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Saturday, Jul 20 2013 08:00 PM

How was Silva restrained, and did it kill him?

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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 STEVEN MAYER Californian staff writer smayer@bakersfield.com

More than 10 weeks after the death of David Sal Silva, silk flowers and family photos still adorn the east Bakersfield street corner where his heart stopped beating.

Exactly what happened on that street corner in the midnight hour of May 7 and 8 will be crucial to the outcome of three high-profile lawsuits expected to be filed this month.

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Lawyers say one of the most important questions is exactly how law enforcement officers restrained the 33-year-old father of four before he died. Specifically they want to know whether Silva's ankles were bound to his wrists behind his back, in what is commonly called a "hogtie" position.

Witnesses say Silva was hogtied. The Kern County Sheriff's Office has been less precise.

The use of the hogtie restraint by law enforcement has been controversial for at least two decades. So controversial -- and dangerous, say critics -- that some police agencies, including the Bakersfield Police Department, have banned it entirely.

Participants in the struggle were Silva, seven sheriff's officers, two California Highway Patrol officers and a police dog. Silva was not armed.

The witnesses told The Californian and other news organizations that deputies not only hogtied Silva, but also lifted him and dropped him twice.

"The witnesses told me there was no question in their minds from where they were standing that they saw Mr. Silva hogtied," said Daniel Rodriguez, the Bakersfield attorney representing Silva's four children and their mother in a federal civil rights lawsuit.

Attorney David Cohn, who is representing Silva's mother, father and brother, also said the manner by which Silva was restrained may have played a role in Silva's death by causing "positional asphyxiation" -- oxygen starvation that occurred when the stressed, distraught and overweight Silva was restrained by deputies in a prone position against the concrete.

At the moment, says Cohn, there are more questions than answers.

Neither attorney has been provided access to investigative reports from the sheriff's office or the CHP. Will those reports square with witnesses who said Silva's wrists were bound to his legs? If so, was Silva face-down for a period of time?

If Silva was not bound wrist to legs, exactly how was he restrained? Was his breathing compromised by the weight of deputies pressing on his back? Was Silva so sick with heart problems he likely would have died anyway, absent the struggle with nine peace officers?

These and other questions are central to the lawsuits, which could put Kern County taxpayers on the hook for millions of dollars.

 

QUESTIONS

Cohn said he can't be sure whether deputies hogtied Silva, although it's clear from redacted copies of the autopsy report made public by the sheriff's department that officers placed at least one strap around his ankles. Whether that strap, known as a hobble leg restraint, was attached to Silva's handcuffs is an important question.

Kern County Sheriff Donny Youngblood said Silva was "hobbled" by deputies, but he did not define the word. He also said his deputies acted appropriately in their effort to subdue a very strong, combative individual.

Since holding a press conference to announce the autopsy results, Youngblood has declined to elaborate, citing the threat of legal action.

On June 14, on behalf of the Silva family, Cohn filed a claim against the county, the state and the law enforcement agencies involved.

Once Cohn files a formal lawsuit, copies of all investigative reports must be turned over to him, he said. He can also then begin deposing witnesses.

But until then, he said, his investigation is limited.

"We don't know what information was fed to the pathologist," Cohn said. "We don't know what facts were given to the pathologist on how Mr. Silva was restrained."

Rodriguez said he will ask for everything law enforcement has on this case, which has received national and international attention.

"I want to get my hands on reports, diagrams, photographs, videos, interviews and transcripts," he said. "I want to get ahold of the personnel files of each one of these deputies."

And Rodriguez said he's undaunted by the results of Silva's autopsy, which concluded Silva's heart was enlarged, that the cause of Silva's death was hypertensive heart disease, and that the manner of his death was accidental.

Silva may have suffered a heart attack, Rodriguez said, but it's likely the confrontation with officers triggered it.

Some lawyers who have handled cases like this said the autopsy results were not surprising.

It's become standard, said Gregory A. Yates, an Encino attorney who has handled cases involving use of prisoner restraints, Tasers, alleged police brutality and alleged wrongful deaths, to get back autopsies from county coroners who blame pre-existing conditions as cause of death.

"This is used so often it's become a mantra," Yates said. "You read it in every case."

But Dr. Steven Karch, a former assistant medical examiner for the city of San Francisco and a widely published author in the field of forensic analysis, said a pre-existing condition is often the defining factor in sudden in-custody deaths.

Reacting to Silva's autopsy in particular, Karch said the cause of death found by the pathologist was definitive.

"Hypertensive heart disease is a sufficient cause of death," he said. "If it's there, you're dead and it did it."

To complicate matters, nowhere in the text of the autopsy report is the word "hogtie" used, although it's made clear that a hobble leg restraint was placed on Silva. According to the report, the investigating deputy coroner arrived at Flower Street and Palm Drive in east Bakersfield, the scene of the altercation, more than an hour after Silva was pronounced dead. There he interviewed a sheriff's sergeant.

According to the autopsy report, the sergeant told the investigator that Silva was lying on the ground when the first deputy arrived.

