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Saturday, May 11 2013 10:35 PM

Deputies' video confiscations come under scrutiny in fatal Bakersfield beating case

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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

    David Silva's brother Chris and father Sal attend a vigil for David at the corner of Flower Street and Palm Drive. Blood stains the sidewalk were David was arrested early May 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 Califorian

    David Cohn speaks at a news conference with the family of David Silva, 33, who died while being arrested by Kern County Sheriff's deputies early Wednesday morning. Seated with David Cohn are Chris Silva, the brother, Sal Silva, the father and attorney David Cohn and Merri Silva, the mother.

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    By Henry A. Barrios / The Californian

    Family members of David Silva speak to area residents at Flower Street and Palm Drive concerning an incident between Silva and the Kern County Sheriff's Department that ended early May 8 with the death of Silva. A memorial of flowers and candles has been set up near where Silva died.

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    By Henry A. Barrios / The Californian

    Chris Silva speaks about his brother David Silva, 33, who died while being arrested by Kern County sheriff's deputies early May 8. The incident happened across from Kern Medical Center at the corner of Flower Street and Palm Drive. Family members are questioning how David Silva died.

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BY STEVEN MAYER AND JASON KOTOWSKI Californian staff writers smayer@bakersfield.com; jkotowski@bakersfield.com

The death of Bakersfield father of four David Sal Silva immediately following his apparent beating Wednesday by Kern County law enforcement officers raises questions that have been asked in Bakersfield many times before -- questions about the use of deadly force by police.

Multiple witnesses have said deputies repeatedly beat and struck Silva with batons even as he begged them to stop.

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Some earlier cases that provoked controversy

Three controversial incidents regarding use of force by the Kern County Sheriff's Office employees over the past several years include the following:

Aug. 15, 2005

James Moore, 30, fought with detention deputies at the downtown jail while handcuffed and was punched, choked, kneed in the back, hit with a baton and pepper sprayed, investigation reports said. Moore lost consciousness and later died of head trauma.

Ralph Contreras later was convicted of second-degree murder and sentenced to 15 years to life in prison, while Daniel Lindini was found guilty of involuntary manslaughter and sentenced to two years in prison for his role in the beating. A third detention deputy, Roxanne Fowler, was convicted of misdemeanor assault by a public officer.

July 10, 2011

Former NFL running back David Lee Turner, 56, was fatally shot by deputies outside the Fastrip at Niles Street and Mount Vernon Avenue.

Deputies had responded to the store for reports of juveniles asking adults to buy alcohol for them, and they detained Turner at the scene and searched him, deputies reported. Turner complied at first, but became agitated and started walking away from the deputies.

A deputy struck Turner with a baton as Turner threw a punch at him, and then Turner swung a pastic bag containing two 24-ounce beer cans down on Deputy Aaron Nadal's head, deputies said. Turner raised the bag to again strike Nadal, and Deputy Wesley Kraft pulled his gun and fired twice.

The shooting was determined to be within department policy. Attorneys for Turner's family filed a civil rights lawsuit against Kern County alleging, among other things, unreasonable search, unreasonable use of nonlethal force and unreasonable use of lethal force.

Jan. 23, 2012

Deputies fatally shot Christian Chavez, 18, after Chavez reached into the front pocket of his pants and turned toward a deputy with a knife raised in his hand.

Family members of Chavez have said he suffered from depression and schizophrenia and that he pointed the knife at himself, not the deputy. Chavez's caseworker had called 911 and said Chavez was possibly suicidal, deputies said.

Deputies Jeremy Storar and Tommy Robins responded to the Buttonwillow park where Chavez was sitting in the caseworker's car, deputies said. Both fired their guns when Chavez pulled the knife.

Attorney Daniel Rodriguez is representing the Chavez family.

-- The Bakersfield Californian

But it's the detention of two witnesses who shot cellphone video of officers' actions, and the confiscation of their phones by sheriff's deputies, that raises a whole new set of questions, say local defense lawyers and an attorney for the American Civil Liberties Union. Those questions -- sometimes angry, other times probing -- focus on the witnesses' Fourth Amendment rights against unreasonable search and seizure, and their First Amendment right to publish the video they collected.

