United States v. Koon (833 F. Supp. 769, 1993)

SENTENCING MEMORANDUM

DAVIES, District Judge.

INTRODUCTION

Four Los Angeles Police Officers, Stacey C. Koon, Laurence M. Powell, Timothy E. Wind, and Theodore J. Briseno, were indicted by the United States in a Two-Count Indictment filed August 4, 1992. The Indictment charges in Count One that defendants Laurence M. Powell, Timothy E. Wind, and Theodore J. Briseno violated Title 18, United States Code, Section 2, and Title 18, United States Code, Section 242, and aided and abetted each other. The Government charges that while acting under color of the laws of the state of California, said officers willfully struck with batons, kicked, and stomped Rodney Glen King, resulting in bodily injury to him and, thereby, willfully deprived him of the right preserved and protected by the Constitution of the United States not to be deprived of liberty without due process of law, including the right to be secure in his person and free from the intentional use of unreasonable force by one making an arrest under color of law. The aiding and abetting count was stated in Count One of the Indictment, but at trial was treated as a separate count and was submitted to the jury as such.

Count Two of the Indictment alleges violation of Title 18, United States Code, Section 242, and is directed against Stacey C. Koon alone. He is charged with willfully permitting the other officers in his presence, and under his supervision, to unlawfully strike with batons, kick, and stomp Rodney Glen King and with the willful failure to prevent the unlawful assault by said officers, all in violation of the right preserved and protected by the Constitution of the United States not to be deprived of liberty without due process of law, including the right to be kept free from harm while in official custody.

The case was tried to a jury commencing February 25, 1993. The jury reached its verdicts on April 16, 1993, and the verdicts were handed up on April 17, 1993.

By said verdicts the jury found that none of the defendants was guilty of aiding and abetting, that Officer Briseno was not guilty of the charges alleged in Count One and was acquitted, that Officer Wind was not guilty of the charges alleged in Count One and was acquitted, that Officer Powell was guilty of the charges other than aiding and abetting alleged in Count One, and that Sergeant Koon was guilty of the charges alleged in Count Two.

The matter is now before this Court for the sentencing of Laurence M. Powell and Stacey C. Koon. The Court has reviewed, read, and considered the presentenee reports, the addenda thereto, the position papers and sentencing memoranda filed by the defendants and by the Government. The Court has reviewed and considered a multitude of letters relating to the trial of the case and sentencing, and letters written in support of the defendants. The Court has also considered the United States Sentencing Commission Guidelines Manual, effective November 1, 1992 and the arguments of counsel. Based thereon, the Court makes its findings as follows and sentences the defendants as follows.

FINDINGS OF FACT

The details of the arrest of Rodney Glen King in the early morning hours of March 3, 1991, on Osborne Street near Hanson Dam, Los Angeles, were disclosed at trial. Multiple motions were made before trial in an effort to resolve the many legal problems that emerged, and witnesses testified and evidence was taken between February 25, 1993, and April 6, 1993. The Government presented its case in great detail. It is hard to imagine that the Government overlooked any fact. However, because the verdicts were general and no special findings were made by the jury, certain factual conclusions and findings remain undetermined. For the purposes of sentencing it falls to the Court to make those findings.

The essential facts proved at trial were as follows:

During the early evening hours of March 2, 1991, Rodney Glen King met with two friends and sat in his wife’s Hyundai automobile in Altadena, a suburb of Los Angeles, drinking a malt beer beverage, Old English 800, packaged in 40-ounce bottles. Mr. King consumed at least two bottles. His friends also drank Old English 800. Although it is not clear precisely how much they each consumed, it is certain that Mr. King consumed more than 80 ounces. Mr. King and his friends drank in the parked automobile for a number of hours. Late in the evening, they left Altadena in the Hyundai. Mr. King drove. Their intended destination is not clear. Mr. King testified that it was Hanson Dam, but his friend Bryant Allen testified that the three companions left Altadena to “look for women.”

Mr. King was intoxicated. He drove the Hyundai from Altadena to the 210 Freeway, then west from Pasadena towards the city of San Fernando. While westbound, in the vicinity of La Tuna Canyon Road, CHP Officer Melanie Singer and Officer Tim Singer, her husband and training officer, observed the Hyundai speeding westbound on the freeway behind the CHP cruiser. Officer Melanie Singer was driving. The CHP vehicle exited and re-entered the freeway at Sunland Boulevard, and with red lights and siren activated followed the Hyundai, which was by then about one mile west of the CHP vehicle. Officer Melanie Singer estimated the speed of the Hyundai west of Wheatland Avenue as being in excess of 100 m.p.h.

