Last week, Yolo County Superior Court Judge Samuel McAdam granted a Pitchess motion for former Davis Police Officer Lee Benson, in a case stemming from a barfight and resisting arrest charges against Jason McComic.
A Pitchess motion is a request for information contained in a police officer’s personnel file. The motion is typically raised when defense attorneys have reason to believe that their client was the victim of police misconduct.
Under the Peace Officers Bill of Rights, the office’s personnel file is not normally subject to discovery. It requires, under a 1974 Supreme Court decision, a Pitchess motion.
A Pitchess motion does not grant the defense access to the personnel file. Rather, it grants them access to contact information of witnesses and others who might be able to, through an investigative process, fill in some of the details.
The standard is fairly low. While the law prevents granting Pitchess motions that are essentially masked as “fishing expeditions,” the need to show “good cause” is a low level of information that means that the records sought are both material to the defense and the defense can specify a potential ‘factual scenario’ that establishes a ‘plausible factual foundation’ for the allegations of officer misconduct.
Based on the low level of burden of proof for a Pitchess, Judge McAdam granted the Pitchess motion in this case.
The defense attorney, Deputy Public Defender Emily Fisher, argued, “I am informed and believe that Mr. McComic never intentionally kicked his feet toward the officers and that he didn’t squirm and move his legs until after the officers physically dragged him out of the patrol car and onto the asphalt where he was later injured.”
Ms. Fisher continued, “I am informed and believe that Mr. McComic did not do anything to warrant the officers putting a WRAP immobilization device on him.”
She argued that the police reports were “inaccurate with many omissions, resulting in a false, dishonest, and untruthful representation of this case.”
“[S]ome or all of the observations in the report were fabricated, including Mr. McComic’s alleged aggressive behavior and his kicking at the officers,” Ms. Fisher argues. “Mr. McComic did not make any aggressive statements or actions directed towards either officer as the officers allege in his report.”
She added, “Mr. McComic was squirming because of the officers’ aggressive behavior toward him and not because he was trying to resist being arrested. Furthermore, the defense will assert that the officer’s omissions regarding Mr. McComic’s attempts to avoid physical harm is a misrepresentation of the summary of events that actually took place on June 30, 2012.”
The facts of this case are laid out in the police reports attached to the Pitchess Motion, and the summary is contained in the words of both the defense and the respondents (the custodian of records, in this case the city of Davis and City Attorney Harriet Steiner’s office).
On June 30, 2012, Jason McComic was kicked out the Davis Graduate for allegedly fighting with two other men. When officers arrived on the scene, Mr. McComic was seen sitting in a planter box outside of the bar surrounded by private security officers.
One of the security officers told Officer Lee Benson of the Davis Police Department he had kicked Mr. McComic out of the bar and asked for assistance with kicking out the other two men who were seen fighting with Mr. McComic.
In his police report, Officer Benson determined, based on Mr. McComic’s demeanor and appearance that he was unable to care for his safety, and therefore arrested Mr. McComic on a Penal Code section 647(f), or public intoxication.
It is here that the story takes a twist. The police allege that Mr. McComic refused to stand up and demanded to know why he was being arrested. In response, Officer Benson ordered him to stand up again and grabbed his left arm.
Officer Kimberly Walker assisted Officer Benson and attempted to grab Mr. McComic by his right arm and both officers placed him in a wrist lock to gain compliance.
According to Officer Benson, when Mr. McComic stood up he attempted to stiffen his arms so Officer Benson told him to “relax and not resist.”
They managed to get him into the car. While they filled out paperwork, they heard Mr. McComic yell from the car and when Officer Benson opened the door, Mr. McComic responded by crying and asking why he had been arrested.
As the report describes, “At some point, Mr. McComic turned in the seat sideways to face out toward the open door, putting his right leg outside of the car. When Officer Benson told Mr. McComic to put his foot back into the car, Mr. McComic responded by saying “No.” When Officer Benson told Mr. McComic that he was going to close the door, Mr. Me Comic responded by putting his left foot outside of the door and leaning forward as if he were going to stand up. Mr. McComic then leaned forward and began laughing hysterically and yelling that he was not putting his legs back inside of the car.”
Based on this, Officer Benson put Mr. McComic into a WRAP immobilization device.
“As Mr. McComic leaned forward, Officer Benson grabbed his right shoulder to remove him from the backseat, however, Mr. McComic leaned back in his seat, laid down and began kicking his feet off the ground. Thinking Mr. McComic may kick him, Officer Benson grabbed his right leg and Officer Walker grabbed Mr. McComic’s left leg.”
They would pull him out of the car and onto the asphalt outside. Mr. McComic would allegedly continue to resist and ultimately he “received abrasions to his cheek and chin, which required two sutures to close a gash on his chin.”
Irene Zurko works for Best, Best and Krieger which represents the City of Davis and, as the custodian of records in this case, was the responding party.
“Defendant has not, however, satisfied the good cause standard warranting intrusion into the confidential personnel records as the declaration proffered in support of Defendant’s motion does not set forth a specific factual scenario establishing a plausible factual foundation of officer misconduct, which is what the Pitchess standards require,” Ms. Zurko argues.
She added, “Defendant’s request for information is not narrowly tailored to the officer misconduct alleged by the defense, and certain information that Defendant seeks exceeds the scope of permissible Pitchess discovery and simply cannot be disclosed at this time.”
However, Judge McAdam ruled that for the purposes of the Pitchess Motion, the defense had established a plausible factual scenario that would support an in-camera review of Officer Lee Benson’s personnel file.
Judge McAdam them cleared the courtroom to inspect the records in the in-camera review. After about 15 minutes, the court was reconvened and Judge Adam quietly gave the defense a document, sealed under a protective order.
What we know about Officer Lee Benson is that he was the officer who employed the Taser on Jerome Wren at the Glacier Point Apartments incident last May, that became the subject of the story about Jerome Wren and Tatiana Bush.
Officer Benson, as of January, no longer works with the department.
While the defense may have gained some information here, it is somewhat surprising that they will not be able to learn if Officer Benson left on his own accord or was fired from the department due to his conduct that was only disclosed to the public through Tatiana Bush’s disclosure of her sustained complaint letter.
Police Chief Landy Black, in a letter dated February 5, 2013 writes, “Based on the evidence, it became clear the conduct of the first arriving officer with whom you interacted did not meet the highest standards of conduct and service we expect from our members.”
“In particular, I determined your complain of improper conduct had merit; the officer used an aggressive tone throughout and did not meet our highest standards for interacting with the public,” Chief Black wrote. “Therefore, that portion of the investigation was sustained, meaning that there is clear and convincing evidence that the officer engaged in conduct prohibited under our Department’s Rules and Regulations.”
Chief Black, however, noted that allegations of bias against the first arriving officer, whom Ms. Bush identified for the Vanguard as Lee Benson, was not sustained, meaning that the evidence neither clearly supported or refuted the allegation, so the allegation of bias against the second arriving officer was found to be unfounded, meaning no evidence existed to support the allegation.
Chief Black apologized, stating, “We strive for a display of good manners and professionalism, accompanied by thorough investigative police work. That didn’t occur here. I apologize for that and you being placed in the situation you were, for the breach of professional police service that the Davis Police Department prides itself in, and the impact that it had on you.”
What we do not have from that incident is the Internal Investigative report which might not only shed light on that case, but show a pattern of conduct by Officer Benson, that may have led to his dismissal and that might be pertinent in the matter of Jason McComic, who faces charges of misdemeanor resisting arrested and who received a number of minor injuries in the incident that took place about a month after the Glacier Point Apartments incident.
—David M. Greenwald reporting
