DA cleared LAPD officers in pepper spraying

The Associated Press

LOS ANGELES- A district attorney's investigation has cleared police officers of wrongdoing in a videotaped incident in which a transient in handcuffs was apparently pepper-sprayed in a police car, police Chief William Bratton said Tuesday.

The February 2005 incident came to light this week when the videotape, shot by a citizen, was released by the man's attorney.

The tape of Benjamin Barker's arrest surfaced on the heels of an 18-second video showing a Los Angeles officer repeatedly punching a suspect in the face while another officer tried to handcuff the man during a struggle on a Hollywood street on Aug. 11.

At a news conference, Bratton cited a Nov. 15, 2005, decision by the Los Angeles County district attorney's office in which prosecutors declined to file any charges against officers in the arrest of Barker, who had been in a scuffle with a Venice Beach merchant.

The officers were identified as David Guieterman, Victor Eguez and Peggy Thusing. Guieterman, seen in the video using pepper spray, left the department last year for reasons unrelated to the arrest, but remains in law enforcement, police said.

''Examination of the videotape clearly shows (the officers) did not use excessive force on Benjamin Barker, nor did they assault him under color of authority,'' Bratton said, quoting the decision. ''The officers showed remarkable restraint and demonstrated professional courtesy to Barker despite his belligerent, threatening and combative behavior.''

The tape shows Guieterman take pepper spray out of a holster, then raise it toward Barker's face, but the actual spraying is obscured by shadows.

The report found that officers arrested Barker after the merchant reported that Barker had hit him and customers.

The report, citing the videotape, says Barker resisted police efforts to put him in the police car, screaming and making a kicking motion toward an officer.

After he was placed in the car's back seat, he jumped out and lunged toward a fourth officer. Placed in the car a second time, Barker spit on the window and on Guieterman, the report says the tape shows. In response, Guieterman sprayed him twice with one-second bursts of pepper spray while Barker was in the back seat.

While being driven to jail, Barker kicked out a window, the report says.

''Barker's words and actions were resistive and obstructive,'' it says.

''The officers used that degree of force necessary to restrain Barker and maintain custody of him,'' the chief said, quoting from the decision.

Barker has since pleaded guilty to misdemeanor battery on the shopkeeper.

Barker's attorney, John Raphling, called allegations that his client spit on the officer ''nonsense.''

''Once (Barker) is in the car, he's cuffed, hands behind his back, and he's not resisting. He's not a threat,'' Raphling said.

The district attorney's office also concluded that reports by two officers that said the pepper spray was administered outside the car were mistaken recollections and not intentional misstatements of fact.

The chief noted that a court commissioner who held a hearing in the separate Hollywood arrest also found the officers in that case did nothing wrong because that suspect was resisting.

Bratton said that an administrative review of the Barker incident is done and that he would decide soon about any administrative punishment.

The administrative review of the Hollywood arrest is ongoing, he said.

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