Mr. King left the freeway at Paxton Avenue and commenced traveling on surface streets, followed by the Singers’ CHP unit. Officer Melanie Singer called for back up. The CHP dispatcher alerted LAPD by radio call. The call was heard by patrol officers of the Los Angeles Unified School District in a unit nearby which joined the chase. In addition, Officers Powell and Wind in an LAPD unit responded to the call. During the pursuit, the CHP officers attempted to communicate with Mr. King as he drove on the surface streets, and ordered him to pull over. He failed to do so. Mr. King testified that he did not pull over because he was afraid of returning to prison.

Mr. King continued on the route chosen by him, at times stopping for red lights, at times proceeding through red lights. The CHP vehicle and the school district vehicle followed the Hyundai at varying speeds. They were joined by Officer Powell and Wind’s vehicle. After the Hyundai left the freeway, the pursuit was always at moderate to slow speeds. The three police vehicles followed the Hyundai for a number of miles on surface streets to the point where it stopped at an entrance to the Hanson Dam recreation area on Osborne Street. In all, the CHP unit followed the Hyundai for approximately eight miles before the pursuit ended.

The CHP vehicle, the School District vehicle, and Officer Powell’s vehicle came to rest in the immediate vicinity of the Hyundai. The occupants of the Hyundai were ordered out of the vehicle by Officer Singer. The two passengers exited the Hyundai and followed instructions of the police officers. Mr. King was slow to move from the driver’s seat but ultimately did and was repeatedly ordered to lie on the ground. He emerged from the Hyundai smiling. This was the scene when Sergeant Koon arrived. Officers Briseno and Rolando Solano arrived in their unit moments after Sergeant Koon.

Mr. King did what appeared to be a dance step, and then waved at an LAPD helicopter overhead. Officer Melanie Singer ordered Mr. King to move away from the Hyundai and to place his hands where she could see them, and then again ordered him to the ground. When she did so, he grabbed his buttocks. Officer Singer pointed her service revolver at him. Mr. King did not lie prone but moved around on his hands and knees.

Sergeant Koon took command and ordered Officer Melanie Singer to holster her service revolver. The LAPD officers then commenced the arrest process. Mr. King was a large muscular man and a felony suspect. Sergeant Koon testified that he thought Mr. King may have been recently imprisoned because Mr. King appeared to have engaged in the bodybuilding common among prison inmates. The officers ordered Mr. King to lie in the felony-prone position. He refused to do so. Officers Powell, Wind, Briseno, and Solano jointly attempted to place Mr. King in a felony-prone position. He resisted and became combative, forcing the officers to retreat. ■ The subsequent events were captured by Mr. George Holliday on' videotape, Exhibit 20 at trial.

The tape does not capture the entire sequence. It records the events commencing with a view of Mr. King on the ground, surrounded by officers. The Holliday videotape became the focus of a good deal of testimony at trial and was analyzed in thorough detail by expert and other witnesses called by each side. The Court has reviewed the tape for the purpose of sentencing. Although the videotape creates a vivid impression of a violent encounter, careful analysis shows that it is sometimes an ambiguous record of the crucial events. A meaningful understanding of the events it depicts required the explanation of witnesses who are experts in law enforcement. At trial the Government and defendants agreed that much of the officers’ conduct was justified and legal, yet vigorously disputed whether and when their behavior became illegal.

The principal question for sentencing not answered by the verdicts is, when did the offenses committed by Officer Powell and by Sergeant Koon occur? The answer to this question determines the extent to which these defendants are liable for Mr. King’s injuries. Injury is an element of the offenses with which Officer Powell and Sergeant Koon were charged, and is relevant to the determination of their sentences under the Sentencing Guidelines.

Answering this question requires a two-tiered inquiry. The offenses the jury found to have been committed occurred when Officer Powell used excessive force and formed the intent to deprive Mr. King of his civil rights, and when Sergeant Koon intended to refrain from preventing the officers under his control from using excessive force which deprived Mr. King of his constitutional rights. Sergeant Koon’s criminal liability is not derivative from Officer Powell’s liability. See United States v. Reese, 2 F.3d 870, 889-90 (9th Cir. July 28,1993). Sergeant Koon’s conviction rests entirely upon the wrongfulness of his own conduct, that is, his willful refusal to prevent illegal use of force in his presence. Id. Thus, the Court must make separate determinations concerning Officer Powell’s and Sergeant Koon’s illegal behavior.

(1) Officer Powell

The videotape displays a continuum of events involving behavior that was initially legal and which became criminal. The initial task for the Court, for the purposes of sentencing, is to determine when Officer Powell’s behavior became illegal. Did it become illegal only once and then continue to be illegal for a period of time, or was it at times legal and at times illegal? The Court finds that Officer Powell crossed the line between legal behavior and illegal behavior once. This is demonstrated in Exhibit 20.

