Local News

Tuesday, Aug 06 2013 10:30 PM

Witnesses in Silva death case file claims against Kern

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    By Photo courtesy of the family

    A photograph from the family of David Silva showing him and his three daughters Makayla, 10, Katelyn, 4, and Chelsey, 8.

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    By Alex Horvath / The Californian

    About 20 people attended a vigil for David Silva on the corner of Flower Street and Palm Drive a few days after his death.

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    By Alex Horvath /The Californian

    Kern County Sheriff Donny Youngblood holds a news conference at the Norris Road headquarters regarding his request that the FBI analyze the two cell phones seized in connection with the in-custody death of David Silva. Specifically, Youngblood requested the FBI conduct a forensic analysis of the contents of the cell phones. He's also asked the FBI to more generally investigate the circumstances surrounding Silva's death.

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BY STEVEN MAYER Californian staff writer smayer@bakersfield.com

A third legal action related to the death of David Sal Silva was filed Tuesday in Bakersfield by witnesses alleging police seizure of their cell phones was improper and even unconstitutional.

The law offices of attorney Daniel Rodriguez filed separate claims with the county of Kern on behalf of five people who witnessed the violent confrontation between law enforcement officers and the 33-year-old father of four.

Although the claims are not identical, each is related to the seizure of two of the witnesses' cell phones by Kern County sheriff's investigators and the allegation by the witnesses that authorities unlawfully detained them, improperly confiscated and possibly damaged their personal property, and that investigators violated claimants' First Ammendment rights by preventing them from publishing video images of the incident on social media or other media outlets.

The five claimants are Maria Melendez, 54; her daughters, Melissa and Sulina Quair, 31 and 35, respectively; and family friends Francisco Arrieta, 30, and Laura Vasquez, 27.

When individuals allege they have suffered injury or harm by a public entity -- in this case, the Kern County Sheriff's Office -- a tort claim must first be filed with the public entity before a lawsuit can be filed in state court.

Rodriguez said the lawsuit may ultimately be moved to federal court. No dollar amount was specified in the claims.

Rodriguez filed a separate lawsuit July 8 in U.S. District Court on behalf of Silva's longtime girlfriend, Tara Garlick, and the couple's four young children.

And Bakersfield attorney David Cohn filed a third claim in June on behalf of Silva's parents and brother. At that time Cohn's claim also included Garlick and the children as plaintiffs.

Rodriguez said it's likely that a judge will eventually combine all Silva-related lawsuits into one case.

Mark Nations, chief deputy county counsel, said Tuesday he had not yet seen the claims. But based on bullet-point descriptions, Nations said the two sides appear to fundamentally disagree on the facts of the case -- and on whether authorities were justified in securing the witnesses' cell phones as evidence.

"We think they were," Nations said. "This was evidence in an in-custody death."

Following instructions from the Kern County District Attorney's office, Nations said, detectives acted to prevent the potential loss or destruction of the information thought to be contained on the two cell phones.

The witnesses were "free to come and go," he added, "but the cell phones had to remain in the presence of deputies."

According to allegations detailed in the various claims and lawsuits, a Kern County sheriff's deputy first contacted Silva sleeping in front of a house across the street from Kern Medical Center. That first contact escalated to include six deputies, a sheriff's sergeant, two California Highway Patrol officers and a sheriff's police dog.

In the claim filed Tuesday, Melendez and her family and friends were at Kern Medical Center when they saw deputies "hitting an unrelated man across the street."

During the encounter, Melendez and Arrieta used their cell phones to record the actions by peace officers, the claims state.

In a 911 call during the confrontation, Sulina Quair is heard saying to authorities, "I got it all on video camera and I'm sending it to the news."

About two hours later, according to the claim, sheriff's investigators showed up unannounced at the apartment of Melissa Quair and demanded the cell phones used to record the struggle between officers and Silva.

Arrieta, the owner of one of the phones, cooperated with investigators, Rodriguez said, by coming to the apartment at their request and allowing investigators to try to download the video contents of his phone. When that effort failed, they demanded he turn over his phone.

Arrieta explained to investigators that he could not give up his phone because "it had all of his personal contacts, pictures and videos," the claim states.

During this period, which stretched into hours, according to the claim, authorities would not let anyone enter or exit the apartment.

Like Nations, Kern County Sheriff Donny Youngblood has said people were free to leave the apartment. Rodriguez disputes that assertion.

Authorities "continued to harass, threaten, intimidate, pressure, unlawfully touch, and/or assault those present," the claim states.

When Arrieta finally suggested investigators needed a search warrant to seize his phone, Rodriguez said, one of the detectives poked a finger into Arrieta's chest and said, "We can do this the easy way or the hard way."

"Under the law, that's considered assault," Rodriguez said. "To us, it was a form of intimidation."

Eventually, Arrieta "was forced to turn over his cell phone to avoid missing work," the claim states.

Authorities left with the phone, but returned again at about 10 a.m. demanding the "remaining phone that was used to record the beating," the claim said. About two hours later, a search warrant was finally obtained and Melendez surrendered her phone.

At the heart of the pending lawsuit, Rodriguez said, are five witnesses who were treated like criminals by authorities. Investigators, he said, entered a private home uninvited, forcefully detained witnesses without any reasonable suspicion they had committed a crime, used force and intimidation without justification, seized private property without cause, and violated the witnesses' right to freedom of speech and press.

"In the case of Maria, they took away her cell phone without due process," Rodriguez said.

"She is the one," Rodriguez said, "when they returned her cell phone to her, the video was no longer on it."

When the phones were returned to their owners, the video taken by Arrieta showed no baton strikes by sheriff's deputies and California Highway Patrol officers who responded to the scene.

Youngblood has said deputies used baton strikes, but an autopsy by the Kern County Coroner's Office concluded that Silva was not struck in the head and that no bones were broken. The manner of death was listed as accidental. Cause of death was described as hypertensive heart disease, complicated by drug and alcohol intoxication, abdominal obesity, chronic alcoholism, high blood pressure and acute pulmonary cardiovascular strain.

When investigators examined the second confiscated cell phone, it contained no video, both the Bakersfield Police Department and the Sheriff's Office have said. Witnesses insist it did, that they reviewed the video following the incident. Rodriguez said a private forensic analysis turned up no video on that phone and no evidence that video had been tampered with or erased.

The way the witnesses were treated during this episode, Rodriguez said, calls out for accountability from local law enforcement, both through a monetary award and, he hopes, more effective training for sheriff's investigators ordered by an outraged court.

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