In compliance with California Senate Bill 1421 requiring police departments to release documents related to deaths of citizens and other incidents, this May the city of Fullerton released over 3200 pages of documents related to the death of Kelly Thomas, which occurred in 2011 and gained national attention, resulting in protests, the trial of 2 officers, and the recall of 3 City Council members.
This is the second in a series of articles based on these files.
Part 1 (August 2020 Issue) included excerpts from official notices of discipline and dismissal that were written by former Police Chief Dan Hughes to the 3 officers who were fired over the incident (Jay Cicinelli, Manuel Ramos, and Joseph Wolfe) and the 3 who were disciplined (Jim Blatney, Kevin Craig, and Kenton Hampton). The notices of dismissal and discipline give the official FPD explanation of what happened and why the officers were fired. The 3 officers who were fired used excessive force, and violated numerous FPD policies, according to the notices.
Part 2 of this series pertains to the interviews conducted by the Office of Independent Review (OIR). The City contracted with this agency to provide an outside, third party investigation into the death of Kelly Thomas.
Rather than attempting to summarize the hundreds of pages of interviews, the Observer has decided to highlight 5 key problems that the interviews reveal.
Problem #1: The police reports were edited at the request of superior officers, as was common practice, to justify the use of force.
Many of the officers involved in the death of Kelly Thomas said that, after submitting their police reports, they were sent back with suggestions for edits. Most of the changes have to do with adding language that was intended to justify the officers’ use of force, by highlighting the officers’ fear and the ineffectiveness of other methods of force.
Jay Cicinelli was asked to add statements such as, “We were not having any success at controlling Thomas,” and “I was becoming more fearful for our safety,” at the request of Sgt. Mike Chlebowki. These, and other statements, did not appear in Cicinelli’s original report.
In his interview, Chlebowski said that he often asks officers to change or add things in their police reports, and sometimes even makes the changes himself.
Officer Kenton Hampton said that after he submitted his report on the night of the incident, Chlebowski asked him to make changes that same evening, “to give the person that was reading an understanding of my mindset as to how this situation played out.”
These additions are likely not just to “give the mindset” of the officers, but also to meet the required legal threshold for deadly force (as defined by the FPD manual and case law)—an officer’s fear for safety, ineffectiveness of other methods of force, and what an officer deems “reasonable.”
Sergeant Kevin Craig said that he proofreads “hundreds and hundreds and hundreds of reports a month…I’m pretty picky as far as what goes in and what goes out.”
If superior officers serve as “gatekeepers” of what goes into official police reports and regularly ask officers to make edits that make them legally compliant with use of force thresholds, it seems questionable that the reports will always be completely truthful or hold officers accountable for excessive force.
Problem #2: The District Attorney’s office did not interview officers that night, as is usual for in-custody deaths.
Normal protocol for officer-involved shootings (and in-custody deaths) is that the case is immediately turned over to the District Attorney’s (D.A.’s) office. However, because Kelly Thomas did not die that night, the D.A. did not get involved that night. Instead, officers were told to write their own reports, rather than being interviewed by D.A. investigators.
When asked what the hazards are of police staff interviewing their own people as opposed to the D.A., Chlebowski admitted, “It would be the bias thing…You’ve got guys interviewing people [and] maybe we don’t ask the right questions or we’re soft-balling the interview.”
Ultimately, the officers involved were not interviewed by the FPD or the D.A. that night. Instead they were told to write their police reports and submit them to superior officers for review.
Hampton remembers that, “There was a debate between whether we were going to give a statement to the D.A.’s office or were we going to go back and write a report…It was determined that we were going to provide a written report and that we weren’t going to have to provide a statement to the D.A.’s office.”
Sgt. Kevin Craig said, “In my opinion, they [the DA] should absolutely have taken this case” on the night of the incident “because of the severity.” He said that, because the DA did not take the case that night, it led to public perception of “a cover up.”
Craig remembers a “roundtable” discussion by senior officers including Captain Dan Hughes [who later became Chief] on the night of the incident regarding whether the D.A. would be involved. Ultimately, it was decided that “officers are going to write their own reports. Just make sure they all get assigned to Sergeant Chlebowski so he can read them and approve them,” Craig said.
Craig said that he was originally a part of these “roundtables” but was then asked by Captain Hughes to remove himself. “That was something that Captain Hughes did—was just kind of remove me. Someone else is coming to take care of the things that need to be taken care of.”
Problem #3: Officers were allowed to watch the video together prior to writing their reports.
It was reported at the time that the officers involved were allowed to watch the video of the incident captured on a City camera prior to writing their reports. This is true, according to the recently-released papers.
On the night of the incident, all of the officers who were involved returned to the Fullerton Police Station, gathered in the Watch Commander’s office, and watched the video of the incident together.
Those present in the office watching the video included Lt. Basham, Cpl. Blatney, Sgt. Craig, Cpl. Cicinelli, and officers Hampton, Ramos, and Wolfe.
After watching the video, the officers were then told to write their reports. Hampton said that, while writing the reports, they also talked together about the incident. At the time, he shared an office with Cicinelli, and they conversed while writing their reports.
Blatney said that after watching the video, he was with Officer Ramos while he wrote his report.