That initial contact would quickly escalate. The deputy's canine was soon "deployed" against Silva, attacking so vigorously that even the dog's handler was bitten.

Within minutes, other officers would join the struggle, at least three striking Silva with batons or nightsticks.

"Deputies and officers were eventually able to place (Silva) in a hobble restraint," the report says.

Not long after that, Silva began vomiting and, according to the report, "went unresponsive." These were the last moments of his life.

Cohn said finding proof Silva died from asphyxia could be difficult.

He said he will ask an independent pathologist to examine tissue samples taken from Silva's body during the autopsy in an effort to shed light on Silva's cause of death. But can this sort of post-mortem analysis provide answers?

Two forensic pathologists interviewed by The Californian were not in agreement about whether the effort could bear fruit.

Dr. Marvin Pietruszka, an expert in anatomic and clinical pathology and forensic toxicology, said it's possible, by examining saved tissue samples, to determine whether an individual died from asphyxiation.

"But it depends on what part of the body the samples came from," he said.

Karch, the former assistant medical examiner for San Francisco, said flatly that it's not possible.

"Absolutely not," Karch said. "You can't do it."

Even Cohn acknowledged that getting definitive answers to his questions from a tissue analysis could prove to be a long shot.

"It's possible," Cohn said. "Is it likely? Probably not."

 

POLICE DISAGREE ON POLICY

The hogtie method of restraint has fallen out of favor among many in law enforcement.

There are even different descriptions of the practice.

The Los Angeles Sheriff's Department refers to it as "total appendage restraint procedure." Other departments use the word "hogtie."

While some police agencies continue to allow officers to hogtie combative individuals, others have banned the practice altogether. Even local agencies in Kern County differ in their attitudes toward hogtying.

"It's absolutely forbidden," Bakersfield Police Chief Greg Williamson said of his department's position on the controversial restraint method.

The Bakersfield Police Department banned hogtying at least six years ago, maybe longer, Williamson said, after deaths -- and wrongful death lawsuits -- were associated with its use in other cities across the country.

The Los Angeles Police Department tossed it off its list of acceptable restraints some 16 years ago as part of a court settlement with the family of a man who died after the restraint was used on him.

Policy manuals refer both to the hobble and the practice of hogtying.

"The hobble restraint device shall not be used to bind the suspect's hands and feet together in any manner," the LAPD's policy manual states in no uncertain terms.

The BPD's policy is just as clear-cut.

"Officers shall never use the hobble to secure a suspect's ankles or legs to the handcuffs ('hogtying')," the manual states.

But not every law enforcement agency is as clear as the BPD and the LAPD.

According to the Kern County Sheriff's Office's manual of policies and procedures obtained by The Californian through the state's open records law, the leg hobble -- a 42-inch webbed polypropylene belt with a brass clip at one end and a permanent loop at the other -- may be used "in those cases where the use of handcuffs alone is not adequate to control the person and prevent him or her from further injuring himself/herself or others."

The local sheriff's department discourages the hogtie "except in the gravest of circumstances..."

"Officers should never bind any person's hobble to the handcuffs except in the gravest of circumstances," the policy states, "where less intrusive means of restraint are ineffective and the officer has reason to believe the use of lesser restraints will unnecessarily jeopardize the safety of the officers and/or the person being restrained and/or the public."

Youngblood, in declining to address the matter, has said all further questions should be directed to the Kern County Counsel's Office.

Kern County Counsel Theresa Goldner did not answer the central question of whether at any time Silva's wrists were secured to a leg restraint.

"The hobble restraint," she said in an email Thursday, "is used against combative suspects who are difficult to control, and as a last resort.

"The hobble is a legal restraint that does not violate a suspect's constitutional rights when used properly," she continued. "With respect to use of force claims, the law allows law enforcement officers to assess a situation and use the degree of force that is reasonably necessary under the circumstances. As a legal matter, the test of reasonableness is always judged from the perspective of a reasonable officer on the scene, based on the totality of the circumstances, and, as the Supreme Court instructs, it must also 'allow for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation.'"

Goldner did not comment specifically on the question of attaching a leg hobble to an individual's handcuffs.

Two law enforcement advocacy groups said they have not come down on one side or the other on the issue of hogtying, preferring instead to leave it up to each individual agency.

Cathy Coyne, legislative analyst with the California State Sheriffs' Association, said the organization has not taken a position on whether hogtying combative individuals should remain an option for deputies in the field.

"CSSA has not weighed in on this question," Coyne said in an email. "It is a specific agency policy."

The California Police Chiefs Association has likewise not taken an official position, said a spokeswoman for the organization.

 

CHP ISN'T TALKING

The Californian asked several police agencies in California for their written policies on the use of leg restraints, including the binding of the wrists to the ankles.

The CHP, the only other agency directly involved in the Silva case besides the local Sheriff's Office, refused to provide a copy of its policy.

A letter signed by Jonathan S. Rothman, general counsel in the office of the CHP commissioner, said department policy regarding leg restraints is found in chapter 24 of the officer safety manual.

