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By Louis Amestoy/ The Californian
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By Louis Amestoy/ The Californian
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By Photo courtesy of the family
BY JASON KOTOWSKI Californian staff writer firstname.lastname@example.org
No criminal charges will be filed against the Kern County sheriff’s deputies and California Highway Patrol officers involved in the struggle that ended with the death of David Sal Silva, District Attorney Lisa Green announced Friday following an independent investigation that included reviewing Sheriff’s Office and FBI reports and hiring an outside pathologist.
Silva’s death was not a homicide, and law enforcement used reasonable force to arrest him, Green said.
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- Seizure of cell phones as evidence a murky area of law
- How was Silva restrained, and did it kill him?
- Reports on Silva's death reveal inconsistencies
- Silva family files federal civil rights lawsuit
- Silva family supporters rally on eve of legal action
- Autopsy answers many -- but not all -- questions about Silva's death
- DA to conduct independent review into death of David Silva
Silva’s family, and the attorneys representing it, disagreed with Green’s conclusion. Attorney David K. Cohn said he’s looking forward to questioning the officers under oath, and said his investigation will be more thorough than the one conducted by the DA’s office.
The 33-year-old Silva died May 8 while in custody, and the incident led to protests and questions about whether excessive force was used by some or all of the nine officers involved. In a press conference held a couple of weeks after Silva’s death, Kern County Sheriff Donny Youngblood said he had to take deputies involved in the incident off the street because of death threats.
Youngblood said Friday he had expected no charges would be filed.
“The facts are the facts,” he said. “I knew the facts and I knew the result would be the same because you can’t change the facts.”
At Friday’s press conference, Green described step-by-step how the incident happened, including which officers beat Silva with batons, the dog bites he suffered from the attack and how Silva resisted.
At 6 feet tall and nearly 260 pounds, Silva’s obesity may have placed him at risk for a heart condition ending in sudden death, according to the Kern County coroner’s office. His death was deemed an accident.
The confrontation between Silva and law enforcement began late on the night of May 7 after deputies responded to a report of an intoxicated man outside Kern Medical Center. The entire incident lasted 19 minutes and 34 seconds, Green said. The first seven minutes consisted of Silva on the ground and a deputy simply waiting for backup, Green said. During those first few minutes there was no physical struggle, she said.
The deputy tried to rouse Silva, who finally woke up grunting and speaking in an unintelligible manner and tried to get to his feet. He kept falling each time he tried to get up.
The deputy grabbed Silva’s arm to help him, but noticed his muscles felt rigid and, based on prior training, believed Silva was under the influence of drugs. He ordered Silva to stay down, but he refused to comply.
Green said the deputy was unable to apply a control hold. He warned Silva to stop resisting or he’d release his K-9.
Silva refused to comply and the deputy released the dog from the patrol car. The dog bit Silva’s left leg.
Silva became more agitated and started strangling the K-9 with both hands, Green said. The deputy removed his baton and struck Silva, at which point the dog released Silva and latched onto the deputy’s boot.
A sergeant arrived and saw the K-9 biting the deputy’s leg and Silva reaching toward the deputy. Then Silva grabbed the dog around its neck again to strangle it.
The sergeant ordered Silva to stop, and then struck him several times with a baton, Green said. The sergeant said it seemed as if his baton strikes had little or no effect.
Silva tried to get to his feet and the dog bit him on the left side above his waist. He managed to stand but fell back to his hands and knees after the sergeant struck him with a baton.
The deputy, feeling the dog was losing its hold, ordered the animal to release. In doing so, the deputy dropped his baton and then grabbed the dog to get it back inside his patrol vehicle.
Another deputy and two CHP officers arrived about that time. Silva still refused commands to get on his stomach.
Green said the arriving deputy struck Silva on the arm with his baton, but it appeared to have no effect. Silva rolled onto his stomach with his arms — and the dropped baton — underneath him.
