SOUTH
LAKE TAHOE POLICE OFFICER ACQUITTED
OF ASSAULT UNDER COLOR OF AUTHORITY CHARGE
By
Christopher W. Miller
South
Lake Tahoe Police Officer Gregory Evans was acquitted on June 2, 2005,
by an El Dorado County jury of a misdemeanor charge of assaulting an
inmate under color of authority. The jurors rejected a misguided prosecution case in
favor of defense testimony supporting Evans’ minor use of force
against an inmate whom he was interviewing in jail.
Thomas
Adams, a convicted drug dealer, claimed Evans threatened, pushed and
choked him while Evans and Adams were in an interview room at the South
Lake Tahoe branch of the El Dorado County jail.
Adams was not injured. The
district attorney filed the charge originally as a felony, and we took
the case to trial after the preliminary hearing magistrate reduced, but
would not dismiss, the charge.
Inmate
Described as “Defiant, Agitated”
The
facts elicited at trial were that Evans, a detective assigned to the
South Lake Tahoe-El Dorado County Narcotics Enforcement Team, or
S.L.E.D.N.E.T., had arrested Adams in a local motel room for possession
of methamphetamine for sale and possession of a handgun in the
commission of a felony. Adams
agreed to inform on his drug supplier, but failed to contact Evans after
being released from custody. He
was re-arrested on a warrant by other South Lake Tahoe officers, who
recovered $549 in cash from Adams at the arrest.
Evans
went to the jail the following day to serve Adams with asset forfeiture
paperwork to allow S.L.E.D.N.E.T.
to seize the money. Correctional
officers directed Adams to walk from his cell to the booking area to
meet with Evans. As he
approached the booking area and saw Detective Evans, Adams started to
return to his cell. He was
loudly and profanely refusing to talk to Evans. He was described by one
of the jailers at that point as “red-faced, agitated, and defiant.”
The officer had Adams face a wall for officer safety before
directing him back toward the interview room.
In
the interview room, Adams, by his own admission, “copped an
attitude.” He refused to
talk to Evans, at one point turning his chair completely around and
putting his feet on a wall in the room.
A correctional officer, who was outside the room observing Adams
through a window, entered when Adams put his feet on the wall and
remained in the doorway because Adams had “clenched fists,” was
repeatedly swearing at Evans, and was again becoming agitated and
defiant.
“Use
of Force” Was a Push to Keep Inmate Seated
Adams
testified he then abruptly stood up out of his chair because he wanted
to leave the room. He
claimed Evans was calling him names, yelling at him, and calling him a
liar, but admitted he stood up without warning. The correctional officer testified Detective Evans said,
“Stand up and be a man,” before Adams stood up.
He testified Evans was upset at Adams, but was not using
profanity.
When
Adams stood up, he “squared off” against Evans, according to the
correctional officer. Adams
was angry and belligerent. The
officer described him as a “threat” to Detective Evans.
Evans
pushed Adams back into the chair when Adams stood up.
Adams immediately “shot back up” out of the chair and began
yelling that he wanted to file a lawsuit.
Evans ordered Adams at least five times to sit back down.
Adams ignored him, and Detective Evans, together with two
correctional officers, attempted to take Adams to the ground using
various control holds. Adams resisted, but he eventually was subdued and placed in a
holding cell.
Trial
Court Supported Defense on In Limine Motions and Jury Instructions
Displaying
a fundamental misunderstanding of Penal Code section 149, prosecutors in
the case argued “assault under color of authority” is akin to
battery. The deputy
district attorney requested instructions on self-defense, hoping to
instruct the jury that Adams, the inmate, had the right to assault
Detective Evans because Evans was attacking him.
The prosecutor also wanted to introduce evidence of Evans’
alleged “motive” in using force against Adams.
The
Graham v. Connor objective standard familiar to PORAC LDF panel
attorneys and the § 1983 defense bar was lost on the prosecution.
In Graham, the U.S. Supreme Court established the limits
of the “‘reasonableness’ inquiry” in an excessive force case:
[T]he
question is whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation. [Citations
omitted.] An officer’s
evil intentions will not make a Fourth Amendment violation out of an
objectively reasonable use of force; nor will an officer’s good
intentions make an objectively unreasonable use of force constitutional.
[Citations omitted.] (Graham v. Connor (1989) 490 U.S.
386, 397, emphasis added.)
The
Supreme Court’s exclusion of the officer’s intent or motivation in a
use of force case is based on the requirement the officer’s actions
must be “objectively reasonable”; that is, the trier of fact must
determine whether the use of force
is justified based on the facts and circumstances confronting the
officer at the time. (Graham v. Connor at p. 397; United
States v. Robinson (1973) 414 U.S. 218, 236.)
I
moved in limine to restrict the prosecution’s case to the
propriety of the alleged use of excessive force.
The court agreed, prohibiting the prosecutor from attempting to
establish a “motive” for the use of force and excluding any evidence
purporting to show Adams was acting in “self-defense.”
The court denied the prosecutor’s requests for jury
instructions on self-defense, instead giving my special instructions
patterned on the Graham standard and the language of Penal Code
section 149.
South
Lake Tahoe Training Officer Gave Key Testimony
David
Allen, the weaponless defense trainer for the South Lake Tahoe Police
Department, was the only witness we called.
In testimony remarkable for its clarity, professionalism and
candor, Officer Allen described to the jury how each action by Adams or
Evans was viewed under the department’s use of force policy and
training. He described
Adams’ conduct and attitude as demonstrating a “threat” and an
“assault” toward Evans, and explained the training given to
Detective Evans to respond to those actions.
The
prosecutor could do little but agree with Allen’s characterization of
the incident. Several
jurors commented after the trial that Allen’s testimony had been
essential to their decision to acquit Detective Evans.
Jurors were quoted in the local newspaper after the trial as
saying Adams’ story “had a few holes” and that the D.A.’s
witnesses were more favorable to the defense than to the prosecution.
Greg
Evans has returned to work as a South Lake Tahoe police officer.
He is grateful to the PORAC Legal Defense Fund for its assistance
and support throughout this case.
ABOUT
THE AUTHOR: Christopher W.
Miller is a former deputy district attorney who now provides labor and
criminal defense representation to PORAC LDF clients throughout
California as a partner with Mastagni, Holstedt, Amick, Miller, Johnsen
& Uhrhammer.
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