Although the videotape is reliable evidence of the physical events that unfolded in the course of Mr. King’s arrest, it provides less direct evidence concerning two factors central to Officer Powell’s illegal behavior. To determine that at any given point Officer Powell’s behavior crossed the line into illegality, the Court must find that Officer Powell used objectively unreasonable force, and that he intended to use excessive force. The standard for objectively unreasonable force is supplied by the Supreme Court in Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989), which held that “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” The Graham Court cautioned that “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Id.

Accordingly, in evaluating the videotape, the Court must take into account the totality of the circumstances, including facts not displayed on the tape. Mr. King had not been searched. Mr. King did not respond to the electrical charge of Sergeant Koon’s ta-ser. Sergeant Koon testified that he observed Mr. King sweating profusely. At least during the initial stages of the arrest process, Sergeant Koon may reasonably have suspected that Mr. King was under the influence of PCP because of Mr. King’s erratic and recalcitrant behavior.

The initial image on the Holliday videotape is of Mr. King on the ground surrounded by officers. For a brief period, he appears to have been motionless. Mr. King testified that during that moment he decided to try to escape through a gap between the Hyundai and a police vehicle into the Hanson Dam recreation area. He then rapidly rose to his hands and knees, and to his feet. He turned, outstretched his arms forward, and charged towards Officer Powell. Officer Powell took a step and struck Mr. King on the right side of his face and head with the side-handle baton. Mr. King fell to the ground. As Mr. King continued to attempt to rise, he was struck by Officer Powell and then by Officer Wind.

Officer Powell struck Mr. King repeatedly on the lower extremities from the 35th second of the tape to the 51st second of the tape. Officer Powell also delivered a blow to Mr. King’s upper torso. Mr. King moved throughout this period, posing an apparent threat. He was ordered to assume the felony-prone position, but failed to respond to these commands. At 55 seconds into the tape, Officer Powell struck Mr. King on the chest or upper abdomen. He rolled over from a position with his abdomen on the ground to a position on his back. Mr. King’s right hand moved in a downward direction across his chest and abdomen. Officer Powell struck Mr. King’s chest or upper abdomen while Mr. King’s hand was moving. After this blow, which may be seen at frame 55:08 on Exhibit 20, the application of force was suspended. The officers observed Mr. King roll over once more onto his abdomen. They watched him for 10 seconds.

In frames 1:03 and 1:04, Officer Powell reached for and briefly handled his cuffs, which were dangling from his right, back trousers pocket. This movement is evidence that Officer Powell perceived Mr. King to be no longer a threat and ready for cuffing.

At 1:05:20, Officer Briseno used his left foot to kick or stomp Mr. King in the upper thoracic area. Mr. King’s body writhed in response. His feet rose, his head rose, and he raised his upper torso on his elbows. These movements by Mr. King were reflexive and nonvoluntary. He posed no threat.

Officer Powell struck Mr. King with his baton at 1:07:28 and thereafter struck him another 5 or 6 times. Officer Wind struck Mr. King times with his baton, and kicked him in the upper thoracic or cervical area six times. Mr. King suffered this series of blows until approximately 1:26. At 1:30:13, Officer Powell handed his cuffs to Officer Briseno, and officers surrounded Mr. King. Mr. King was cuffed at 1:42. The procedure continued to 2:05, by which time Mr. King was tied.

As explained below, the Court finds that Officer Powell’s offense conduct commenced when he struck King at 1:07:28 on Exhibit 20, and continued to 1:26:00. He crossed the line between legal and illegal behavior at this time. No force used by Officer Powell prior to the blow memorialized on the videotape at 1:07:28 rose to the level of criminal deprivation of Mr. King’s rights. Some of it was beyond the standards and practice of the LAPD. However, none of this conduct constitutes a violation of 18 U.S.C. § 242.

To determine the extent to which Mr. King’s injuries resulted from Officer Powell’s illegal behavior, it is necessary to determine when they occurred and whether they were the product of illegal force. These injuries fall into three broad categories: (1) fractures of facial bones and lacerations to the right forehead and facial area, (2) fracture of the distal fibula in the right leg, and (3) body bruises, contusions, and abrasions. The Court’s inquiry is whether any of these injuries occurred prior to 1:07:28.

The Facial Fractures and Forehead Laceration. The most contested issue at trial relating to injuries was whether Mr. King’s facial fractures and forehead laceration were the result of a baton blow, or blows, by Officer Powell, or the result of his face coming into contact with the ground surface. The Court finds that these facial injuries were caused by Officer Powell and that they occurred in the earliest sequence on the videotape when Mr. King, attempting to escape, charged toward Officer Powell.

Although the videotape is out of focus an