Following a lengthy arbitration, the disciplines
imposed on Berkeley police officers Henry Wellington and William
Thornton were overturned. After vindicating these officers, Arbitrator
Paul Staudohar reinstated Wellington to his former position and
rescinded the 10-day suspension imposed on Thornton.
Thornton was also reinstated to his position
as a field training officer. Representation in this case was provided by
LDF panel attorney Alison Berry-Wilkinson, who is a partner at Carroll,
Burdick & McDonough.
On July 26, 1996, Wellington assisted three other
Berkeley police officers in serving an arrest warrant on an individual.
wanted for attempted rape. When the suspect would not open the door to
his private co-op dorm, the police entered using a key obtained from the
apartment manager.
The officers themselves, advised the suspect that
they had a warrant for his arrest, and repeatedly asked him to get up
off the bed on which he was reclining.
The suspect refused to cooperate, resulting in a
struggle to put on the handcuffs. Once handcuffed, the suspect
immediately went limp.
The officers believed this to be a form of passive
resistance, but also were concerned that there might be a medical reason
for the suspect's sudden change in demeanor. After the suspect was
cleared by the paramedics, the officers took him to jail.
Thornton then joined in assisting Wellington and the
other officers in transporting the still passive suspect out of the
patrol car and into the jail, so that one of the other officers could
take his scheduled Code-7.
At the Hall of Justice, the suspect continued
his limp passive resistance and had to be placed into a wheelchair to be
taken up to the jail. As the wheelchair was moved from the patrol car to
the booking room, Thornton held onto the suspect's head so that he could
maintain some control if a violent outburst occurred.
Once in the "booking room" (which is a
small locked room where paperwork can be completed at a podium prior to
taking the suspect up the elevator to the jail), the suspect remained
limp in the wheelchair. Consequently, one officer turned her back to the
suspect to complete the booking documentation at the podium.
Thornton was standing at the side of the wheelchair,
holding the suspect's head up so that he would not fall out of the
wheelchair. Wellington and the other officer were on the opposite side
of the wheelchair from Thornton.
Suddenly, the suspect bolted out of the wheelchair
and violently head-butted Thornton, knocking him off balance into the
corner between the wall and the podium.
The suspect then lunged at the female officer in
front of him and drove his lowered head and shoulders into the officer's
torso, slamming her into the wall.
Using the full force of his body weight, the suspect
pinned the female officer to the wall above a wooden bench.
Wellington and the other officers were
immediately concerned for the female officer's safety due to the
violence of the suspect's attack.
Because of the size of the room, the location
where the female officer was pinned to the wall, and the fact that the
suspect was kicking out backwards to prevent the officers from
approaching, neither Thornton nor the officer completing the booking
forms were in a position to render immediate assistance.
Believing that the female officer was in danger and
that she needed to be immediately freed from where she was pinned
against the wall, Wellington struck at the suspect with a closed fist in
an upper-cut motion to the only part of the suspect's body that was
accessible - the head and shoulders. Wellington's first punch at the
suspect missed, the second resulted in a glancing blow and the third
made clean contact, which succeeded in buckling the suspect’s leverage
and allowed Wellington to push the suspect off the female officer.
Once the suspect was pushed off the female, he
fell prone to the floor. While all four officers were trying to restrain
the suspect, the suspect began to yell loudly and repeatedly "kill
me, kill me" and "I want to die."
At the time, the suspect was smashing his face
repeatedly into the concrete floor, causing considerable damage to his
face and significant bleeding from his wounds.
In addition to pounding his head into the floor, the
suspect was fighting and kicking with his legs. The kicking was so
forceful that one of the officers, using all of her body weight, was not
able to control the suspects legs.
All of the officers tried various techniques to gain
control of the suspect to prevent him from smashing his face into the
ground. All were concerned that the suspect would seriously injure
himself if he continued pounding his head into the concrete floor.
During this time, both Wellington and Thornton
were trying to grab and hold the suspect's head to prevent further
injury, but the slipperiness of the blood made this difficult.
In an attempt to prevent further bashing, Thornton
gave the suspect a distraction slap to the right side of the head and
yelled at him to stop. But the suspect did not stop trying to harm
himself, so Thornton abandoned this tactic after the single slap.
As a result of the struggle, other officers came to
assist in controlling the suspect. After hobbles were placed on the
suspect and his head was controlled, the suspect was taken by ambulance
to Highland Hospital in Oakland.
While at the hospital he again became extremely
combative, requiring seven-to-eight people to restrain him, including
two Berkeley officer and two Alameda County deputies.
One week after the suspect’s arrest, the female
officer who was pinned to the wall complained to her supervisor that
Wellington had used excessive force in punching the suspect at the
booking room.
During the course of the internal investigation that
was prompted by her complaint, the department discovered Thornton’s
use of the distraction slap.
The Berkeley Police Department terminated Wellington
for punching the suspect in the booking room and for allegedly striking
the suspect during the initial arrest in his apartment.
Thornton was suspended for 10 days and removed from
his FTO position for having used the distraction slap in an attempt to
stop the suspect from bashing his head into the concrete booking room
floor.
This discipline was based on the chief’s conclusion
that striking a "defenseless handcuffed prisoner" is always
inappropriate.
In overturning the discipline upon both officers, the
arbitrator found that the suspect was not "defenseless" as
alleged by the chief, but rather was a very dangerous person, even while
handcuffed. Consequently, the arbitrator held that the force used in the
booking room by both Wellington and Thornton was reasonable and
appropriate.
As to the force used by Wellington in the booking
room, the arbitrator stated: "Under the circumstances, the use of
the fist by Wellington does not appear to be an inappropriate use of
force. [The female officer] was his partner and she appeared to be in
danger from a violent attack."
As to Thornton’s use of the distraction slap, the
arbitrator recognized that this technique has been approved by POST for
many years and was taught to Thornton during his training.
The arbitrator concluded: "Under the
circumstances of a young man beating his head into a cement floor,
causing severe laceration and possible brain damage, Thornton slapped
and yelled out at the same time to divert [the suspect] from his abject
self-destruction.
That the suspect was handcuffed had little if
anything to do with his ability to bash his head. The distraction slap
was not vindictive or intended to cause destruction. Quite the opposite,
it was humanitarian and constructive."
The Legal Defense Fund’s willingness to authorize
the extensive use of experts in this excessive force case was critical
to the successful outcome.
In the case, the department cavalierly ignored its
own use of force policies and the training provided to each of these
officers, which included both the use of a distraction slap and a
closed-fist strike to the face.
Additionally, the arbitrator was positively
influenced by Berry-Wilkinson’s decision to show POST training
videotapes to counter the department’s conclusion that handcuffed
prisoners are defenseless.
While those involved in day-to-day law enforcement
know that suspects can be extremely violent despite being handcuffed,
the video showed actual violent encounters between police and handcuffed
suspects.
This demonstrative evidence proved vital to
convincing the arbitrator that under the circumstances presented here,
striking a handcuffed prisoner was both reasonable and appropriate.
