoenix House, a Santa Barbara, CA, group home for drug or alcohol addicted people suffering from mental illness. Of the 12 residents, all were diagnosed with schizophrenia.

Schizophrenics Were Not Human


Before I became a mental health counselor, I knew nothing about schizophrenia. I assumed that schizophrenics were violent people who should be locked up and the key thrown away. I wallowed in my own ignorance.

I laughed at jokes about schizophrenics. Most of all, I feared them. They were the "other," not human like you and me.

As a counselor, I became enlightened. There is nothing like seeing the mentally ill person in front of you instead of imagining the stereotype. This is a schizophrenic... This is how they think, this is how they behave, this is how they react when frightened.

Stereotypes Breed Hatred and Misunderstanding

The purpose of this series of articles is to enlighten police officers, as well as the general public, about the mentally ill. We must rid ourselves of the stereotypes, as they breed hatred and misunderstanding.

Police Forced Into Being Mental Health Counselors

Every one of us has come into contact with them. It would be almost impossible not to, as one in four adults suffers with a mental disorder. That's about 57,700,000 Americans with a mental health disorder in a given year. About 2,400,000 alone suffer with schizophrenia.*

*Source: National Alliance on Mental Illness, NAMI.

Our broken-down mental health system cannot cope with the huge numbers of mentally disabled people. Nor can the police who are pushed into the arena as quasi mental health counselors and therapists with little understanding and virtually no training. Consequently, they understandably fail at it.

The result is what happened to Kelly Thomas. Was it murder or justifiable homicide?

(continued below, left)

What Happened to Kelly Thomas?

To bring you up to date, here are the facts about the Kelly Thomas beating:

Searched His Backpack

On July 5, 2011, Fullerton, CA, police officers received a report of someone breaking into cars or checking car door handles in the area around the bus depot. Officers detained a 37-year-old shirtless transient named Kelly Thomas on suspicion of possessing stolen items while they searched his backpack. His backpack contained two letters addressed to a lawyer. He was unarmed.
 
Resisted Arrest


After he purportedly resisted arrest, police officers tried to subdue him by beating him, tasing him multiple times, hitting him with the butt of a Taser and a baton.

Couldn't Breathe

Throughout the ordeal, Thomas cried out for help, saying he was sorry and couldn't breathe. I lost count of how many times he said he couldn't breathe. Toward the end, he begged his father to help him.

The early reports said that it took "several minutes" before he stopped moving.

Severe Injuries

He sustained severe injuries to his face, head and neck, and was hospitalized at UCI Medical Center where he remained in a coma for less then a week, after which he died. The coroner said that the cause of death was "asphyxia from chest compression, with head and facial injuries contributing."*

*Source: Los Angeles Times, 9/27/11)


Was Thomas's Death Justifiable Homicide?

  

The police officers' attorneys say that Kelly Thomas resisted arrest and had to be subdued. His death was an unfortunate consequence, and his fault.

The Bureau of Justice Statistics, U.S. Department of Justice, defines justifiable homicide "as the killing of a felon by a law enforcement officer in the line of duty."*

*Source: http://bjs.ojp.usdog.gov/content/homicide/justify.cfm

A felon is one who commits a felony consisting of one of several grave crimes, such as murder, rape or burglary.

California Penal Codes 196 & 197, Homicide

  

According to California Penal Code Section 196, homicide is "justifiable when committed by public officers... when necessarily committed in overcoming actual resistance to the execution of some legal process or in the discharge of any other legal duty..." or when "arresting persons charged with felony, and who are fleeing from justice or resisting such arrest."*

*Source: http://onecle.com/california/penal/196.html

California Penal Code Section 197, adds that homicide is justifiable by any person "when resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person."**

Justifiable homicide may also be applied "when necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed... or in lawfully keeping and preserving the peace."**

**Source: http://onecle.com/california/penal/197.html*

Overly Broad Definition

To say the least, this is a very broad and confusing definition, with lots of loopholes, and a case can be made for any eventuality.

Had Thomas Committed A Felony?

But had Kelly Thomas committed a felony?
Officer Ramos tells Thomas on the video that he may arrest him for burglary because he has the mail of an attorney in his backpack.



Was this his justification for beating Thomas? Is mail theft, if it were true, a big enough felony to warrant a fatal beating? Was Officer Ramos setting Thomas up?

