What Officer Ramos did wrong — and why he’ll be acquitted


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video still from Rodney King beating

Twenty years after the Rodney King beating (the timestamp was wrong), we still need to learn about qualified immunity.

I think that what Officers Manuel Ramos and Joseph Wolfe did in the first 18 minutes of the Kelly Thomas video was morally and ethically wrong.  I do not think that it was illegal; I don’t think that either will be convicted.

I think that what Officer Jay Cicinelli did in the next few minutes of the was morally and ethically wrong.  I also think that it was illegal.  I think that he should be and will be convicted.

It’s not clear to some people why I hope the discordant beliefs within the first paragraph, or why I come to different conclusions in the first and second paragraphs.  It’s worth people understanding, though, so this post is designed to explain it.

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I had an insight this morning while reading reactions to my earlier writing this week on the Kelly Thomas video and Manuel Ramos’s role in it:

I think that a lot of people in Fullerton have just never seen a roust close up before.

This is sort of incredible to me, but among upper-middle-class suburbanites, it’s not surprising.  What you see in the first 12+ minutes of the video, as I described earlier this week, is Officers Ramos and Wolfe:

  1. repeatedly intimidating Kelly Thomas
  2. needling him and treating him discourteously
  3. pushing for permission for an otherwise illegal search
  4. constructing a possible case against him — a plausible legal basis for arrest — out of flimsy evidence
  5. threatening him with violence if he didn’t comply with their orders
  6. escalating those orders to comply when he resisted
  7. beating his legs to knock him to the ground when he started to walk away
  8. chasing him when he ran and then physically subduing him, largely by lying on top of him

If you’re disgusted by any or all of the above, good for you.  You have a good heart — but you don’t have the makings of a beat cop, at least not in cities where rousting people is commonplace.  (That is: most everywhere.)

Do you wonder why poor people and minorities and homeless people complain about police misconduct?  This is the sort of thing they deal with all of the time.  This is why they are often resentful and uncooperative — why, in some cases, they fight back.  Did people really not get this before the Kelly Thomas case?  If not, then I’m sure that it’s a shock.

And the second shock is that — all of this is legal.  If they hadn’t come up with a pretext (the “purloined letters”), then it would not be legal.  If Kelly had asked whether he was under arrest, been told that he wasn’t, tried to leave after a patdown for weapons (a Terry stop), but then prevented from leaving — that would have been illegal too.  But what they did, rude and rough as it was — all apparently legal.  I think that big parts of it should not be, but it is.

This is a roust.  This is how it happens.  Take a good look, because it’s happening all over the country right now.  If you hate it, good.  You should be trying to end it everywhere, not just here, not just in one case.

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How can cops get away with the likes of this?  To understand that, you have to know the concept of qualified immunity for police (and other law enforcement agents.)  Let’s take the easy route and just go to Wikipedia:

Qualified immunity is a doctrine in U.S. federal law that arises in cases brought against state officials under 42 U.S.C Section 1983 and against federal officials underBivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Qualified immunity shields government officials from liability for the violation of an individual’s federalconstitutional rights. This grant of immunity is available to state or federal employees performing discretionary functions where their actions, even if later found to be unlawful, did not violate “clearly established law.” The defense of qualified immunity was created by the U.S. Supreme Court, replacing a court’s inquiry into a defendant’s subjective state of mind with an inquiry into the objective reasonableness of the contested action. A government agent’s liability in a federal civil rights lawsuit now no longer turns upon whether the defendant acted with “malice,” but on whether a hypothetical reasonable person in the defendant’s position would have known that his/her actions violated clearly established law.

As outlined by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800 (1982),[1] qualified immunity is designed to shield government officials from actions “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

In 2001, the Supreme Court in Saucier v. Katz established a rigid order in which courts must decide the merits of a defendant’s qualified immunity defense. First, the court determines whether the complaint states a constitutional violation. If so, the next sequential step is to determine whether the right at issue was clearly established at the time of the official’s conduct. The Court subsequently overruled Saucier in Pearson v. Callahan, holding that the two-step procedure was no longer mandatory.

(If you’re really interested, and I hope you are, go to the Wikipedia page to find the links.)

