From: PORAC, July 01, 2016
By: Michael D. Schwartz, ESQ.
Indio is a city with gang problems, property crimes, drugs — you name it. On September 12, 2014, what started out as a routine domestic violence call quickly spiraled into an arrest that would forever change the lives and careers of Chuck Holloway, a well-liked, hard-working, five-year Indio police officer and his partner, Officer Jerry Martinez.
At about 4:30 a.m., Indio dispatch received a call of a domestic disturbance — “Josh,” with his pit bull, was harassing a family, banging on the door of the residence and demanding to see his estranged girlfriend. It was the second call from that residence that night/early morning. Officer Martinez, a lateral trainee on probation at Indio P.D., responded and began directing fellow officers to search for Josh. Officer Maria Mendoza also responded and spotted the suspect and his pit bull. The suspect, however, also spotted Officer Mendoza and fled on foot. Officer Mendoza, needing to make a U-turn, called out his location before losing sight of the suspect for a moment. Officer Martinez responded to the location, spotted the suspect, and jumped out of his vehicle to pursue the suspect on foot. Officer Holloway, who also responded, picked up a visual of the suspect and joined in the foot pursuit. The suspect (later identified as Ruben “Josh” Martinez), once arrested and finally ID’d, was also found to be a known, violent 50 Boys gang member with two felony warrants for his arrest, including one for PC § 245 with a firearm. He led the two officers across streets and traffic, and over two fences, until making his way to the back of the Pueblo Viejo Grill, closed due to the early hour. By this point, Officer Holloway had drawn his Taser and was first in the foot pursuit behind the suspect. Officer Holloway came within 10 to 15 feet of the suspect behind the restaurant but couldn’t get a clear sight with his Taser, as the suspect squeezed between the back of the restaurant and a large storage bin. Officer Holloway peered into the small opening before deciding that his duty belt could never negotiate the narrow gap that the suspect had squeezed through. Officer Martinez, meanwhile, had caught up to the pursuit and ran around the storage bin after the suspect. Officer Holloway turned and decided to run around the bin himself to keep up the pursuit, not knowing that his partner was now ahead of him.
As Officer Holloway was rounding the storage bin, Officer Martinez was confronting the suspect, who had originally taken a challenging stance but then fell to the ground and proned out after seeing Officer Martinez draw his baton. Officer Martinez fell on top of him, baton still in hand, placing his knee onto the suspect’s back to gain control so he could begin handcuffing the suspect. When Officer Holloway rounded the corner, he saw his partner, baton drawn, going to the ground with the suspect. Officer Holloway ran up to the suspect, who at the time was not allowing himself to be handcuffed, and kicked the suspect’s legs. Officer Holloway then came around to the suspect’s right and punched the suspect in the lower right torso two to three times. He then partly straddled the suspect’s back and struggled for two seconds with the suspect’s hand. Officer Holloway punched the suspect three to four more times along the suspect’s upper torso. The suspect seemed to stop resisting Officer Martinez’s efforts to handcuff him, so Officer Holloway got off the suspect, picked up and holstered his Taser, and began looking for a landmark to call out their location. Officer Mendoza arrived shortly thereafter, as did other Indio officers, including Field Sergeant Dave Rodill. After identifying the suspect through his tattoos, the suspect was taken by ambulance to the hospital to be medically cleared (which he was, there being no tangible injuries except for a small scrape under his chin and a small dirt mark on the right side of his face).
Sounds routine, right? So what’s the rub?
Officer Holloway never reported his use of force — not to his sergeant who arrived on-scene and not in a report. Officer Martinez referred to Officer Holloway’s role in his report as “assisting” in the arrest. There was no record of the force until a worker for the restaurant alerted the manager that there had been a significant police presence at the restaurant in the early morning hours. The mother of the manager pulled the videotapes from the outside surveillance cameras and her attention was drawn to Officer Holloway running up to the suspect and, without a moment’s pause, kicking and punching the suspect and then walking away. To make matters worse, Officer Holloway never seemed to help in the actual handcuffing of the suspect, but instead walked away, then walked back and stepped on the suspect. Although there had been no written or verbal report of the force used, there was now a videotape.
The manager called Indio Police Department. The Internal Affairs sergeant, who also was Indio’s training sergeant, eventually became involved and, after meeting with the Chief, it was decided that the investigation would go to the Riverside County Sheriff’s Office (RSO). A criminal investigation was launched by RSO simultaneous with the internal investigation by Indio. The POA immediately called Rains Lucia Stern (RLS) and Officer Holloway’s potential criminal case of felony excessive force was assigned to SoCal RLS Partner Michael Schwartz. Because of a potential conflict of interest, RLS contacted the law firm of Castillo Harper to represent Officer Martinez. Officer Holloway was, in fact, charged and stood trial for a felony PC § 149, excessive force. Officer Martinez, while originally charged with a misdemeanor PC § 32, aiding and abetting after the fact, ended up standing trial for a misdemeanor filing of a false report. The case finally went to trial on May 11, 2016. The trial lasted for about a week and a half.
