by Peggy Lee Kennedy
Officer David Guiterman casually leaned over to his left,
pulled out his pepper spray canister from its holster, shook it slowly and
deliberately, then leaned forward into the opening of the back door of the
patrol car and sprayed Benjamin Barker straight in the face for four or five
seconds. Count it out: one-one thousand, two one-thousand, three one-thousand,
four one-thousand... Mr. Barker was handcuffed and sitting in the back seat of
the police car pleading, “Don’t spray me, please!”
The officers then shut all the doors – creating a “Gas Chamber” of pepper spray inside the car. Barker appeared to convulse and struggle to breath while Officer Guiterman, two other Pacific Division officers, and the LAPD Venice Beach Sub-Station Supervisor, Sgt Burrus, all stood outside the closed car as if nothing was happening.
Calvin E. Moss, a long-time Food Not Bombs activist and co-founder of our Venice Justice Committee, captured that February, 2005 Venice Beach LAPD pepper spray incident on videotape. The video was seen more recently with a flurry of other police abuse episodes on CNN, ABC, KTLA, etc. as if only part of a transitory epidemic of police abuse.
The pepper spray tape and our Justice Committee sprouted from our Food Not Bombs activity, where we were originally trained in non-violent resistant by [Robert Myers of] the National Lawyer’s Guild Los Angeles (NLG_LA) specifically to oppose anti-feeding, anti-homeless laws created by the City of Santa Monica. We then sought further training in Cop Watch and video advocacy in order to document the human rights violations happening around us. This included trainings by Paul Mills of Police Watch LA and Michael Zinzun, former member of the Black Panther Party for Self-Defense and co-founder of the Coalition Against Police Abuse (CAPA). It was Michael Zinzun (may he rest in peace) who suggested that we form a Justice Committee.
But that February night, we watched the video over and over again in my Venice apartment, re-living the incident, trying to get the victim’s name or the number he was calling out and trying to figure out what we should do. We thought the victim’s name might be Parker, but he really wasn’t in very good shape even before Officer Guiterman pepper sprayed him in the face. Besides being handcuffed, sitting in the back of a police car, and not resisting (simply whining and crying) - Barker appeared disabled and disoriented, which makes the excessive use of force even more egregious. He had hospital bandages on both of his wrists and kept sobbing loudly about the ways he was hurting: his leg, his rib, his wrist. Another upsetting thing about watching the tape was how so many people just walked by on the Venice Beach Boardwalk, as though this was OK, or he must deserve it somehow.
After enough of watching the pepper spray horror movie, we called Paul Mills and talked about what we should do with the tape. The decision was to first try contacting John Raphling, an attorney at the Los Angeles County Public Defender’s office, assigned to the LAX (Airport) Courthouse. Raphling had previously helped our Justice Committee by successfully defending a Venice woman who the City of Los Angeles prosecuted for living in her vehicle (LAMC 85.02).
When we gave Raphling the tape, he reassured us that he would try to get this man justice. He located Barker, who was incarcerated and being arraigned at the LAX Courthouse, and he used our tape to defend Barker. It turned out that the officers present when Barker was pepper sprayed and arrested - Officer Guiterman, Officer Thusing, Officer Eguez, and Sgt Burrus - all lied on the police report.
Officer Guiterman said that he ordered Barker “to sit down and he did, he sat in the rear of the car with his feet out.” Close review of the video shows Officer Eguez apparently pulling Barker in the car from the other side by the handcuffs, which must have been painful. Barker cried in pain while this was happening. It is possible that Barker’s feet were out of the car, but he was not combative and was answering Guiterman’s questions.
Guiterman said that Barker took a deep breath and began to spit on him, but the video does not show this. Guiterman wrote, “I moved my head to the left and avoided the spit.” Definitively, this head movement never happened in the video. At no point during the time Barker was seated in the car does Guiterman or any other officer make a sudden move or reaction to avoid something Barker did or might do. He wrote that Barker continued to be aggressive and combative, which is also not true. Barker was sitting in the car whining and crying. He was not physically doing anything when Guiterman pepper sprayed him.
Officer Peggy Thusing was standing right next to Guiterman. She wrote that she saw Guiterman moving to avoid being spat on, that he took a step back, and that he was four feet away from Barker when he sprayed. In the video Guiterman leaned in - face first - and was nearly on top of Barker when he sprayed him. The fact that he leans in face first contradicts his claim that the spraying was done in defense against spitting.
Officer Eguez said that he seat belted Barker in the car and by the time he came around the other side, he learned of the pepper spraying. In the video, he seems to know what’s happening before he came back to the other side of the car.. As Eguez was walking around the back of the car he is commenting about the spray and he was smiling or even laughing while the spraying happened.
Sgt Burrus, the commanding officer, was standing a few feet away. He wrote that Barker was standing outside the car, spat at Guiterman, and refused to get in until after Guiterman used the pepper spray. The videotape clearly shows Guiterman pepper spraying Barker while he was sitting down in the car. If, in fact, Barker did spit on Guiterman, it must have happened well before the actual pepper spraying, which makes the spraying an act of revenge.
So the undeniable truth in our videotape did help Benjamin Barker find some justice. We helped get him out of jail. Raphling was able to show the tape to the prosecutor who then dismissed charges for resisting and battery on a police officer. People abused by the police frequently get charged with crimes such as resisting arrest or battery on a police officer.