"Significant portions of Chapter 24 are deemed confidential for officer safety and security reasons and, as such, are exempt from disclosure ..." Rothman wrote in his reply. "The entire discussion of the nylon restraint system has been so designated.

"If the department were to provide you with a copy of Chapter 24, or those pages specifically responsive to your request, the discussion of the nylon restraint system would be completely redacted" -- meaning the pages would be blacked out, he said.

Rothman did, however, make a distinction between the hobble restraint and what the CHP refers to as the "nylon leg restraint."

The CHP does not "use or employ" a hobble device, he said. "The hobble is a prisoner restraint device designed to encircle only the ankles; the strap is then typically secured by closing it in a patrol vehicle door."

He goes on: "Department policy does not describe hobbling nor (does it permit) the use of the nylon leg restraint as a hobble."

It remains unclear from Rothman's statement whether the CHP allows the hogtying of combative detainees, or even the binding of legs or ankles.

 

HOGTIE CONCERNS

One company that markets leg restraints to police and corrections officers across the country and internationally advises caution in their use.

Ripp Restraints International Inc., a Florida-based company that manufactures and distributes the Ripp Hobble, includes the warning, "Never hog-tie" on its website.

Made from polypropylene webbed belting rated to 700 pounds, the Ripp Hobble is the only hobble device approved for use by the Bakersfield Police Department, Kern County Sheriff's Office, the Los Angeles County Sheriff's Department and many other law enforcement agencies.

Bill DeVane, the founder of Ripp Restraints and a former cop, said when one considers the history of litigation surrounding incidents involving police use of the hogtie, there's no good reason to continue the practice.

"Take someone on drugs. They start acting stupid, they go into a fight-or-flight response, adrenaline pumps into their system..." DeVane said. "If you have some illness or heart defect, you're dead."

Instead of hogtying, DeVane recommends the company's Sit-Belt, which allows police, when confronted with a kicker or otherwise combative individual, to connect the leg strap to the front of a belt tied around the person's waist.

The hogtie, he said, is dangerous, outmoded and unnecessary. There's no reason for police to cling to this old method.

Peter Bibring, an attorney for the American Civil Liberties Union Southern California, said it's incomprehensible that some law enforcement agencies still allow officers to hogtie detainees.

The Los Angeles Police Department, Bibring said, is "a large, sophisticated department. They're not going to abandon a necessary law enforcement tool without justification."

If the LAPD can ban it, so can Kern County," he said.

Los Angeles attorney Howard R. Price, who is not connected to the Silva case, said the use of the hobble restraint "should be rarely used, if ever."

Price won a $250,000 settlement last year after 30-year-old Tamara Gaglione was stopped on the shoulder of the busy Harbor Freeway by CHP officers after she was seen talking on her cell phone. Gaglione, who was two months pregnant at the time, was slammed to the ground and hogtied. The incident was captured on the CHP officer's dash camera and is now widely available on YouTube.

"This practice is fraught with injury and death," Price said, because it can severely restrict the breathing of the arrestee, especially obese or intoxicated persons and those who may be suffering from a kind of delirium or an episode related to mental illness.

Despite these sorts of cautions and denunciations, the debate over hogtying is far from settled.

Karch, the former assistant medical examiner for San Francisco, is highly skeptical about the dangers of hogtying.

"I don't believe it," he said of the dangers often associated with the restraint tactic.

Karch said he'd be "perfectly willing" to be hogtied to demonstrate that it's not the lethal restraint it's been made out to be, even when officers' body weight is pressed down upon the person's torso. Pre-existing medical conditions, including heart problems often brought about by chronic drug use, are the lethal variable connected to sudden in-custody deaths, he said.

All of this suggests that any lawsuit connected to the death of David Sal Silva could ultimately become a battle of the courtroom experts, each providing conflicting scientific studies and evidence to support whichever side they're on -- and refute the opposition.

Scientific studies exploring the potential dangers of hogtying and similar police restraint methods have reached conflicting conclusions. Some studies have found that positional asphyxia is a lethal risk associated with hogtying. Others have determined that there may be a reduced oxygen intake by those restrained, but not to the level that it poses a danger to human life.

Ironically, even career cops suggest this debate may be beside the point, as hogtying is not a necessary law enforcement tool.

"It became a risk-management issue," BPD's Chief Williamson said. "We don't want to be exposed to lawsuits." OFFICIAL CAUSE OF DEATH

While Silva's body was covered by dog bites and bruising caused by officers' baton strikes, no bone fractures or trauma to his brain were found by Dr. Eugene Carpenter, the pathologist who performed the autopsy the morning of May 9.

"None of the dog bite type areas can be considered lethal," Carpenter's report concluded. "None of the injuries to the body are at a level of pathology considered to be lethal."

A post-mortem toxicology report found Silva had alcohol, methamphetamine and other drugs in his system. It also found that his heart was enlarged, "pathologic," Carpenter said in the report. The Kern County Coroner's Office, which is administered by Kern County Sheriff Donny Youngblood, concluded the cause of Silva's death was hypertensive heart disease. The manner of his death was determined to be accidental.

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