Pre-trial motions proved effective. Motions work from RLS attorneys Steven Betz and Zach Lopes resulted in the exclusion of co-defendant Jerry Martinez’s voluntary statement, but let in the suspect’s subsequent criminal conviction for PC § 245, assault with a deadly weapon (a firearm). Although the judge denied our motion to introduce evidence of the suspect’s gang affiliation, upon oral argument by counsel, the photographs of the suspect in the hospital were allowed in, gang tattoos and all, to demonstrate a lack of tangible injury.
The main items of evidence against Officer Holloway at trial were the video and the testimony of the IA/training sergeant. Regarding the former, we once again employed the services of David Notowitz of the National Center of Audio Visual Forensics (NCAVF). Aside from the several video enhancements created for trial by NCAVF, hours of close analyses of the surveillance video by David and me produced a demonstrably different interpretation of the video than what the prosecutor had argued all the way from the preliminary hearing through the trial. For example, while the video seemed to show the suspect submitting to Officer Martinez’s show of force by willfully going to the ground, closer scrutiny of the video demonstrated that the camera’s perspective was certainly not Officer Holloway’s, who, upon rounding that corner, was merely privy to the final actions of that seeming submission: the suspect and Holloway’s partner, Officer Martinez, with baton drawn, going to the ground together.
Any reasonable person would agree that the above-described scene would present an exigent and dangerous situation for an officer to come upon. Moreover, a second surveillance video, requested by David Notowitz of NCAVF and finally turned over by the prosecution a month before trial, established that Officer Holloway, having chased the suspect behind the restaurant, was, in reality, not privy to the fact that his partner had caught up and taken the lead in the pursuit. Seeing his partner going to the ground with the suspect was, therefore, a double surprise. Prior to rounding the storage bin, Officer Holloway had not known his partner to be within close physical proximity or that he had his baton drawn and was going to the ground with an unknown suspect.
Finally, a frame-by-frame analysis revealed two more crucial explanations of the video:
- • In between the third and fourth distraction punches, Officer Holloway was seen with both arms taut, struggling with the small of the suspect’s back, presumably with one or both hands. This argument helped to gut the prosecution’s case that Officer Holloway did not make any attempt to effectively assist in the actual control of the suspect’s hands or stop and assess the effectiveness of his distraction strikes. As seen in that one second of video, he had attempted both.
- • and I also created a “follow the stripe” clip of video, based on a pattern on the suspect’s shirt as a landmark, to demonstrate that the prosecution’s assertion that our client had callously stepped on the suspect’s head was, in fact, incorrect. Based on the follow-the-stripe analysis, Officer Holloway stepped on the upper torso (i.e., shoulder/neck) but not the head.
That clip also undermined the prosecution’s argument.
But perhaps the most crucial evidence at trial was the cross-examination of the training sergeant. On direct examination the sergeant testified that Officer Holloway’s use of force violated policy and was inconsistent with Indio police officer training. The inference, therefore, was that the force was unnecessary and unreasonable.
Upon cross-examination, however, I was able to get the sergeant to agree that had our client used his Taser in that circumstance, either deploying the probes or in drive-stun mode, that force would have been within policy and consistent with his training. The question hung out there for closing argument, then, like a worm on a hook waiting for Charlie the Tuna to bite: If a Taser, shooting 50,000 volts of electricity through a person would have been within policy and consistent with training, then how can body weapons, a lower level of force, be a felony?!
The answer, of course, is that it can’t.
Moreover, how can a drive-stun be used as pain compliance to distract the suspect so that the partner officer can effectuate the arrest be consistent with policy and training, but a punch leaving no injury or mark used as pain compliance to distract the suspect so the partner officer can effectuate the arrest be a crime?!
I then “refreshed” the sergeant’s memory regarding POST Learning Domains 20 and 33, the latter stating right in the first chapter that body weapons may be used in securing a resistive suspect, “especially in ground control situations,” which is exactly what we had here in this case. Caught off guard, the sergeant answered that he disagreed with POST. The cross-examination went something like this (in sum, if not in substance):
Attorney: So, please correct me if I’m wrong, Sergeant, but we just agreed, didn’t we, that POST is the organization responsible for all certifying police officer training in the State of California?
Attorney: The one that actually certifies your course?
Attorney: And your testimony is that you disagree with POST?
In closing, we were able to weave those exchanges, coupled with other parts of the cross-examination, highlights of other witness testimony and the law, into an argument that consistently reminded the jury not only of the oath they took to hold the prosecutor to his burden of proof, but also what the evidence really did show: that Officer Chuck Holloway was not guilty of excessive force. In just over two hours, the jury agreed. An ecstatic Officer Holloway confided in me that after the closing arguments but before the verdict, his family kept saying, “May the Schwartz be with you.” After the verdict, all he could do was smile and thank God, his attorney and everyone at RLS and PORAC/LDF for giving him and his family his life back.
Michael Schwartz would like to thank behavioral psychologist/use-of-force expert Dr. Thomas Streed, whose pretrial consultation proved significant in preparing Officer Holloway’s defense.