Great Bodily Harm

Was Thomas attempting to hurt the officer? By resisting arrest or defending himself after being grabbed and struck, was Thomas committing "great bodily harm" or attempting to do so?

  

It seems that Officer Ramos has been trying to make that case by showing minor injuries he incurred during the struggle.

If Officer Ramos asserts that Thomas was a violent schizophrenic, it will be an uphill battle. Even though Thomas had had a violent encounter 17 years before with his grandfather, it is well known in the mental health field that schizophrenics are not generally violent.

Most Violence Not Caused by Mentally Ill

Dr. Jeffrey Swanson, professor in psychiatry and behavioral sciences at Duke University's School of Medicine, said:

"Most violence is not caused by a major psychiatric condition like schizophrenia...

"Psychiatric disorder accounts for only about 4% of violent behavior, across the spectrum from minor to serious assaultive acts. And the vast majority of people with serious mental illnesses do not behave violently."*

*Source: CNN.com 7/24/2012

-continued
top of column, above right-

Dr. Charles Raison, associate professor of psychiatry at the University of Arizona, Tucson, adds, "people with schizophrenia are, as a group, among the sweetest and most dignified people on the planet."*

*Source: Cnn.com 7/26/12. "Warning signs of violence: What to do."

Use of Excessive Force

Whether excessive force was used on Thomas or not is a slippery concept. There is no universal policy for police departments and each department decides its own.

Officer Ramos said that the beating was "within policy." The Fullerton PD has now blocked access to their website's Use of Force policy, so I can't comment on what it says. Apparently, in light of Thomas's brutal death, they are revising it.

If Other Officers Think Force Is Excessive They Must Intercede

However, an Orange County newspaper quotes from the earlier policy, stating, "Any officer present and observing another officer using force that is clearly beyond that which is objectively reasonable under the circumstances shall, when in a position to do so, intercede to prevent the use of such excessive force."*

*Source: Voice of Orange County, 8/16/11.

Nobody Interceded

Nobody interceded, so we can only assume that the 6 officers present thought the force used was hunky-dory. At least no officer has taken the risky step of speaking out against their fellow officers who beat Thomas, as far as we have been told.

Was The Force Used Unreasonable?

Since none of the other officers at the scene have said otherwise, we can conclude that they believe that the following violent actions against Thomas were "within policy," "lawful but awful," and not deemed to be unreasonable force:

  • Tackled
  • Hit repeatedly with baton
  • Thrown, pinned to the ground
  • Punched repeatedly in the ribs
  • Kneed in the head 2 times
  • Tased 4 times
  • Hit in face with Taser 8 times
  • His chest sat on
  • Choked out
  • Facial bones broken
  • Aspirated his own blood
  • Lost consciousness


Did Thomas Fight Back, Unreasonably?

Orange County District Attorney Tony Rackauckas said that Thomas was acting "in self-defense, in pain and in a state of panic... His numerous pleas of 'I'm sorry,' 'I can't breathe,' 'Help Dad,'" did not convince the officers to let up or give him a chance to submit peacefully.*

*Source: KFIAm640.com, accessed 7/25/12

Apparently, in some jurisdictions, suspects are allowed to fight back if they are being unjustly beaten or abused by police officers. I had to laugh when I read that. Folks, just try it and see where that gets you.

Something Fishy Happened Later

After the beating, something very fishy happened. Crime scene investigators and homicide detectives were brought in. The beating was to be handled with the same seriousness as an officer-involved shooting.

The 6 officers at the scene were told they would have to answer questions from investigators in person, and not write reports. Detectives were told to begin the interviews.

Officers Allowed To Revise Their Story

As the investigation was taken over by Internal Affairs, the department allowed the officers to write out their statements, "a move more typical of lower-level use-of-force cases."*

Which this was not.

In effect, they were allowed to rehearse and revise their story to put it in the best possible light.

Acting chief of police Captain Dan Hughes said, "I don't believe there was any intention at all to mislead our community... We should have did (sic) a better job."*

Hughes was not the chief at the time of the beating.

*Orange County Register7/6/12 "Fullerton chief on Kelly Thomas case, public: 'We blew it'

Will Murder Charges Stick?


Due to the broad powers that police officers are given, it's very difficult to make murder charges against them stick. Based on the video, I would think there is ample evidence to show that the officers were out of control and had provoked Thomas into resisting. His death was not his fault, it was theirs.