When asked by OIR if it seemed unusual that officers were allowed to view the video prior to writing their reports, Cicinelli said no, and compared watching the video to reviewing his personal Digital Audio Recorder (DAR) prior to writing reports.
“We listened to our DARs. To me, it was the same thing.” Cicinelli said. “Because we want to try and get at least the facts as accurate as possible.”
Cicinelli did not activate his DAR during the incident.
OIR asked Sgt. Chlebowski, “What’s your reaction to a comment that allowing officers to review their DARs and/or the video ensures that they’re only going to prepare a report on what was captured versus the totality of the incident?”
Chlebowski said that “reviewing DARs is something that we always have them do…Make sure their DARs match up with the reports.” He said that the video was “unique” but his motivation in allowing officers to watch it prior to writing their reports was to make sure their reports were “more accurate.”
Problem #4: Officers generally believed the use of force was justified.
Despite the clear statement in their firing notices from Chief Hughes that excessive force had been used, most officers said in their interviews that they believed the force used was “reasonable.” This is an important term as it has legal implications.
“All the officers believed they had done the right thing out there,” Chlebowski said.
“I one hundred percent believe that Corporal Cicinelli did everything he could the right way, “ Cpl. Tony Rios said.
“If you fear that your life is in danger you gotta use what options you have,” Blatney said.
When asked if he felt that the force used by Cicinelli was warranted at the time, Hampton said, “I can’t step in and say that use of force was warranted but I can say that prior to him using that force, we didn’t have control over Mr. Thomas.”
Craig said that “this whole thing [was] accidental…there was no intent on anybody’s part.” Craig blamed the outcome not on the officers’ aggression, but on Thomas’ resistance.“The officers still had to control Mr. Thomas…yes, it took a long time to do so but that’s not at the officer’s doing. It’s Kelly Thomas’s continual resistance. I mean even when you hear ‘I can’t breathe,’ are we supposed to just jump up and let it start all over again?”
When asked if he felt the officers could have done anything differently, Craig said, “Not that I know of. I mean, I still think it is what it is. I mean, it’s a situation that went bad and the officers did what they had to do.”
Cicinelli said, “Everything I was doing was in a reaction to my training.”
Problem #5: Officers have broad discretion regarding use of force, a policy that OIR describes as “anything goes” as long as the officers deem it to be “reasonable.”
Another insight from the interviews is that Fullerton Police Officers had broad discretion with regards to use of force. Basically, it all boils down to what they subjectively determine to be “reasonable.”
Tony Rios, a use-of-force instructor with FPD, said, “I tell people if you’re losing a fight, you’re on the bottom of the pile, you know, bite their nose off, poke their eyes out…You’re not going to be thinking oh geez, I can’t do that. You’re going to do what you can to survive and to win the fight. And we tell them you do everything you can to win the fight…If you feel you are in imminent danger of serious bodily injury or death then you have that legal right to use that amount of force necessary to overcome that. And I one hundred percent believe that Corporal Cicinelli did everything he could the right way.”
On the use of “improvised weapons” Rios said, “If you have to pick up a shovel…and you’re fighting in a yard and you’re losing…and you smack that guy over the head and he dies…that’s what one hundred percent, you know, we just went through this training too…the guys worry about, oh, my god, I can’t hit someone with a flashlight. Well, not true. You know, Oh, my god, I can’t kick somebody. That’s not true. I can’t punch them. That’s not true. You know, as long as you can legally justify it and articulate why you did what you did it’s reasonable. And the key word is reasonable in our use of force policy.”
When asked when deadly force can be used, Hampton said, “Only when necessary.”
The important thing regarding use of force seems to be the officer’s ability to justify that it was “reasonable.”
Regarding use of force, Craig said that if “you can justify it by articulating it, why you used it, you’re probably going to be okay with it…A lot of times we can just explain things away, you know, this is why things happen this way.”
When asked if he was concerned by Cicinelli’s statement from his DAR, ”I f#*@ing probably beat him twenty times with a taser,” Craig replied “Does it cause me concern? No, not until I find out what else is going on and why.”
Regarding his strikes to Thomas’ face with his Taser, Cicinelli said, “I believed and perceived [them] at the time to be reasonable and necessary to attempt to take Mr. Thomas into custody.” He said that, even though he had not been trained to use a Taser as an impact weapon, he felt its use was in line with FPD policy.
When asked how he reacted to hearing Thomas say, “I can’t breathe,” Cicnelli said, “I didn’t really react to it because he’s resisting and he’s breathing so I didn’t put a lot of stock into it, to be honest with you.”
Corporal Steve Rubio, was the “training compliance officer” for Fullerton in 2011. Rubio began his law enforcement career in 1992 with the Los Angeles Police Department. He worked patrol at the Rampart CRASH division. This infamous unit was found to have some of the most widespread police corruption in U.S. history. In the late 1990s, multiple officers were indicted in Rampart.
After working CRASH at Rampart, Rubio came to the Fullerton Police Department in 1997, where he worked patrol, S.W.A.T. and then became a training officer in use-of-force techniques around 2006.
When asked if anything is potentially reasonable when using force, Rubio said, “Absolutely.”
Officers Ramos and Wolfe both refused to answer the questions from the Office of Independent Review.
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