"This is ridiculous," said Bakersfield defense attorney Arturo Revelo. "The fact that local law enforcement officials think they can get away with this is scary as hell."

Revelo, who is not connected to the case, was referring to reports that sheriff's deputies knocked on the door of witnesses to the incident at around 3 a.m. Wednesday. Authorities demanded the witnesses' cellphones, the ones that had been used to capture video of the moments leading up to Silva's death.

The owners of the cellphones had left for home, but were called back to the apartment.

Both witnesses agreed to return at the request of sheriff's investigators. But once they arrived they declined to turn over their cellphones, absent a search warrant.

John Tello, a criminal law attorney representing the two witnesses who shot video footage and other witnesses to the incident, said the witnesses were not allowed to leave with their phones.

The witnesses allowed a police technician to try to download the videos onto a tablet computer, but the effort was unsuccessful, Tello said.

The male witness, whose name has not been released by Tello, hours later gave up his phone under duress because he had to go to work, and deputies would not allow him to leave, Tello said. The female witness, Maria Melendez, 53, held out until around noon -- with deputies remaining in the room -- until the search warrant finally arrived.

"They were tired, scared, with a 9-year-old child there who was terrified," Tello said.

Yaman Salahi, an attorney for the ACLU-Southern California, said officers have no right to enter your home without a search warrant, unless they are invited inside or unless they believe a crime is in progress. Even if you invite them in, you have the right to ask them to leave, and they must comply.

Tello said it soon became clear the law enforcement officers were not welcome. But his clients were intimidated. The officers stayed.

"Officers have the right to freeze a scene, to not allow anybody to leave for a reasonable amount of time, until a search warrant arrives," Tello said. They can do this when they feel there is a danger of destruction of evidence.

Securing a drug house is one example, he said.

"But this was different. This was not a crime scene. There was no sense that people were going to destroy evidence," Tello said. "These officers literally held them in that house for close to 10 hours against their will."

Salahi, with the ACLU, said he could only speak in general terms as he did not have a complete picture, but he noted that the deputies' actions in detaining the witnesses seemed "questionable and troubling."

"There's no serious indication that these witnesses planned to destroy evidence," he said. On the contrary, their motivation in shooting the video appears to have been to preserve evidence and shed light on the incident.

A violation of the witnesses' First Amendment rights is also a grave concern, he said.

One or both of the witnesses may have intended to share their video with local news organizations, or post it themselves on blogs or social media.

"If police intended to prevent them from publishing the video ... that's an affront to their First Amendment rights," Salahi said.

Tello agreed, noting that his clients were indeed planning to share their video with the wider community.

In fact witness Sulina Quair, 34, daughter of Maria Melendez, is heard on a 911 call to the Sheriff's Office saying, "I got it all on video camera and I'm sending it to the news. These cops have no reason to do this to this man."

The male witness told Tello he was informed by authorities it could take months, maybe even years before he gets his phone back.

Not acceptable, Salihi said.

Investigators should take a reasonable amount of time to extract a copy of the video, he said, then promptly return the phone to its rightful owner.

"They certainly are not permitted to delete the video," he said. "That would be blatantly unconstitutional."

Citizen journalists

Incidents of regular citizens videotaping the actions of police have become more commonplace as smartphones have invaded everyday life. Examples of police snatching phones out of the hands of users or arresting someone for pointing a phone at them are still occurring.

The U.S. Department of Justice's Civil Rights Division last year supported the right of citizens to record police officers' actions in public.

"The right to record police officers while performing duties in a public place as well as the right to be protected from the warrantless seizure and destruction of those recordings, are not only required by the Constitution," Justice Department attorneys wrote. "They are consistent with our fundamental notions of liberty, promote the accountability of our governmental officers, and instill public confidence in the police officers who serve us daily."

Revelo, the Bakersfield defense attorney, said the cellphone witnesses should never have been detained.

"What probable cause did they (investigators) have to believe the witnesses were going to destroy that evidence?" he said. "They don't want it to be disseminated."

And what's going to stop investigators from examining everything in the witnesses' cellphones? he asked.

