Today, The OC Weekly announced the Slidebar possesses Close-Circuit Television recording taken from its premises on July 5, 2011. The tape records none of the interaction between the Fullerton Police Department and Kelly Thomas, but does provide a perspective as to what SlideBar employees and management may have observed regarding Kelly Thomas’s behavior in front of the establishment, including the parking lot.
Let’s be absolutely clear on a few things.
Here’s what the tape doesn’t mean:
It doesn’t mean that the three former members of the Fullerton Police Department are any guiltier or any less guilty of murdering Kelly Thomas.
— It doesn’t mean that former Officer Ramos had a right to threaten Kelly Thomas with physical violence or to take active demonstrative steps towards inflicting violence before engaging in a physical confrontation with Kelly Thomas, a confrontation that was the actual and proximate cause of Kelly Thomas’s death.
— It doesn’t mean that former Officer Wolfe had a right to pursue and batter Kelly Thomas with a club, precipitating a violent physical altercation with Mr. Thomas, to participate in the subsequent confrontation, a confrontation that was the actual and proximate cause of Kelly Thomas’s death.
— It doesn’t mean that former Officer Cicinelli had a right to electrocute Kelly Thomas repeatedly, to use a weapon to repeatedly batter Mr. Thomas’s face, to participate in a violent confrontation, a confrontation that was the actual and proximate cause of Kelly Thomas’s death.
It also has no bearing on whether the Fullerton Police Department should continue to employ one or more of the officers not charged with a felony as a result of their activities on July 5, 2011.
It does not mean that three other officers did not fail to fulfill their duty to provide aide to a victim of a crime, a crime in which each officer physically aided the perpetrators and provided care, a victim which each officer physically touched while the victim was being battered, or to fail an ordinary duty to provide care to a person in distress—who openly bled into the street while all three officers did nothing.
It also doesn’t preclude any motive from any Slidebar employee or a member of its management regarding the homeless population at the Fullerton Transportation Center.
Here’s what it does mean.
Security at the Fullerton Transportation Center, particularly in the area immediately surrounding the Slidebar, is a concern. If it weren’t a concern, there wouldn’t be a camera pointed at the parking lot, let alone at the entrance to the bar. How big of a concern, particularly of what importance security is to the community at large, is up for discussion. It may be tolerable; it may not.
Considering the setting, as provided by the video, as well as a reasonable person’s prejudice regarding Kelly’s behavior in the parking lot, it is not unreasonable for a person to call the non-emergency police line to report suspicious activity.
Management at the Slidebar might have a few screws loose. Why it took over 18 months to let slip that a video exists is beyond fathomable considering the reputational damage the Slidebar incurred. Their inaction damages their relationship with the community and continues to damage the community by re-instigating the conversation. This should have been put to rest on July 27, 2011 and not February 27, 2013.
Here’s what you should do:
Make up your own mind, but keep an open one. We don’t know everything.
This will probably not be the last surprise we see as this saga continues to evolve. We have no idea what happened to cell phone footage taken on July 5 or what other businesses in the Transportation Center recorded video.
What we do know is that Kelly Thomas is dead and that he didn’t die from being homeless.
We know that three officers have been charged with one or more felonies associated with their activity on July 5, 2011.
We know that three additional officers at the scene on July 5 are still employed by the Fullerton Police Department.
We also know that after eighteen months Recommendation 59 of the Independent Review of the Fullerton Police Department, establishment of a Citizen’s Police Oversight Commission, remains open.
The case that Moxley makes here (which I think contradicts previous snide assertions by the OC Weekly, but maybe not) seems very strong. However, I don’t know that that’s because it actually is strong or whether it reads that way just because Moxley became convinced and insufficiently weighted (or just plain disregarded) evidence that contradicted his thesis. He may be right, but I just don’t trust his judgment.
A year and a half ago, I’d have found this very convincing. Now, I find myself wishing that Adam or Norberto from Voice of OC would do some double-checking.
Actually our friend at the Weekly Brandon Ferguson got himself banned from the SlideBar for pursuing this story last year (if I’m remembering correctly.)