Experts Say the Officers Will Not Be Convicted

  
            Rodney King beating

Pundits say I am probably wrong. For example, the first Rodney King beating trial for excessive use of force resulted in the officers being acquitted. However, according to reports, the federal government is standing in the wings, ready to charge the officers with civil rights violations, as they did after the King trial, if they are not convicted during their murder trials.

Chance of a Murder Conviction?

What chance is there that the murder trials will succeed in convicting the officers? Here's what I saw in the complete 33-minute video taken by a camera at the bus depot. A judge and jury will see the same.   


Although the conversation is sometimes hard to hear, t
he officers' DARs (audio digital recorders) pick up the audio. And subtitles from official transcripts fill in some of the more difficult parts.

Minutes 1-15 Approx:

The encounter seems to start off in a friendly manner, with Officer Manuel Ramos asking to search Thomas's backpack. However, right from the beginning, Officer Ramos flips his baton up and down in a menacing way.

Before long, Thomas is ordered to sit on a bench while his backpack is searched by Officer Wolfe, who is off-camera. Officer Ramos stands opposite Thomas.

                 -continued
      top of column, above right-

Officer Ramos asks where Thomas sleeps. He says, "in trash cans."

Can't Remember First Name

Officer Ramos asks for Thomas's name, but Thomas can't remember his first name. Officer Ramos asks if it's Kelly, and confirms that they've talked before.


Ramos says that if Thomas can't give him his correct name, then he'll have to take him to jail. Thomas says that he has nothing better to do.


Ramos gradually becomes antagonistic. If Thomas stretches out his legs, Ramos commands him to pull them in. If Thomas fidgets, Ramos peppers him with coercive words.

Thomas Tries to Comply

The verbal sparing goes on for some time, with Officer Ramos commanding Thomas to do this and to do that. Thomas tries to comply, but he forgets, and the officer ridicules him.

Poor Attention Span

From previous encounters, the officer knows Thomas is mentally ill. Schizophrenics often have the attention span of a hummingbird, and find it difficult to comply with orders, not because they are belligerent, but because schizophrenia is a thought illness--it's hard for them to keep a thought in their heads or act on something like a police officer's order.

Minutes 15-33 Approx:

At 15:00, Officer Ramos snaps on latex gloves.

At 15:21, without provocation, the officer threatens to beat Thomas with his fists, saying, "See my fists? They are getting ready to fuck you up."*

*Source: Los Angeles Times, 9/27/11)

The Turning Point

That is the dramatic turning point, after which there is no going back. Thomas responds by saying, "Start punching, dude."

  

At 15:40, Ramos grabs Thomas and a struggle ensues.

At 15:48, Officer Wolfe strikes Thomas with his baton.

Then Ramos beats Thomas and tries to wrestle him to the ground.

7 Excruciating Minutes

For about 7 excruciating minutes, Thomas is beaten, sat on, screamed at, tased and cuffed. During this time, Thomas cries out that he is sorry. He continues to say that he can't breathe, and begs for his father's help.


At 16:02, Thomas screams in pain for the first time, and continues to scream.

At 16:09, Thomas says he is sorry for the first time, and continues to say it.

At 17:01, for the first time, Thomas says he can't breathe, and continues to say it, over and over again, until he becomes silent almost 6 minutes later.

At 18:00, Cpl. Jay Cicinelli arrives and they continue to beat Thomas.


At 18:40, Cicinelli starts tasing Thomas. One of the 4 hits goes on for a while, with Thomas screaming throughout and crying for his father.

At 19:22, Cpl. Cicinelli says to "choke him out."

At 20:39, an officer says there's "fucking blood everywhere."

At 21:00, you can see 6 officers on top of Thomas or holding onto him.

At 22:00, Thomas's screams have become moaning and crying.

At 22:55, Thomas is silent and limp.

At 23:40, an officer announces that paramedics are en route.

At 24:08, an officer says, "He's bleeding pretty good."

At 24:44, an officer asks, "Is he breathing?"

At 25:09, Cpl.
Cicinelli boasts that he "smashed" Thomas's "face to hell."

At 26:41, paramedics arrive.

At 28:24, a paramedic says that Thomas is cyanotic, which means he has turned blue from lack of oxygen.

Thomas is lifted onto a gurney.

  

Where his body has lain, a wide puddle of blood congeals on the ground.

Watched A Man Beaten Into A Coma

These were an excruciating 7 minutes because as I watched, I realized that I was not watching a movie or a silly YouTube video. I was watching a mentally ill man being baited, harassed, humiliated and beaten into a coma before my eyes.

