THE BLOG
01/14/2014 03:02 am ET Updated Mar 15, 2014

Fed Charges Eyed After Police Cleared In Homeless Man's Death

Acquittals Bring Emotional End To Highly Charged Local Trial

Federal investigators may reenter the case of Kelly Thomas, 37, a mentally ill homeless man, who died following a violent 2011 videotaped confrontation with police, after two former Fullerton, CA officers were acquitted on all state charges late Monday. As one of the defendants tearfully embraced his attorney, family and supporters of the fallen man quietly wept before sheriffs deputies escorted jurors and others from the courtroom. "Part of me died that night," a distraught Cathy Thomas, Kelly's mother told reporters later, "They got away with it." Kelly's father Ron Thomas, a retired police officer stated, "It took everything I had left right out of me."

Manuel Ramos, 39, was acquitted of second-degree murder (California Penal Code § 187), as well as an alternate lesser offense of involuntary manslaughter (California Penal Code §192(b)) that can be charged when unreasonable force in self-defense results in death. A second former officer, Jay Cicinelli, 41, was acquitted of both involuntary manslaughter and excessive use of force (California Penal Code §149). Ramos faced a possible life sentence, while Cicinelli faced up to four years on the most serious charge. Following the acquittals local prosecutors announced that a pending case against a third officer would be dismissed. The emotional trial in Orange County Superior Court lasted three weeks and was personally prosecuted by veteran District Attorney Tony Rackauckas. The jury deliberated approximately eight hours over two days.

A Violent Confrontation Caught on Tape

Shortly before 9 P.M. on July 5, 2011, Mr. Thomas suffered catastrophic injuries as police attempted to take him into custody near a Fullerton, CA bus depot. This followed an apparently false call of a homeless person jiggling car door handles in the depot parking lot. Fullerton, a diverse middle class city of 135,000 30 miles south of Los Angeles, is only minutes from Disneyland. Of the six officers involved in the confrontation with the unarmed man, three were charged following an extensive investigation by the district attorney that included videos, audio, medical reports and interviews with over 150 people. The case represented the first time in recent history that a police officer had been prosecuted in the county for on-duty felonies.

The county coroner listed the death as a homicide due to asphyxia caused by "mechanical chest compression with blunt cranial-facial injuries sustained during physical altercation with law enforcement." No illegal drugs or alcohol were detected in Thomas' body. The defense rejected the coroner's cause of death at trial and even maintained that Thomas was dozens of pounds heavier than he actually was. Among the most significant evidence presented at trial was video from a nearby fixed camera and audio from an officer's microphone. The last ten minutes of Thomas' consciousness were a terrifying maelstrom of violence according to the Los Angeles Times as he was:

[T]ackled, hit with a baton, pinned to the ground, punched repeatedly in the ribs, kneed in the head, Tasered four times and then struck in the face with the Taser device eight times.

As the confrontation escalated, a terrified, unarmed and confused Thomas heard the sounds of latex gloves snapping and the voice of Officer Ramos, threatening, "See my fists.... They are getting ready to f--k you up." As Thomas was pushed into the ground he pled for his life. At times he apologized, while gasping for breath, imploring officers -- "I can't breathe." After his begging and apologies went unheeded, Thomas desperately made one of his final requests: He called out for his father, "Dad, help me!" As witnesses watched and recording devices captured the events, the beating proceeded, even after Thomas' bloodied and broken body went quietly limp. Thomas was transported to hospital where he died five days later. The horrendous hospital photographs resembled that of a white modern day homeless Emmett Till, a bloodied and discolored unconscious man with tubes jammed in his throat, barely recognizable to those who knew him.

Possible Next Steps

As Thomas' parents joined a peaceful crowd of supporters in Fullerton last night, Kelly's devoted father noted that legal avenues were not exhausted. In addition to the civil tort of wrongful death and possible civil rights lawsuits, the federal government could bring criminal charges of their own, as the FBI opened an investigation in 2011 during the pendency by the local prosecution. A civil suit pursued by Thomas' heirs would only require them to prove their case by a lower standard, preponderance of the evidence. This "more likely than not" standard is far more easy to establish than the "beyond a reasonable doubt" standard required of prosecutors in criminal cases.

The Fifth Amendment prohibition of double jeopardy in criminal cases does not preclude a federal prosecution of the officers involved. Double jeopardy prevents the same authorities from reprosecuting a case on the same charges (or a lesser included offense) after an acquittal, but not federal prosecutors. Indeed, federal prosecutors could use evidence collected by local authorities in their case. An FBI representative stated late Monday, "With the conclusion of the state court trial, investigators will examine the evidence and testimony to determine if further investigation is warranted at the federal level." If a federal criminal case is pursued, it will most likely involve a statute dating back to the post civil war era, 18 USC 242, Deprivation of Civil Rights Under Color of Law. First intended to protect newly freed slaves from abuses at the hands of local southern sheriffs the law has been used against prison guards, a judge who sexually assaulted women, and some of the officers involved in the beating of Rodney King. If a federal criminal trial takes place the jury pool could encompass several California counties that make up the Central District of California.

Note: Brian Levin is an advisor to the National Coalition for the Homeless and has testified before the Senate on violence against homeless persons.