If there is evidence or even a credible witness to an excessive use of force violation committed by law enforcement - calling the local Public Defender’s office should definitely be considered, especially if the victim cannot be contacted directly. The Metropolitan area courts, jails, and public defender's offices are all arranged together in jurisdictions. For example, when a person is arrested in Venice, they are arraigned at the Airport (LAX) Courthouse.
Raphling now has a private practice as a civil rights and criminal defense attorney in Venice and is no longer with the Public Defender‘s office, but contacting him proved fruitful to our pursuit of justice. Those who have had negative experiences with Public Defenders may be surprised to learn that most of the attorneys in the LAX PD’s office watched our tape and took an interest in the case. Having strong evidence can help any attorney mount a defense.
Other options are to go straight to the press (like with Rodney King and KTLA) if the evidence is sensational enough, file a complaint with internal affairs against the officer(s) for excessive use of force or other misconduct, or contact a reputable civil rights attorney who may be able to get the victim compensation and pressure for departmental reform. The central factor for this kind of evidence or documentation is letting victims benefit from the evidence.
We consider the pepper spray tape one of our Justice Committee successes. It is no real surprise to us that the police report conflicted with our video, but some lingering and somber questions regarding our so-called justice system still remain. Where does a poor person get justice without such a video? Are all police reports full of these kinds of discrepancies? How many defenseless people are in prison based on lies? Can these types of systemic problems be resolved in the existing police culture?
These questions may be too difficult or too philosophical to address in one article about one police abuse incident, but there absolutely should be independent monitoring of the police and more accountability. According to Raphling, “This case illustrates the fact that LAPD is not capable of policing itself and that we need real, independent civilian monitors with a real investigative budget, real investigative powers and authority to discipline.”
Raphling showed our tape to the head prosecutor for the City Attorney’s Office at the LAX Courthouse and suggested that charges be filed against the officer for a violation of
P.C. 147: “Every officer who is guilty of willful inhumanity or oppression toward any prisoner under his care or in his custody, is punishable by fine not exceeding four thousand dollars, and removal from office.”
The City Attorney’s office declined to file charges and appears to have done nothing to discipline these officers.
Sgt Pape and Sgt Adams from LAPD’s Professional Standards Bureau, Internal Affairs Group, and Criminal Investigation Division (that’s what was on the business card) did come and interview Calvin and I regarding the tape. Calvin told them that the pepper spraying was inappropriate, sadistic behavior by the LAPD. He told them that the officer was torturing Barker. And when Pape interviewed me, I specifically told him that not only should Guiterman be disciplined, but also so should the other officers that just stood there and did nothing to stop the abuse.
Pape kept bringing up things Barker had supposedly done when
he talked to both Calvin and I - things not on the tape, things we did not see
- implying that Barker deserved to be pepper sprayed. At that time we did not
know the content of the police report and all the lies about Barker spitting,
but we were there when it happened. We witnessed the incident, Calvin
videotaped it, and we knew what was on the video. Our visit from, what I
assumed to be LAPD’s investigation of the excessive use of force by Officer
Guiterman, went more like an investigation of us.
John Raphling also sent the pepper spray video and the false reports to the agency contracted by the federal court to monitor the consent decree overseeing the LAPD. He was told that the video had made its way to Chief Bratton, and he was assured that they would discipline the officers, but nothing happened.
In April 2006, Raphling and Carol Sobel, the President of the National Lawyer’s Guild Los Angeles showed the video, along with another one showing a similar brutal act of police abuse on the Venice Beach Boardwalk, to Connie Rice for her report on the progress of LAPD reform under the consent decree. Not so coincidently, the other video was of my neighbor’s son being pepper sprayed on the Venice Beach Boardwalk after having been handcuffed and subdued by L.A.P.D. officers. Even though this second video indicated a pattern, and Raphling believes that the videos were again sent to upper level people in the L.A.P.D., the department took no action disciplining officers or defining their policy.
Finally, in November 2006, our pepper spray video was released to the media following a blitz started by a sensational police abuse incident in which a terrible beating was taped by a witness using a cell phone camera and then posted on a popular web site.
At the press conference that followed, Chief Bratton admitted that he had received our videotape fifteen months earlier, but had not made a determination of whether or not the police had acted “within policy.” In the press conference, the chief defended his officers’ actions and a few days later announced that the evidence was inconclusive as to whether or not these officers violated L.A.P.D. policy. Unfortunately, in the words of Attorney John Raphling, “Chief Bratton, by his actions, has shown that he approves of these abusive and cruel policing tactics.”
Naturally, we hope more people will document, report, and complain about police abuse. A few things to know regarding witnessing police incidents:
ü Ask police officers for their cards. You do not have to tell them why. They are supposed to give you their name and badge number.
ü Take names and numbers of witnesses and, if possible, get the name of the victim.
ü You have a constitutional right to witness, but use common sense about your distance.
ü Know what your basic rights are and learn about dealing with the police. The midnight special law collective is a good place to start: www.midnightspecial.net
Bear in mind that the inappropriate and abusive use of pepper spray on Benjamin Barker happened in broad daylight, with plenty of witnesses, and the police all knew they were being filmed. What happens when no one is watching and no one is there who cares enough to do something?