The sergeant tried to sweep the baton away with his foot because he was afraid Silva could grab it. He and a deputy struck Silva with their batons, and as the deputy tried to pull Silva’s right arm out from under him he, like the others on scene, noticed he was exceptionally strong.
They managed to get his arms out and handcuffed him, Green said. More deputies arrived and saw Silva thrashing and rolling around as he tried to get up.
Deputies tried holding his legs, but Silva kept extending them. That’s when the sergeant decided to place a hobble restraint on Silva for the safety of the deputies, Green said.
But Silva continued struggling even after the hobble was applied. The sergeant called for an ambulance.
A spit mask was placed on Silva both for the blood on his face and because deputies were afraid he might spit on them, Green said. It was in place for 20 seconds when Silva vomited. The mask was immediately removed.
Deputies rolled Silva onto his side and checked his pulse three times. The third time they could not feel a pulse.
Medical aid arrived soon after.
In all, seven deputies and two California Highway Patrol officers were involved in the incident.
Green said the autopsy showed injuries from baton strikes on Silva’s torso and left arm. No bones were broken, and he was not struck in the head.
She clarified that Silva was “hobbled,” not “hogtied,” during the struggle. The difference between the two, both of which involve binding ankles and wrists together behind the back, is that there is less distance between the ankles and wrists when a person is hogtied, Green said.
Following an autopsy, the pathologist determined Silva died as a result of hypertensive heart disease. He had amphetamine, methamphetamine and the muscle relaxant Phenazepam in his system at the time of his death, and a blood alcohol content of .095, according to the coroner's office.
Dr. Frank Sheridan, chief medical examiner of San Bernardino County, was hired by the DA’s office to review the findings. He concluded the autopsy was done in a thorough manner and there was no evidence Silva’s death was a result of blunt force trauma or physical restraint that caused him to be unable to breathe.
He said it was reasonable to conclude the death was an accident, Green said.
“That resolved, from our perspective at least, any issue of whether Mr. Silva’s death was a homicide,” Green said. “It wasn’t.”
The next question Green needed to determine was whether excessive force was used. She needed to take into account the totality of the circumstance, including whether the suspect was an immediate threat, the use of alcohol or drugs by the suspect, the size of the officers and the suspect, and whether the force applied resulted in injury.
Silva was a large man who refused to comply with reasonable commands from law enforcement and resisted arrest, Green said. Two deputies and a sergeant described him as being extremely strong and they believed — as was later proven correct — that he was under the influence of drugs.
In this case, Green said, the totality of the circumstance revealed the involved officers used reasonable force in the form of verbal commands, the K-9 and batons to overcome resistance and effect the arrest of Silva.
Silva’s brother, Christopher Silva, attended the press conference to hear what he described as the first “real, hard information” to come out of the case in months.
“It’s interesting, it’s crazy and it doesn’t add up,” he said following Green’s statement.
Cohn, one of the family’s attorneys, said Friday the DA’s office works so closely with local law enforcement that claims of independence in such investigations strain credulity.
“This is the reason we need an independent advisory panel evaluating these types of cases,” Cohn, managing partner with Chain | Cohn | Stiles, said in a statement.
“Kern County District Attorney’s Office personnel work with these agencies every day, and they’re the ones in charge of prosecuting cases for them,” Cohn said. “Apparently, the way it works in Kern County is that unless they catch the officers red-handed, nothing will happen. It appears that they look for ways not to prosecute.”
Lawsuits have been filed by Silva's family and by witnesses whose cellphones were confiscated by authorities in the aftermath of his death.
Cohn said in his statement that through his civil rights lawsuit, “we believe the truth will come out.”
Cohn is seeking damages on behalf of Silva’s four children, parents and brother for loss of love, affection and support.
Daniel Rodriguez, the attorney representing the mother of Silva’s children and the witnesses, said he’s reviewing options, including asking the U.S. Department of Justice to conduct its own investigation and possibly bring federal charges.
“Sometimes the District Attorney’s office gets these decisions right, sometimes they get it wrong,” Rodriguez said. “They got this one wrong.”