Maybe Brandon had wanted to know why the Slidebar didn’t intend to illegally occupy the nearby Superior Court building or something. (Now there’s a reference that only a few of us would get.)
I think that Ryan’s point is well-taken: if they had this so long ago, why not release it while their name was being dragged through the mud? It’s just odd.
Greg, as a lawyer, you should know the answer to this.
It takes time to get people to a deposition. Lay the trap, get the deponent to contradict the hard evidence you have several times in several different ways, confront them with the hard evidence, get their reaction. In this case, the reaction was the deponent throwing a microphone and walking out of the deposition.
If Slidebar had released it prior to the depo, the deponent would change his story to fit the video. He’d still have credibility problems, but nothing like the problems he’s got now.
Sometimes it’s not about the lost business, it’s about the principle of it all, and apparently Popoff and his attorneys felt strongly that taking a stand against a frivolous lawsuit overshadowed a timely redemption of his personal reputation.
Did the Slidebar suffer damages to its business from this association over the past year-plus? My sense is that it did. Were those worth avoiding, if the charges were bogus? I’d think so. Was the consequence of letting the public know that video tapes contradicted the assertions in the complaint a more significant gain than the loss faced by … forcing the plaintiff to change their story? I think pretty clearly so. The best way I see to explain why is to go over what I might do in response to this, were I plaintiff’s attorney, and to show that the advantage gained here does not exceed the reputational loss.
Despite Moxley’s breathless depiction of this as a decisive moment in the case, it isn’t. Among the arguments still available to the plaintiff (with whom I have had no contact and share no interest) are — and I don’t argue that any of them are true:
(1) “The video evidence presented was tampered with” — such as faking the time stamps, the sort of treachery that might lead a volatile person to that sort of reaction;
(2) “The video evidence was presented in a misleading light” — such as with misleading editing that could have, perhaps, shown evidence of Kelly Thomas doing this fifteen minutes earlier, at a time when the manager was not present, while omitting footage that later corroborated the story;
(3) “The Plaintiff is, understandably after all this time, conflating two different events” — such that he may have had conversations along the lines of what he presented a few minutes earlier or later and confused them in memory, or more than a few minutes earlier on that same day, or even on different days if this reaction to Kelly’s presence was a common occurrence. Memory of events is malleable — Elizabeth Loftus of UCI Law has been the leader of such research — and if the witness were conflating a different call to the police with the one that happened that day, it would neither be surprising or sinister.
As for the plaintiff breaking down on the stand and storming off, this is especially likely combined with the deposing attorneys reported continuing hammering away (for the later benefit of the jury) “do you want to change your testimony here before you’ve committed perjury?” something that (a) seems to have been designed to get just such a rise out of him on video, (b) would be fairly termed — as this attorney had presumably already informed the client that he was under oath at the beginning of the deposition — as unnecessary and as “badgering the witness” and might (depending on the judge) lead to its exclusion from evidence, much as if the plaintiff had jumped up in anger because the attorney was shooting spitwads at him through a straw, and (c) is being given to us out of context, filtered through Moxley, who for all I know may also have been provided the evidence without proper context.
Meanwhile, I (and presumably you) have no idea whether this was the sort of documentary evidence that had already been sought by plaintiff in discovery — and either not provided (which I hope would not have happened) or provided in a way that would not be found (if for example, as I doubt, cartons and cartons of tapes were provided to plaintiff without adequate labeling), etc. It would be interesting to know, for example, whether there’s a log of any calls from Slidebar to FPD about Kelly Thomas or someone else before this date and time — and whether reviewing the tapes of those moments might show, for example, an exchange between plaintiff and others, showing much the same thing as what he had described.
Oh, but you might say, “Slidebar doesn’t keep all of its tapes so it might not have access to such evidence” — evidence that might show that plaintiff’s depiction of events was an innocent mistake? OK, fine. As plaintiff’s counsel I’d then move to exclude such evidence from trial, given the possibility that it is designed to mislead the jury. And, depending on questions about routine handling of such tapes (and on what the FPD made available regarding records of previous calls from Slidebar that might show the event about which he was thinking specifically, I might well win that motion. And in that case, this ends up to be a tempest in a teapot.
