By Crescenzo Vellucci
Vanguard Sacramento Bureau Chief
SACRAMENTO – There was a time, in this sleepy town and not too long ago, when police officers – whose admitted job was to “protect and serve” – would personally drive home someone who had too much to drink at a local watering hole.
Randall Kunsman didn’t have that experience.
After hanging outside a downtown Sacramento bar just after “last call” in the early morning hours of June 13, 2018, he was offered a cab by California Highway Patrol officers. But, when he didn’t take a Lyft (the cab never arrived), Kunsman said he was arrested and treated so roughly at the County Jail that he had to be hospitalized.
That’s because Kunsman “failed the attitude test,” assistant Sacramento County Public Defender Brennan McGee told the jury.
Jurors apparently felt there was more than a little truth to McGee’s story, returning not guilty verdicts within hours on both misdemeanor charges against Kunsman – resisting arrest and battery on a peace officer.
It didn’t hurt that the jury saw video from inside the jail that depicted the rough handling of Kunsman by the CHP.
However, Deputy District Attorney Kavan Jeppson denied the “attitude test” observation by McGee, and emphasized the officers were just there to help a person they believed was intoxicated.
“They asked him how much he had been drinking, and he said, ‘don’t worry about it,’ and resisted them all night. He refused officers’ help all night, and verbally abused them,” said Jeppson in closing arguments.
“His attitude was ‘don’t you have anything better to do?’ He had red, watery eyes, slurred speech. The officers had the duty to get him home safely. They were concerned about his health,” Jeppson added.
And, argued Jeppson, “he resisted handcuffs, squared up, got out of his handcuffs and kicked the windows” of the squad car.
Yet, defense counsel McGee said that if the CHP officers cared so much about Kunsman’s health then why did they arrest him when he simply refused to get into a Lyft when officers commanded him to do so.
“With great power comes great responsibility. The officers exceeded their authority. The arrest was unjustified. Officers engaged in excessive force, leaving him no choice but to protect himself,” said McGee referring jail video that showed Kunsman kicking out at one CHP officer.
The other parts of the video justified, said McGee, Kunsman’s actions, which the defense attorney maintained were acts of self-defense. In fact, the video from inside the jail showed officers on several occasions shoving him, pushing his face into a desk and literally throwing him around like a handcuffed rag doll.
Kunsman, in fact, was hospitalized with arm injuries after his jail booking.
“They (officers) let their tempers get the best of them because the defendant failed the attitude test,” McGee said, noting that Kunsman kicked at them only in an effort to keep them away from him after they mistreated him repeatedly that evening.
“It was a defensive kick. It meant ‘get away from me. I’m afraid of you loose cannons.’ He believed there was a danger of imminent harm,” McGee explained to the jury, showing the bloodied wrists of Kunsman, allegedly suffered when the officers tossed him around in the jail.
“My goal was to find the defendant a ride home (but) he was aggressive,” said CHP officer Miguel Neri on the witness stand, describing Kunsman’s “verbal abuse.” Neri said he only “pushed the defendant’s head hard into a table” after Kunsman kicked at him.
Neri explained Kunsman was arrested for public drunkenness only after he refused to get in the Lyft.
CHP officer Brandon Whitebear confirmed Neri’s description of Kunsman, describing the defendant “slow in responding” to questions, and “swaying…I was concerned he’d walk into traffic.”
However, Whitebear, like Neri, admitted he didn’t give the tests that CHP officers normally conduct to determine the level of intoxication in DUI suspects. Whitebear did detail that Kunsman was “very upset and used profanity.”
But, McGee insisted that the officers had no probable cause to arrest Kunsman. Drinking too much, he said, is not a crime and officers never tested Kunsman to see if he was legally intoxicated.
“It’s not illegal to drink and enter a public street, and it’s not illegal to be drunk. Everything the defendant did demonstrated he had the ability to get himself safely home in one piece. The prolonged detention was unconstitutional (and) there was no probable cause,” he said.
McGee told jurors Kunsman was arrested because “the officers just got tired of dealing him.”
He didn’t do anything illegal other than using some strong language, and that’s a free speech right, said McGee.
“Officers are paid to not hear aggressive language. It does not allow them to engage in excessive force,” McGee said, and noted that the officers “conveniently” left out their manhandling of Kunsman in their reports.
But DDA Jeppson disagreed
“The arrest was lawful, and it was not an act of self-defense. It was misdemeanor resisting and a battery,” he closed in his final words to the jury, which came back with not guilty verdicts a while later.
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Sounds like the CHP officers committed a battery and false imprisonment, but they won’t be held to answer for those.