The key phrase in the above is that that qualified immunity “shield(s) government officials from actions insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  If you want to convict a cop for on-the-job behavior, you have to identify:

  1. A clearly established statutory or constitutional right
  2. of which a reasonable person would have known
  3. that the cop’s actions violated.

Here, the case against Ramos and Wolfe for their actions is complicated by the fact that the FPD presumably knew that they rousting the homeless (at least in response to complaints) and wanted them to be doing so.  The people of Fullerton, speaking through their representatives, wanted the homeless not to be too comfortable in the city, especially when someone complained about them.  A complaint would set the above process in motion.

I think that this policy was unfair and wrong — but it was the apparent policy.  Did the policy violate an established statutory or constitutional right?  I don’t see it.  There’s no law against cops being rude; there’s no law against their asking to do a search that they have no right to do without permission; there’s no law against their having a very broad view of “resisting arrest” and in using force — less-than-lethal force — to arrest a suspect who didn’t comply with their reasonable commands, even if the arrest they were resisting was dreamed up to serve the interest of removing them from the area and very likely would not stand up in court.

I don’t like this.  But — I don’t pretend that it’s not the law just because I don’t like it.

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To get a better understanding of how this works, you can compare it to the situation of Jay Cicinelli, who drove up, joined in a dogpile on Kelly Thomas for a little while, then cleared people away and TASERed him, and then beat in his face with the butt of the TASER.

This may make you sick, as it makes me sick, but only this last action clearly (in my opinion) put Cicinelli outside of the protection of qualified immunity.  Bashing someone repeatedly with a heavy and hard plastic object, enough so to break his bones, is a use of lethal force.  Kelly Thomas was accused of a misdemeanor and there was no indication that he was armed.  If he were armed, Cicinelli might have been able to get away with it (though I’d still say no.)  If Kelly were a fleeing felon, the officers could, if it were reasonable to do so under the circumstances, have shot him rather than tacking him.  (It wasn’t reasonable here; they could outrun him.)  But you can’t use the kind of force that Cicinelli used in this situation.  If you do so, you are not immune from prosecution.  He’ll probably have a better defense than I hope on the involuntary manslaughter charge — and I’m not sure why it’s “involuntary”; maybe it’s because Cicinelli is apparently pretty stupid — than I’ll wish he had, but at this point I expect that he’ll be convicted.

His defense of qualified immunity will fail because:

  1. Kelly Thomas had a right not to have lethal force used against him in that situation
  2. A reasonable person would have known this
  3. Cicinelli’s actions violated that right

That’s how it works.  Now, if one or more of the other cops encouraged Cicinelli to bash in Kelly’s face, they might also be liable, but I don’t see anything on the video to suggest that they did.  ”Why didn’t they stop him?”, people ask.  I think that it’s because they didn’t know that he was going to start — and once he did, and once Kelly started struggling even more furiously, requiring more force to subdue him, the deed was done and they had something else to contend with.  Watch the video — see how quickly things happened.

I appreciate that people are repulsed by the early part of the video, even before it comes to the absolutely spine-chilling portion in which Kelly is moaning and calling for his dad and for help.  That speaks well for their humanity.  But what is morally wrong is not always illegal — check out Wall Street and various corporate boardrooms for more of that — and when the discussion is of what’s legal and what justified a conviction then I make no apology for bringing up what the law actually says.


About Greg Diamond

Worker's rights attorney now moving into "good governance" litigation. North Vice Chair of Democratic Party of Orange County and occasional candidate. Proud to be prolix. Unless otherwise specifically stated, his writings never speak for the Democratic Party at the local, county, state, national, or galactic level. He tries to either suppress or openly acknowledge his partisan, issue, ideological, and "good government" biases in most of his writing here. If you have a question about any particular writing, just ask him about it and (unless you are an pseudonymous troll) he will probably answer you at painful length. He lives in Brea but generally doesn't blog about it. A family member works as a campaign treasurer for Wendy Gabriella in AD-73; he doesn't directly profit from that relatively small compensation and it doesn't affect his coverage. He does advise some campaigns informally and without compensation, although in 2014 he may receive some compensation for campaign consulting and fundraising for the campaign of Jorge Lopez for Orange County Assessor.