Well, not in a teapot in one respect: if I were another Slidebar employee being told that I had better support the Slidebar’s story, releasing this result from the trial now to a local reporter might go a long way to convincing me to saying only what they want me to say and nothing else — even to the point of committing perjury. You know the phrase “trying a case in the media?” Releasing this information to Moxley now, in exchange for a fawning story about it, does that. The target may not be the public, though, but other witnesses who may be deciding whether and how much to cooperate with whom. Again: reason to exclude the evidence as prejudicial without knowing whether any spoliation (destruction or suppression of other material evidence) has taken place.
So — end of example.
Now, given the above, I’d argue that this is not as decisive as you suggest (and certainly not as much as Moxley suggests), and that even though it may have gone as well as they could possibly had planned, it doesn’t actually affect the case that much. Given that, and given that if there is an alternative explanation plaintiff is now going to come up with it anyway, so that the only real benefit here is having video showing him lose his cool — which may not be shown to the jury but may certainly be shown to prospective witnesses — I seriously doubt that the advantage gained here is greater than that which would have been gained by the Slidebar’s trying to clear its name well before now.
There’s another possible motivation, of course: they could be planning a suit against Tony Bushala (who has the money that this plaintiff does not) for some sort of damages due to defamation. Well, if so, how is the fact that they had this supposedly exculpatory information since Day One, which they could have showed to Tony at any time, going to affect the damages they can obtain? Tony can just say “I believed this to be true in good faith, and part of that was because I’d have expected exculpatory evidence to come out if it were this convincing.” He probably wins that suit. So that motive for sandbagging the witness, as opposed to coming clean, doesn’t really make sense either.
While I don’t hate Tony, you know from your participation in FFFF that he and I are not exactly friends, and that I’ve been raked over the coals there (by anonymous writers who may include Tony, Travis, and Thompson) repeatedly. So I don’t present all of this here to benefit him or (futilely) appear to him; he’s not going to hire me. However, I think that the Slidebar’s not releasing this apparently exculpatory evidence before, and releasing it now to (in my opinion) a credulous reporter, simply to win an employment case (IF this gets into evidence and can’t be contradicted), is very, very strange. In a murder case, maybe you do it. In a wrongful termination case (where the initial ask is routinely far, far higher than what is actually expected or hoped for)? No, I highly doubt that I’d have advised them to do it — although, if I did advise them to do it, I suppose that I’d also have advised them to “try their case in the media” in just this way.
“Lay a trap” while suffering a much greater loss to business reputation, and potentially without it getting to the jury, and while the benefit of forcing him to change his story was available and inevitable anyway? No — not in my opinion. It still seems off to me.
Awesome: As usual, the Bloviator spews his shit on something he’s clueless about. You would’ve shamed the Cloaca Maxima with the amount of effluvia your brain emits.
I have a pretty good idea by now of what kind of reporter he is, Gustavo. He picks a side and marshals evidence to support it, impervious to most contrary information. Your seem to see your job as editor as being to fling insults at his critics without addressing any of the evidence they present. I used to think that this was beneath you. (By the way — how many depositions have you conducted, before calling me “clueless”? Dumbass.)
OK, now it’s probably time for you to send GSR here to take over the unpleasant task of defending both you and Moxley.
It means that their business only got better and now they are suing anyone that slandered them without facts.
I hear this is why the FFFF blog is shutting down because Jeremy is suing Tony for everything he put on his blog that was all lies about Jeremy and his business.
Bushala will now be paying the SlideBar some serious cash.
Somehow I seriously doubt that. If the material posted on FFFF were defamatory (I don’t think it is in the sense that you’re referring to), leaving the site up as a record and continuing to damage the SlideBar’s reputation wouldn’t exactly be prudent.
If you did hear that, it is (at least) amusing that it was put together in the span of five hours.
Do you know this or is it your guess?
What did it mean?
That Tony Bushala and Travis Kiger knowingly slandered the name of Jeremy Popoff the owner of the Slide bar. They knowningly posted lies on their blog as facts and tried to ruin the man’s business. The slide bar needs to recoop It’s lost funds from Mr. Bushala and Kiger.