Ideally, he said, search warrants should be written narrowly, to ensure that authorities are not allowed to delve into the private lives of citizens unnecessarily.

But a copy of the search warrant obtained Friday by The Californian shows it to be quite broad, Tello said, noting that "property or things to be seized (may) consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony."

Kern County Sheriff's Detective Michael Dorkin was the affiant, or author, of the search warrant. The warrant was authorized by Kern County Superior Court Judge Charles R. Brehmer.

Will investigators examine the witnesses' call history, personal photos, email messages, or postings on social media?

"There's nothing to stop them," Revelo said. "I'm not saying that it's legal, but there are no safeguards."

Local attorney Daniel Rodriguez said there's nothing in the law preventing the sheriff's department from returning the cellphones once they've downloaded information pertinent to the case.

"I was thinking to myself, 'What could the sheriff's department possibly be hiding from us?'" Rodriguez said Friday.

Defense attorney Kyle J. Humphrey said that, because the witnesses aren't suspects, the burden is on the department to show they have a right to keep the property. A motion for the property's return can be filed once the warrant is filed in court, and if the item wasn't taken through a search warrant the owner can file a common law motion for its return.

Both sheriff's deputies and CHP officers were involved in the incident involving the 33-year-old Silva near Kern Medical Center in east Bakersfield.

Attempts to reach a CHP spokesman Friday were unsuccessful.

On Friday Sheriff Donny Youngblood asserted that only a judge could now order the release of the phones. He said the videos will be released but gave no time estimate.

"We will share everything with the public, including the videos," Youngblood said.

Use of force

Also under discussion following this incident has been the officers' use of force. Authorities have said the group trying to subdue Silva grew to seven deputies (one with a canine) and two California Highway Patrol officers.

Silva resisted law enforcement and batons were used on him, authorities have said. He died at KMC after experiencing trouble breathing.

It's unknown how many times he was struck, to what extent the large man struggled with deputies, whether he was under the influence of drugs or whether he had any pre-existing medical conditions that contributed to his death.

Attorney Rodriguez said a suspect's size can play a role in law enforcement's response, and if it's only one officer trying to apprehend a much larger person who's not being cooperative there's an escalation of force.

An officer would first use his command presence and an authoritative voice in ordering the suspect to comply, Rodriguez said. Next come maneuvers such as simple wrist locks to force a person to comply.

If those fail to work, an officer might then use a nonlethal force option such as a baton -- which is nonlethal barring head strikes -- a Taser or pepper spray. Rodriguez said the final option is lethal force.

Rodriguez said he believes a jury in a possible civil trial in Silva's case will be asked a simple question.

"The commonsense question the jury will be asked, 'Is it OK for (law enforcement) to beat an unarmed man to death because he may have been drunk and wouldn't follow orders to stay still?,'" Rodriguez said.

Humphrey said the sheriff's investigation will focus on whether the officers' behavior complied with their use of force guidelines. He said a lot of people see a beating or someone getting injured and are upset by it because they're not used to violence, but for a law enforcement officer actions that result in injury can be within their guidelines.

"If they're complying with the law they can do things most of us would be revolted by, but if they exceed the law they can be charged with a crime," Humphrey said.

Every situation is different, observers noted. For example, an officer isn't going to use a baton on a suspect who's brandishing a gun. Sheriff's officials have said in the past that if the threat is lethal, a lethal option should remain in play on the part of authorities.

It's unclear if less lethal options other than batons were used on Silva.

In the past, sheriff's officials have said a team of people is needed for a less lethal weapon to work effectively. Less lethal weapons provide a few seconds for law enforcement to take the person into custody, and the threat isn't over until the suspect is in handcuffs.

All deputies are trained in lethal and less lethal weapons at the training academy and have quarterly training, including in less lethal weapons, once they're hired.

Silva had previous run-ins with the law.

He pleaded no contest in 2008 to disturbing the peace. Charges of battery, assault, drunk and disorderly conduct and drinking alcohol on a city street were dismissed, according to court records. He was sentenced to one year of probation.

A charge of drunk and disorderly conduct against Silva was dismissed in November 2010.

 

 

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