Three San Bernardino County sheriff’s deputies charged with assaulting a suspect said little during their first court appearance Tuesday.

But outside the courthouse, their attorneys began laying out the framework they may eventually use to try to persuade jurors that their clients were justified in the amount of force they used during the April 9 arrest of Francis Jared Pusok.

“They were told he was armed and dangerous. He wasn’t a poster child,” said defense attorney Michael D. Schwartz. He said the deputies were trying to get Pusok under control and secured.

Charges against law enforcement officers for their actions while arresting a suspect are rare. And even when they are charged, legal experts say it is difficult for prosecutors to win guilty verdicts from juries.

Deputies Nick Downey, 33, Michael Phelps, 29, and Charles Foster, 34, pleaded not guilty Tuesday in San Bernardino County Superior Court to one felony charge each of assault by a peace officer. If convicted, they could face between 16 months and three years in custody.

They were among 10 deputies involved in the arrest of Pusok. The Apple Valley man fled from authorities and led them on a three-hour chase across the High Desert, which ended when Pusok fell off a stolen horse. A KNBC-4 news helicopter filmed the arrest, which included several minutes of deputies hitting and kicking Pusok.

 

WAS FORCE REASONABLE?

After Tuesday’s arraignment, the deputies’ attorneys said that their clients’ actions were justified, and that there was more to the circumstances than visible in the video.

Attorney Richard Hirsch said Foster was one of the last deputies on scene and contended that if the case goes to a jury, they will agree it was a “reasonable” use of force.

Phelps’ attorney, Steven D. Sanchez, said it is important to look at what happened before the video began, and to consider the audio on tape recorders worn by some deputies that he said would show they were not guilty.

Their remarks contradicted statements District Attorney Mike Ramos made last week in announcing the criminal charges. He pointed to enlarged images from the video that showed the three charged deputies kicking Pusok while he was prone on the ground, and said those actions “crossed the line.“

Ramos also noted that seven other deputies weren’t charged because the audio evidence “helped distinguish who violated the law.” He said his office determined those seven were acting lawfully based on what they heard from other deputies.

CONVICTIONS TOUGH

The law grants peace officers wide latitude when it comes to using force to subdue a suspect, and says their actions should be judged from the perspective of a reasonable officer on scene, and not based on hindsight.

In a case like this, the issue will be individual responsibility and individual culpability, and key pieces of evidence will include what was going on in the deputies’ minds at the time of the arrest, said Laurie Levenson, a professor at Loyola Law School.

“Historically, jurors have been very reluctant to convict law enforcement (officers),” Levenson said by phone.

Guilty verdicts might be easier if an officer inflicted serious injuries, was a repeat offender, lied or had a cavalier attitude about the incident, she said.

And while video can be important evidence, it’s not always enough.

“A video never tells the whole story. It never does,” she said.

Levenson brought up the case of Rodney King. In 1991, after a high-speed car chase, a citizen videotaped four Los Angeles police officers surrounding King, some of them striking him.

The citizen shared the videotape with a television station. The officers were charged with assault with a deadly weapon and use of excessive force, but were not convicted.

In the past decade, only two other law enforcement officers in the Inland area have been charged with crimes for their actions while on duty.

In 2012, Beaumont police Officer Enoch Clark shot a high-powered pepper-spray gun into the eyes of a woman during a traffic stop, permanently blinding her. He was charged with several counts of assault. When the case went to trial this spring, the jury deadlocked. The Riverside County District Attorney’s Office plans to retry him.

And in 2006, San Bernardino County sheriff’s Deputy Ivory Webb Webb was charged with attempted voluntary manslaughter and assault with a firearm for shooting unarmed Air Force police officer Elio Carrion during a traffic stop. That shooting was captured on video, which appeared to contradict Webb’s account of what happened.

Schwartz – the same attorney who is representing Downey in the Pusok case – won an acquittal for Webb. Jurors believed that Webb believed he was in danger, one said at the time.

“The video is one small window into an entire event,” Schwartz said.

SUPPORTERS, PROTESTERS

Outside court after Tuesday’s hearing, two groups carried signs. One group of High Desert residents came to support the charged deputies. The other included two men who claimed Downey had beaten and used stun guns on them during past arrests in the High Desert. No civil lawsuits have been filed.

One of them was Cody Williams, 26, who was convicted of evading a peace officer and battery against a peace officer. Last fall, an appellate court sent the case back to Superior Court.

The court may consider evidence of other incidents involving use of excessive force, according to information shared by attorney Michel Anne Hrubic, who stood in for Williams’ attorney, Peter Schlueter.