I hope that the Slide Bar Rock n’ Roll Kitchen includes that pathetic person requesting the release of the audio tape with Twitaker and Travesty’s backing as a perhaps civil conspiricy wherein Janette et al., can sue the crap out of the City of Fullerton as well as Messrs. Tony and Travis….Good luck, remember the City has deep pockets and vindication is due. A spyman in Fullerton. Already in cahoots with the new Plaintiffs! Rots of Ruck Fullerton’s failed.
Greg. You think it’s pure coincidence that Tony shuts down his blog the day before this info comes out? Now it’s all over KFI and the news feeds. Tony has been in hiding for a few months knowing this bombshell was coming. He is now being sued by more than one person.
At least we now know for a fact the call was legit and the doorman was a liar trying to get money after being fired for a valid reason.
The trial will show even more facts. It should be a great trial to follow.
I think that it’s probably not a pure coincidence — but I don’t know it. I want to be fair about this.
Here are some other things I don’t personally know:
If you know these things, you can tell us your basis for that knowledge. That way, we rise about the anonymous sniping that is most of what I didn’t like about FFFF.
As for “knowing for a fact that the call was legit” — probably, unless there was something misleading about the evidence. I expect it to be tested.
As for knowing that “the doorman was a liar” — no, for reasons I expressed above, we don’t know that. There’s a difference between stating something untrue (presuming for now that he did) and “being a liar” — mostly, it regards whether he reasonably remembered it as being true.
I also don’t know whether he was fired for a valid reason. If your inference comes solely from this, I don’t think that you know it either. “Wait to hear both sides of the stories” works in both directions.
Whether there are any new lawsuits pending is easily verified through VISION….there aren’t, although it would be nice if that would change. Could be one coming, but who knows. Seems to me FFFF always went right up to that liability line but didn’t cross it.
It’s my opinion that Bushala and Kiger DID both disappear in public after the election, although it’s not fair to say they were in hiding. Neither have made any public statements regarding the outcome. Kiger could have at least made a statement thanking his supporters…..but didn’t even do that. Very telling of his character. Of course, his only major financial supporter was Bushala, and I’m sure they’ve spoken.
I also doubt that Bushala knew the doorman was lying. There may have been an element of willful blindness, as there often appeared to be with many of the allegations made on the site, which was my main bone of contention: Never investigate, and never let the facts get in the way of a good story.
Greg, you put WAY too much effort into your response on my other post! I understand your point of view on many of the issues, but I have to respectfully disagree.
BTW….I did appreciate your offer to come over here and comment after I “retired” from FFFF, but it’s really not my thing. As a Fullerton resident, my comments on FFFF had a purpose, and after the election was certified that purpose had a much lower priority, especially since FFFF was quickly dying on the vine. Don’t really care much to wade into political commentary in general, although I could fill pages commenting about Dorner.
Bye again.
Well, CCCB, I’m sorry that you won’t be hanging out here, if you stick to your decision. You’ve always been an astute and articulate spokesperson for your views, and I appreciate that.
I presumed that their “disappearance” after the election was more due to something like depression rather than going into hiding. They lost an extremely close battle that they’d had good reason to think that they would win. I’ve been there; it hurts like hell, because you go through every damn thing that you did and that you didn’t do but might have. I never thought more of an explanation than that was necessary.
Your challenge to me was a good one — rocked me back a bit — so I had to think seriously about why I thought that, no, this didn’t make sense to me as an “ambush the witness” tactic under these circumstances. I appreciate the challenge — without it, I don’t do my best work because like most other people I’ll tend to overlook my hidden assumptions. So, lots of effort, yes, but I think effort well-spent. At heart I’m still a teacher so I like letting laypeople know how lawyers think things through.
Send us a Dorner article (even anonymously) with your views, if you feel like it; we’ll publish it (presuming Vern agrees) and won’t make you comment, as if we could.
Second the Dorner bit. Would be valuable perspective.
But only if he writes as “Cold Chillin’ Cop Balls.”