Clinical Precision of Beating

What impressed me the most about the beating, if the word "impressed" can be applied to this case, is the clinical precision the officers applied to beat Thomas into submission. It was almost like an operation. Do this first, do this second...

No Other Option?

On the video, one of the officers says that he was left no option but to do what he had done. Well, he still had another option--step away! You can find out more about "stepping away" in the article about Solutions.

Felt Like I Was There

I've seen a lot of horrible things during my years as a journalist. As a Victim Witness advocate, I've been to crime scenes of robberies, rapes and murders. I didn't weep at those horrific scenes, but I did while watching the Thomas video.

Maybe it's because I hadn't witnessed the other brutal attacks, only the aftermath.  With the bus depot video, I felt like I was there.

You can watch it, below, and decide if the officers were merely doing their duty.

          -see more below, left-

                                                            Bus Depot Video
                                                        Kelly Thomas Beating

                                                           
                                                     With Subtitles From Transcripts
                                  of official digital audio recorders (DAR) that the officers wore


                     Please be advised that this video is graphic and disturbing to watch.

                       
                       


                                                        "Start Punching, Dude."

Why did Kelly Thomas respond to Officer Ramos with bravado and hostility after Ramos threatened to "fuck you up" with his fists? Thomas said, "Start Punching, Dude."

Many would say because he was a violent, insane person. After spending a lot of time talking and listening to schizophrenics, I learned that there is one thing you never do with someone like Thomas. You NEVER threaten them with violence.

Because they are used to being threatened, harassed and attacked. They are always on edge, hypervigilant, and ready to defend themselves. Over the years of their illness, they have been demeaned, beaten for no reason, raped, taken advantage of, and discarded like garbage by family, street thugs, and prison inmates. They understand violence more than most of us and have an uncanny sense about when it is about to occur.

I think that Thomas's response was a weary, I've-been-there, heard-it-all-before, knee-jerk reaction, a defense mechanism designed to try to thwart an attack before it started.


Thomas Defended Himself Against Unreasonable Force

In addition, schizophrenics live on conspiracies, and are always on guard for treachery and betrayal. They trust no one. So when Officer Ramos threatened him, that triggered an intense reaction. Like a vulnerable, cornered animal, Thomas prepared himself for battle.

After Officer Ramos grabbed Thomas, he tired to defend himself, as most of us would against what we deemed to be unreasonable force and psychological abuse. Unfortunately for Thomas, police officers are taught never to back down. That's why Officer Ramos's threat to "fuck you up" with his fists set events in motion that could not be stopped.

Murder Charges Against Ramos and Cicinelli

                
                               Officer Manuel  Ramos                                  Cpl. Jay Cicinelli


Officer Ramos and Cpl. Cicinelli are now charged with murder and awaiting trial. I would like to give them the benefit of the doubt and say they were honestly trying to do their job. They thought they had a suspect who committed a crime, the suspect resisted arrest, and they had to subdue him. End of story.

In which case, I would have to ignore what my eyes saw and my ears heard on the video. I would have to disregard the findings of the pre-trial.

Most Police Officers Decent

Most police officers are well-intentioned, honorable, decent human beings who try to do a difficult, sometimes impossible job, and treat people with dignity. It's not only me saying this, but the FBI has compiled figures that say about 1 percent of cops are corrupt and immoral. Psychological Services cannot possibly weed out all the bad cops. But that's assuming that Ramos and Cicinelli are bad cops, and were always bad. That's something I don't believe. At the beginning of their careers, I think they were part of the 99 percent of excellent cops.

But something changed in them. Something made them do what they did. Maybe years of thankless police work. Maybe horrific incidents that traumatized them and made them cynical. Cops see the worst that a human being can inflict on another. That scars police officers and empties their hearts and souls.

Was the death of Kelly Thomas the result of their pent-up frustration, cynicism and rage? Let's hope that the murder trial will shed some light on what the officers were thinking at the time.


Update: On January 13, 2014, the police officers charged in the Kelly Thomas death were acquitted of all charges. At the moment, there has been no response from the Justice Department of the federal government.


Please read more articles about who the officers are, what they were facing with Kelly Thomas, the meaning of schizophrenia, and several solid solutions for police officers and departments when dealing with the mentally ill.

To access the articles on the Front Page, please click here.


                                                             

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